Kan Dumba Trust v Dohne Construction (Pvt) Ltd & Anor

The applicant purchased immovable property in Greendale, Harare from the first respondent through a written agreement of sale dated 24 September 2021. The applicant paid the purchase price in full and the title deed was released by the mortgagee bank to the conveyancer. By 27 April 2022, everything was ready for transfer. However, on that date, the first respondent retrieved the title deed from the conveyancer, preventing transfer from being registered. A dispute had arisen as early as October 2021 over who was obliged to pay Value Added Tax (VAT) to ZIMRA - the applicant contended that Clause 14.1 of the agreement placed this obligation on the seller (first respondent) to pay "any Capital Gains Tax and or VAT whatsoever relating to the Sale", while the first respondent claimed it was entitled to the full purchase price less only the capital gains tax. The applicant filed an urgent chamber application on 9 May 2022 seeking an order compelling the first respondent to return the title deed and sign transfer documents. The agreement contained an arbitration clause requiring disputes to be resolved through arbitration.

• Whether the matter was properly brought on an urgent basis
• Whether the applicant acted with reasonable dispatch in approaching the court
• Whether the applicant failed to disclose material facts in breach of the duty of utmost good faith
• Whether the court had jurisdiction to entertain the matter in light of the arbitration clause in the agreement
• Whether the interim relief sought was final in nature and therefore incompetent

The application was removed from the roll of urgent matters with costs. The court refused to award costs on the higher scale as sought by both parties, finding no basis for a penal order of costs.

A litigant who fails to act with reasonable dispatch once the need to act has arisen cannot approach the court on an urgent basis. The court takes its cue from the applicant - the applicant must first treat their cause with the urgency they claim it deserves before asking the court to do so. Urgent applications are of utmost good faith and require full disclosure of all material facts known to the applicant. Failure to disclose relevant and material information, such as the existence of a substantive dispute underlying the relief sought, is fatal to an urgent application. Where a dispute has existed for months and the applicant has taken no action during that period, the matter cannot be treated as urgent merely because the applicant has belatedly decided to act.

The court made obiter observations that: (1) Had the matter been urgent, the proper approach would have been for the applicant to refer the VAT dispute to arbitration (as required by the agreement) and seek interim relief from the court to prevent encumbrance of the property pending arbitration; (2) While the court did not need to determine whether it had jurisdiction in light of the arbitration clause (given the finding on urgency), this issue would have presented difficulties for the applicant's case; (3) The court noted it would have been relieved of dealing with other technical objections given the conclusion on urgency, but chose to emphasize the disclosure issue because it had "repeatedly raised it over the years" in various cases. The judge expressed initial sympathy for the applicant's position before reading the opposing papers, understanding that the respondent had received full payment and then retrieved the title deed, which "seemed irrational and spiteful", but this view changed after hearing both sides.

This case is significant in Zimbabwean jurisprudence (and relevant to South African law given similar procedural principles) for reinforcing several important principles governing urgent applications: (1) An applicant must demonstrate urgency through their own conduct by acting with reasonable dispatch once the need to act arises; (2) Unexplained delays, whether in bringing the application or in signing documents, are fatal to claims of urgency; (3) Applicants have a duty of utmost good faith to disclose all material facts known to them, particularly in urgent applications where the court may decide matters on the applicant's version alone; (4) The existence of alternative dispute resolution mechanisms (such as arbitration clauses) may be relevant in assessing whether urgent court intervention is appropriate; (5) Courts will not prioritize matters as urgent where applicants have sat on their rights for extended periods before seeking relief. The judgment provides guidance on the proper approach to urgent applications involving contractual disputes with arbitration clauses.