ACE Agritrade Solutions (Private) Limited T/a Agritrade LEAF Tobacco AND Cephas Rukweza AND Tapiwa Jecheche AND Tobacco Industry Marketing Board (TIMB) AND THE Minister OF Lands, Agriculture, Water Climate AND Rural Resettlement, N.O AND Attorney General OF Zimbabwe, N.O

HH 577-18
HC 8362/18


ACE AGRITRADE SOLUTIONS (PRIVATE) LIMITED T/A AGRITRADE LEAF TOBACCO

and

CEPHAS RUKWEZA

and

TAPIWA JECHECHE

and

TOBACCO INDUSTRY MARKETING BOARD (TIMB)

And

THE MINISTER OF LANDS, AGRICULTURE, WATER CLIMATE AND RURAL RESETTLEMENT, N.O

and

ATTORNEY GENERAL OF ZIMBABWE, N.O

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 17 September 2018 & 26 September 2018

Urgent chamber application

S. M  Guwuriro & B.T Kazembe

A Muza & A. Ncube, for the 1st respondent

J. Bhudha, for the 2nd & 3rd respondents

TAGU J: This is an urgent chamber application for an interdict for stay of a disciplinary hearing before the first respondent pending an appeal which is before the second respondent. The background to the application is as follows. On 7 August 2018 MUREMBA J granted a provisional order under Case No. HC 7145/18 (hereinafter referred to as “the order”) which suspended the decision and directive of the first respondent dated 26 July 2018. The order was made pending the applicants’ appeal dated 3 August 2018 before the second respondent and interdicted the first respondent from interfering with the normal day to day business activities of the Applicants as provided for in the Tobacco Industry and Marketing Act [Chapter 18.20].

On 21 August 2018 the first respondent revoked its decision dated 26 July 2018 which at this stage must be pointed out as the root of the provisional order and the appeal before the second respondent. It is not in dispute that the main reason behind the provisional order was that first respondent had not observed the procedural aspects outlined in s 38 (3) of the Tobacco Industry and Marketing Act [Chapter 18:20] thereby denying the applicants an opportunity to be heard when the first respondent made its initial decision. The applicants had then sought relief through an appeal before the second respondent.

On 10 August 2018 the Applicants served the first respondent with the order. On 30 August 2018 having noted that there was no opposition filed by the first respondent, applicants proceeded to set down the matter on the unopposed roll and on 12 September the final order was confirmed. Upon revocation of its decision on 7 September first respondent called applicants for a hearing scheduled for 14 September.

The Applicants primarily based their application on the point that their matter was urgent since the first respondent had failed to comply with Tobacco Industry and Marketing Act, that there was a pending appeal on the decision by the first respondent.

The second and third respondents did not oppose the application. They indicated that they would abide by the decision of the court. The first respondent opposed the matter and raised preliminary technical objections. The first objection was that there was no pending appeal before the second respondent since it had revoked its decision. When the court enquired from the applicants as to the effect of the revocation they did not seem to appreciate the extent of it. Instead they relied on s 38 (4) of the Tobacco Industry and Marketing Act which states that,

“(4) On an appeal in terms of subsection (3) the Minister may confirm, amend or revoke the order made in terms of subsection (1)”

This does not translate to mean the first respondent cannot revoke its decision. It speaks to appeals pending before the second respondent. Applicants also sought to rely on the same provision when they argued that first respondent should have written to the second respondent informing him of revocation of its decision. It appears the applicants did not appreciate the fact that revocation of the decision meant that there ceased to be a decision at all thereby resulting in there being no appeal before the second respondent as well as the order granted under HC 7145/18 losing effect as the root of it all fell away. This is just another classical example of the situation elaborated by Lord Denning in the case of Benjamin Leonard MacFoy v United Africa Company Limited 1962 AC 158,

“It is trite law that you cannot build something on nothing as the whole edifice will fall.”

The main question in this instance is what is the effect of revocation of a previous decision by the Board? The first respondent by revoking its previous decision can only be said to have been trying to correct his previous erroneous decision. It is quite interesting that the Applicants had been crying foul that first respondent had failed to give them an opportunity to be heard yet when they were given that chance to be heard through a disciplinary hearing they rushed to seek relief through the present application by trying to avoid the disciplinary hearing.

I will go on to address the matter of urgency. It also averred that the applicants had created a self-imposed urgency as they had been aware since 21 August 2018 that first respondent had withdrawn its decision but chose neither to act upon it nor actively pursue their appeal with the second respondent. The applicants knew from then that some kind of action was going to be taken by the first respondent however they sat on that knowledge, sought a final order and only acted on it when they realised that the disciplinary action was now impending. For some reason I am convinced the applicants are actually trying to use the justice system to buy time.

I am not convinced that the application is urgent. What-ever urgency that may be there, if any is self-created. It is a common fact that if aggrieved by the first respondent’s decision the applicants will have justified grounds to approach the second respondent and appeal against such a decision or directive. The court will up hold the first preliminary point that this matter is not urgent.

The first respondent also raised a second point in limine that the draft order was defective in that the final order mirrored the interim relief sought. It is an established principle that the object of an urgent chamber application is to get interim relief. Due to the urgency of matters on the papers, the applications are allowed to jump the queue by avoiding the ordinary applications. As stated in Setlogelo v Setlogelo 1914 AD 221 parties bringing such applications should then prove that there is an apprehension of irreplaceable harm, the balance of convenience favours granting of an interim interdict, that there is no other satisfactory remedy and that there are reasonable prospects of success on the merits of the main case.

The interim relief sought by the applicant is exactly the same as the final relief that it seeks. As stated by MATHONSI J in Yemane Berhe Weldeslassie v Mordoric Marketing (Pvt) Ltd & 2 Others this is undesirable in that the applicant would seek to obtain final relief without having proved its case. This obtains from the fact that in an urgent application, the applicant is granted relief merely on establishing a prima facie case See Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (H) 192 G-H and 193 A-B, Qalisa (Pvt) Ltd v Zimra and Anor HB 106/11 at pp 3-4 and Chisina & Ors v Minister of National Housing and Social Amenities HH 443/12 at p 3.

However, it is only fair to consider that where the final order is the same as the interim order every case depends on its own facts as stated by CHITAPI J in Amalgamated Rural Teachers Union of Zimbabwe & Another v Zimbabwe African National Union (Patriotic Front) & Another HMA 36/18. Be that as it may even if this discrepancy may be excused it still remains that all requirements for an interdicted must be met and not viewed in isolation. This therefore brings this court back to the question on whether the present draft order meets those requirements and the answer for reasons stated above is that it does not do so. The applicants merely broke down the provisional relief into a number of paragraph but are putting it in a disguise seeking a final order as a provisional order and this cannot be allowed. If granted there will be no need for the parties to come back for the confirmation of the provisional order because the applicant will have achieved what they intended indirectly. I again uphold the second point in limine.

In the premises I find that the present application is not urgent, the draft order is defective and the following order is made.

IT IS ORDERED THAT

The application is hereby removed from the roll of urgent matters.

Guwuriro & Associates, applicants’ legal practitioners

Mawere Sibanda, 1st respondent’s legal practitioners

Civil Division of the Attorney General’s Office, 2nd & 3rd respondents’ legal practitioners