The
salient facts of the matter are the following.
The
applicant and the second respondent were customarily married to each other
until 1 July 2009 when their union was dissolved. The Magistrates Court awarded, inter alia, House Number 24 Nicholson
Road, Romney Park, Bulawayo to the second respondent. The applicant was not
satisfied by the said award and protested by filing an appeal under cover of
case number HCA23/09. In May 2011, the second respondent sought and obtained an
order to execute judgment pending appeal.
The
second respondent raised two points in limine.
Regarding
the first point in limine, the second respondent averred that the application
is not urgent. Secondly, he alleged that
the applicant withheld material facts in order to mislead the court into believing
that she was in desperate need for accommodation.
In
simple terms, she did not disclose, in her papers, that the Magistrates Court
awarded her a property in Tshabalala.
The
second respondent produced a copy of the proceedings between the parties at the
Magistrate's Court which evinces that she was granted the Tshabalala property.
The applicant deposed to a nine (9) page founding affidavit and nowhere does
she mention the Tshabalala property. In the certificate of urgency, the basis
of the urgency is that “she has no alternative accommodation.” In paragraph 9.2
of her founding affidavit she states:-
“If
the eviction is allowed to go through I will suffer irreparable harm. I do not
have any alternative accommodation. I will be thrown out in the cold by 3rd
respondent.”
The
failure to disclose the Tshabalala property is a material non-disclosure in
this case. It goes to the core of the issue of urgency. As stated in Graspeak
Investments P/L vs Delta Corporation P/L & Anor 2001 (2) ZLR 551 (H), the courts should discourage urgent
applications which are characterized by material non-disclosure, mala fides or
dishonesty.
“Although,
generally, an applicant is entitled to embody in his supporting affidavits only
allegations relevant to the establishment of his right, when he is bringing an
ex parte application in which relief is claimed against another party, he must
make full disclosure of all the material facts that might affect the granting
or otherwise of an order ex parte. The utmost good faith must be observed by
litigants making ex parte applications in placing material facts before the
court, so much so that if an order has been made upon an ex parte application
and it appears that material facts have been kept back, whether willfully and
mala fide or negligently, which might have influenced the decision of the court
whether to make an order or not, the court has a discretion to set the order
aside with costs on the ground of non-disclosure.” – The Civil Practice of the Supreme Court of South Africa by HERBSTEIN
& VAN WINSEN 4th Ed…,.
See
also Power N.O. vs Beiber & Ors 1955 (1) SA 491 (W) and Exp Madikiza et
Uxor 1995 (4) SA 433 (TK)…,.
In
casu, the material non-disclosures are meant to create a situation of urgency.
When all material facts are disclosed, it becomes apparent that the applicant's
situation is not desperate. She has alternative remedy.
The
matter is not urgent and it is accordingly dismissed with costs.
