National Foods Limited v Godfrey Ngwaru and Others

The first to third respondents obtained an arbitral award against the applicant on 3 February 2011. The award was registered with the High Court on 25 March 2011, and a writ was issued the same day and served on 27 April 2011. On 15 April 2011, the applicant successfully had the award set aside by the arbitrator. The applicant filed an urgent chamber application seeking stay of the writ which was dismissed by Mtshiya J on 17 May 2011 for lack of urgency, with the applicant being advised to proceed by ordinary application. The applicant appealed to the Supreme Court which granted a stay of execution on 20 June 2011. On 30 January 2015, the Supreme Court Registrar advised that the appeal had lapsed due to non-compliance with Rule 34(1). On 17 February 2015, the respondents obtained a fresh writ which was served on 31 March 2015. The applicant then instituted the present urgent application seeking to set aside the February 2015 writ on grounds that the original award had been set aside, execution had been permanently stayed, and the amount claimed was excessive.

• Whether the deponent to the founding affidavit had authority to represent the applicant company
• Whether the matter was res judicata given the previous application HC 4410/11
• Whether the matter was urgent enough to justify hearing on an urgent basis
• Whether a fresh writ could be issued after the appeal staying the original writ had lapsed

1. The application is struck off the roll. 2. The applicant is to pay the first to third respondents' costs on a higher scale.

A litigant seeking assistance through urgent application must demonstrate having taken timeous action when the danger to be averted first arose. A party who brings proceedings urgently gains considerable advantage over other litigants and this preferential treatment is only extended where good cause can be shown. Where a party has been advised to proceed by ordinary application and chooses instead to pursue an appeal which subsequently lapses, that party cannot later claim urgency to obtain the same relief it could have sought years earlier through ordinary proceedings. Self-created urgency does not justify hearing a matter on an urgent basis.

The court observed that it is often improper for litigants to take objection to the other party's locus standi, especially where from prior dealings they should be aware that the challenge will not succeed. The court also noted that the quantum of evidence required to prove authority to represent a company depends on the nature and strength of the challenge mounted by the respondent - where no factual basis is laid for the challenge, mere bold averments will not succeed against an averment under oath by the deponent.

This case is significant for establishing the standards for urgent applications in Zimbabwe, particularly where a party has been previously advised to proceed by ordinary application and has chosen an alternative route (appeal) which subsequently fails. It reinforces that urgency is not established where a party delays in taking action or creates its own urgency by failing to pursue available remedies timeously. The case also clarifies the evidentiary threshold for challenging corporate authority where there have been prior dealings between parties.