Primedia Events and Entertainment Proprietor Limited v Mopani Property Development

The applicant (Primedia) is an outdoor advertising media specialist with an agreement with the City of Harare entered into on 21 March 2014 to install, commission and maintain solar streetlights in and around Harare CBD. In return, the applicant received advertising rights on the installed solar streetlights at no cost to the City. In October 2016, the applicant was requested by the City of Harare to remove street light poles on a section of Borrowdale Road outside Dornie and Piers Road to pave way for road expansion works. The respondent (Mopani) was managing a dualisation project on that section of road, the cost of which was being borne by the respondent with the consent and direction of the City of Harare. The applicant removed the poles as requested. Subsequently, the applicant discovered that the respondent was installing street lights (grid-powered, not solar) on the disputed section and alleged this interfered with its contractual rights with the City of Harare. An interim order stopping both parties from installing street lights was granted by consent on 22 May 2017 by Justice Tsanga. The applicant then sought confirmation of the interim order as a final interdict restraining the respondent from installing lights and requiring removal of existing installations.

• Whether the applicant established the requirements for a final prohibitory interdict (clear right, injury actually committed or reasonably apprehended, absence of similar protection by other ordinary remedy)
• Whether the City of Harare should have been joined as a party to the proceedings given its direct and substantial interest in the matter
• Whether there existed a material dispute of fact that could not be resolved on the papers
• Whether the interim order granted by consent should be confirmed or discharged

The provisional order granted on 22 May 2017 was discharged. The court directed that the matter proceed by way of action proceedings with the City of Harare to be joined to the action proceedings. Costs were reserved to be costs in the main cause of action.

Where a third party (the City of Harare) has a direct and substantial interest in proceedings involving competing contractual rights allegedly derived from that third party, and where material disputes of fact exist that cannot be resolved without the third party's input, the court has the discretion to discharge a provisional order and direct that the matter proceed by way of action with the third party joined. An applicant seeking a final prohibitory interdict must establish: (a) a clear right, (b) an injury actually committed or reasonably apprehended, and (c) the absence of similar protection by any other ordinary remedy. Where these requirements are not satisfied and material disputes of fact exist, the provisional order should be discharged.

The court observed that the applicant had not clearly articulated the full nature and extent of the specific harm and/or damages it may have suffered as a result of either the respondent's or City of Harare's actions. The court also noted that joining the third party should not unduly embarrass the plaintiff unless the third party can show special circumstances why it should not be joined. The court indicated that in exercising discretion regarding material disputes of fact, it may dismiss the application with costs, order the parties to go to trial, or order oral evidence in terms of any Rule of Court.

This case illustrates important principles regarding joinder of necessary parties in Zimbabwean civil procedure, particularly where third parties have direct and substantial interests in the subject matter of the dispute. It demonstrates the court's discretion to discharge interim orders and refer matters to trial where material disputes of fact exist that cannot be resolved on affidavit evidence alone. The case also reinforces the requirements for obtaining a final prohibitory interdict and the court's willingness to exercise its discretion to ensure that all parties with interests in the matter are properly before the court before making final determinations on competing contractual rights.