Viller Pharmacy (Private) Limited and Takawira Chagweka v Medicines Control Authority of Zimbabwe

The applicants filed an urgent chamber application seeking to suspend the respondent's decision of 12 July 2018 to cancel the first applicant's premises licence and disqualify the second applicant from dealing with medicines or being a Director of any pharmaceutical business for 24 months. The applicants had noted an appeal to the Administrative Court under case No. ACC 74/18. The applicants sought interim relief pending determination of that appeal. The respondent raised four points in limine, primarily challenging: (1) non-compliance with Order 32, Rule 241(1) requiring use of Form 29 as modified for urgent chamber applications; (2) lack of urgency given the pending Administrative Court appeal; (3) that under Section 61(4) of the Medicines and Allied Substances Control Act, the direction had immediate effect notwithstanding the appeal; and (4) that the applicants' proper remedy lay in the Administrative Court. The applicants acknowledged their form was not strictly compliant but argued the court could condone non-compliance under Rule 4C, and that they had ceased operating and surrendered the licence to their legal practitioners.

• Whether non-compliance with the prescribed form for urgent chamber applications (Form 29 as modified under Order 32, Rule 241(1)) is fatal to the application
• Whether the court can exercise its discretion under Rule 4C to condone non-compliance with procedural rules in the absence of a formal application for condonation
• Whether the court will condone non-compliance mero motu (of its own accord) when no application for condonation has been made
• Whether the applicants' remedy lies exclusively in the Administrative Court rather than the High Court

The matter was struck off the roll with costs awarded to the respondent.

Non-compliance with the mandatory requirement to use Form 29 as modified (a hybrid form) for urgent chamber applications under Order 32, Rule 241(1) is fatal to an application. The court's discretion under Rule 4C to condone departures from procedural rules must be triggered by an application for condonation; the court will not consider condonation mero motu (of its own accord). Where a party is aware of its non-compliance with procedural rules and fails to apply for condonation, it is sufficient for the objecting party to point out the non-compliance for the application to be struck off the roll.

CHIRAWU-MUGOMBA J made an obiter observation that it may be time for the prescribed "Form No. 29 with appropriate modifications" to be developed in a clearer manner so that urgent matters can be dealt with on their merits rather than being struck off on technical grounds. However, the court emphasized that this observation should not serve as an excuse for litigants to fail to comply with the existing rules.

This case reinforces the strict approach taken by Zimbabwean courts to compliance with procedural rules governing urgent chamber applications, particularly the requirement to use the correct hybrid form (Form 29 as modified) when serving urgent applications on interested parties. It establishes that the court's discretion under Rule 4C to condone non-compliance is not automatic and must be triggered by a formal application for condonation. The judgment emphasizes that courts will not exercise their discretion to condone non-compliance mero motu, even where technically empowered to do so. The case contributes to the body of jurisprudence on procedural compliance in urgent applications and underscores that awareness of non-compliance without taking steps to seek condonation will result in dismissal of the application. While this is a Zimbabwean case and not directly binding in South Africa, it illustrates principles of procedural compliance that resonate with South African jurisprudence on court rules and the importance of following prescribed forms.