- Judge says Wilderness knew well on time about termination
- Labels its application a ‘Self-Created Urgency’
- Rules that Wilderness is abusing court process
The Maun High Court has struck an urgent stay and interdict application by Wilderness Holdings Limited from the roll, after concluding that the matter did not meet the requirements for urgency.
The court concluded that the dispute ought to have been brought in the ordinary course rather than through urgent proceedings.
The application by Wilderness sought to halt the implementation of Ngamiland Adventure Safaris’ notice of termination of a long-standing marketing arrangement relating to Okavango Delta lodges. NAS had given Wilderness seven months’ notice and maintains that the termination is valid, while Wilderness disputes this. Wilderness brought the application in November 2025, while NAS’ notice said the termination would take effect on 1 December.
Justice Nthomiwa Nthomiwa held that Wilderness had known for months of the intended termination but failed to act timeously, finding that any urgency relied upon was self-created and that the urgent procedure was being misused.
The court noted that the affidavits demonstrated extensive correspondence between the parties between June and August 2025.
The judge recorded that Wilderness had been aware since 27 May 2025 that Ngamiland Adventure Safaris intended to terminate the arrangement with effect from 1 December 2025.
“Correspondence shows that the Applicant was fully aware of the Respondent’s stated intention to terminate and was engaging with it commercially. Awareness, however, is not action,” the judge said, adding that the “Applicant cannot now invoke urgency through a supplementary affidavit having knowingly allowed time to pass”.
“The Applicant engaged the Respondent over several months between June and August 2025 but took no legal action. Having sat on its hands for nearly four months, can the Applicant now invoke urgency to remedy its own inaction?” the judgment reads.
Ngamiland Adventure Safaris urged the court to refuse to hear the matter on an urgent basis, arguing that Wilderness knew of the intended termination from 27 May 2025 and that it had declined to give an undertaking not to implement the notice as early as 28 July 2025.
Wilderness, for its part, argued that although it was aware of the intended termination, it believed there was no need to approach the court urgently at that stage and that doing so earlier might have attracted criticism.
The court rejected this argument. It held that urgency cannot be manufactured by delay and that a party cannot wait until the last moment and then rush to court seeking urgent relief.
“The Applicant cannot, through its own delay, manufacture an emergency and expect the Court to treat the matter as urgent,” the judge said.
On these facts, the court ruled that the Applicant had failed to satisfy any of the requirements of Order 12 Rule 12 of the Rules, including identifying circumstances rendering the matter urgent, demonstrating that redress in due course would be inadequate, or acting with expedition and candour.
“Any urgency now claimed is plainly self-generated,” the judgment states, adding that “the Applicant’s conduct represents a misuse of the urgent procedure to secure tactical advantage, not genuine protection from imminent harm”.
The court further noted the procedural prejudice caused to the Respondent, observing that Wilderness had served voluminous papers and sought to impose an expedited timetable, effectively ambushing the Respondent.
The court ordered Wilderness to pay costs on an attorney-and-client scale, holding that the dispute ought properly to have been brought in the ordinary course. Wilderness is still challenging NAS rights to cancel the contract but the courts will have to decide this during a trial.
