1. What is a provisional order? There is no direct definition in the court rules or statute. Nonetheless, a provisional order can simply be defined as an order whose operation is temporary in nature. It is subject to confirmation or discharge or variation. It affords impermanent relief to anyone in whose favour it is granted. Another name for provisional order is an interim order. Once it is granted, one of the parties must act to give final effect to the order. The Applicant would want to have the order confirmed while the Respondent would naturally want it discharged.

  2. In this article, we are concerned with a provisional order relating to the the winding up of a company. In terms of the rules of the High Court, where a provisional order relates to the winding up of a company in which interested parties are to be given an opportunity to oppose the granting of a final order, the provisional order shall—

    (a) specify the date and place at which the court will hear argument on the confirmation of the provisional order; and
    (b) specify the manner in which the provisional order is to be published and, where appropriate, the persons on whom copies of the provisional order, together with all supporting documents, are to be served.

  3. It is therefore apparent that a provisional order has a limited lifespan. It is supposed to have a date for argument termed a “return date” in legal parlance. This return date is crucial as would be noted below. An interested party is entitled to appear on the return day of a provisional order for a winding up or judicial management and show cause why the order should not be confirmed .

  4. What then are the legal consequences if the provisional order is not set down for confirmation or discharge or variation or extension of the return date? In other words, what are the legal consequences if Applicant does not act on the return date? One would be tempted to conclude that the provisional order automatically lapses if the return date comes to pass without Applicant taking the necessary action. However the answer is not as simple as that.

  5. In Boka Investments (Pvt) Ltd vs. Thirdline Trading (Pvt) Ltd & OrsHH-104-13 Patel J, as he then was, stated:
    “It is abundantly clear from the Rules as read with the terms of the provisional order that the return day is critical to its confirmation or discharge. What appears from the papers and from submissions by counsel is that the respondents filed their notice of opposition the day before and that the applicant attempted to extend the provisional order.
    It is not clear how this attempt was made or why it was unsuccessful. What is clear is that provisional order was not confirmed, discharged or extended on the stipulated return day. Ordinarily, this would entail the conclusion that it has lapsed and is no longer extant for the purposes of these proceedings.”

  6. While this conclusion seems inescapable, the court declined to make a finding that the provisional order had lapsed. It considered the fact that the respondent had filed voluminous opposition to confirmation of the provisional order, after the return day had passed, they did not challenge the order or its continued operation on the ground that it had lapsed. Instead, they awaited the filing of the applicant’s heads of argument and responded by filing their own heads of argument. The objection was only raised at the hearing of the matter.

  7. The court also considered the interests of the creditors and other stakeholders. Having regard to all of these factors, the court took the view that the failure to extend the return day of the provisional order should not be regarded as being fatal to its continuing validity. The court deemed it appropriate to exercise its discretion under Rule 4C of the court rules to condone the failure and to proceed with the matter on the basis that the provisional order remained in full force until it is confirmed or discharged.

  8. The Boka case (supra) was followed by Makoni J, as she then was, in Zimbabwe Textile Workers Union vs. David Whitehead Textiles Ltd & Others HC 8307/10, HH 180/18. It therefore appears that the courts are reluctant to quickly deem a provisional order as having lapsed notwithstanding the fact that it was not set down or parties did not appear to extend it. However each case is decided on its own circumstances. Only the court can confirm or discharge it or rule that it has lapsed.

  9. It is therefore not a foregone conclusion that a provisional order becomes inoperative by virtue of failure to set it down on the unopposed roll when there are pending proceedings for confirmation or discharge. Although the general position is that it can be considered to have lapsed, each case has to be taken on its own facts. The point remains that the court holds the discretion to determine the status of the provisional order.

[1] In re Stand Five Four Nought (Pvt) Ltd HH 767/15.

Scanlen & Holderness is a corporate and commercial law firm in Zimbabwe offering a full circle of legal services. Whether you are looking for a Judicial Management Lawyer, Corporate Business Rescue Lawyer, or a Company Liquidation Lawyer, the firm’s team of commercial litigation lawyers are willing and able to assist in all legal matters.

Lapsing of a Provisional Court Order

By Brighton Mahuni
[Senior Associate, 2019]

Brighton Mahuni:

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