Servemox Investments (Pvt) Ltd and Others v Albatross (Pvt) Ltd and Others

The applicants (Servemox Investments (Pvt) Ltd, Ruth Mugweni and Campion Mugweni) brought an urgent chamber application seeking interim relief in relation to 15 truckloads of tobacco weighing 270,239 kilograms. According to the applicants, the tobacco had been warehoused for two years. The applicants claimed they were not aware the tobacco was under police seizure. A letter dated 3 October 2019 gave them 5 days to remove the tobacco from the warehouse. The letter referred to a meeting in August 2019 where applicants were informed the tobacco could not continue to be kept in the warehouse because the lease had expired and rentals had not been paid. The applicants sought: (1) a declaration that the notice of seizure be declared null and void, (2) an interdict preventing the first and second respondents from laying claim to the tobacco and its release to applicants, (3) an order directing the Officer Commanding CID Commercial Crime Unit to assist in enforcement and release the tobacco, and (4) costs on a legal practitioner-client scale.

• Whether the matter was urgent and could be dealt with on an urgent basis
• Whether the applicants complied with the requirements for urgent applications
• Whether the relief sought constituted interim or final relief
• Whether the applicants acted expeditiously upon becoming aware of the need to act
• Whether the relief sought could be granted through a provisional order
• Whether costs on an attorney-client scale were warranted

The matter was struck off the roll of urgent matters. The applicants were ordered to pay the respondents' costs jointly and severally, the one paying the others to be absolved.

A matter is urgent only if it cannot wait to be dealt with as an ordinary court application, and the applicant must demonstrate that: (1) they acted expeditiously upon becoming aware of the need to act; (2) if relief is not granted urgently, the relief would be hollow or the applicant would suffer irreparable prejudice; and (3) the urgency does not stem from deliberate inaction or is self-inflicted. Relief that is final in nature (such as declarations of nullity and final interdicts) cannot be granted as interim relief on an urgent basis through a provisional order. Urgency arising from waiting until the day of reckoning after being informed of issues months earlier constitutes self-inflicted urgency and does not qualify for urgent treatment.

The court noted that the prayer for costs in the interim relief was incompetent because costs are matters to be determined on the return date and cannot be dealt with at the stage where only interim relief is being sought. The court observed that even if the applicants' claim that they were unaware of the seizure notice was accepted, this would constitute "diligence in ignorance" - they chose not to be aware by failing to investigate after being told in August 2019 that the tobacco could not continue to be warehoused. The court commented that because the matter was found not to be urgent, it was unnecessary to address the other grounds of objection raised by the respondents, including non-compliance with Rule 241 requiring Form 29, material non-disclosure, and seeking final relief on prima facie proof.

This case reinforces important principles in Zimbabwean civil procedure regarding urgent applications. It emphasizes that courts will scrutinize both the procedural requirements for urgency and the substantive nature of the relief sought. The judgment serves as a warning against attempting to obtain final relief under the guise of interim relief in urgent applications. It also illustrates that self-inflicted urgency arising from deliberate inaction or waiting until deadlines approach will not be countenanced by the courts. The case contributes to the jurisprudence on what constitutes genuine urgency versus abuse of the urgent application procedure.