ENHANCED MORTGAGING & HOUSING (PVT) LTD and ANOTHER v ZIREGA and OTHERS (448 of 2025) [2025] ZWHHC 448 (29 July 2025)

3 HH 448 - 25 HCH 3417/25 ENHANCED MORTGAGING & HOUSING (PVT) LTD and GONDAYI ANVIL MARANGE versus DEMETRIA ZIREGA and NEDBANK PRIVATE LIMITED and MASTER OF THE HIGH COURT HIGH COURT OF ZIMBABWE DUBE-BANDA J HARARE; 21 & 29 July 2025 Urgent application T K Mandiki, for the applicant C Mupungani, for the 1st respondent DUBE-BANDA J: [1] This application was brought to this court riding on a certificate of urgency. The applicants seek a provisional order in the following terms: Terms of the final relief sought That you show cause why an order in the following terms should not be granted; . The provisional order granted in this matter is confirmed with costs.The first Respondent be and is hereby prohibited from interfering with first Applicant’s operations without resolution of the board and Executor’s consent appointed in the estate of the late Harrison Marange DR 2327/25 or court’s approval.The first Respondent be and is hereby prohibited from representing to third parties as having authority to act for and on behalf of first Applicant without express authority from the Board of Directors. Interim relief Pending the determination of this matter on the return date, the Applicants are granted the following relief: The first respondent be and is hereby immediately ordered to restore first Applicant’s full access to the company premises, safes, financial accounts and all management systems.The first respondent be and is hereby ordered to surrender the bank cards and accounts of Reliable Steelers Account No.1199064431 and Enhanced Power Solution Account NO.11990059669 and any other account belonging to first Applicant immediately.The second respondent be and is hereby ordered to freeze and reverse all transactions from Reliable Steelers Account No.1199064431 and Enhanced Power Solution Account No.11990059669, all transactions which took place at the instance of the first Respondent.The second respondent be and is hereby ordered to restore full banking access to the Applicant as per last lawful mandate in place prior to the death of Harrison Marange. Service of the provisional order The applicant’s legal practitioners and/or employees be and are hereby permitted to serve copies of this provisional order on the respondents or their legal practitioners/employees [2] The application is opposed by the first respondent. The application is opposed based on preliminary objections and the merits of the matter. The second and third respondents took no part in these proceedings; I take it that they intend to abide by the decision of the court. Factual background [3] For purposes of this judgment, I need to set out a succinct history of the matter. The first applicant - Enhanced Mortgaging & Housing (Pvt) Ltd (“company”) is a registered company in terms of the laws of Zimbabwe. The second applicant contends that he drives authority to represent the company from a board resolution. In addition, he contends that he is a son and a beneficiary of the late Harrison Marange and as such he has a real and substantial interest in matters affecting the estate. To put the matter into context, it is important to state that during his lifetime, the late Harrison Marange was a director and the majority shareholder with 51% shares in the company. In addition, one Distone Matiya had 28% shares, while the first respondent has 21% shares. By letter dated 22 January 2025 Distone Matiya relinquished his shareholding and resigned from being a director of the company. On 8 January 2025 the first respondent resigned from being a director of the company. However, it appears that the official documents at the Company’s Officer were not amended to reflect her resignation. Apart from being a shareholder, the first respondent is said to have been cohabiting with the late Harrison Marange, although this relationship encountered serious turbulence to the extent that the latter sued out a summons in case number HCHF 2080/24 seeking an order for the distribution of the parties’ property. Marange died on 13 March 2025, before HCHF 2080/24 was finalized. His estate is registered under DR 2327/25 and is pending the appointment of an executor. [4] Following the death of Harrison Marange, a dispute has arisen between his son – the second applicant – and the first respondent. The second applicant contends that he was appointed Chief Executive Office (“CEO”) by late Harrison Marange, and this appointment is confirmed in his Will. He was further given signing powers on the company Bank accounts. It appears that the first respondent is desirous to challenge the validity of the Will. The second applicant contends that on 9 and10 July 2025, the first respondent orchestrated a hostile takeover of the company, i.e., changed bank accounts, took keys to the company Safe and changed locks to the doors of the company premises at number 17 Edmonds Avenue, Belvedere, Harare. He contends that he has no access to bank accounts, in essence that he cannot manage the company at this moment due to the actions of the first respondent. as will morefully appear later in this judgment, the second applicant’s factual averments are contested by the first respondent. As a result of the above, this urgent application was launched. Preliminary points [5] First respondent’s opposition to the application is firstly based on three points in limine, viz, alleged lack of urgency; alleged incompetence of the order sought; and that this application is not authorized by the company, in that the resolution upon which it is premised is invalid. I now turn to deal with the objection that this application does not pass the test of urgency. Urgency [6] The jurisdictional requirements which needs to be pleaded and proven for the matter to pass the test of urgency have been stated and restated in this jurisdiction. To recap, a matter will be urgent if the applicant can demonstrate, with facts, that it requires immediate assistance from the court, and that if the application is not heard immediately, any order that may later be granted will by then no longer be capable of providing the legal protection required. In other words, if the application is not heard on the roll of urgent matters, the subsequent hearing of the matter would serve no useful purpose because irreparable harm or significant prejudice would have occurred. Sée Document Support Centre (Private) Ltd v T F Mapuvire 2006 (2) ZLR 240. [7] In Kuvarega v Registrar General and Another 1998 (1) ZLR 188, Chatikobo J had this to say: - “What constitutes urgency is not only the imminent arrival of the day of reckoning. A matter is also urgent if at the time the need to act arises, the matter cannot wait, urgency which stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. If there has been any delay, the certificate of urgency or supporting affidavit must contain an explanation of the non-timeous action.” [8] In Document Support Centre (Private) Ltd v T F Mapuvire 2006 (2) ZLR 240 Makarau JP (as she then was) had this to say: - “I understand CHATIKOBO J in the above remarks to be saying that a matter is urgent if when the cause of action arises giving rise to the need to act, the harm suffered or threatened must be redressed or arrested there and then for in waiting for the wheels of justice to grind at their ordinary pace, the aggrieved party would have irretrievably lost the right or legal interest that it seeks to protect and any approaches to court thereafter on that cause of action will be academic and of no direct benefit to the applicant.” [9] It is clear from the authorities that a litigant seeking a matter to be heard on the roll on urgent matters must pass a two rung test, first the litigant must prove that it has treated the matter with the urgency it deserves. This means that the applicant must have acted promptly and diligently in bringing the application to the court's attention, without unreasonable delay. To satisfy the second rung of the test, the litigant must demonstrate that the matter is urgent and that failing to deal with it on an urgent basis will cause irreparable harm. This means the applicant needs to show that the delay in hearing the matter will result in a situation where the applicant will suffer significant and irreversible damage. [10] In casu, I take the view that this application passes the timeline rung of the test. I say so because the first respondent took no issue with this aspect of the matter. I take it that the applicants acted without any delay. [11] It is the second rung of the test that requires closer scrutiny. The central issue on which urgency is claimed is that the first respondent orchestrated a violent takeover of the company, changed bank accounts, and restricted entry into the company premises by changing keys and locks. It is further contended that she took away keys to the Safe which contains company documents, took company bank cards and changed all passwords to such bank cards. It is argued that there is a fear that she might have withdrawn money from the accounts or transferred funds to some other Bank accounts. These facts are disputed by the first respondent; her version is that she has neither taken keys to the Safe nor in possession of Bank cards. It appears also that there is a dispute as to who between the second applicant and the first respondent is in control of the company premises. In their supporting affidavits to the notice of opposition, Getrude Manjokonjo and cashier Kelvin Zvironzo allege that the premises are under the control of the second applicant. The first respondent contends further that she has merely blocked access to the company funds, for the purposes of ensuring that there is no misappropriation until such time that the company is properly managed. She contends that she took this action because according to company documents at the Company’s Office she is still listed as a director, and as a result she has been arrested, charged and she is on remand on allegation arising from the alleged mismanagement of the company. The first respondent’s version can not be said to be far-fetched or clearly untenable that the court can be justified in rejecting it without much ado. See Plascon­ Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E - 635C. What militates against urgency in this matter is that the claim to urgency itself hinges on contested facts. Generally, urgency must be premised on either common cause facts, or facts not seriously contested. Urgency based on disputed facts is problematic. This is the case in this matter. The dispute leaves me in a position where I do not accept that if this matter is not dealt with on the roll of urgent matters, the applicants will suffer irreparable harm or irreversible damage. [12] In addition, it appears to me that the urgency is claimed for the purposes of the second applicant to access company funds at the Bank. The accounts in which the second applicant requires immediate access are not in the name of the company, there are in the name of two separate companies that are not party to this litigation, i.e., Reliable Steelers and Enhanced Power Solution. At this stage the relationship between these two companies and the first applicant has not been clearly spelt out. What is clear though is that the Bank accounts subject to this application are not in the name of the company. The non-joinder of these two companies in which name the Bank accounts are held, militates against the claim to urgency. [13] In addition, the claim to urgency must fail on another important score, i.e., a closer look at the provisional order sought, shows that applicants are seeking a final relief disguised as provisional. It is sought that the first respondent be immediately ordered to restore the first applicant’s full access to the company premises, safes, financial accounts and all management systems. Further, that the first respondent be ordered to surrender the bank cards and accounts of Reliable Steelers Account No.1199064431 and Enhanced Power Solution Account NO.11990059669 and any other account belonging to the first applicant immediately. That the bank freeze and reverse all transactions from Reliable Steelers Account No.1199064431 and Enhanced Power Solution Account No.11990059669, all transactions which took place at the instance of the first respondent. Again, that the Bank further be ordered to restore full banking access to the applicant. No matter what the applicants chose to label this relief; it is final in its effect. There is absolutely nothing provisional about it. Once this so-called interim relief is granted, the first applicant would have achieved his stated objective, to access to bank accounts, bank cards, etc. This is not the purpose of a provisional relief. There would be no useful purpose that would be served by a hearing on the return date. My view is that an application seeking such final relief disguised as provisional cannot pass the test of urgency. I am not suggesting that a litigant cannot seek a final order through an urgent application, what is impermissible is to come to court through an urgent chamber application seeking a final order disguised as provisional. I take the view that such disqualifies the matter from being treated as urgent. [14] This is not the kind of situation that can be rescued in terms of r 60 (9) of the High Court Rules, 2021 which gives the court a discretion to grant a variation to the draft order. See Chiwenga v Mubaiwa 2020 (1) ZLR 1360 (S). In my view r 60(9) does not anticipate amending final relief disguised as interim, so that it becomes truly interim. The application must be struck off the roll of urgent matters, so that the matter can in terms of r 60 (18) be enrolled on the ordinary roll. [15] It is for the above reasons that this application cannot pass the test of urgency. A case has not been made to show that if this matter is not accorded a hearing on the roll of urgent applications, the applicants will suffer irreparable harm or irreversible damage. In other words, I do not think that heavens would fall if this matter is not heard on the urgent roll. [16] In view of the position I take regarding the issue of urgency, it is unnecessary for me to determine the remaining preliminary objection. [17] There remains to be considered the question of costs. Good grounds exist for a departure from the general rule that costs follow the event. This is a case where costs should be in the cause. In the result, I make the following order: The point in limine on urgency be and is hereby upheld.The application is not urgent and is accordingly struck off the roll of urgent matters.Costs shall be in the cause. Dube-Banda J:…………………………………… Chiurumani Law Chambers, applicants’ legal practitioners Mupungani & Muserere, first respondent’s legal practitioners 3 HH 448 - 25 HCH 3417/25 3 HH 448 - 25 HCH 3417/25 ENHANCED MORTGAGING & HOUSING (PVT) LTD and GONDAYI ANVIL MARANGE versus DEMETRIA ZIREGA and NEDBANK PRIVATE LIMITED and MASTER OF THE HIGH COURT HIGH COURT OF ZIMBABWE DUBE-BANDA J HARARE; 21 & 29 July 2025 Urgent application T K Mandiki, for the applicant C Mupungani, for the 1st respondent DUBE-BANDA J: [1] This application was brought to this court riding on a certificate of urgency. The applicants seek a provisional order in the following terms: Terms of the final relief sought That you show cause why an order in the following terms should not be granted; . The provisional order granted in this matter is confirmed with costs. The first Respondent be and is hereby prohibited from interfering with first Applicant’s operations without resolution of the board and Executor’s consent appointed in the estate of the late Harrison Marange DR 2327/25 or court’s approval. The first Respondent be and is hereby prohibited from representing to third parties as having authority to act for and on behalf of first Applicant without express authority from the Board of Directors. Interim relief Pending the determination of this matter on the return date, the Applicants are granted the following relief: The first respondent be and is hereby immediately ordered to restore first Applicant’s full access to the company premises, safes, financial accounts and all management systems. The first respondent be and is hereby ordered to surrender the bank cards and accounts of Reliable Steelers Account No.1199064431 and Enhanced Power Solution Account NO.11990059669 and any other account belonging to first Applicant immediately. The second respondent be and is hereby ordered to freeze and reverse all transactions from Reliable Steelers Account No.1199064431 and Enhanced Power Solution Account No.11990059669, all transactions which took place at the instance of the first Respondent. The second respondent be and is hereby ordered to restore full banking access to the Applicant as per last lawful mandate in place prior to the death of Harrison Marange. Service of the provisional order The applicant’s legal practitioners and/or employees be and are hereby permitted to serve copies of this provisional order on the respondents or their legal practitioners/employees [2] The application is opposed by the first respondent. The application is opposed based on preliminary objections and the merits of the matter. The second and third respondents took no part in these proceedings; I take it that they intend to abide by the decision of the court. Factual background [3] For purposes of this judgment, I need to set out a succinct history of the matter. The first applicant - Enhanced Mortgaging & Housing (Pvt) Ltd (“company”) is a registered company in terms of the laws of Zimbabwe. The second applicant contends that he drives authority to represent the company from a board resolution. In addition, he contends that he is a son and a beneficiary of the late Harrison Marange and as such he has a real and substantial interest in matters affecting the estate. To put the matter into context, it is important to state that during his lifetime, the late Harrison Marange was a director and the majority shareholder with 51% shares in the company. In addition, one Distone Matiya had 28% shares, while the first respondent has 21% shares. By letter dated 22 January 2025 Distone Matiya relinquished his shareholding and resigned from being a director of the company. On 8 January 2025 the first respondent resigned from being a director of the company. However, it appears that the official documents at the Company’s Officer were not amended to reflect her resignation. Apart from being a shareholder, the first respondent is said to have been cohabiting with the late Harrison Marange, although this relationship encountered serious turbulence to the extent that the latter sued out a summons in case number HCHF 2080/24 seeking an order for the distribution of the parties’ property. Marange died on 13 March 2025, before HCHF 2080/24 was finalized. His estate is registered under DR 2327/25 and is pending the appointment of an executor. [4] Following the death of Harrison Marange, a dispute has arisen between his son – the second applicant – and the first respondent. The second applicant contends that he was appointed Chief Executive Office (“CEO”) by late Harrison Marange, and this appointment is confirmed in his Will. He was further given signing powers on the company Bank accounts. It appears that the first respondent is desirous to challenge the validity of the Will. The second applicant contends that on 9 and10 July 2025, the first respondent orchestrated a hostile takeover of the company, i.e., changed bank accounts, took keys to the company Safe and changed locks to the doors of the company premises at number 17 Edmonds Avenue, Belvedere, Harare. He contends that he has no access to bank accounts, in essence that he cannot manage the company at this moment due to the actions of the first respondent. as will morefully appear later in this judgment, the second applicant’s factual averments are contested by the first respondent. As a result of the above, this urgent application was launched. Preliminary points [5] First respondent’s opposition to the application is firstly based on three points in limine, viz, alleged lack of urgency; alleged incompetence of the order sought; and that this application is not authorized by the company, in that the resolution upon which it is premised is invalid. I now turn to deal with the objection that this application does not pass the test of urgency. Urgency [6] The jurisdictional requirements which needs to be pleaded and proven for the matter to pass the test of urgency have been stated and restated in this jurisdiction. To recap, a matter will be urgent if the applicant can demonstrate, with facts, that it requires immediate assistance from the court, and that if the application is not heard immediately, any order that may later be granted will by then no longer be capable of providing the legal protection required. In other words, if the application is not heard on the roll of urgent matters, the subsequent hearing of the matter would serve no useful purpose because irreparable harm or significant prejudice would have occurred. Sée Document Support Centre (Private) Ltd v T F Mapuvire 2006 (2) ZLR 240. [7] In Kuvarega v Registrar General and Another 1998 (1) ZLR 188, Chatikobo J had this to say: - “What constitutes urgency is not only the imminent arrival of the day of reckoning. A matter is also urgent if at the time the need to act arises, the matter cannot wait, urgency which stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. If there has been any delay, the certificate of urgency or supporting affidavit must contain an explanation of the non-timeous action.” [8] In Document Support Centre (Private) Ltd v T F Mapuvire 2006 (2) ZLR 240 Makarau JP (as she then was) had this to say: - “I understand CHATIKOBO J in the above remarks to be saying that a matter is urgent if when the cause of action arises giving rise to the need to act, the harm suffered or threatened must be redressed or arrested there and then for in waiting for the wheels of justice to grind at their ordinary pace, the aggrieved party would have irretrievably lost the right or legal interest that it seeks to protect and any approaches to court thereafter on that cause of action will be academic and of no direct benefit to the applicant.” [9] It is clear from the authorities that a litigant seeking a matter to be heard on the roll on urgent matters must pass a two rung test, first the litigant must prove that it has treated the matter with the urgency it deserves. This means that the applicant must have acted promptly and diligently in bringing the application to the court's attention, without unreasonable delay. To satisfy the second rung of the test, the litigant must demonstrate that the matter is urgent and that failing to deal with it on an urgent basis will cause irreparable harm. This means the applicant needs to show that the delay in hearing the matter will result in a situation where the applicant will suffer significant and irreversible damage. [10] In casu, I take the view that this application passes the timeline rung of the test. I say so because the first respondent took no issue with this aspect of the matter. I take it that the applicants acted without any delay. [11] It is the second rung of the test that requires closer scrutiny. The central issue on which urgency is claimed is that the first respondent orchestrated a violent takeover of the company, changed bank accounts, and restricted entry into the company premises by changing keys and locks. It is further contended that she took away keys to the Safe which contains company documents, took company bank cards and changed all passwords to such bank cards. It is argued that there is a fear that she might have withdrawn money from the accounts or transferred funds to some other Bank accounts. These facts are disputed by the first respondent; her version is that she has neither taken keys to the Safe nor in possession of Bank cards. It appears also that there is a dispute as to who between the second applicant and the first respondent is in control of the company premises. In their supporting affidavits to the notice of opposition, Getrude Manjokonjo and cashier Kelvin Zvironzo allege that the premises are under the control of the second applicant. The first respondent contends further that she has merely blocked access to the company funds, for the purposes of ensuring that there is no misappropriation until such time that the company is properly managed. She contends that she took this action because according to company documents at the Company’s Office she is still listed as a director, and as a result she has been arrested, charged and she is on remand on allegation arising from the alleged mismanagement of the company. The first respondent’s version can not be said to be far-fetched or clearly untenable that the court can be justified in rejecting it without much ado. See Plascon­ Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E - 635C. What militates against urgency in this matter is that the claim to urgency itself hinges on contested facts. Generally, urgency must be premised on either common cause facts, or facts not seriously contested. Urgency based on disputed facts is problematic. This is the case in this matter. The dispute leaves me in a position where I do not accept that if this matter is not dealt with on the roll of urgent matters, the applicants will suffer irreparable harm or irreversible damage. [12] In addition, it appears to me that the urgency is claimed for the purposes of the second applicant to access company funds at the Bank. The accounts in which the second applicant requires immediate access are not in the name of the company, there are in the name of two separate companies that are not party to this litigation, i.e., Reliable Steelers and Enhanced Power Solution. At this stage the relationship between these two companies and the first applicant has not been clearly spelt out. What is clear though is that the Bank accounts subject to this application are not in the name of the company. The non-joinder of these two companies in which name the Bank accounts are held, militates against the claim to urgency. [13] In addition, the claim to urgency must fail on another important score, i.e., a closer look at the provisional order sought, shows that applicants are seeking a final relief disguised as provisional. It is sought that the first respondent be immediately ordered to restore the first applicant’s full access to the company premises, safes, financial accounts and all management systems. Further, that the first respondent be ordered to surrender the bank cards and accounts of Reliable Steelers Account No.1199064431 and Enhanced Power Solution Account NO.11990059669 and any other account belonging to the first applicant immediately. That the bank freeze and reverse all transactions from Reliable Steelers Account No.1199064431 and Enhanced Power Solution Account No.11990059669, all transactions which took place at the instance of the first respondent. Again, that the Bank further be ordered to restore full banking access to the applicant. No matter what the applicants chose to label this relief; it is final in its effect. There is absolutely nothing provisional about it. Once this so-called interim relief is granted, the first applicant would have achieved his stated objective, to access to bank accounts, bank cards, etc. This is not the purpose of a provisional relief. There would be no useful purpose that would be served by a hearing on the return date. My view is that an application seeking such final relief disguised as provisional cannot pass the test of urgency. I am not suggesting that a litigant cannot seek a final order through an urgent application, what is impermissible is to come to court through an urgent chamber application seeking a final order disguised as provisional. I take the view that such disqualifies the matter from being treated as urgent. [14] This is not the kind of situation that can be rescued in terms of r 60 (9) of the High Court Rules, 2021 which gives the court a discretion to grant a variation to the draft order. See Chiwenga v Mubaiwa 2020 (1) ZLR 1360 (S). In my view r 60(9) does not anticipate amending final relief disguised as interim, so that it becomes truly interim. The application must be struck off the roll of urgent matters, so that the matter can in terms of r 60 (18) be enrolled on the ordinary roll. [15] It is for the above reasons that this application cannot pass the test of urgency. A case has not been made to show that if this matter is not accorded a hearing on the roll of urgent applications, the applicants will suffer irreparable harm or irreversible damage. In other words, I do not think that heavens would fall if this matter is not heard on the urgent roll. [16] In view of the position I take regarding the issue of urgency, it is unnecessary for me to determine the remaining preliminary objection. [17] There remains to be considered the question of costs. Good grounds exist for a departure from the general rule that costs follow the event. This is a case where costs should be in the cause. In the result, I make the following order: The point in limine on urgency be and is hereby upheld. The application is not urgent and is accordingly struck off the roll of urgent matters. Costs shall be in the cause. Dube-Banda J:…………………………………… Chiurumani Law Chambers, applicants’ legal practitioners Mupungani & Muserere, first respondent’s legal practitioners