Ming Chang Sino Africa Investments (Private) Limited v GDL Number Five (Private) Limited and Others

On 11 April 2017, an agreement was signed amongst Ming Chang Sino Africa Mining Investment (Private) Limited (applicant), DGL Twenty (Private) Limited (2nd respondent), Eagle Italian Shoes (Private) Limited (3rd respondent) and Fuel Africa (Private) Limited. Under the agreement, the applicant, Eagle Italian Shoes and Fuel Africa became investors in DGL Twenty (Private) Limited, which owns controlling interests in DGL Number Five (Private) Limited (1st respondent). Fuel Africa did not take up any rights, and its 10% shares were allocated to Wang Ke (4th respondent). The applicant held 45% shareholding in the 1st respondent, which held interests in over 500 mining locations. Disputes arose among the investors, with the applicant contending there was no accountability for the business and income earned by the 1st respondent, and a lack of transparency in operations. The applicant alleged that other parties operated as sole shareholders, purchasing a CIP plant and milling and processing gold without accounting to other shareholders. Since the agreement in 2017, investors had not known peace. The applicant had drafted several shareholders' agreements which were rejected. On 30 September 2021, a meeting was held which the applicant claimed made it clear respondents had no intention of amicable resolution. On 20 October 2021, applicant filed an urgent chamber application seeking cessation of all mining activities and negotiations for a shareholders' agreement or dissociation.

• Whether the application was urgent and entitled to be heard on an urgent basis
• Whether the certificate of urgency was valid and compliant with legal requirements
• Whether the urgency was self-created
• Whether a shareholder may sue in respect of wrongs allegedly done to the company (not determined due to preliminary point)
• Whether costs should be awarded on an attorney and client scale

1. The point in limine on urgency is upheld. 2. This application is not urgent and is struck off the roll of urgent matters with costs of suit.

For an application to be heard on an urgent basis: (1) A valid certificate of urgency is a sine qua non and must contain a proper timeline of events and factual averments that arise from the founding affidavit; (2) The applicant bears the onus of showing genuine urgency demonstrating imminent danger to existing rights and possibility of irreparable harm; (3) Urgency stemming from deliberate or careless abstention from action until a deadline draws near, or self-created urgency, does not qualify for hearing on the urgent roll; (4) Long-standing disputes and historical grievances cannot suddenly be converted into urgent matters; (5) A company's separate legal personality means shareholders cannot claim urgency based on potential liabilities of the company itself; (6) Applicants must demonstrate they treated the matter as urgent by acting promptly when the triggering event occurred; delays negate claims of urgency; (7) The urgent roll is for matters requiring urgent relief, not a mechanism to bypass ordinary procedures for resolving protracted commercial disputes.

The court noted that the preliminary point regarding whether a shareholder may sue in respect of wrongs allegedly done to the company did not need to be decided given the finding on urgency. The court also observed that what applicant sought to achieve was resolution of long-ranging disputes amongst shareholders, which was unattainable via urgent application. While respondents sought costs on attorney-client scale, the court exercised discretion to award ordinary costs, indicating this was not a case warranting penalty costs despite the defective urgent application. The court emphasized the need for judges to proceed with caution and due diligence in considering urgent applications, as the certificate of urgency exists for the benefit of other litigants who are about to be jumped in the queue but cannot speak for themselves.

This case reinforces the strict requirements for urgent applications in Zimbabwean law and illustrates the court's gatekeeping function in protecting the integrity of the urgent roll. It emphasizes that: (1) certificates of urgency are sine qua non for urgent applications and must contain proper timelines and factual bases arising from founding affidavits; (2) urgency cannot be based on long-standing disputes or self-created circumstances; (3) applicants must demonstrate they treated matters as urgent by acting promptly when the triggering event occurred; (4) the principle of separate legal personality means shareholders cannot claim urgency based on a company's potential liabilities; (5) urgent applications are extraordinary remedies requiring demonstration of imminent danger and irreparable harm, not merely a convenient mechanism to resolve protracted commercial disputes. The judgment demonstrates judicial vigilance against abuse of urgent procedures and protects other litigants waiting in the ordinary queue.