Legacy Hospitality Management Services Limited v African Sun Limited

In September 2015, the applicant and respondent entered into management agreements whereby the applicant managed and controlled the respondent's five hotels and lodges in Zimbabwe (Elephant Hills and Conference Centre, Monomotapa Hotel, Trout Beck, Hwange Safari Lodge, and Kingdom Hotel at Victoria Falls). Around September 2018, the respondent terminated the management agreements on the basis of supervening impossibility, as the Reserve Bank of Zimbabwe had declined to authorise payment of the management fees due to the applicant. The applicant challenged the termination and referred the dispute to arbitration. The parties agreed that the applicant would remain in effective control and management of the hotels and lodges during the arbitration process. On 16 April 2019, the arbitrator handed down his ruling dismissing the applicant's case. On 30 April 2019, the respondent wrote advising of its intention to resume control by 30 June 2019, and on 2 May 2019 demanded handover commence the next day. On 8 May 2019, the applicant filed an application to set aside the arbitral award (HC 3823/19), and on 10 May 2019 filed an urgent application seeking to suspend the handover pending determination of that application.

• Whether the matter was urgent and should be heard on an urgent basis
• Whether the applicant acted timeously when the need to act arose
• Whether the applicant's urgency was self-created through deliberate or careless abstention from action
• Whether the applicant had alternative remedies available

The matter was removed from the roll of urgent matters with costs awarded to the respondent.

For a matter to be heard on an urgent basis, the applicant must demonstrate that they treated the matter with urgency by acting when the need to act arose. Urgency which stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. The trigger for action in arbitration matters is the determination and delivery of the arbitral award, not subsequent correspondence regarding implementation of that award. An agreement to maintain the status quo during arbitration proceedings is limited to the arbitration process itself and does not automatically extend to cover subsequent court challenges to the arbitral award. The applicant must explain in both the certificate of urgency and founding affidavits why timeous action was not taken. The availability of alternative remedies, such as damages claims against a solvent respondent, militates against a finding of urgency.

The court observed that the Reserve Bank of Zimbabwe was at the centre of the parties' dispute, as it had refused to renew the agreement after 8 January 2017 and declined to authorise payment of management fees. The court suggested that the real trigger for action arose when the Reserve Bank refused to renew the agreement, and that the applicant should have taken measures at that time to protect its interests by persuading the Reserve Bank to renew the agreement, rather than pursuing arbitration against the respondent. The court also referenced the constitutional principle under s 56 of the Constitution of Zimbabwe that all persons are equal before the law and have the right to equal protection, noting that matters should generally be heard on a first-filed, first-heard basis, with urgent matters only jumping the queue when truly justified.

This case reinforces important principles governing urgent applications in Zimbabwean courts, particularly regarding when urgency arises and what constitutes timeous action. It emphasizes that parties cannot create their own urgency by delaying action until a deadline approaches, and that applicants seeking to jump the queue of pending matters must demonstrate genuine urgency and lack of alternative remedies. The case applies established precedents on the vigilantibus principle (the law assists the vigilant, not the sluggard) and clarifies that agreements to maintain the status quo during arbitration do not automatically extend to post-arbitration challenges.