Phibion Gwatidzo v First Transfer Secretaries (Private) Limited and Others

The applicant was the liquidator of Renaissance Securities (Pvt) Limited (in liquidation). In executing his duties, he instructed the second respondent (Mast Stockbrokers) to sell various parcels of shares in the company's name. Between 27 June and 9 July 2013, the second respondent sold shares valued at $308,683.57, which was deposited into a trust account. Between 28 June and 22 July 2013, additional shares valued at $434,167.14 were sold. On 25 July 2013, the second respondent advised the applicant that the third respondent (Securities Commission of Zimbabwe) had issued a directive to stop selling the company's shares and to reverse any sales already made and cancel registrations. The second respondent stopped dealing with the shares and demanded reimbursement of $308,687.57. The applicant approached the court on an urgent basis seeking a declaration that the third respondent's directive was unlawful and had no power to interfere with the liquidation process.

• Whether it is competent to seek a final order in an urgent chamber application
• Whether the matter was properly brought as an urgent application
• Whether a liquidator's application is inherently urgent as a matter of law
• Whether the Securities Commission had power to interfere with a liquidation process

The application was dismissed with costs against the applicant.

It is not competent to seek final relief in an urgent chamber application. Urgent applications are designed to provide interim protection pending determination of the main dispute, with proof required only on a prima facie basis. Seeking final relief on an urgent basis defeats the object of interim protection as it allows a litigant to obtain final relief without proving their case on a balance of probabilities. Further, urgency must be properly established in the founding papers and certificate of urgency. An application brought by a liquidator is not inherently urgent as a matter of law simply because liquidation processes are supervised by the court. The applicant must still demonstrate on the papers why the matter cannot wait for determination through ordinary procedures.

The court observed that the certificate of urgency filed by the certifying practitioner did not assist the applicant's case, as it did not explain what harm had already been suffered and made references to demands for cancellation that were not supported by the founding affidavit. The court also noted that the company in liquidation could not be sued without leave of the court, which undermined the alleged urgency based on potential litigation. The court indicated that had the points in limine not succeeded, it would have been necessary to address the substantive issue of whether the Securities Commission had power to interfere with the liquidation process, but given the procedural defects, this was unnecessary.

This case reinforces important procedural principles in Zimbabwean (and by extension South African) law regarding urgent applications. It confirms that: (1) final relief cannot be sought on an urgent basis as this defeats the purpose of interim protection and allows a litigant to obtain final relief without properly proving their case; (2) urgency must be properly established in the papers and cannot be assumed based on the status of the applicant; and (3) even liquidators operating under court supervision must comply with procedural requirements and cannot claim inherent urgency for their applications. The case serves as a reminder that compliance with procedural rules is essential regardless of the nature of the underlying substantive dispute.