Innscor Africa Limited v Competition and Tariff Commission

Innscor Africa Limited filed an urgent chamber application on 29 August 2014. The applicant had a pending ordinary application (HC 6819/14) seeking stay of execution on the basis that the first respondent's (Competition and Tariff Commission) decision had been appealed to the Administrative Court. The parties and cause of action in both applications were identical. After the first respondent filed its notice of opposition and opposing affidavit in the earlier application pointing out the applicant's tardiness, the applicant filed this urgent chamber application instead of expediting the earlier ordinary application. When the matter was assigned to Uchena J on 1 September 2014, the judge endorsed that there was a pending application for stay of execution and therefore the application was not urgent. The applicant's counsel sought to be heard on urgency, and a hearing was held on 17 September 2014.

• Whether the application was properly brought on an urgent basis when there was a pending ordinary application on the same subject matter between the same parties
• Whether the doctrine of lis alibi pendens applied to bar the urgent application
• What is the proper procedure for expediting an ordinary application when urgency arises after filing - Rule 223A versus Rule 244 of the High Court Rules 1971
• Whether costs on a higher scale were warranted

The application was dismissed. The applicant was ordered to pay the first respondent's costs on the legal practitioner and client scale.

Where a litigant has filed an ordinary application and urgency subsequently arises, the proper procedure is to expedite that application using Rule 223A of the High Court Rules 1971, not to file a separate urgent chamber application under Rule 244. A case can only be heard on an urgent basis if it cannot await its turn in the queue of cases and the applicant has no other remedy besides seeking an order through urgent chamber application. The existence of a pending application for the same relief between the same parties (lis alibi pendens) removes the urgency from a later urgent application because the applicant has an alternative remedy through expediting the earlier application. Where an applicant persists with an unnecessary application after being advised of the proper procedure, costs on the legal practitioner and client scale are appropriate.

The court refrained from making a determination on the general urgency of the circumstances existing between the parties, stating that this issue should be decided by the court which shall hear the applicant's earlier ordinary application if it is expedited under Rule 223A. The judge acknowledged the discretion to order or refuse a stay of proceedings on grounds of lis alibi pendens citing DW Hattingh & Sons (Pvt) Ltd v Cole NO 1991 (2) ZLR 176 (SC), where the court will have regard to the equities and balance of convenience, but noted that in this case the discretion could not be exercised because there was a clear procedure the applicant should have used and can use to expedite its earlier application.

This case clarifies the proper procedural approach when urgency arises in respect of an already-filed ordinary application in Zimbabwean civil procedure. It emphasizes the distinction between Rule 223A (expediting ordinary applications when urgency arises after filing) and Rules 242 and 244 (urgent chamber applications). The judgment establishes that litigants cannot bypass the queue by filing urgent chamber applications when they have pending ordinary applications that can be expedited through proper procedures. It reinforces the principle that urgent applications should only be entertained when no alternative remedy exists and the matter cannot await its ordinary turn.