Probadek Investments (Pvt) Ltd v Redwing Mining Company (Pvt) Ltd and Others

The applicant (Probadek Investments) entered into a joint venture agreement with the first respondent (Redwing Mining Company) on 15 October 2020, followed by a tribute agreement on 30 November 2020 granting the applicant exclusive mining rights over certain claims. The first respondent had been placed under corporate rescue on 13 July 2020 with Cecil Madondo appointed as corporate rescue practitioner. The applicant alleged that on 2 December 2020 it discovered that the first respondent, through its corporate rescue practitioner, had executed tribute agreements with the second and third respondents over the same claims. The first respondent had also issued a notice to terminate the joint venture agreement with the applicant on 15 December 2020 for alleged breach. The applicant filed a previous defective application (HC 7274/20) in December 2020 which was withdrawn. One of the applicant's co-directors was in Dubai from 23 December 2020 to 17 January 2021. The applicant filed the present urgent application on 11 February 2021 seeking leave to sue the first respondent (under corporate rescue) and an interdict preventing the second and third respondents from mining the claims pending arbitration.

• Whether the application was urgent and properly brought on an urgent basis
• Whether the applicant unreasonably delayed in asserting its rights
• What constitutes urgency in urgent applications
• When does the 'need to act' arise for purposes of determining urgency
• Whether non-joinder of the corporate rescue practitioner rendered the application invalid
• Whether it is proper to seek leave to sue and substantive interdictory relief in the same application

The application was struck off the roll as not urgent. The applicant was ordered to pay the wasted costs of each respondent.

Urgency in urgent applications is determined by whether, at the time the need to act arose, the matter could wait. Urgency stemming from deliberate or careless abstention from action until a deadline approaches is not the type of urgency contemplated by the rules. Where an applicant becomes aware of facts giving rise to a cause of action but delays for over two months before approaching the court on an urgent basis, without reasonable explanation for the delay, the application will be dismissed as not urgent. Technical obstacles such as the physical absence of a co-director or quarantine requirements do not constitute reasonable explanations for delay where virtual or telephonic communication is possible. The withdrawal of a previous defective application without immediate refiling demonstrates that the applicant does not regard the matter as urgent.

The court noted preliminary points raised by the respondents regarding non-joinder of the corporate rescue practitioner and the alleged impropriety of seeking leave to sue and substantive relief in the same application, but declined to determine these issues given the finding that the application was not urgent. The court observed that if an applicant does not "jump when the need to act arose, it cannot call upon the court to jump for it" - emphasizing that urgent matters are akin to emergencies requiring immediate action. The court was not persuaded by the applicant's argument regarding irreparable harm due to the corporate rescue practitioner's arrest, noting that mining records would likely be kept by the second and third respondents. The court also noted factual inaccuracies in the applicant's papers, such as the claim that mining claims "belonged" to the applicant when they actually belonged to the first respondent with the applicant merely having mining rights.

This case reinforces the established principles governing urgent applications in Zimbabwean law, particularly the Kuvarega test. It emphasizes that urgency is determined objectively by when the need to act arose, not by the applicant's subsequent characterization of the matter. The judgment demonstrates that courts will scrutinize delays carefully and that technical obstacles (such as absence of directors, quarantine, need for board resolutions) will not excuse unreasonable delay where virtual communication is possible. The case is instructive on what does not constitute urgency - waiting two months after becoming aware of the cause of action, withdrawing a previous application without immediate refiling, and failing to demonstrate irreparable harm. It also illustrates the intersection of mining law, corporate rescue provisions, and procedural law in the context of competing claims to mining rights.