NetOne Cellular (Private) Limited v Formula Telecom Solutions Limited

The applicant (NetOne Cellular) and respondent (Formula Telecom Solutions) entered into a memorandum of agreement in December 2016 for the installation of a billing system. Arbitration proceedings between the parties were scheduled for 23-24 October 2019 before the London Courts of International Arbitration. On an ex parte urgent basis, the applicant sought a declaratur that the agreement was unlawful and void ab initio for non-compliance with Zimbabwe law (State Procurement Board requirements and Exchange Control regulatory authorisations), and an interdict to stay the arbitration proceedings. The applicant claimed it did not have the means to attend the arbitration hearing and had been aware of the alleged unlawfulness of the agreement since as far back as 2017, though the parties had engaged each other without resolution.

• Whether the application could properly proceed ex parte
• Whether the application met the requirements for urgency under Rule 242 of the High Court Rules
• Whether a declaratur seeking to declare a contract void ab initio could appropriately be sought within an urgent application
• Whether the scheduled arbitration proceedings justified ex parte and urgent relief

The application was struck off the roll of urgent matters.

A declaratur seeking to declare a contract void ab initio cannot properly be brought within an urgent chamber application on an ex parte basis when: (1) the applicant has been aware of the alleged grounds for invalidity for years but delayed bringing proceedings; (2) no irreparable harm is demonstrated beyond difficulty in attending arbitration proceedings required by the contract; (3) the application is brought only when arbitration hearing dates become imminent; and (4) the applicant fails to satisfy the requirements of Rule 242 for ex parte proceedings, particularly the requirement under paragraph (d) that the matter be so urgent and the risk of irreparable damage so great that there is insufficient time to give notice. Self-created urgency arising from delay in acting on known legal grounds does not satisfy the test for urgent relief. Mere lack of financial means to attend contractually-mandated arbitration proceedings does not constitute urgency or justify ex parte procedure.

The court observed that had the applicant filed separate proceedings for a declaratur timeously, with such proceedings pending before the court at the time the respondent caused the arbitrator to set down the arbitration proceedings, then an urgent application to stay the arbitration pending determination of the declaratory proceedings would have been appropriate. The court also noted that the application appeared to have been filed for the sole purpose of avoiding attendance at the arbitration proceedings, which were required under the existing agreement between the parties (specifically clause 19 of the agreement).

This case provides important guidance on the requirements for ex parte and urgent applications in Zimbabwean civil procedure. It reinforces that Rule 242 sets strict conditions for when applications may proceed ex parte, and that urgency cannot be self-created by delaying action on known grievances. The judgment emphasizes that declaratory relief seeking to invalidate contracts cannot be shoe-horned into urgent applications as a tactical maneuver to avoid contractual obligations such as arbitration clauses. It establishes that financial inability to attend proceedings does not, on its own, constitute grounds for urgency or ex parte relief.