Pacific Cigarettes Company (Pvt) Ltd (under corporate rescue proceedings) v The Zimbabwe Revenue Authority and Another (99 of 2025) [2025] ZWHHC 99 (18 February 2025)

PACIFIC CIGARETTES COMPANY (PVT) LTD (under corporate rescue proceedings)

versus

THE ZIMBABWE REVENUE AUTHORITY

and

THE MASTER OF THE HIGH COURT

HIGH COURT OF ZIMBABWE

MANDAZA J

HARARE, 13 February 2025 & 18 February 2025

Urgent Court Application

E Mubaiwa, for the applicant

S Banda with K Manika, for the 1^st respondent

No appearance for the 2^nd respondent

MANDAZA J: This is an urgent court application in terms of r 59(6) of the High Court Rules, 2021 (‘the Rules’) wherein the applicant is seeking a declaratur. Should the urgent application succeed, the applicant prays for relief in the following terms:

1. The application be and is hereby granted with costs.

2. It is declared that, during the tenure of corporate rescue proceedings, the first respondent cannot directly or indirectly enforce payment of tax debts, that arose prior to the commencement of corporate rescue proceedings, except in terms of the provisions of the Part XXIII of the Insolvency Act [Chapter 6:07].

3. Consequent to paragraph 2 above, the first respondent should issue to the applicant a Tax Clearance Certificate during the tenure of corporate rescue proceedings.

FACTUAL BACKGROUND

The applicant is a company duly incorporated in terms of the Companies and Other Businesses Act [Chapter 24:31]. The first respondent is an administrative authority responsible for the collection of taxes and is established in terms of the Revenue Authority Act [Chapter 23:11] (“the Revenue Authority Act”). The applicant was placed under corporate rescue in terms of the Insolvency Act [Chapter 6:07] and as a consequence, its affairs fall entirely under the administration of a Corporate Rescue Practitioner (CRP).

At the heart of this dispute lies the issue of a Tax Clearance Certificate (‘TCC’) sought by the applicant from the first respondent. For completeness and to provide better context, it is important to note that the first respondent implemented a Tax and Revenue Management System known as TaRMS for taxpayers, designed to facilitate applications for TCCs, among other things, provided that the requisite conditions are met. By Public Notice 91/2023 issued on 19 December 2023, the first respondent notified all taxpayers of the prerequisites for obtaining a TCC via the TaRMS system, which read:

1. Taxpayer must have taxpayer identity number, TIN, and be registered in TaRMS through the Self-Service Portal (SSP),

2. Taxpayer should be up to date with returns filing;

3. Taxpayer should be up to date with all payments that is VAT, Income Tax, Royalties, Withholding Taxes and Presumptive Tax;

4. VAT registered operators should ensure that all their points of sale are installed with upgraded fiscal devices which are compatible and interfaced with the ZIMRA Fiscalisation Data Management System (FDMS).

On 9 February 2024, the applicant’s corporate rescue practitioner was formally notified of the applicant’s outstanding tax liabilities. Comprising of an income tax debt in the sum of US$19 204 398.35 and non-resident tax on fees totalling US$330 140.26. A claim was duly lodged by the first respondent in respect of the outstanding debt, but the corporate rescue practitioner subsequently rejected it.

Despite this, on 2 January 2025, the applicant submitted its application for a TCC to the first respondent’s Liaison Officer. After receiving no positive response, on 8 January 2025, the applicant followed up on its TCC application, citing the potential risk of stock outs. In response, the applicant was informed that its request was refused due to outstanding tax arrears and the absence of any arrangements for their settlement. The response from the first respondent's liaison officer, provided by email, read as follows:

“Good morning

I regret to inform you that your request for a tax clearance has been denied due to outstanding tax areas. Additionally, satisfactory arrangements for the payment of these taxes have not been made.

Regards.”

The applicant's corporate rescue practitioner subsequently wrote to the officers of the first respondent disputing the refusal of the TCC. The grounds for the challenge were primarily that the applicant is operating under a corporate rescue arrangement since around 20 October 2023. It was also noted that the applicant had been placed in corporate rescue due to distress caused by tax assessments.

On 22 January 2025, the Regional Manager Domestic Taxes, 1 Large Clients Office, wrote to the Corporate Rescue Practitioner of the applicant. Paragraphs 3, 4, and 5 of that letter are pertinent and read as follows:

“3. According to Section 69, the obligation to pay taxes and the right to collect any tax under the Income Tax Act are not suspended unless directed otherwise by the Commissioner, who may impose specific terms and conditions during any objection or appeal process in line with the Income Tax Act.

4. I recognise that while Section 126 of the Insolvency Act suspends the recovery processes, it does not guarantee the issuance of a Tax Clearance Certificate (TCC). Furthermore, there is a question as to whether the provisions of the Insolvency Act, including section 126, supersede the provisions of Statutes administered by ZIMRA, especially where nothing in the Insolvency Act has an overriding effect. Some laws are clear that they have an overriding effect and that they would have clauses which say that notwithstanding what any other statute says. An example is Section 58 Subsection 1 of the Income Tax Act which says, “The Commissioner may, if he thinks necessary, declare any person to be an agent of any other person, and the person so declared an agent shall be the agent of such other person for the purposes of this Act, and, notwithstanding anything to the contrary contained in any other law, may be required to pay any tax due from the moneys in the current account, deposit account, fixed deposit account or savings account, or from any other moneys, including pensions, salary, wages or any other remuneration, which may be held by him, or due by him to, the person whose agent he has been declared to be.”

5. In any case, section 126(1)(f) of the Insolvency Act seems to provide us with leeway to just advise you what we intend to do implying that we can follow up on any assessed tax.”

Against this factual backdrop, the applicant approached this court on an urgent basis, contending that the first respondent’s refusal to issue the TCC, poses an imminent threat of irreparable harm to its business operations, necessitating the court's urgent interference to compel its issuance.

The first respondent opposed the urgent application. In its opposing papers, it raised two preliminary points. One was that the matter was not urgent. The respondent argued that a matter is urgent when it cannot wait. It contended that the onus to prove that the matter was urgent was on the applicant. The first respondent cited several reasons to discredit the urgency of the application which include inter alia:

1. The applicant’s corporate rescue practitioner ought to have known that the requirements for granting a tax clearance certificate include that the applicant ought to be up-to-date with tax i.e. VAT Income Tax, Royalties, Withholding Taxes and Presumptive Tax in terms of section 34C(1)(f) of the Revenue Authority Act.

2. The corporate rescue practitioner did not make meaningful arrangements for payment of the taxes even after the notice issued by the first respondent on 19 December 2023, and that the applicant could still do the same.

3. That it was incumbent on the applicant to either pay all the taxes or operate without a tax clearance and that it was not the duty of the first respondent to advise the applicant on these issues.

4. That the applicant ought to have made arrangements for payment of the due amounts in instalments rather than approach the courts crying foul.

5. That the applicant always knew about the requirements for paying the tax clearance certificate and that being under corporate rescue did not exempt it from these requirements.

6. That no action had been taken by the first respondent against the applicant and that there were still many businesses that were operating without tax clearances.

The second preliminary point raised by the first respondent was to the effect that the relief sought was incompetent. The first respondent argued that the applicant, in its third paragraph, prayed for the granting of a perpetual tax clearance until a time when the company would no longer be under corporate rescue. It argued that no law provides for such a relief and that no declaratur could be granted without a law providing for it.

On the merits, the first respondent in its opposing affidavit opposed the matter on the basis that the application had no legal or factual basis. The first respondent was of the view that the applicant had no cause of action as the first respondent had not directly or indirectly enforced the taxes which accrued before corporate rescue. The first respondent contended that the applicant illegally refused to pay the tax and as such could not negotiate a payment plan for payment of the same. The first respondent insisted that many tax offenders were operating their businesses without paying the taxes as it is not mandatory for a taxpayer to have a tax clearance certificate but that it is encouraged to have one to avoid paying a 30% withholding tax. The first respondent further argued that the applicant was not being candid with the court as it rejected the first respondent’s demands for the payment of US$330 140.26 and US$19 204 398.35 although it had no right to do so.

The first respondent averred that the applicant has not demonstrated how a deduction of 30% from its customers is catastrophic. It argued that the applicant ought to demonstrate the catastrophe with figures. The first respondent further argued that s 34C(1)(f) of the Revenue Authority Act does not allow the first respondent to issue a tax clearance to a non-complying party. The respondent further argued that there was no evidence that refusal by the first respondent to grant the applicant the tax clearance would result in the liquidation of the applicant.

Having read the papers, I invited the parties to present oral arguments before me on the issues emanating from the pleadings. The parties appeared as scheduled and presented their arguments on the preliminary issues in question. I now proceed to summarise their submissions.

SUBMISSIONS BEFORE THIS COURT

At the commencement of the hearing, counsel for the first respondent, Mr Banda raised two points in limine. The first one related to urgency and the second one related to the competency of the relief sought.

Firstly, Mr Banda submitted that the matter was not urgent and that the alleged urgency was self-created. Counsel was of the view that the applicant’s claim that the need to act arose on 22 January 2025 was incorrect. His contention was based on the fact that the CRP was appointed on 4 October 2023 and that at the time of his appointment and at all material times thereafter, he was aware of the applicant’s tax obligations. Mr. Banda referred the court to page 86 of the record where there was a public notice of TaRMS, the electronic tax management system which was published on 19 December 2023. Counsel added that the notice set out the factual requirements that a person ought to satisfy in order to be issued with a valid tax clearance certificate. His submission was therefore that the applicant was aware as far back as December 2023 of what was required for it to acquire a valid TCC.

Counsel also submitted that the applicant knew that if the tax clearance obligations were not met, a TCC would not be issued. His submission was that the applicant ought to have acted timeously but waited until 24 January 2025 to launch the present application. Counsel averred that the issuance of a TCC was not urgent as the applicant had been operating without it. For these reasons, counsel maintained that the present matter was not urgent and prayed that the application accordingly fails.

Secondly, Mr Banda submitted that the relief sought by the applicant was incompetent. Counsel’s contention was that the court could not grant the relief that was sought by the applicant. His reasons being that a TCC is issued in terms of s 34C of the Revenue Authority Act and that the circumstances under which it can be issued are set out therein and hence it cannot be issued through a court order. Counsel submitted that it would be incompetent for the court to issue the order sought because the requirements of s 34C, such as the tariff, must be met. Counsel then referred the court to the case of Magaya v Zimbabwe Gender Commission S-105-21 wherein it was held that one cannot interdict a lawful conduct. Accordingly, he prayed for the application to fail.

In response to the points in limine, Mr Mubaiwa for the applicant in making submission on the issue of urgency, submitted that the matter before the court involved a TCC for 2025, not 2023 or 2024 hence, the need to act only arose in 2025. Counsel submitted that the applicant was issued a TCC for 2024, so it made no sense to contend that the applicant failed to act before 2025. Mr Mubaiwa further submitted that the tax bill that the first respondent was holding arose in 2024 and it was refusing to issue a TCC over a bill they ignored in 2024. Counsel’s submission was therefore that the issue began on 1 January 2025 when the need for a TCC arose. He further averred that the applicant began pursuing the TCC from the first respondent from 2 January 2025 up to 22 January 2025. His submission was that the need to approach the court had not yet arisen as the applicant was still pursuing non-litigious methods of resolving the dispute. He referred the court to the case of Mainroad Motors v ZIMRA HMA 17-17 where the court held that, “if the applicant shows me that I was not in court because I was busy pursing a non-litigious process that was capable of solving the problem then the urgency of the matter remains.”

Mr Mubaiwa also submitted that counsel for the first respondent did not say anything about the consequence of not obtaining a TCC. He averred that the applicant, which is already on corporate rescue was suffering without a TCC by failing to obtain licenses and failing to trade. Mr. Mubaiwa moved for the court to intervene, as per its well-known principle, when a business is threatened with financial ruin. His submission was that this was a case of commercial urgency. Accordingly, he prayed for the dismissal of the point in limine on urgency.

On the second point in limine regarding the competence of the relief sought, Mr. Mubaiwa contended that it was a difficult point to understand. He submitted that the attack was only against para 1 of the draft order and not the entire draft order. Counsel submitted that the point could not be raised as a preliminary point as it touched on the merits of the case. His submission was that whether the applicant satisfied the requirements to get a TCC was a question that could not be raised before this court. He contended that the applicant was not seeking an interdict and as such, the Magaya case (supra) did not come into play. His submission was that the draft order could be amended, varied or altered. As a result, counsel submitted that the point in limine lacked merit and prayed for its dismissal.

In reply, Mr. Banda insisted that the dates prior to 25 January 2025 were relevant to the urgency of the matter as they set the stage for the issuance of a TCC. Counsel submitted that the applicant’s requests for the tax clearance were all rejected on 2 January 2025 and on 6 January 2025, hence, by 9 January 2025, it was clear to the applicant that the certificate was not going to be issued. Counsel submitted that the need to act arose well before 24 January 2025, when the present application was made. He went on to submit that it did not matter whether the issue went into the merits, what the first respondent was attacking was the competence of the relief sought. Counsel thus persisted with his points in limine.

ISSUES FOR DETERMINATION

The issues arising for determination are as follows:

1. Whether or not the matter is urgent and whether the alleged urgency was self-created by the applicant.

2. Whether or not the relief sought by the applicant is competent.

I shall now address these issues ad seriatim.

ANALYSIS

WHETHER OR NOT THE MATTER IS URGENT AND WHETHER THE ALLEGED URGENCY WAS SELF-CREATED BY THE APPLICANT.

In determining this issue, the starting point is to discuss the law on urgency. In terms r 60(6) of the Rules, 2021, “where a chamber application is accompanied by a certificate from a legal practitioner in subrule (4)(b) to the effect that the matter is urgent, giving reasons for its urgency, the registrar shall immediately submit it to the duty judge, handling urgent applications who shall consider the papers forthwith.” The import of the rule is significant and cannot be over-emphasised. It establishes a procedural right, ensuring that any party who satisfies the conditions set out in the rule is entitled to be heard on an urgent basis. This underscores the importance of the rule in facilitating timely access to justice for parties with legitimate urgent matters, provided they meet the specified criteria.

In the case of Mjikwa and Anor v Minister of Health and Child Welfare and Others HH-585-21 at p. 2, this court held as follows with respect to the foregoing rule:

“The abovementioned sub-rule assists the court which is seized with an application which is filed through the urgent chamber book and is accompanied by a legal practitioner’s certificate to assess the urgency, or otherwise, of the application. Where the judge entertains the prima facie view that the application meets the requirements of urgency, he allows it to jump the queue of applications which are filed before it so that it is set down forthwith and is heard within a day or two of its allocation to him. The judge who is seized with an urgent application, more often than not, instructs the registrar to notify all the parties to the same of the date, time and place of hearing. He does so in the interest of serving justice to all and sundry. He refrains from denying audience to those who have an interest in the case. He has to hear everyone before he decides on the urgency or otherwise of the application.”

Similarly, in the case of IBI Mineral Resources (Pvt) Ltd v Time of Hope Mining Syndicate and Others HH–85–22 at p. 9, it was held that:

“The procedure in the rules is not there for the taking. The applicant in an urgent chamber application must set out clearly the circumstances and reasons upon which he/she/it believes the matter is urgent and requires a temporary abrogation of the rules.”

In the case of Chaurura v City of Harare and Anor HH-855-22 at p. 3, the court pronounced upon the legal consequences of an urgent application. In the court’s words, “It follows from a reading of the sub-rule that an urgent application cannot be allowed to wait. It compels the judicial officer who is seized with it to leave everything which is to do with the duties of his office so that he attends to it with the minimum of delay.” See also the cases of National Railways of Zimbabwe v Patnah Trading (Pvt) Ltd and Anor HH–613–23 at p. 6; Svan v Shabtai and Others HH–650–21 at p. 10; Ahmed v Solani and Others HH–897–22; National Association of the Deaf v Sandybeds Investments (Pvt) Ltd and Others HH–300–23 and Mutema and Anor v Officer Commanding Camps and Hostels and Anor HH–137–20.

The invocation of r 60(6) of the Rules requires a Judge to consider the propriety of an application placed before the court. In this regard, the tests and thresholds for urgency have been established by the courts in numerous decisions. Nevertheless, they bear repetition given the centrality of the issue to the present proceedings.

I now turn to apply the two main considerations to the present application.

The first primary consideration in an urgent application is whether or not the applicant treated the matter with urgency. In the case of Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188 (H) at p. 193, it was held that:

“What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the dead-line draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay. In casu, if I had formed the view that it was desirable to postpone the election I may nevertheless, have been dissuaded from granting such an order because, by the time the parties appeared before me to argue the matter, the election was already underway.”

The applicant applied for a TCC on 02 January 2025, intended for the tax year 2025. On 9 January 2025, the application was met with refusal. In a determined effort to challenge the rejection, the applicant engaged in persistent correspondence with the first respondent, the last recorded communication being on 22 January 2025. These efforts however proved futile, as no response was forthcoming. Faced with the apparent finality of the rejection, the applicant instituted the present proceedings on 7 February 2025.

In light of the fact that all material events leading to this application occurred within January 2025, the first respondent’s contention that the duty to act arose as far back as December 2023 is entirely untenable. The applicant’s prompt recourse to litigation accentuates both the urgency of the matter and the diligence with which it was pursued.

Additionally, the applicant’s unwavering efforts to contest the refusal of the TCC prior to litigation, coupled with repeated follow-ups and the numerous follow-ups, unequivocally attest to the gravity with which the matter was regarded.

The second primary consideration is whether the applicant will suffer irreparable harm if the application is not heard on an urgent basis. In the case of Eastriver Investments (Pvt) Ltd & Anor v Mujaya N. O & Anor S–82–19 at p. 4, the Supreme Court held that:

“A matter is urgent if its determination cannot wait. Put differently, a matter is urgent if in waiting, substantial injustice would result to the applicant. Thus, a matter cannot wait if the impending threat, un-arrested, has the effect of knocking the applicant off his or her “legal” feet. A matter is therefore urgent if relief is urgently required or necessary to preserve and protect the applicant’s obtaining legal position. (See Econet Wireless (Pvt) Ltd v Trustco Mobile (Pty) Ltd and Anor 2013 (2) ZLR 309. Nyakutombwa Mugabe Legal Counsel v Mutasa and Ors SC 28/18; Kuvarega v Registrar- General and Anor 1998 (1) ZLR 188 (H); Document Support Centre v Mapuvire 2006 (2) ZLR 240 (H) and Mutarisi v United Family Intl Church & Anor 2012 (2) ZLR 434. (H)).”

In assessing whether the applicant will suffer harm that is impossible to fully recover from, it is important to have regard to the fact that the applicant is under corporate rescue. Being under corporate rescue has negative consequences on the applicant’s ability to trade. The continued refusal to issue the TCC poses irreparable harm to the applicant’s business operations and will bring it to financial ruin. In Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 232 (H) at p 244 A-C, MAKARAU JP (as she then was) confirmed that commercially urgent matters may have access to justice ahead of the queue. She stated:

“It is now accepted that in some cases, even purely commercial interests can be protected urgently in appropriate cases. In Silver’s Trucks (Pvt) Ltd & Anor v Director of Customs & Excise 1999 (1) ZLR 490 (H), SMITH J considered the matter of the release of certain attached imports on the basis that the applicant would face bankruptcy and its 67 employees would lose their jobs as a result. In my view, the reasoning adopted by SMITH J in this regard is still in line with the objective test that had the court waited, there would have been no need for the court to act subsequently. The applicants would have been liquidated and the return to it of the attached imports would not have reversed the effect of non-timeous action by the court. It will be of no further benefit to the applicant to pursue the legal interest.

In my view, urgent applications are those where if the courts fail to act, the applicants may well be within their rights to dismissively suggest to the court that it should not bother to act subsequently, as the position would have become irreversible and irreversibly so to the prejudice of the applicant.”

In view of the above, the application ought to be treated with urgency to avoid the applicant suffering irreparable commercial harm.

WHETHER OR NOT THE RELIEF SOUGHT BY THE APPLICANT IS COMPETENT.

Counsel for the first respondent contended that the relief sought by the applicant is incompetent, as it conflicts with the provisions of the Revenue Authority Act concerning the issuance of Tax Clearance Certificates (TCCs). A brief recital of the applicable law is therefore necessary.

There are various rules of procedure governing the question of the appropriate relief a litigant may seek from a court and that which a court may grant in any given circumstances. In Ahmed v Docking Station Safaris Private t/a CC Sales S–70–18 at p. 5, it was held that “if the relief sought is imprecise and defective, the court cannot grant it”. The granting of judicial relief is an exercise firmly rooted in the principles of constitutionalism and the rule of law. It is not competent for a judge to exercise judicial power in a manner contrary to existing law, thereby, violating the rule of law. In the case of Minister of Lands and Others v Commercial Farmers Union 2001 (2) ZLR 456 (S) at 479, the Supreme Court had this to say about the rule of law:

“There are many facets in the meaning of the expression but its essence is that the law is supreme over decisions and actions of government and private persons. There is, in short, one law for all. The concept postulates that the exercise of all public power must find its ultimate source in a legal rule. In other words, the rights enjoyed and powers exercised must derive from duly enacted or established law.”

In light of the above, several rules of procedure have been developed relating to the grant of relief in urgent chamber applications. In Nhende v Zigora and Anor S–102–22 at 14, the Supreme Court stated that:

“I have had to give a detailed account of the procedure for provisional relief because there appears to be a signal failure or lack of appreciation at the moment at the High Court that when approached on an urgent basis, except where spoliatory relief is sought in which case the court grants final relief, the court is required to issue interim or provisional relief in the form of a provisional order.

Given that, by its very nature, an urgent application requires the applicant to establish a prima facie case for the grant of interim relief, the jurisdiction of the court to grant final relief is not triggered.

In this case, the court a quo completely ignored the draft provisional order that was presented to it by the applicant and related to the matter as if it was an ordinary application, where its jurisdiction to grant final relief would have been triggered. It had not. Doing so was a misdirection which resulted in a gross irregularity.”

The effect of the draft order which the 1^st respondent seeks to impugn cannot be determined at this stage. It can only be determined on the merits as it hinges on the question of whether or not a company under corporate rescue is exempted from paying tax obligations. This point suggests that the central issue in the case revolves around the determination of the tax liability of a company undergoing corporate rescue. This is a point that can only be disposed of on the assessment of the merits of this matter and not at this stage.

Corporate rescue (sometimes known as business rescue or reorganization) is typically governed by insolvency laws. A critical aspect of corporate rescue is ensuring that the company can reorganize its affairs without being burdened by liabilities that could otherwise be extinguished during the process. Generally, during the corporate rescue, the company may be afforded certain exemptions. This issue for determining whether or not the applicant qualifies for that exemption is an issue that can only be ventilated when dealing with the merits of the present application. In JVJ Logistics (Pty) Ltd v Standard Bank of South Africa Ltd and Ors 2016 (6) SA 448 (KZD) at p. 448 the court dealt with the moratorium on business rescue proceedings. The court held that:

“During business rescue proceedings, no legal proceeding, including enforcement action, against the company, or in relation to any property belonging to the company, or lawfully in its possession, may be commenced or proceeded with in any forum …”

In addition, in Metallon Gold Zimbabwe (Pvt) Ltd & Ors v Shatirwa Investments (Pvt) Ltd SC-107-21 at p. 16 Malaba CJ stated as follows:

“During a company’s corporate rescue, the company can only dispose of its assets in circumstances prescribed in s 127(1) of the Insolvency Act. In respect of contracts of employment, the general rule is that employees who were employed by the company before the commencement of corporate rescue proceedings will remain employed with no change to their terms and conditions of employment. However, s 129(1)(a) (i)-(ii) of the Insolvency Act provides exceptions to this rule.”

While business rescue can afford companies a temporary moratorium on legal proceedings, including creditor actions, the question of tax exemptions is not straightforward. The company may still be liable for taxes incurred prior to the commencement of rescue proceedings unless explicitly exempted by the governing legal framework. The tax authorities may still assert claims, but the application of these claims could be postponed or subject to negotiation during the rescue process, particularly if it impedes the business’s ability to reorganize successfully. Therefore, the validity or otherwise of the relief sought ought to be ventilated on the merits as it goes to the centre of the dispute between the parties, and not at this stage.

To add on, a draft order remains a draft for purposes of giving the court directions and showing the wishes of the party seeking relief before it. The court retains the discretion to amend and tailor a draft into an enforceable and legal order of the court. The draft order is but just a guide for the court’s directions but does not bind the court. The court retains the discretion to make its order, even if the draft order reflects a party’s proposal. A draft order is typically submitted by the parties to a case, reflecting their understanding of the relief sought or the proposed terms of the order. However, the court is not bound by the draft order, and it can exercise its discretion to modify or reject the order as it sees fit based on the facts of the case and the law. In Mabhena v Mbangani HB-57-18 at p. 4 MATHONSI J (as he then was) stated as follows:

“The draft order is, after all, the wishful thinking of the applicant. It is for the judge or the court to grant the order and therefore he, she or it should be able to grant whatever order would have been proved in the application.” See Schofield v FBC Bank Limited HH-240-18 at page 3

The same sentiments were echoed in the case of Falyn Investments (Pvt) Ltd v Thema & Anor HH-273/23 at p. 3 wherein Ndlovu J reasoned as follows:

“In any case, this is a Draft Order and the Court is not bound by a Draft Order beyond the purpose for which it is necessary. The Court is at large to paraphrase a Draft Order in a manner that gives effect and meaning to the ultimate Order of Court as long as it does not depart from what in essence the application is all about and what the Applicant desires to be granted. The point in limine taken is without merit and is duly dismissed and disposed of.”

Courts have broad discretion when granting orders. This includes discretion in deciding whether to grant relief based on the merits of the case, the legal framework, and the broader interests of justice. In this context, the court is not limited by the terms suggested in the draft order and can modify the terms or make a completely different order if it deems necessary on the day of the hearing. As such, the preliminary point relating to the draft relief is without merit and is dismissed.

DISPOSITION

The preliminary points raised by the first respondent are without merit and are hereby dismissed. In the result, the court makes the following order:

1. The preliminary objections be and are hereby dismissed.

2. The Registrar of the High Court is directed to set down the matter for hearing on the urgent roll.

3. Costs shall be in the cause.

Maguchu & Muchada Business Attorneys, applicant’s legal practitioners

Sinyoro and Partners, first respondent’s legal practitioners