Matupula Hunters (Pvt) Ltd v Tsholotsho Rural District Council and Others

The applicant filed an urgent chamber application on 28 March 2017 seeking a provisional order interdicting the 1st respondent from issuing a hunting permit to the 2nd respondent in respect of Tsholotsho North Concession. The application was heard by Takuva J on 3 April 2017 with all respondents represented or present, and a provisional order was granted on 4 May 2017. After the provisional order was granted, the respondents' legal practitioners requested that the applicant serve the provisional order on them to enable them to file opposing papers, with the dies induciae counting from the date of service. The applicant's legal practitioner refused to serve the provisional order, contending that service of the initial urgent chamber application on 28 March 2017 was sufficient and that respondents were automatically barred from filing opposing papers as the 10-day period had lapsed. The respondents filed their notice of opposition and opposing papers on 22 May 2017 without having been served with the provisional order. The applicant raised a point in limine arguing that the respondents were barred from opposing confirmation of the provisional order.

• Whether a provisional order must be formally served on respondents after it is granted in order to trigger the dies induciae for filing opposing papers to the confirmation application
• Whether the dies induciae for opposing confirmation of a provisional order runs from the date of service of the initial urgent chamber application or from the date of service of the provisional order itself
• Whether the matter was properly before the court given the applicant's refusal to serve the provisional order on the respondents
• Whether respondents were automatically barred from filing opposing papers where the applicant refused to serve the provisional order

1. The point in limine raised by the applicant is hereby dismissed. 2. The parties are directed to set down the matter for hearing on the merits. 3. The applicant shall pay the wasted costs.

A provisional order granted by the court must be formally served on respondents after it is issued, and the dies induciae for filing opposing papers to the confirmation of the provisional order runs from the date of service of the provisional order itself, not from the date of service of the initial urgent chamber application. An applicant who deliberately and inexcusably refuses to serve a provisional order on respondents in compliance with the High Court Rules may not seek the court's indulgence to have the provisional order confirmed. It is procedurally irregular and improper for an applicant to seek confirmation of a provisional order which it has deliberately refused to serve upon the respondents.

The court observed that the draft provisional order attached to the urgent chamber application was defective in that there was no portion dealing with service of the provisional order as required by Rule 247 of the High Court Rules, though this defect did not go to the root of the application. The court also noted that in urgent chamber applications, respondents are afforded an opportunity to oppose confirmation of the provisional order upon proper service of the order, similar to the procedure outlined in Ex parte ZIMASCO (Pvt) Ltd HH-53-16 where respondents who unsuccessfully oppose at the chamber stage are nonetheless afforded another opportunity to oppose confirmation of the provisional order. The court remarked that following the applicant's logic would lead to the absurd result that respondents would have to oppose confirmation of a provisional order before it was even granted.

This case clarifies important procedural requirements in Zimbabwean civil procedure regarding provisional orders under Order 32 Rule 247 of the High Court Rules. It establishes that formal service of a provisional order on respondents is mandatory and that the dies induciae for filing opposing papers to the confirmation of a provisional order runs from the date of service of the provisional order itself, not from the date of service of the initial urgent chamber application. The case serves as a warning against attempts to gain procedural advantages through deliberate non-compliance with court rules regarding service. It reinforces the principle that courts will not entertain applications for confirmation of provisional orders where the applicant has willfully refused to serve the order on respondents in accordance with the rules.