Prince Nyemba v UBM P and L (Pvt) Ltd and Others

The applicant, Prince Nyemba, brought an urgent chamber application against four respondents seeking to prevent a meeting that would potentially result in his removal as director of the first respondent company. The applicant had been relieved of his position as managing director in May 2014, locked out of his office, and replaced by Mr. Prinsloo. Despite these events occurring in May 2014, the applicant only filed the urgent application in October 2014. The applicant initially failed to serve notices of the hearing on the second and third respondents. When the court insisted on service, the applicant served the respondents in South Africa without first obtaining leave of court as required by Rule 44. During the proceedings, the meeting the applicant sought to prevent took place on 7 November 2014, rendering the original relief sought nugatory.

• Whether the matter qualified as urgent given the delay between the triggering events and the application
• Whether service of process on the second and third respondents in South Africa without prior leave of court under Rule 44 was valid
• Whether the court should dispense with notice requirements to unserved respondents in urgent matters
• Whether the right to be heard (audi alteram partem) could be overridden in the circumstances

The application was dismissed on the grounds that the matter was not urgent. The court declined to hear the matter on an urgent basis.

The binding legal principles established are: (1) For a matter to be treated as urgent by the court, the applicant must himself have treated it as urgent - an applicant cannot expect the court to treat as urgent a matter that the applicant has allowed to languish for months (following Madzivanzira v Dexprint Investments); (2) The right to be heard (audi alteram partem) is a fundamental constitutional right under section 69 that cannot be overridden without the applicant laying a proper evidential basis to justify such an extraordinary procedure; (3) While service of process outside the territorial jurisdiction normally requires prior leave under Rule 44, service effected at the court's behest and with tacit judicial approval will be deemed proper and regular notwithstanding technical non-compliance with the rule; (4) Courts lean in favour of the enjoyment of rights rather than their extinction.

The court made important observations about the foundational nature of the audi alteram partem rule, stating that "the need to hear both sides before making a judicial determination affecting the rights of litigants is the foundation upon which our justice system firmly rests." The court also noted that while the law permits ex parte applications in exceptional circumstances, the onus is on the applicant to justify such extraordinary procedures. The court observed that an applicant's failure to comply with basic requirements of law can compound delay and render relief nugatory, and that it is not conceivable for a court to suspend a resolution that has not been placed before it in evidence.

This case reinforces important principles in Zimbabwean civil procedure regarding urgent applications and procedural fairness. It emphasizes that: (1) the constitutional right to be heard cannot be lightly overridden even in urgent matters; (2) an applicant's own conduct and delay in approaching the court is determinative of whether a matter qualifies as urgent; (3) courts will lean in favour of protecting procedural rights rather than their extinction; and (4) the audi alteram partem rule is foundational to the justice system. The case provides guidance on service of process outside the court's territorial jurisdiction and when defective service may be deemed proper in exceptional circumstances.