Kenmark (Pvt) Limited and Others v Zimbabwe Diamond Technology Centre (Pvt) Ltd and Another

The applicants comprised a technical team (builders, architects, engineers, quantity surveyors, and suppliers) who had been engaged by the first respondent to construct a diamond cutting factory. After about a year, the applicants ceased operations citing non-payment of fees. The applicants instituted a main action for payment for services rendered and claimed a builder's lien over the construction site. Almost a year after ceasing work, the applicants read a newspaper article reporting on a parliamentary visit to the site and statements that construction would be completed by year-end. This prompted the applicants to issue an ultimatum demanding cessation of construction work, and when no response was received, they launched an urgent chamber application for an interlocutory interdict to restrain the respondents from continuing construction, arguing they needed to preserve evidence for the main trial and maintain their builder's lien.

• Whether the matter qualified as urgent for purposes of an urgent chamber application
• Whether the applicants had maintained the requisite possession and control of the site to sustain a builder's lien
• Whether an interdict was necessary to preserve evidence for trial
• Whether symbolic possession was sufficient to assert a builder's lien

The application was dismissed with costs.

For a builder's lien to be valid, the claimant must be in effective and continuous possession of the premises. Symbolic possession is insufficient and cannot substitute actual or effective possession. A matter cannot be treated as urgent when the applicant has waited three years since abandoning the site and only acts after reading a newspaper article, where there has been no material change to the applicant's circumstances. The loss of effective possession of a construction site results in the loss of the right to assert a builder's lien.

The court observed that given the availability of photographs, drawings, and expert certificates documenting the work done, the chances of a visual inspection in loco by a judge during trial would be "next to nothing." This suggests judicial preference for documentary and expert evidence over site inspections in construction disputes where adequate documentation exists.

This case reinforces the strict requirements for urgent applications in Zimbabwean (and by extension South African) law, particularly the principle that urgency must be assessed objectively based on when the applicant became aware or should have become aware of the circumstances giving rise to the urgency. It also reaffirms the established principles regarding builder's liens, emphasizing that effective and continuous possession is required and that symbolic possession through leaving equipment on site is insufficient. The case demonstrates judicial reluctance to grant interdicts on the basis of preserving evidence where alternative means of proof (such as photographs and expert documentation) are available.