This is a Chamber application in which the applicant, the Zimbabwe Open University (hereinafter referred to as "the University"), seeks the following relief –

(a) An order that the appeal, SC25-12, be heard on an urgent basis; and

(b) A stay of the sale in execution of the University's property, attached in pursuance of an arbitration award it has appealed against.

The first respondent is Gideon Magaramombe (hereinafter referred to as "Magaramombe"). The second respondent is the Deputy Sheriff of Harare.

Magaramombe was formerly employed by the University as a lecturer. The University terminated Magaramombe's contract of employment. Magaramombe now disputes the termination of employment and contends it was unlawful. The disputed termination was referred to an arbitrator for determination. The dispute was determined in favour of Magaramombe and the arbitrator ordered that Magaramombe be reinstated or that alternatively he be paid damages in lieu of reinstatement.

The University appealed to the Labour Court against the arbitrator's decision in terms of section 98(10) of the Labour Act [Chapter 28:01] (hereinafter referred to as "the Act"). The University also applied to the Labour Court for an order suspending the arbitral award pending the hearing of the appeal.

That application was made in terms of section 92E(3) as read with section 89(1)(a) of the Labour Act.

Magaramombe elected to be paid damages in lieu of reinstatement and requested the arbitrator to quantify the damages due to him.

During the quantification proceedings, the University unsuccessfully applied for the stay of proceedings, on the grounds that it had applied to the Labour Court for the suspension of the arbitral award pending the appeal.

The application for the stay of proceedings was turned down by the arbitrator, on the ground that an appeal against an arbitral award and an application for interim relief do not have the effect of suspending an arbitral award.

The arbitrator thereafter awarded Magaramombe the sum of $77,302 as damages.

On 26 September 2011, the University appealed against the award of damages and also applied for a review of the award.

On 27 September 2011, Magaramombe applied to the High Court for registration of the arbitral award.

The University did not oppose the application for registration, as it was of the view that there was no need to oppose the application for registration since it had already applied for the suspension of the award to the Labour Court.

The University assumed that the execution of the award was dependent on the outcome of the application to the Labour Court.

The Labour Court granted the University a stay of execution of the arbitral award pending the hearing of the appeal on 3 November 2011.

The High Court registered the arbitral award on or about 14 November 2011.

After the registration of the arbitral award with the High Court, Magaramombe sought to execute the award despite the suspension of the award by the Labour Court.

The University launched an urgent application to stay the execution to the High Court. The basis of the University's urgent application was that the arbitral award that was executed had been suspended by the Labour Court pending the hearing of an appeal against that award by the Labour Court.

The High Court dismissed the Chamber application.

The University noted an appeal against the dismissal.

The University now applies, in Chambers, for the appeal to be set down on an urgent basis and for an order staying execution pending the determination of that appeal.

In dismissing the urgent application, the learned Judge had this to say at pp4-5 of the cyclostyled judgment (HH61-12):

"The last preliminary point was that the matter was not urgent.

…,. Ms Mberi submitted that the applicant sat on its laurels and only acted when the day of reckoning was at hand. She contended that the applicant should have acted on 27 November 2011 when it was served with the notice of registration of the award.

Mr Mpofu made contradictory submissions on the failure to oppose registration.

The first was that the noting of (the) appeal in the Labour Court against the arbitral award automatically suspended the award. The second was that it was hopeless to oppose without first obtaining interim relief from the Labour Court stopping the implementation of the arbitral award.

If the applicant believed that it was on (a) firm footing on the first ground, then all the more reason for it to oppose registration on that point.

But, as events that transpired after it obtained interim relief shows (sic), the applicant believed that implementation could only be stayed by obtaining relief from the Labour Court.

Mr Mpofu did not dispute Ms Mberi's submission that the applicant was aware of the judgment of Dhlodhlo supra, that the Labour Court judgment could not stop a High Court order because the latter is a court of superior jurisdiction.

…,. I agree with Ms Mberi, that, at the very least, with this foreknowledge, the applicant, knowing that the first respondent was seeking registration of the arbitral award, should have diligently searched for the outcome of the application especially after it received the interim relief it sought in order to forestall it.

It was aware that the purpose of seeking registration was to execute.

Armed with the interim order, the applicant was duty bound to either oppose the registration, which was granted on 15 November 2011, or to file an application such as the present one soon thereafter.

I find that it waited until the day of reckoning precipitated by the attachment of 26 January 2011 (2012?) to stay the execution. It did not act with diligence. It sat on its laurels and did not act when the time to act presented itself."

My understanding of the above excerpts of the judgment is that the court a quo made the following two determinations –

(a) The matter was not urgent;...,. 

The learned Judge in the court a quo was probably correct in concluding that the University had authored the urgency of the matter before him by delaying the launching of the urgent application until the last minute.

The applicant was the first respondent's tenant at Number 5 Albion House, 74 Harare. She was evicted from the premises without being given 48 hours notice as provided by Rule 4A(1) of Order 26 of the Magistrate's Court (Rules 1980).

She seeks an order of this court reinstating her into the premises pending the hearing of her application for the condonation of her late noting of an appeal against the decision of the magistrate on the strength of which the first respondent evicted her from the property.

The first respondent was the applicant's landlord for eleven (11) years. It sought and obtained an eviction order against the appellant. The order was enforced in the manner already explained above.

The second respondent is the Messenger of Court Harare. He is an officer of the Magistrate's Court entrusted with the responsibility of enforcing that court's orders.

The third respondent is the first respondent's new tenant with whom it entered into a lease agreement after this application had been issued and served on the first respondent. It has not yet taken occupation of the property in dispute.

The applicant was aware of the court's order for her eviction. She was then being represented by her erstwhile legal practitioners whom she instructed to appeal against the magistrate's decision. She, in her founding affidavit, said she was surprised when the Messenger of Court gave her notice and forthwith evicted her. She, on inquiring with her erstwhile legal practitioners, was advised that they had not filed the appeal as instructed as she had not paid them. She has since retrieved her file from them and instructed her current legal practitioners to note the appeal and file an application for condonation of the late noting of the appeal concurrently with this application.

The applicant's property was removed from the premises and is now stored outside her residential property and is exposed to the elements. She therefore filed this urgent application in which she seeks reinstatement mainly on the ground that her ejectment did not comply with Rule 4A(1) of Order 26 of the Magistrates Court Rules.

Counsel for the first respondent submitted that this application is not urgent because the applicant did not immediately act after her ejectment.

Counsel for the applicant submitted that she acted as soon as she could in the circumstances of this case.

She was surprised by the ejectment as she believed her erstwhile legal practitioners had attended to her appeal against the magistrate's decision, though she erroneously believed that the appeal would suspend the magistrate's decision. She was ejected without the requisite 48 hours notice. She had to retrieve her file from her erstwhile legal practitioners, and instruct her current legal practitioners. She had to do this in the circumstances she had been plunged into by the unprocedural eviction.

I am satisfied that the delay between 16 November 2011, when she was ejected, and her filing this urgent application, on 21 November 2011, has been adequately explained.

When the parties appeared before me in chambers on 27 January 2012, I directed their legal practitioners to file heads of argument before I could make a determination on the matter. This they have done. I had discerned that the resolution of the real dispute between the parties hinged on a point of law.

The dispute between the parties has its genesis in matters of employment.

The first respondent, a State-certified nurse, was working at Chivhu General Hospital. There is a secondary dispute, not germane to the resolution of the real dispute before me, of who the first respondent's employer was between the applicant and the Ministry of Health and Child Welfare (Ministry of Health).

The first respondent went awol/away from 27 October 2008 to 11 March 2010. The Ministry of Health constituted a Board to investigate the matter which Board recommended that the first respondent be charged with misconduct for absence from duty without good cause and be discharged from service. Thereafter, the Ministry of Health charged the first respondent with the misconduct under the Health Services Regulations, 2006.

Whilst the misconduct charges were pending, the first respondent instituted his own proceedings against the applicant under section 93 of the Labour Act [Chapter 28:01] (the Labour Act) alleging that the applicant, by preventing the first respondent from working, perpetrated an unfair labour practice. The Labour Officer referred the matter for compulsory arbitration in terms of section 98 of the Labour Act. The arbitrator proceeded to make an award adverse to the applicant in the applicant's absence.

The applicant lodged an appeal against the arbitral award to the Labour Court. During the pendency of the appeal, the first respondent registered the arbitral award in the High Court and took out a writ of execution against the applicant's property which the second respondent is in the process of executing.

This galvanised the applicant into filing the urgent chamber application seeking a provisional order whose interim relief reads as follows:

“Pending the finalisation of the matter, the applicant is granted the following interim relief;

1. That the first and second respondents are ordered to forthwith stop executing on the Arbitral Award No. 15/10 of the Honourable H Muchinako which was made on 2 June 2011 and registered with this Honourable Court on 13 December 2011 under Case No. HC8852/11.

2. In the event of the second respondent having removed the attached goods for sale in execution, the second respondent is directed to forthwith restore, replace and/or deliver the attached goods back to the applicant's premises.”

It is common ground that the second respondent has attached the following property belonging to the applicant:

(a) 2 x Massey Fergusson Tractors.

(b) 2 x four wheel trailers.

(c) 11 computer sets.

(d) 6 office desks.

(e) 4 x metal filing cabinets.

(f) CK 10 UD truck.

The nub of the legal argument founding the application is couched in these words:

“It has now been settled by this Hobourable (sic) Court in the case of Sibangilizwe Dhlodhlo v Deputy Sheriff Marondera & Ors HH76-11 that an arbitral award is incapable of enforcement once an appeal has been noted against it. Consequently, the execution which the second respondent has embarked on, acting on the instructions of the first respondent, is forbidden by law.”

Following my directive, that the parties file heads of argument, they were in agreement in their respective heads of argument that four issues fell for determination. They are:

1. Is the matter urgent;

2. Is the applicant the first respondent's employer;

3. Is the applicant's appeal against the arbitral award properly before the Labour Court; and

4. Can execution of an arbitral award proceed when an appeal has been noted against it?

The parties were poles apart in respect of each of the issues. I shall proceed to deal with the issues seriatim.

1. Whether the matter is urgent

The first respondent's contention is that the matter is not urgent because having noted its appeal in June 2011, the applicant should have gone a step further and applied for a stay of execution in the Labour Court in terms of section 92E(3). It did not do so. Also, having been served with notice of the chamber application for the registration of the arbitral award, the applicant, instead of approaching this court on an urgent basis, simply wrote a letter to the Registrar exposing its wrong interpretation of the law saying:

“…, we feel that that it is unprocedural and unlawful to register an award that has been appealed against.”

The urgency is self-created because the applicant only acted following attachment of its goods on 17 January 2012.

I do not think that I should be detained by the ancillary counter-arguments like the applicant believed that the noting of the appeal suspended operation of the arbitral award or that on the authority of Benson Samudzimu v Dairiboard Holdings Limited HH204-10 it would have been an exercise in futility for the applicant to oppose the registration of the arbitral award, or that the applicant believed that it was not the first respondent's employer.

The real issue is that the need to act arose when the applicant's property was attached on 17 January 2012.

The often cited case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (HC) is instructive. At p193, CHATIKOBO J said:

“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.”

Following the attachment, the applicant filed the urgent chamber application on 24 January 2012. Prior to that, the applicant was not legally represented so it had to instruct counsel to lodge this application.

It cannot be said that the delay of seven days was inexcusable or inordinate. I do not think that it would have been proper for the applicant to have approached this court on an urgent basis at the stage when the application for the registration of the award had been served upon it as contended for by the first respondent. That would have been premature.

Accordingly, the matter is held to be urgent.

It is now trite that a litigant cannot benefit from self-created urgency. A matter does not become urgent merely because a party has failed to take corrective measures timeously.

The delay in filing the instant application has not been adequately explained by both the applicant (through its founding affidavit) as well as its counsel through submissions made to court.

This is an urgent application in which the applicant seeks a provisional order in the following terms:-

“(A) TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. That the execution of the Arbitral Award in case number HC6251/11 by the respondents be and is hereby permanently stayed.

2. That there shall be no order as to costs of this application.

(B) INTERIM RELIEF GRANTED

Pending confirmation or discharge of the provisional order the applicant is granted the following relief:

(a) That the execution of the Arbitral Award registered in case number HC6251/11 be and is hereby stayed.

(b) In the event of this application being heard after execution has been carried out, that the applicant be restored to possession of its movable property.”

On 24 May 2011, labour arbitrator, L.M. Gabilo, handed down an arbitral award in an arbitration involving the parties in terms of which he directed the applicant to pay the respondents a total sum of US$24,103 as unpaid salaries and cash in lieu of notice.

It does not appear, from the papers, as if the applicant did anything about the award until recently.

The arbitral award was registered with this Court following an application made by the respondents in terms of section 98(14) of the Labour Act [Chapter 28:01] in case number HC6251/11 but not before that application was served upon the applicant on 4 July 2011.

According to the Deputy Sheriff's return of service, the application was served on an employee of the applicant, Mrs Mudyawabikwa, who is a responsible person.

The applicant did not see the wisdom of opposing the application and now claims that the employee did not bring it to the attention of management.

I find it incredible that Mrs Mudyawabikwa could have appropriated the application for herself - especially as no affidavit has been elicited from her explaining how this came about. In fact, I reject the argument that the applicant only got to know of the arbitral award at the time of attachment.

Looking at L.M. Gabilo's award, the arbitration costs were to be borne by the parties at the ratio of 15% by the respondents and 85% by the applicant. It is highly unlikely that the arbitrator would have failed to send the award to the applicant when the bulk of his fees were to come from the applicant.

I therefore proceed from the premise, that, aware of both the award and its registration as an order of this Court, the applicant did nothing about the matter until removal of its property on 12 January 2012.

This is particularly so given that the applicant did not act even when served with the notice of seizure and attachment on 6 September 2011 and with the notice of removal on 5 January 2012.

Following registration of the award, a writ of execution was issued and the applicant's property attached and removed for sale in execution on 13 January 2012. It is that removal which jolted the applicant into action, as, prior to that, it had blissfully allowed the matter to remain unattended.

The applicant promptly filed an urgent application in this Court, in case no. HC289/12, seeking an order for a stay of execution pending the hearing of a review application which it only filed in the Labour Court on 13 January 2012 when its property was removed.

The urgent application, in HC289/12, was placed before my brother MUTEMA J who refused it on 13 January 2012 on the basis that he lacked jurisdiction as section 89(6) of the Labour Act [Chapter 28:01] ousted the jurisdiction of this Court, the determination of such application falling within the exclusive purview of the Labour Court as well as the fact that no urgency was demonstrated by the applicant - it having waited until the eleventh hour to bring the application....,.

The other issue relates to urgency. I have already stated that MUTEMA J rejected the same application for lack of urgency on 13 January 2012.

For the applicant to approach the Court on the same facts, more than a month later, is not only disingenuous in the extreme but a lamentable abuse of court process.

Realising this difficulty, counsel for the applicant tried to suggest that this matter came before me as a referral from the Labour Court.

That is not the case, as it is a stand alone application.

The applicant was aware that the arbitral award was being registered for purposes of execution in July 2011. It did not contest the registration neither did it seek a stay of the execution. It waited until the day of reckoning to approach the Court. This is not the kind of urgency envisaged by the Rules. As stated by CHATIKOBO J, a pronouncement which I am in total agreement with, in Kuvarega v Registrar General & Anor 1998 (1) ZLR 188…,.:

“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 deliberative or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the Rules.”

This matter was filed as an urgent chamber application in terms of Rule 241 of the High Court Rules. The applicants were seeking the following urgent relief:

“Pending the confirmation or discharge of the provisional order, the following provisional order is granted:

1. The Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations, 2008, SI43/2008, published in Government Gazette Extra Ordinary on 17 March 2008, shall not be applied in respect of the elections on 29 March 2008.

2. Section 59 and 60 of the Electoral Act [Chapter 2:13] as amended by the Electoral Laws Amendment Act, 2007 (Act 17/2007) shall not be applied in respect of elections to be held on 29 March 2008.

3. Illiterate persons and persons with disabilities or otherwise incapacitated voters, where necessary, and at their request, shall be allowed assistance in voting by a person of their own choice.”

I dismissed the application with costs after hearing submissions. The parties have requested reasons for my decisions. These are they.

The facts in this matter are set out in the applicants founding affidavits and may be summarized as follows:

The first and second applicants are visually impaired. The third applicant is physically handicapped and does not have the use of his arms and legs (though it was noted that his application was purportedly signed by him before a Commissioner of Oaths).

The respondent is the Minister for Justice Legal and Parliamentary Affairs responsible for the implementation of provisions of the Electoral Act.

The applicants are all registered voters and wish to exercise their rights at the elections on 29 March 2008. The applicants have submitted that their rights are being violated as they are obliged, in terms of the law, to seek assistance from strangers who will be presiding at the polling station. They averred that the provisions as set out in section 59 and 60 of the Electoral Act and amended by the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 were unconstitutional.

The application was opposed.

Counsel for the respondent submitted;

(i) Firstly, that the matter was not urgent; and

(ii) Secondly, that the relief that the applicants were seeking was not capable of being granted as a court cannot suspend a provision of an enactment.

(iii) She further submitted that as the matter raised a constitutional point it should be determined by the Supreme Court.

(iv) She also submitted that the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 had been enacted in accordance with the provisions of the enabling Act.

URGENCY OF APPLICATION

The applicants submitted that the application was urgent as the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 promulgated on 17 March 2008 (The Presidential Powers Regulation).

The effect of these Regulations was to allow a police officer to be present and to assist a voter who required assistance if he was incapacitated in some way during the elections on 29 March 2008. The applicants submitted that they did not have any other remedy save to bring this application by way of urgent chamber application.

In relation to sections 59 and 60 of the Electoral Act [Chapter 2:13] (the Electoral Act), the applicants counsel conceded that the legislation had been in existence since 11 January of 2008 when the amendment came into force.

It is trite that no litigant is entitled, as of right, to have his or her matter heard urgently: see Dilwin Investments (Pvt) Ltd t/a Farmscaff v Jopa Enigineering Co (Pvt) Ltd HH116-98.

The granting of urgent relief by a court is a matter of the courts discretion and is granted only in the most deserving cases. A matter does not become urgent merely because the date of reckoning has approached and the applicant had sat on his rights until the eleventh hour and done nothing.

In the case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 CHATIKOBO J stated…,:

“What constitutes urgency is not the only imminent arrival of the date 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 deadline draws near is not the type of urgency contemplated by the Rules.”

There is no explanation, in the papers before me, why the applicants waited until four days before the elections to lodge an application seeking to suspend the operation of sections 59 and 60 of the Electoral Act [Chapter 2:13].

It appears that what woke them up from their slumber was the publication of the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 on 17 of March 2008.

In my view, therefore, the application, as it relates to sections 59 and 60 of the Electoral Act is not urgent.

The first applicant, the Movement for Democratic Change, is a political party, commonly known as the (“MDC”). It will be referred to as the first applicant. The second applicant, Mr Morgan Tsvangirai, is its President. He was the first applicant's Presidential candidate in the just ended harmonized elections held on 29 March 2008. He will be referred to as the second applicant.

The first respondent is the Chairman of the Zimbabwe Electoral Commission, a Commission established in terms of section 61(1) of the Constitution of Zimbabwe. He was appointed in terms of section 61(1)(a) of the Constitution. He will be referred to as the first respondent. The Zimbabwe Electoral Commission is commonly known as (“ZEC”), in reference to the abbreviation of its name. It will be referred to as ZEC in this judgment.

The second respondent is the Zimbabwe Electoral Commission's (ZEC) Chief Elections Officer appointed in terms of section 11 of the Zimbabwe Electoral Commission Act [Chapter 2:12], hereinafter called the Zimbabwe Electoral Commission Act. He will be referred to as the second respondent.

The Facts

The first respondent, through the Zimbabwe Electoral Commission (ZEC), conducted harmonised elections which were held on 29 March 2008. The elections were contested by candidates aspiring for the following positions, Councilors of local authorities, Members of the House of Assembly and the Senate, and President of the Republic of Zimbabwe.

It is common cause that the contestants of the first three positions now know the results of their elections. The results were announced at the Ward Constituency, House of Assembly and Senatorial constituency levels. The winners were declared by the respective Ward and Constituency Elections Officers. House of Assembly and Senatorial results have also been announced by the National Collation Centre presided over by the second respondent.

It is conceded, by the respondents, that this was merely for the benefit of the general public as the legal requirements had been satisfied at constituency level.

The applicants, who have an interest in Presidential election results, filed an urgent application seeking this court's provisional order, compelling the respondents to announce the results.

The respondents, while conceding that Presidential results have not yet been announced, contented that they will announce them when they are ready....,.

After the court's ruling on the issue of jurisdiction, counsel for the applicants submitted that the application was urgent and outlined the facts establishing the urgency. In response, counsel for the respondents submitted that the application is not urgent and should have been brought by way of ordinary application....,.

Urgency

After the ruling on the issue of jurisdiction, counsel for the applicants made submissions on the urgency of the application.

He submitted that section 110(3) of the Electoral Act [Chapter 2:13] hereinafter called the Electoral Act, provides, for a re-run within 21 days after the previous election in the event of no candidate obtaining a clear majority in the election. This, he submitted, means a delay in announcing the election results will deprive candidates of sufficient time to prepare for the re-run. He also submitted that the respondents would not have enough time to prepare for the re-run.

Counsel for the respondents submitted that there was no urgency in the applicant's application because its cause of action was based on the announcement of the results of the Presidential poll. He argued that those results where not due as the provisions of the Second Schedule have not yet been complied with. He therefore reasoned that the cause of action would arise when the provisions of the Second Schedule of the Electoral Act would have been complied with. He summed up by submitting that the applicants cause of action, as stated in Tendai Biti's founding affidavit, has not yet arisen hence the absence of urgency in the application.

Counsel for the applicants, in response, disputed counsel for the respondents submission that the cause of action had not yet risen. He submitted that Tendai Biti's affidavit complains of delays and the respondent's wasting time on already declared election results instead of doing what they are mandated to do; that is, the collation and verification of Presidential results and their announcement.

A reading of Tendai Biti's founding affidavit confirms that though he, in some paragraphs, emphasised the announcement of results he clearly brought out a case against the general delay. That was in fact the theme of the applicants' complaint in paragraphs 5, 11, 12, 13, 14, 16, 17, 24, 26 and 27.

I am therefore satisfied that the applicants' application is premised on delays and the respondents' wasting time doing everything else other than what they should have been doing. Therefore, the cause of action has arisen though the wording of the provisional draft order seeks the announcement of results within four hours of the service of it on the respondents.

This can be corrected by a variation in terms of Rule 246(2) of the High Court Rules, 1971 which provides as follows:

“(2) Where, in an application for a provisional order, the judge is satisfied that the papers establish a prima facie case he shall grant a provisional order either in terms of the draft filed or as varied.”

This means an application for a provisional order which has been prima facie proved cannot be dismissed because of a poorly drafted order. The court can vary it and grant a correctly formulated provisional order consistent with the prima facie case proved.

In fact, on being granted, the order becomes the court's order. The court must therefore be satisfied by its formulation before granting it.

It was for these reasons, that I found the application was urgent and proceeded to hear it on the merits.

Re: HC 2792/09 (urgent application)

Once more, the issue of locus standi has been addressed and decided.

As far as the merits of the interim order sought are concerned, the applicants need only establish a prima facie case.

That the applicant will suffer irretrievable harm if the proposed consecration of a new Bishop of the Diocese of Harare proceeds before he is legally removed from the same position admits no dispute.

That the matter is urgent, and the remedy sought is the only effective remedy available also admits no dispute.

The only real point of contention is what is pointed out in the respondent's answering affidavit to the effect that  the consecration of the new Bishop has nothing to do with the position of the Bishop of the Diocese of Harare...,.

However, this contention is contradicted by all the previous pleadings, and the affidavit of a senior member of the Church, Mr. Robert Atherstone Stumbles, the Chancellor of the Anglican Diocese of Harare and Deputy Chancellor of the Church of the Province of Central Africa, wherein he states that -

“The appointment of Dr. Chad Gandiya has been canonically confirmed and the respondent recognises him as the incoming Bishop of the Diocese.”

It is quite clear, therefore, that the appointment of the new Bishop is to replace the existing one.

Now, if Bishop Kunonga is to be replaced, he must first be charged, tried, convicted, and sentenced, or forced to resign, in terms of the Canons, and Constitution, of the respondent. He cannot simply be replaced, wished away, or deemed to have resigned without due process in terms of the statutes declaring, or ratifying, such removal.

To use a homely example, a spouse in a monogamous relationship does not get rid of a partner by marrying another spouse; that is bigamy, a crime. Such an estranged spouse must first sue the errant spouse for divorce before entering into another relationship. It does not matter what the seriousness of the indiscretions of the errant spouse may be. I suppose even in the traditional polygamous relationships, certain procedures like giving gupuro in the Shona culture, or the thrice incantation of “I divorce you” in the Islamic religion must be followed.

The respondent has raised four points in limine...,. The first one is whether this application is urgent.

The only reason proffered that I am able to glean, which makes some remote reference to urgency, is contained in paragraphs (iii) and (iv) of the certificate of urgency filed. The other paragraphs do not refer to urgency at all. The paragraphs state -

“(iii) Respondent has also deprived the applicant his right to use the vehicle in line with its duties.

(iv) Her (respondent) continued use of the vehicle is at the expense of the applicant due to wear and tear.”

Strictly speaking, there is nothing urgent contained in these averments.

Realising the deficiency in the certificate of urgency, counsel for the applicant tried to supplement, from the bar, which attempts were naturally thwarted.

According to the respondent, on the one hand, the time to act was in June 2007 when the late Brigadier Paul Armstrong Gunda passed away. On the other hand, the applicant's case seems to suggest that the time to act was in September 2008 when the respondent was given the Prado.

I will be generous and assume that the respondent was supposed to return the Peugeot vehicle in September 2008 when she was given the Prado vehicle.

The cause of action arose in September 2008.

For over four months, the applicant did not take any legal steps to recover the vehicle. The applicant has not explained such careless abstention from action...,.

An application..., is urgent when, if at the time the cause of action arises, determination of the matter cannot wait.

When the need to act arose, the applicant did not prosecute the application with diligence and vigilance – Mshonga & Ors v Min. of Local Government & Ors HH-129-04; Gulmit Investments (Pvt) Ltd v Ranchville Enterprises (Pvt) Ltd HH-94-04; 20^th Century Fox Film Corp & Anor v Anthony Black Films (Pty) Ltd 1982 (3) SA 582 (W) and Kuvarega v Registrar-General 1998 (1) ZLR 188 (H).

On the 6^th day of February 2009, the applicant filed an urgent chamber application whose relief was couched as follows:-

“TERMS OF FINAL ORDER SOUGHT

The Provisional Order granted in this matter be and is hereby confirmed in the following terms:-

1. The Applicant be and is hereby given possession of a Nissan Maxima Motor vehicle Reg No: AAX 4540.

2. Respondent to pay costs of this suit at Attorney-Client Scale.

INTERIM RELIEF GRANTED

Pending the confirmation or discharge of this provisional order, the Applicant is granted the following interim relief:-

1. The motor vehicle Nissan Maxima Reg No: AAX 4540 be delivered to or impounded by the Deputy Sheriff, Bulawayo and taken to her offices there to be kept pending the finalization of the application for review under case No: HC121/09.

SERVICE OF ORDER

Service of this Urgent Chamber Application and Provisional Order shall be done by the Deputy Sheriff, Bulawayo upon the Respondent.”

The historical background of this matter is that the respondent was a complainant against the applicant in a criminal case, No. HC592/08, which was dealt with at Bulawayo Magistrate Court. The said proceedings are presently under review under Case No. HC121/09. He was charged with fraud and was convicted of the same. While awaiting sentence, and was in custody, he was visited by the trial magistrate (Mrs. Phathekile Msipa), prosecutor, the complainant and his wife. This visit resulted in him ceding his vehicle, a Nissan Maxima Registration number AAX 4540 to the complainant as restitution.

The proceedings at the prison and the subsequent sentence that he received prompted him to make an application for review referred to above.

While awaiting the outcome of the review, it is the applicant's position that the respondent began looking for a buyer so that when the review proceedings are finalized the vehicle in question would have been disposed of.

After perusal of this application, I ordered that the respondent be served and the matter was argued on the 5^th of March 2009.

The respondent file a notice of opposition.

His contention is that there was no urgency in this matter, and, as such, the applicant should have proceeded by an ordinary application. His reasons are that the cause of action arose on the 2^nd of December 2008 and the respondent has been in possession of the vehicle ever since. The applicant filed an application for review on 26 January 2009 and filed the urgent chamber application on 6 February 2009 which was served on him more than three months after. It is for that reason that he is of the view that there is no urgency.

The circumstances under which the applicant surrendered the motor vehicle to the respondent, while awaiting sentence, if proved to have been irregular would no doubt result in the respondent returning the car to the applicant. In my view, he is aware of that as evidenced by his frantic efforts to dispose of the motor vehicle with haste. It is for that reason that the applicant sought to prevent the disposal of the motor vehicle pending the finalization of the review application.

For that reason alone the matter became urgent and this application was therefore justified.

The respondent has raised points in limine which I propose to deal with..., in turn.

Urgency

The certificate of urgency is scant. The founding affidavit is not helpful either. All the applicant states is -

“Applicant fears that should operations continue at the disputed claims it will suffer irreparable harm. Applicant has already invested into the mining claims by undertaking expensive preparatory works.”

To some extent, this is the basis of urgency in the certificate of urgency.

The applicant does not set forth explicitly the circumstances which it avers render the matter urgent, and reasons why it claims that it could not be affected substantial redress at a hearing in due course.

It is trite that specific averments of urgency must be made, and the facts upon which those averments are based must be set out in the founding affidavit and the certificate of urgency – Eniram (Pty) Ltd v New Woodholme Hotel (Pty) Ltd 1967 (2) SA 491 (E); Salt & Anor v Smith 1991 (2) SA 186 (Nm); Sikwe v SA Mutual Fire and General Insurance Co. Ltd 1977 (3) SA 438 (W) and Pickering v Zimbabwe Newspapers (1980) Ltd 1991 ZLR 71 (H).

The applicant has failed in this regard.

I am satisfied, after ploughing through the documents filed, and hearing thorough submissions by counsel, that the applicant in this matter has established a prima facie right which prompted her to file this urgent chamber application.

I am also satisfied, on a preponderance of probabilities, that her right is under threat from the respondent, and that the provisional order she sought must be granted.

Was the applicant justified in bringing the review proceedings on an urgent basis?

My view is that she was not.

Although the trial magistrate erred in granting a variation order without hearing from the other party, it did not, in any way, stop the applicant from continuing with her application in terms of section 23 of the Maintenance Act [Chapter 5:09]. If she believes, and can prove, that the father of her children is in arrears, she is at liberty to institute proceedings to recover arrear maintenance. The applicant is not without an alternative remedy in terms of the Maintenance Act [Chapter 5:09]. She also did not prove that there was irreparable injury.

Where a father of a child fails to pay maintenance for such child, the mother of the child should have recourse to the provisions of the Maintenance Act [Chapter 5:09] in the ordinary way without necessarily jumping the queue.

The applicant filed this application under a certificate of urgency without explaining why the domestic route provided for in section 59(8) and (9) of the Administration of Estates Act [Chapter 6:01] cannot remedy the issue she is complaining about.

She has not approached the third respondent to postpone, or stay the period. The applicant has not exhausted the domestic remedies provided for in the Administration of Estates Act [Chapter 6:01] before coming to this court. On this point alone, the application must fail – Rubber Bullets FC v Motmate Champion FC & Ors HB03-03.

Urgency

Counsel for the first and second respondents submitted that the application is not urgent because the mandate was given in August 2009 and nothing happened until 18 March 2010. He further submitted that the mandate was overtaken by the consent order of 12 October 2009. He further submitted that the urgency is premised on hearsay evidence. He argued that if the hearsay evidence is excluded there is no urgency at all as the cause of action arose in August 2009.

Counsel for the applicant submitted that the case is urgent as the Stands were being sold – as demonstrated by the inquiry of 18 March 2010.

The application's urgency therefore depends on the admissibility of the inquiry of 18 March 2010.

What is clear is that there is no evidence that the caller had recently received information about the Stands being on sale. In the absence of that evidence it could still not be said that the application is urgent. There would be no proof of an imminent sale of the Stands to justify the hearing of the application on an urgent basis. It would still have to be heard as an ordinary application as it could not be said that it could not wait.

In this case, I agree with counsel for the first and second respondents that the time which lapsed between the date of inquiry and the date this application was filed would have enabled the applicant to obtain a supporting affidavit from the caller. It does not, therefore, justify the placing of hearsay evidence before this court. In the absence of that evidence, there is no proof of an imminent sale of the Stands.

I therefore conclude that the application is not urgent. It should wait its turn to be heard in terms of the Rules applicable to non-urgent applications.

In view of my finding that the application is not urgent, I will not determine the other preliminary issues as doing so would amount to hearing a non-urgent application on an urgent basis.

Lastly, counsel for the respondent took issue with the delay by the applicant to institute the proceedings. He submitted that from a reading of the founding affidavit the cause of action arose on 10 May 2010. If that is the case, there is no explanation why the application was not made a few days thereafter; and only to be filed on 1 June 2010.

In respect of when the cause of action arose counsel for the applicant submitted that contrary to the contention advanced on behalf of the respondent that this was on 10 May, he submitted that the conduct complained of is as set out in paragraphs 13 and 15 of the founding affidavit; accordingly, the issue is whether at the material time when the wrongful action complained of arose the applicant acted to redress the wrong.

Going by the founding affidavit, I agree with counsel for the respondent's submission that the cause of action arose on 10 May 2010; this is when the respondent is alleged to have instituted eviction proceedings against one of the Shareholders. That allegation cannot be construed as anything else other than a cause of action. If it is not, one may ask what was the purpose of including it in the founding affidavit? If I am correct that the cause of action arose on 10 May 2010 then the delay in instituting the current proceedings has not been explained either in the certificate of urgency or the founding affidavit. I am fortified on this aspect by the remarks of CHATIKOBO J in the much cited case of Kuvarega v Registrar General and Another 1998 (1) ZLR 188 in which the learned judge had this to say..., -

“There is an allied problem of practitioners who are in the habit of certifying that a case is urgent when it is not one of urgency. In the present case, the applicant was advised by the first respondent on 13 February 1998 that people would not be barred from putting on the T-shirts complained of. It was not until 20 February 1998 that this application was launched. The certification of urgency does not explain why no action was taken until the very last working day before the election began. No explanation was given about the delay. 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 deadline 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. Those who are diligent will take heed. Forewarned is forearmed.”

I also agree that the institution of eviction proceedings cannot constitute a cause of action warranting the present application.

Further, and in any event, this matter is not urgent.

The applicant has been aware of the attachment of the property by the Deputy Sheriff since 27 May 2010. On 2 June 2010, the applicant's representative signed a security bond binding himself as surety and promised that the goods placed under judicial attachment shall not be disposed of but shall remain in the possession of the applicant and shall be produced to the Deputy Sheriff on the day appointed for sale in execution of the judgment of this court. On 4 June 2010, the Deputy Sheriff instructed auctioneers to advertise the sale copying his letter to that effect to the applicant. The Deputy Sheriff advised the applicant to deliver the motor vehicle to him by 23 June 2010.

This is an urgent chamber application for a provisional order whose interim relief sought was couched in these terms:

“1. That the second respondent be and is hereby ordered to stay ejectment of applicant from the premises known as 93 Coventry Road, Harare pending the hearing of this urgent application for stay of execution.

2. In the event of the second respondent having ejected applicant from the premises known as 93 Coventry Road Harare, he is hereby directed, temporarily, to return possession of the premises to applicant pending the outcome of the application for stay of execution.”

The terms of the final order sought include, inter alia;

“That second respondent be and is hereby ordered to stay execution permanently against applicant pending the outcome of the Civil Appeal 251/10 ref CIV “A” 423/10.”

The background of the matter is briefly as follows:

The applicant and the first respondent entered into a lease agreement in respect of 93 Coventry Road wherein the applicant was the lessee.

On 9 September 2009, the first respondent's estate agents, Guest and Tanner, invited the applicant to come and discuss an increase in fair rental from $1,200 per month. The first respondent's representatives went for the discussion but the estate agents' representative missed the appointment, and, consequently, no discussion about the issue was ever held.

Subsequently, the applicant offered to increase the rental to $2,400 per month which was accepted by the first respondent. The estate agents communicated acceptance of the offer by a letter dated 21 October 2009 wherein they also gave the applicant a six month notice to vacate the premises on the ground that the first respondent required the premises for its own use. The notice period endured up to 30 April 2010.

Came 30 April 2010, the applicant did not vacate the premises.

On 17 May 2010, the first respondent filed an application for eviction of the applicant in the Magistrates' Court. On 7 June 2010, the Magistrates' Court granted the application. On 8 June 2010, the applicant noted an appeal in this court against the order for its eviction.

Since the noting of the appeal had the effect of suspending the judgment appealed against, the first respondent filed an application for leave to execute pending the appeal.

That application was granted.

The applicant, again, noted an appeal against the order granted to the first respondent to execute pending appeal. Thereafter, the applicant filed this urgent chamber application for the provisional order. The chamber application was accompanied by a certificate of urgency.

At the hearing, counsel for the first respondent raised the following points in limine:

(1) The application lacks urgency in that six months notice to vacate was given. Applicant sat back and it was only on 28 April 2010 (two days before expiry of the notice to vacate that the applicant, in vain, attempted to cajole the first respondent into signing an agreement it had drafted to have the notice period extended.

(2) If relief to stay the execution is granted, this would be tantamount to this court overruling the magistrate's decision to execute pending appeal. Effectively, the applicant was asking this court to determine the appeal when it is not sitting as the Appeal Court.

(3) The court should determine whether there is a valid appeal against the magistrate's decision to grant leave to execute pending appeal.

There is no appeal in this respect because that order to execute pending appeal is not a final or definitive one. It is merely an interlocutory order and such an order is not appeallable. Over and above that, the Notice of Appeal pertaining to that order is fatally defective in that it falls foul of Rule 7 of the Supreme Court Miscellaneous Appeal and Reference Rules, 1975 by not stating all the aspects required in a Notice of Appeal.

In the event, so the argument went, there is no appeal that was noted and the applicant has no basis to come before this court.

Counsel for the applicant, in response, contended that the matter was urgent in that the applicant believed that instead of the matter being brought by way of application, it should have been brought by way of summons since there existed a dispute of fact, viz whether the first respondent required the premises for its own use. Further, the urgency arises because of the first respondent's insistence on eviction before the applicant's appeal is heard.

Regarding the point that if relief to stay execution is granted, this would amount to overruling the magistrate's decision, he said it is interwoven with the one whether the judgment being appealed against is final or not. He submitted that the judgment is final in that once the applicant is evicted, the purpose of its appeal is frustrated.

On whether the Notice of Appeal is fatally defective, he denied that the same rules are applicable. Even if they are, the Notice is sufficiently clear, on the papers, regarding which judgment is being appealed against, the second one granting leave to execute pending appeal. He submitted that the prayer that the judgment of the court a quo be reversed is the standard practice in this regard....,.

1. Is the application urgent?

Counsel for the applicant contended that the urgency itself only arises because of the first respondent's insistence on evicting the applicant before the latter's appeal has been heard.

I am unable to subscribe to this submission.

The basis for so holding hinges on the validity or otherwise of the applicant's appeal, which issue I shall deal with when unraveling the third point in limine, viz whether the appeal against the magistrate's decision to grant leave to execute pending appeal is valid.

At this stage, it behoves me to look at the issue of urgency vis-a-vis the facts of this matter.

A party, whose ejectment from rented premises is imminent, may be excused in entertaining the belief that his/her matter is urgent for he/she has an understandable apprehension of fear of the threatened eviction.

However, this should not be accepted at face value.

There is need to follow the spoor, in a manner of speaking, leading up to the threatened eviction on the facts.

In the instant case, the applicant was given six months notice to vacate the premises. It was content to sit back, blissfully hoping that the first respondent was bluffing. It was only two days before the notice period was up that the applicant attempted to engage the first respondent in an endeavour to have the notice period extended by a month.

The applicant, in the draft agreement which the first respondent refused to sign, agreed to vacate at the end of the extra month but set certain conditions for its vacation from the premises.

If, therefore, the applicant was willing to vacate the premises on or before 31 May 2010 one can safely conclude that the applicant had alternative premises to go to. That date has passed and the applicant is still in situ fighting to remain there.

In view of the foregoing, the urgency of the matter has been grossly eroded. I would hold that the application is not urgent.

Secondly, it was contended that the matter lacks urgency. This is premised on the argument that the applicant was served with the Notice of Seizure on 30 June 2010, and yet the present application was only filed on 9 July 2010. The delay in making the application is not explained.

Counsel for the applicant submitted that the matter is urgent as the applicant is likely to lose its property, including the vehicle which belongs to an uncle of the deponent to the founding affidavit. He also submitted that there is no justification why execution was being carried out at a different address from the one where summons were served.

Regarding urgency, counsel for the first respondent referred to the case of Kuvarega v Registrar General and Another 1998 (1) ZLR 188 (H); His contention was that there was no need to wait until 9 July when the need to act arose on 30 June.

On the basis of urgency alone, the application would fail. Although counsel for the applicant sought to highlight that the matter is extremely urgent it is apparent that the conduct of the applicant does not underlie such urgency. No explanation is given in the founding affidavit why no action was taken at the earliest opportunity when the Notice of Seizure was served on 30 June. On what constitutes urgency, this is what CHATIKOBO J had to say in the Kuvarega v Registrar General and Another 1998 (1) ZLR 188 (H) case..., -

“There is an allied problem of practitioners who are in the habit of certifying that a case is urgent when it is not one of urgency. In the present case, the applicant was advised by the first respondent on 13 February 1998 that people would not be barred from putting on the T-shirts complained of. It was not until 20 February 1998 that this application was launched. The certificate of urgency does not explain why no action was taken until the very last working day before the election began. No explanation was given about the delay. 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 under way. Those who are diligent will take heed. Forewarned is forearmed.”

This matter came before me via the Chamber Book on the basis of perceived urgency. The applicants are desirous of a provisional order whose interim relief is couched in this vein -

“Pending determination of this matter, the first and second applicant is (sic) granted the following relief:-

1. That the motor vehicles impounded by the respondent from the second applicant, being Isuzu KB250 double cab, Registration ABG 3091 and Isuzu KB250 ABI 6481 double cab, be and are hereby ordered to be released to second applicant forthwith or upon service of this Order.

2. That the respondent pays costs of suit on a legal practitioner/client scale.”

The final order sought is thus worded:

“The respondent should show cause why a Final Order should not be made in the following terms:

That the second respondent (sic) be and is hereby ordered to sought (sic) out its differences with the first applicant, if at all, and not to impound cars from 3^rd parties which cars the respondent granted Customs Clearance Certificates upon payment of duty by the first applicant.”

Before delving into the merits of the application, it behoves me to determine whether or not the matter is urgent.

In General Transport and Engineering (Pvt) Ltd and Ors v Zimbabwe Banking Corporation 1992 (2) ZLR 301 (HC) litigants were reminded to heed that the preferential treatment of allowing a matter to be dealt with urgently is only extended if good cause is shown for treating the litigant in question differently from most litigants. Coupled with this is the allied problem stated in Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188 (HC) that there is a tendency among some legal practitioners to rush to certify that a matter is urgent when it is anything but urgent. Now, looking at the certificate of urgency by Wilson Tatenda Manase, I have not been able to glean anything akin to urgency at all. All there is are allegations that not only has the respondent's action “affected the operations of the applicant's customers but has caused great financial prejudice, inconvenience and disrepute of the applicant's customers. Irreparable harm continues to be caused to 3^rd parties like Econet and NUST. Despite writing a letter to the respondent they never responded to same”.

The papers that were filed, and even the oral submissions made, are deafeningly silent with regard to when exactly the two vehicles were impounded by the respondent. Obviously the date(s) of the impound is known to the applicants but for reasons only known by them this material information was omitted. This might have been designedly overlooked in order to buttress the alleged urgency. The letter alluded to was written on 30 March 2010. It is not known how long following the impounding of the vehicles was this letter written. Even then, from that time (30 March 2010) to 15 July 2010, when this application was lodged, is a period of three and a half months. Surely, if the matter were urgent the applicants would not have delayed for that long. If the matter were urgent the applicants would have immediately, and diligently, pursued it via the Chamber Book as soon as the vehicles had been impounded.

What is contained in the certificate of urgency are sheer unsubstantiated averments and inconvenience. This, per se, cannot, and should not, entitle the applicants to preferential treatment over most litigants whose cases are in the queue before this Court. The applicants should accordingly wait to have their turn and their day in court. Having found that the matter is not urgent, there is no need to deal with the merits of the application.

After hearing counsel in this matter, we allowed the appeal with costs and issued an order in the following terms:

“IT IS ORDERED THAT:-

1. The appeal succeeds with costs.

2. The judgment of the court a quo is set aside and substituted with the following:

“The application is hereby granted in terms of the draft order.”

We intimated that our reasons would follow in due course. These are they.

The appellant, hereinafter referred to as (“Portland”) and the second respondent hereinafter referred to as (“Bak Logistics”) are private companies duly registered as such under the laws of this country. Portland is a producer of cement which is sold both locally and externally. Bak Logistics provides warehousing and bulk storage services to the general public.

The first respondent, hereinafter referred to as (“Tupelostep”) is a company registered under the laws of South Africa. It has its headquarters in that country. It provides extensive haulage freight services throughout Southern Africa.

At the beginning of 2012, Portland obtained orders for the export of cement to Mozambique. Sometime in February or March 2012, Portland engaged Tupelostep to arrange the transportation of cement into Mozambique on its behalf. The terms of the contract obliged Portland to convey the cement to Tupelostep by rail. In turn, Tupelostep would arrange for the storage of the cement pending receipt of export documents from Portland. In order to comply with its obligations under this contract, Tupelostep entered into an agreement with Bak Logistics for storage and warehousing of the cement pending its conveyance to Mozambique. On receipt of clearance documents from Portland, Tupelostep would then arrange for the transportation of the cement by road. The process would, on occasion, entail the hire of vehicles from third parties. There was, however, no contract between Portland and Bak Logistics, and Portland was not privy to the contract between Tupelostep and Bak Logistics.

In September 2012, Portland transported a consignment of 1,270 tons of cement to Tupelostep by rail. It was stored with Bak Logistics. A dispute then arose between Portland and Tupelostep regarding charges claimed by the latter in the discharge of its obligations and services under the contract. The parties attempted to settle the dispute but failed. In December 2012, Tupelostep advised Portland that it would no longer allow movement of stock from the warehouse unless it was paid certain sums of money being claimed by it for demurrage and transportation costs.

On 16 January 2013, Portland gave notice to Tupelostep of its intention to terminate the mandate for storage and transportation of the cement. On 29 January 2013, Portland addressed an email to Tupelostep demanding the release to it of documentation availed to Tupelostep in respect of the consignment of cement under its control and in the possession of Bak Logistics. In turn, Tupelostep responded by refusing to release the documents in its custody for a number of reasons which are not germane to the resolution of this dispute. On 4 February 2013, Portland filed an urgent application with the High Court in respect of which it sought relief expressed as follows:-

“INTERIM RELIEF GRANTED

1. Pending determination of this matter, the Applicant is granted the following relief;

1) That 1^st and 2^nd Respondent be and are hereby ordered to release to applicant the applicant's cement being 1,270 tons of cement held by 1^st and 2^nd respondent at 2^nd respondent's premises at 106 Dartford Road, Willowvale Industrial Area, Harare.

2) That the proceeds of sale of the cement be held at a trust account in the law firm of Messrs Gill, Godlonton & Gerrans of 7th Floor, Beverly Court 100 Nelson Mandela Avenue.

TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court, if any, why a final order should not be made in the following terms:

1. That the proceeds of the cement held by Messers Gill, Godlonton & Gerrans in their trust account be disbursed in terms of an order of this Honourable Court confirming the entitlement of either party to such proceeds.

2. That the costs of this application be borne by the party succeeding in the anticipated litigation between the parties. (sic)”

The application was opposed by both respondents.

The High Court heard the parties on the question of urgency and decided that the application was not urgent. The court then dismissed the application with costs on the basis of lack of urgency. 

This appeal is against that decision.

It was contended that the High Court erred in the exercise of its discretion and that, to that extent, it had misdirected itself.

Portland approached the High Court for urgent relief on the premise that Tupelostep was holding onto cement which belonged to the former and that its actions were illegal and unjustified. It was also alleged, in the certificate of urgency, that cement, by virtue of its hygroscopic nature, had a limited lifespan and that any continued delay in its release to Portland would result in financial loss to Portland.

Whilst accepting that commercial interests can be advanced as a basis for urgency, the learned judge in the court a quo found that the urgency in the matter before him was self-created. This is what the learned judge stated:-

“I am, however, persuaded by counsel for respondents' argument that the urgency pleaded by the applicant is self-created. In the first place, it was not denied that the cement has been with the respondents since September 2012. If, therefore, cement has a short shelf life why did the applicant not seek its release much earlier? Secondly, the argument that it tends to attract moisture is as relevant now as it was from the onset of the rainy season. The need to act was ever present from the onset, taking into account the nature of the product that is in dispute. In other words, the matter cannot assume more urgency towards the end of the shelf life of a product whose delicacy has never been in doubt.”

It seems to me that the court a quo determined the matter on facts which were not before it. 

The consignment of cement was sent to the warehouse in September 2012, but the record shows that there was movement of stocks from the warehouse without hindrance. The problem arose on 16 January 2013 when Tupelostep wrote an email to Portland advising that a halt had been placed on the movement of the product from the warehouse on its instructions. That is when, in fact, the need to act arose and not in September 2012 as stated by the learned judge in the court a quo. This fact is confirmed by the opposing affidavit filed on behalf of Tupelostep in which the statement is made that:

“Up until 15 January 2013, the first respondent never prevented the removal of cement.”

It is therefore accepted by Tupelostep that cement was being moved up until that date. If Portland had the right to remove cement up until that date, it follows that the need to act cannot, by any stretch of the imagination, have arisen prior to that date.

In its judgment, the court accepted that what triggered the application was the negation, on 31 January 2013, of an agreement by the parties allowing the removal of the cement by Portland. The application was filed on 4 February 2013, a mere four days after the agreement was negated by Tupelostep. The suggestion that the cement should have been removed in September 2012 is therefore not supported by the record as the storage in September was for purposes of facilitating its transportation. The storage was part and parcel of the modus operandi of the contract by the parties.

I am satisfied that the matter ought to have been dealt with on the basis of urgency. No delay had been established on the respondents' papers.

The third point in limine raised by counsel for the first respondent is that this matter is not urgent, and, that on that basis, I should decline to hear the merits of the case.

In the case, of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 CHATIKOBO J aptly dealt with what constitutes urgency in an application of this nature. NDOU J, in discussing the question of urgency in the case of Mathias Madzivanzira and 2 Ors v Dexprint Investments (Private) Limited and Anor HH145-02…, also referred to the remarks by PARADZA J in the case of Dexprint Investments (Pvt) Ltd v Ace Property and Investment Company HH120-02 which remarks are captured as follows –

“For a court to deal with a matter on an urgent basis, it must be satisfied of a number of important aspects. The court has laid down the guidelines to be followed. If, by its nature, the circumstances are such that the matter cannot wait in the sense that if not dealt immediately irreparable prejudice will result, the court can be inclined to deal with that on an urgency basis. Further, it must also be clear that the applicant did, on his own part, treat the matter as urgent. In other words, if an applicant does not act immediately and waits for doomsday to arrive and does not give a reasonable explanation for that delay in taking action, he cannot expect to convince the court that the matter is, indeed, on that, warrants to be dealt with on an urgent basis.”

Counsel for the first respondent submitted that there is no urgency in this matter because the goods were attached on 20 July 2010 and the applicant only made this urgent chamber application after 16 working days and that no explanation has been proffered for this delay.

The correct sequence of events of this matter does not at all support the argument advanced by counsel for the first respondent. The writ was, indeed, issued on 20 July 2010 but the Notice of Seizure and attachment of goods was issued by the third respondent on 23 July 2010. It is not correct that after being served with the Notice of Seizure on 23 July 2010 the applicant took no action until 13 August 2010 when this application was made. The applicant issued inter-pleader proceedings on 27 July 2010 which was only after the expiry of one working day from 23 July 2010 as 24 and 25 July fell on a weekend. The applicant, therefore, within a day, took steps to try and prevent the disposal of these goods in issue. The applicant, in paragraphs 7 to 8.4 of the founding affidavit explained that both the first and third respondents were determined to proceed with the disposal of the goods in Annexure 'A' despite the issuance of inter-pleader proceedings. It is alleged they continued to approach the second respondent and the applicant then proceeded, thereafter, on 13 August 2010, to file this urgent chamber application in a bid to protect his interests in the property listed in Annexure 'A'.

The facts of the case clearly show that the applicant acted with due diligence and that the matter is, indeed, urgent.

I tend to agree with the applicants' objection in limine.

Indeed, I can perceive nothing objectionable in MAKONI J's default order warranting that it be stayed as a matter of urgency. The order simply requires the parties to peacefully co-exist and share the shrine which they previously used together.

The order is lawful and binding until it is set aside.

If the applicant feels quite strongly that the issue ought to be expedited, it can request the Registrar to quickly set down the application for rescission of judgment under case number HC5403/09.

Urgency

It was contended by the respondents' respective counsel that the transactions complained of had occurred on 15 April 2005, which is a document purportedly signed by the first and second applicants.  Indeed, in paragraph 12 of the founding affidavit, there is confirmation that the alleged Agreement occurred in 2005. The paragraph further confirms that the entire shareholding in Monomotapa Garden Furniture (Pvt) Ltd was sold to the respondents in or about June or July 2005. The second, third and fifth respondents have attached to their opposing papers a declaration filed by the applicants under case No.HC2480/10. In paragraphs 6 and 8 of that declaration, the applicants aver-

“In or around June/July 2005, and at Harare, the second plaintiff, in his capacity as Director and shareholder of the first plaintiff and also agent of the third plaintiff, entered into an oral agreement with the first defendant, duly represented by the second and third defendants, in terms of which the second and third plaintiffs sold their entire shareholding in the first plaintiff company including the business of the company as a going concern to the first defendant. It was also agreed that the first defendant, through the agency of the second and third defendants would assume, with immediate effect, full control of the plaintiff company and all its assets, which they duly did, including particularly running the first plaintiff company's factory for their benefit using the first plaintiff's stocks, business bank balances and labour.  This was agreed to and implemented in anticipation of payment of the purchase price in full within four months as averred herein.” 

On 10 January 2010, the first respondent had sent an email to the first applicant advising him of the sale effected on 15 April 2005 and the implications thereof. The first applicant demanded sight of the document in question and it was sent to him.

He took no action.

From the above, it is clear that what is contained in the certificate of urgency on the alleged illegal acts of the respondents having been fraudulently appointed Directors of Monomotapa Garden Furniture (Pvt) Ltd is not borne out by the record, especially the pleadings filed on behalf of the applicants themselves in the main cause. It is also clear that it is not news to the applicant that the second and third respondents have been running the affairs and business of Monomotapa Garden Furniture (Pvt) Ltd clandestinely. They were given full control. As for the applicants just having discovered these alleged irregularities is again not borne out of the record. By 11 January 2010, the disputed document of 15 April 2005, in terms of which the disposal of the shares and assets of Monomotapa Garden Furniture (Pvt) Ltd had been effected had been sent to the first applicant, and he took no action. It took him almost four months to issue summons for a vindicatory action and another month before launching an application to interdict the respondents from running the affairs of Monomotapa Garden Furniture (Pvt) Ltd and posing as Directors.

These courts have, time and time, spelt out the requirements to be met by an applicant seeking to have his matter jump the queue and have such heard on an urgent basis. Every litigant would wish to have his or her matter heard on an urgent basis. It is for that reason that the Rules provided for discretion on the part of the judge to decide whether or not the matter is urgent. There are no set criteria for the determining of urgency in relation to a matter, and it is often difficult for judges to decide before setting down the matter, whether or not it is urgent. Equally, legal practitioners, and their clients, use the arrival on-the-doorstep of the client crisis as the reason for having the matter heard on an urgent basis.  However, not every crisis can be considered urgent; a lot of factors have to be taken into account by the judge in dealing urgency. Where a litigant has been aware for some time of the existence of facts, or a set of circumstances, that could be detrimental to his interest, it cannot be justified for that party to allow those circumstances to gather momentum until crisis is reached, and, therefore, cry foul and demand a hearing from this court on the alleged grounds that the matter is urgent. In such a case, the urgency has been self-created. A party should not wait to seek relief from the court until the eleventh hour and expect that the court would grant him the indulgence of having his dispute jump the queue and be heard urgently.

The arrival of a crisis on his doorstep is not the only benchmark the court has to consider in determining the question of urgency.

As to urgency, each case must be judged upon its merits; facts surrounding the application must such that the urgency is evident from the certificate and the founding affidavit. The existence of a catastrophe or an imminent crisis, on its own, cannot, and should not, be the basis upon which urgency is determined.  A set of circumstances which, to the knowledge of the applicant or his legal practitioners, have existed for a period of time no matter how devastating the facts and the effect of their existence maybe, cannot be considered to constitute urgency, especially where it is clear that the applicant or his legal practitioner did themselves not react with urgency when the circumstances became evident. The urgency of the situation, in my view, must also be exhibited by equally urgent reaction on the part of the applicant.

In casu, the first applicant, if he is to be believed, was aware, by the middle of January 2010 that the respondents were passing themselves as Directors to Monomotapa Garden Furniture (Pvt) Ltd. That is the time when he should have been spurred to act.

He did not.

He issued summons cancelling the Agreement and demanding the eviction of the respondents from the immovable property, and it was only after being served with a request for further particulars that it occurred to him and his legal practitioners that there was need to stop the respondents from acting as Directors to Monomotapa Garden Furniture (Pvt) Ltd – and this coming almost five years after the respondents had been given full control of Monomotapa Garden Furniture (Pvt) Ltd is hard to comprehend.

I agree with the submissions by counsel for the respondents that this matter is not urgent and the application ought to fail on that score alone...,.

Counsel for the first respondent also argued that the matter lacks urgency.

He pointed out that following the granting of the consent order a letter was written to the applicant's legal practitioners on 4 March 2010. The letter reads as follows-

“1. We refer to the Order by Consent in the above matter.

2. We are advised that your clients have not paid the February 2010 instalment. Could you urge your client to attend to this breach immediately without fail to avoid the consequences of attachment of property.”

In light of the letter and the Consent Order, it was contended, on behalf of the first respondent, that there is no urgency as the applicant has always been aware of the day of reckoning. He cited the case of Independent Financial Services (Pvt) Ltd v Colshot Investments (Pvt) Ltd and Another 2003 (2) ZLR 494 (H) which dealt with a similar situation.

Counsel for the applicant submitted that in respect of urgency there was no delay in instituting the proceedings. Any slight delay occasioned arose when the applicant was mobilizing resources to mount the application. However, he pointed out that the application was made within less than a week from when the goods were attached. In respect of this he referred to the case of Kuvarega v Registrar General and Another 1998 (1) ZLR 188. Counsel for the applicant further submitted that if the matter is not heard the applicant would be prejudiced. Prejudice would arise in the sense that the writ of execution is claiming interest that is not due to the first respondent. The applicant's commercial activities have also been disrupted as a result of the attachment of the vehicle and generator.

It is on the issue of urgency that the applicant has a mountain to climb.

Notwithstanding the consent order of 16 March 2010, the applicant did not do anything in compliance with it until he was served with a notice of removal on 24 June 2010. It was inevitable that execution of the consent order would be sought at some stage in two respects. Firstly, by virtue of the granting of the consent order itself, the applicant was bound to discharge his debt. Secondly, by way of a letter dated 4 March 2010, the first respondent's legal practitioners were courteous enough to remind the applicant's legal practitioners that the applicant had already defaulted on the February instalment. In addition, they were reminded that attachment of property could be resorted to. Therefore, the applicant was adequately forewarned.

I agree that the urgency cannot arise from the attachment of the applicant's property because he has always been aware of the possibility of such attachment and did nothing about it. I will refer to the very apt remarks of CHATIKOBO J in the Kuvarega v Registrar General and Another 1998 (1) ZLR 188 case in which…, the learned judge had this to say-

“There is an allied problem of practitioners who are in the habit of certifying that a case is urgent when it is not one of urgency. In the present case, the applicant was advised by the first respondent, on 13 February 1998, that people would not be barred from putting on the T-shirts complained of. It was not until 20 February 1998 that this application was launched. The certificate of urgency does not explain why no action was taken until the very last working day before the election began. No explanation was given about the delay. 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 deadline 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 a 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. Those who are diligent will take heed. Forewarned is forearmed.”

In the case of Independent Financial Services (Pvt) Ltd v Colshot Investments (Pvt) Ltd and Another 2003 (2) ZLR 494 (H), HUNGWE J dealt with a similar case where, having sued the applicant for a debt, the first respondent in that case had the applicant barred. When an application for default judgement was made, the applicant's counsel consented to the judgment in the sum owed. A writ of execution was subsequently issued. The applicant then sought a stay of execution on the basis that the writ of execution was fraudulently obtained. Apart from noting that the applicant in that case had not compiled with the consent order for close to a month prior to the writ of execution being issued HUNGWE J had this to say about the urgency claimed by the applicant in that case…,-

“One would have hoped the applicant could offer to make payment into court of the sum of $130 million that it admits owing. It did not make that offer. Instead, the applicant seeks to blame its own legal practitioner for its failure to discharge its obligation and/or to conduct its pleadings properly. I have considered the papers filed in opposition and come to the conclusion that the applicant merely seeks to delay the day of reckoning by filing this application. A matter is not urgent merely because property has been attached. That is self–created urgency, born out of the dilatory manner in which a party conducts its affairs. It cannot be a good reason to stay satisfaction of a lawfully due debt as here.”

In support of the urgent application the certificate of urgency reads, in part, as follows -

“1. Accordingly, it is certain that execution of this default judgment is now imminent when in fact applicant denies being indebted to the respondent in the sums claimed, or at all, and had entered an appearance to defend the matter on 10 September 2010, being within two days of the date when applicant first saw the summons.

2. Accordingly, should the respondent not be urgently ordered to stay the imminent execution, applicant will suffer irreparable harm as his property will be attached and sold in execution to satisfy a debt which applicant denies and does not even owe to the respondent.

3. Applicant has, simultaneously with this Urgent Application, filed an application for rescission of the default judgment granted in favour of the respondent on 14 September 2010. Accordingly, it is prudent that execution of this judgment be stayed, as a matter of urgency, pending the final determination of the application for rescission of judgment, otherwise the application for rescission of judgment will be rendered only academic.

4. ....,.”

The founding affidavit attempts to support the above position in the following manner-

“I deny being indebted to the respondent in the sums mentioned or at all. In fact, I entered an appearance to defend the main matter on 10 September 2010 that was within two days of my first sight of the summons. Unbeknown to me, the summons had been served at my business address on 13 August 2010 but my son's friend, Kurt Ruseke, who received the summons inadvertently delayed in forwarding the same to me until 08 September 2010 when he left them in the letter box at my house.

Accordingly, I was not in wilful default. Surprisingly, upon being served with my appearance to defend stating that the summons was served on 08 September 2010, respondent's legal practitioners did not write to me advising the actual date when the summons was served. They did not even warn me to regularise this position and I only discovered the same after being advised of the default judgment on 18 October 2010. It therefore appears that the respondent was bent on snatching the judgment only.

I have simultaneously, with this application, filed with this Court under case number HC7538/10, an application for the rescission of the default judgment in question. It is clear that my application for rescission of judgment is bona fide and has merits. I was not in wilful default and I have a bona fide defence on the merits. I beg leave to refer this application.”

In her opposing affidavit, the respondent points out that the matter should be dismissed with costs for lack of urgency because the applicant has, since July 2010, been always aware of the case. This application, it is argued, was only filed on 22 October 2010 – yet summons was served on 13 August 2010. The respondent goes on to point out that the “applicant did nothing to seriously defend the case and is now only acting because execution is imminent and this does not constitute urgency.”

Whilst agreeing that he became aware of the court summons on 8 September 2010 and entered appearance on 10 September 2010, the applicant argues that he only became aware of the final development on 18 October 2010. He then filed this application on 22 October 2010. To that end, the applicant argues, this application was not triggered by the threat of imminent execution. He therefore argued that the principle of law enunciated in the case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 H did not apply. In that case it was held that -

“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 a 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.”

Applying the above principles to this application I would reason as follows:

Notwithstanding the issue of entering appearance to defend, I would argue that the need to respond to the judicial process and react timeously arose when the applicant, as he claims, became aware of the litigation on 8 September 2010. The duty to enquire about progress on the matter lay squarely with the applicant who, in any case, admits that his relationship with the respondent had become sour. Faced with litigation, he should have known that the respondent was serious. He did nothing as a follow up to the court process. The need to act timeously had already arisen.

Given the foregoing, I find it difficult to depart from the principles of law laid in the Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 H case…,. There is nothing in casu to compel me to depart from those principles. This application is, in my view, triggered by the issue of imminent execution of the default judgment obtained by the respondent on 14 September 2010. The applicant's sudden awakening to stop the inevitable is coming late in the day and cannot therefore enjoy the blessings of this court. There is therefore no urgency in this matter and having so ruled I find it unnecessary to delve into the merits of the matter. I therefore order as follows -

The respondents raised two points in limine. First, they alleged that the matter is not urgent at all.

In his founding affidavit, the applicant has not dealt with the question of urgency seriously. All he states is-

“My right to education is being infringed by the transfer to Murewa in that all my studies will be affected adversely. The transfer will be effective on the 30^th November 2009 if this application for provisional order is not heard.”

The certificate of urgency is equally unhelpful. All that the legal practitioner states is the following-

“1.1. The applicant is doing studies presently with the University of South Africa an advantage of being at Beitbridge close to the Republic of South Africa.

1.2 Murewa is very far from his collection point of study material which definitely prejudice his studies.

1.3 There are allegations made against him which are grounds for his transfer which also damage his person but where not put to him for him to give his side of the story. These may even affect his employment.”

There is no allegation of urgency in the founding affidavit and the certificate of urgency.

The applicant seeks a provisional order in the following terms-

“Terms of final order sought

That the first and second respondents should show cause to this honourable court why a final order should not be made on the following terms:

(a) That the first respondent be and is hereby permanently interdicted from chasing away the applicant company as the sole constructor at Stand Number 327 BT 4th Avenue and Fife Street, Bulawayo, [pending a proper termination of the oral agreement].

(b) That the first respondent pays the costs of this application on an attorney-client scale.

Interim relief granted

That pending the confirmation or discharge of this order, this order shall operate as an [sic] temporary order having the effect of:

(a) Directing the first respondent to reinstate the applicant company as the sole constructing company at Stand Number 327 BT 4th Avenue and Fife Street, Bulawayo.

(b) Barring the second respondent from carrying out any construction work for the first respondent at Stand Number 327 BT 4th Avenue and Fife Street, Bulawayo.

(c) In the event of first respondent failing to comply with this order, the first respondent be and is hereby declared to be in contempt of court.”

The first respondent raised several points in limine. I propose to deal with them in turn.

I will start with the issue of urgency.

It is trite law that the extension of protection under a certificate of urgency is relief available from this court as a matter of discretion – Dilwin Invstms (Pvt) Ltd t/a Farmscaff v Jopa Eng Co (Pvt) Ltd HH116-98 and General Transport & Engineering P/L & Ors v ZIMBANK Corp P/L 1998 (2) ZLR 301 (H). In the circumstances, I will exercise my discretion in determining whether this application is indeed urgent.

The applicant seeks an interlocutory interdict under a certificate of urgency. The interdictory remedy has meant different things at different times in its history. But, I have to once more emphasize that from the earliest times it manifested itself as an extraordinary remedy; The Law and Practice of Interdicts (1993) by C.B. PREST…,. In short, it is an unusual, extraordinary and discretionary remedy – Natham v Hoffenburg Bros & Lunz 1919 EDL 184…, and Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton & Anor 1973 (3) SA 685 (A…,.

In other words, it is not available to a litigant who is possessed of an alternative ordinary remedy – Setlogelo v Setlogelo 1914 AD.

The following statement of the requirements by CORBETT J…, is representative of what has become the almost standard formulation of the requirements -

“Briefly, these requirements are that the applicant for such temporary relief must show -

(a) That the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear or if not clear, is prima facie established, though open to some doubt;

(b) That, if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;

(c) That the balance of convenience favours the granting of interim relief; and

(d) That the applicant has no other satisfactory remedy.”

Mabhodho Irrigation Group v Kadye & Ors HB08-03; L R Boshoff Investments (Pty) Ltd v Cape Town Municipality 1969 (2) SA 256 (C)…,.

This remedy does not fall within the mould of ordinary judicial remedies. Unfortunately, this remedy is abused and litigants are willy-nilly approaching these courts under certificates of urgency under Rule 223 of the High Court Rules, 1971.

GILLESPIE J in General Transport & Engineering P/L & Ors v ZIMBANK Corp P/L 1998 (2) ZLR 301 (H) rightly held that the preferential treatment of allowing a matter to be dealt with urgently is only extended if good cause is shown for treating the litigant in question from most litigants. Legal practitioners issuing certificates of urgency under Rule 223A must not do so where they do not genuinely consider the matter as urgent. In casu, in his scant certificate of urgency all the legal practitioner states is the following –

“First respondent's conduct is unlawful and wrongful in that is has caused or has a potential to cause applicant huge financial loss. There are workers that need to be paid salaries. In the circumstances, the applicant is bound to suffer irreparable harm should the unlawful and wrongful conduct of the first respondent remain in force.”

This shows that the legal practitioner granted the certificate without having regard to the above-mentioned requirements of an interdict. In this case, the applicant can sue the first respondent for damages arising from the alleged breach of the verbal agreement...,. More importantly, the founding affidavit does not state why the application is being instituted under a certificate of urgency. All that is averred in the founding affidavit is the following –

“The applicant submits that the actions of the first respondent are unlawful and have caused the applicant financial loss…,. The 1st respondent owes the applicant USD22,000= outstanding from construction work already done and if applicants are prevented from working they stand to lose this amount…,.”

As alluded to above, the applicant is possessed of an ordinary remedy for damages ex contractu. It is not clear why he chose the route of urgent application. For this reason alone I find that this application is not urgent.

What appears to have prompted the current application is the attachment and removal of the applicant's property by the Deputy Sheriff of Bulawayo on the 31st May 2010 in order to realize the balance of the order granted in his favour on 19th February 2010 - which order the applicant has been aware of for well over a year.

As pointed out already, the applicant is not currently seeking a rescission of that order which has already been executed to a large extent. Even the removal of her property on the 31st May 2010 did not jolt the applicant to immediate action given that the current urgent application was only filed on 24 June 2010.

The question which arises therefore is whether this matter could be said to be urgent in light of the foregoing.

No litigant is entitled to be heard on an urgent basis as of right and the matter is urgent if, at the time it is filed, the risk of irreparable damage is so great that it cannot proceed within the normal time frame provided by the Rules. Musunga v Utete and Another HH90-03. Legal practitioners are in the habit of certifying applications as urgent as a matter of course without consideration of the facts of the matter. As pointed out in Kuvarega v Registrar General and Another 1998 (1) ZLR 188… -

“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 deadline draws near is not the type of urgency contemplated by the Rules.  It necessarily follows that the certificate of urgency or supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay.”

See also Granspeak Investments (Pvt) Ltd v Delta Operations (Pvt) Ltd and Another 2001 (2) ZLR 551 and General Transport and Engineering (Pvt) Ltd and Others v Zimbabwe Corp (Pvt) Ltd 1998 (2) ZLR 301…,.

In the present case, no explanation has been given for the applicant's failure to act timeously when she was aware of the existence of the order against her as far back as February 2009. Further, no explanation is proffered as to why the original urgent application for stay of execution (HC335/09) was not prosecuted up to now.

The applicant complied with the first leg of the order by allowing the money to be recovered from her Barclays account. She has now filed this application to contest the recovery of R18,000= which she has known was due in terms of the court order of 19th February 2009.

It is a principle of our law that there must finality to litigation; Ndebele v Ncube 1992 (1) ZLR 288…,.

In any event, for an applicant in an urgent application to obtain interim relief, he or she must show that there is a prima facie case for such relief; Kuvarega v Registrar General and Another 1998 (1) ZLR 188.

The applicant in the present case has not shown that she has a prima facie case. The mere allegation that she has a possible counter claim against the first respondent for damages does not qualify as a prima facie case as would entitle her to interim relief. After all such a claim can be prosecuted independently.

I therefore come to the conclusion that this application cannot succeed not only because urgency has not been established but also because, on the merits, the applicant still has insurmountable difficulties.

The background of the matter is that starting about the 17th June 2007 and following then, the first respondent supplied the applicant with mining equipment at the applicant's special instance and request.  Invoices for payment were submitted in Zimbabwe dollars but no payment was made for the relevant invoices. During subsequent months, and indeed years, the first respondent sent several written reminders and revised invoices demanding payment - which payment was not made. About February 2009, the Zimbabwe dollar became moribund and multiple currencies were introduced. At some stage after the introduction of foreign currency, the applicant requested the first respondent to revise its invoices taking this into account and submit amended invoices denominated in United States Dollars….,.

The first respondent submitted revised accounts denominated in United States Dollars but still no payment was forthcoming from the applicant despite numerous demands which are filed of record in case no. HC1111/10. On the 15^th June 2010, the first respondent issued summons against the applicant claiming a sum of $169,755=87. The said summons was served upon the applicant on the 26^th June 2010 and, as no appearance to defend was filed, an application for default judgment was made which was granted on the 22^nd July 2010. The applicant appears to have done nothing at all about the matter until an attachment of property, in execution of the default judgment, was made on 2^nd August 2010.

The attachment of property jolted the applicant into action resulting in this urgent application being filed on 5^th August 2010 - even before an application for rescission of the judgment granted in default was made. It was only filed on 12^th August 2010.

From the time that the applicant was served with the summons on the 26^th June 2010, it has done absolutely nothing, quite consistent with its conduct over the years when it did not respond to any of the demands made by the first respondent for payment.

The claim that when the summons was received a letter was written to the applicant's legal practitioners instructing them to defend the action, but that the letter in question has just vanished from the surface of the earth, is simply disingenuous. Pressed by the court to produce even a file copy of that letter to signify that at least something was done, counsel for the applicant could not do so even as he claimed to have the entire office file of the applicant on the matter in his possession. Not even the service of summons could incite action on the part of the applicant

.Now that its property has been attached in execution, the applicant has decided to approach the court on an urgent basis. It was pointed out in the case of Kuvarega v Registrar General and Another 1998 (1) ZLR 188…., that -

“Urgency which stems from a deliberate or careless absention from action until the deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay.”

See also Khumalo v Mpofu HB56-10…, where, at page 3 of the cyclostyled judgment, I did state that -

“No litigant is entitled to be heard on an urgent basis as of right.”

I am not persuaded that the urgency arising out of the facts of this matter is one contemplated by the Rules. Quite to the contrary, this is not only self-created urgency but also a deliberate attempt to frustrate the first respondent in its resolve to recover what it is entitled to. I am fortified in that conclusion by the fact that at no stage did the applicant deny liability or that the mining equipment was delivered. All that the applicant appears to be saying is that it will not pay until the first respondent reduces the price to a level acceptable to the applicant - even though the applicant has had the benefit of the goods supplied for more than two (2) years.

Having come to the conclusion that the matter is not urgent, it is not necessary to determine the other points raised in limine or to go into the merits.

Accordingly, it is ordered as follows:

Under case number HC1995/08, the applicant obtained a provisional order against the second respondent interdicting him from executing the judgment of the Magistrates Court. That provisional order was subsequently discharged on 29 October 2009.

On 18 December 2009, the applicant sought leave from the second respondent to sell the properties by private treaty and he was subsequently allowed to do so. He enlisted the services of at least two law firms but did not succeed in selling the properties.

On the 8^th February 2010, the two properties were placed under attachment for sale in execution and the applicant was notified of this. Through his legal practitioners, he sought an extension of time to sell the properties by private treaty which was granted. He again failed to secure a buyer. It was not until 29 September 2010 that a date for the sale was set as the 29^th October 2010. Prior to that the first respondent had notified the applicant, by letter dated 2^nd July 2010, of the intention to sell his property. 

He did not do anything.

This application was only filed on 3^rd November 2010 - almost nine (9) months after the attachment of the property.

A litigant is not entitled, as of right, to have their matter heard urgently. As stated by MAKARAU J…., in Musunga v Utete and Another HH90-03…., -

“It is trite that no litigant is entitled, as of right, to have his or her matter heard urgently….,.  The test for urgency, as provided for under the Rules, is that the matter must be so urgent and the risk of irreparable damage…, so great that the matter cannot proceed within the normal time frame provided for in the Rules.”

While the applicant became aware of the pending execution in February 2010, he only approached the court several months later. In my view, this was self-created urgency. Urgency which stems from a deliberate or careless abstention from action is not the kind of urgency contemplated by the Rules. See Williams v Kroutz Investments (Pvt) Ltd and Others HB25-06; Kuvarega v Registrar General and Another 1998 (1) ZLR 188 (H); Granspeak Investments (Pvt) Ltd and Another v Delta Operations (Pvt) Ltd and Another 2001 (2) ZLR 551 (H); and Mettallion Gold Zimbabwe v Eurotech Plant and Equipment (Pvt) Ltd and Another HB87-10.

As stated by CHATIKOBO J in Kuvarega v Registrar General and Another 1998 (1) ZLR 188 (H)…., -

“What constitutes urgency is not only the imminent arrival of 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 deadline draws near is not the type of urgency contemplated by the Rules. It necessarily follows that the certificate of urgency or supporting affidavit must always contain an explanation for the non-timeous action if there has been a delay.”

Clearly, therefore, the applicant has failed to show why his matter should be allowed to jump the queue and be heard urgently when he sat on the problem from February 2010. 

Secondly, counsel for the first respondent took the point that the matter is not urgent.

I do not consider it necessary to determine all the preliminary points as I am of the view that the matter is simply not urgent. I have painstakingly set out the history of the matter in order to demonstrate that this is a long standing dispute which has been allowed to perpetuate mainly because the parties have not shown any serious commitment to bringing finality to the dispute. Instead, they have contented themselves with filing one application after the other without the slightest desire to bring the matter to a close.

The applicant has been aware for quite some time of the consent order issued by MAVANGIRA J on 11 March 2008 (HC7312/2006) in which the first respondent was allowed to service or develop the land. That order remains extant and nothing has been done to set it aside. The applicant was served with the urgent chamber application in HC10716/2011 in which the first respondent made it clear that it was busy servicing the Stands and had almost completed the water reticulation system. It, however, did not do anything about that activity.

Indeed, the applicant has produced a press statement published on 27 November 2012, almost two (2) months before this application was made, in which the first respondent literally nailed its colours on the mast about the servicing of the land. It is myopic to say the least to even suggest that the press statement was only brought to the applicant's attention on 22 January 2013 when it was in the public domain that far back.

What this means is that the applicant has created this urgency in order to jump the queue. Urgency which stems from a deliberate abstention from action is not the kind of urgency contemplated by the Rules. Kuvarega v Registrar General & Another 1998 (1) ZLR 188 (H)…,.

In any event, there is nothing which the respondents are doing now which they were not doing in November 2011 when the provisional order in HC10716/2011 was granted. The applicant elected to bide its time and must live with that election. If it had sought finality of that matter it would have long been put to bed by now.

The applicants seek interim relief on an urgent basis in the following terms:

“1. The first respondent be and is hereby interdicted from alienating or otherwise disposing of or dealing with the rights of the third and fourth respondents arising out of the Memoranda of Understanding concluded between the applicants and the first respondent at Harare on 25 July 2008 and 13 October 2006, pending the outcome of an arbitration to be instituted by the applicants in Paris in accordance with the aforementioned Memoranda of Understanding;

2. The first, third and fourth respondents be interdicted from amending, altering or changing the shareholding in and the share registers of the third and fourth respondents pending the outcome of the arbitration referred to in prayer 1 above;

3. The applicants be and are hereby ordered to institute the aforementioned arbitration proceedings within 60 days from the date of this order;

4. Leave be and is hereby granted to the applicant's legal practitioners of record to serve the provisional order on all respondents.”

By the time I heard the matter, the third term in the interim relief sought cited above had fallen away; the applicants having already instituted the arbitration proceedings on 31 January 2011 at the International Court of Arbitration in Paris, France.

The present application is opposed both on the question of urgency and on the merits. On the hearing day I restricted the parties' arguments to the issue of urgency.

The bare bones of the dispute are these:

Following the conclusion of the Memoranda of Understanding, alluded to in relief 1 supra, the first respondent advised the applicants, by letter dated 10 November 2010, of the termination of the Memoranda of Understanding for both platinum and nickel. What can be gleaned from the papers that were filed by the first respondent, as the main grounds for terminating the Memoranda of Understanding, are that they had lapsed, that they were entered into without the approval of the responsible Minister, hence invalid and that they were tainted with corruption in that the applicants, or one of their Directors, had a corrupt relationship/dealing with Dominic Mubayiwa, the erstwhile Chief Executive Officer of the first respondent. On 21 December 2010, the first respondent reiterated its position regarding the termination of the Memoranda of Understanding in these words;

“…,. The mutual negotiations and meetings do not in any way affect or change our position regarding the cancellation of the MOU. We further reiterate that the Chairman never assured you of the reinstatement of MOU as you seem to suggest in your letter. We hope this will put the record straight as has always been our emphasis in our meetings and you will be guided accordingly.”

The applicants' need to act on an urgent basis arose on 10 November 2010 when the Memoranda of Understanding were cancelled by the first respondent.

They did not.

Instead, on 22 November 2010, they demanded that the first respondent makes an undertaking “not to attempt to disturb the presently existing legal relationship as established by the MOUS and the rights preceding that relationship and flowing there-from in any way whatsoever, for examples (sic) by alienating any rights to any third party or affecting the Amari Group's rights in any way whatsoever. If no such undertaking is given pending the negotiations to be undertaken and pending the outcome of the arbitration before the International Court of Arbitration…, it would become necessary for an urgent interim interdict to be brought in the appropriate Zimbabwean Court to preserve the Amari Group's rights.”

Not only was this demand ignored by the first respondent but the first respondent put the issue beyond any doubt by its letter of 21 December 2010, alluded to supra, that no such undertaking would ever be given.

Another need to act on an urgent basis went begging.

It was only on 18 January 2011 that this urgent application was filed. No explanation has been proffered for the delay to act; at least, if one were to be benevolent to the applicants, from 21 December, 2010.

In Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188 (HC), 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 deadline 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 a delay.

In casu, such an explanation is absent except for some allusion to or narration of a careless abstention from action.

The preferential treatment of allowing a matter to be dealt with urgently is only extended if good cause is shown for treating the litigant in question differently from most litigants - See General Transport and Engineering (Pvt) Ltd and Ors v Zimbabwe Banking Corporation 1998 (2) ZLR 301 (HC).

In casu, no such good cause has been shown…,.

I found it unnecessary to deal with the merits of the matter because the application can simply be disposed of on the issue of urgency.

In this regard, the words of CHATIKOBO J in Kuvarega v Registrar-General & Another 1998 (1) ZLR 188 (HC)…, bear useful repetition for clarity. He said -

“There is an allied problem of practitioners who are in the habit of certifying that a case is urgent when it is not one of urgency. 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 deadline 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 a delay. Those who are diligent will take heed. Forewarned is forearmed.”

In casu, if what the applicants allege is true, viz that immigration officials impounded their passports for 13 months without reason from January 2010 to 5 February 2011 thereby scuttling the fulfilment of the terms and conditions of their investment licence, it is a wonder why the applicants sat back unperturbed doing nothing about it. The papers do not say why the applicants remained in this near catatonic state.

Whilst their passports were still under impound the applicants were able to apply to the Zimbabwe Investment Authority for extension of their investment licence but on 31 January 2011 they were written letters being advised that their application for residence permit extension had been refused. In the letters the applicants were directed to go with the letters to the nearest immigration office so that departure arrangements could be made. They did not approach the court on an urgent basis. In fact, they did nothing. On 2 February 2011, the applicants were served with a Notice to Visitor for departure expiring on 1 March 2011. Instead of approaching this court, on the third time the need to act arose, the applicants decided that the matter could still wait. They embarked on an apparently futile exercise of appealing to the same official who had refused to grant extension of their residence permits. That was on 7 February 2011. It was only on 28 February 2011 that the applicants lodged an appeal to the Co-Ministers of Home Affairs, who, on the same date, advised the applicants to approach the Immigration Department with a copy of the acknowledgement of receipt of the appeal for further assistance. The applicants argued that this letter of acknowledgement of the appeal constituted an instruction by the Co-Ministers to immigration to allow the applicants to remain in the country pending determination of the appeal by use of the words: “For further assistance please approach the department of immigration with a copy of this letter,” which instruction immigration are disobeying. Looking at the ordinary grammatical meaning of the wording employed I am unable to glean such meaning as contended for by the applicants.

It was only on 7 March 2011 that this application was filed in this court on purported urgency - some 5 days after the expiry of the Notice to Visitor period. Neither the certificate of urgency nor the founding affidavit contains any explanation for the delays at each and every stage when the need to act arose alluded to supra. The urgency claimed by the applicants is not one contemplated by the Rules of Court but is one which stems from a deliberate or careless abstention from action until the deadline had passed - something akin to shutting the stable door after the horse had bolted.

The chronology of events in this matter throws me to the side of the respondents.

The applicant does not deny that it was duly served with a chamber application for the registration of the award of 3 February 2011. The award, whose registration the applicant says it could not interfere with, is the same award whose execution it now seeks to frustrate. The founding affidavit is silent on why the registration of the award was not opposed and we are not told as to when the rescission application was filed.  We are also not given the detailed reasons for the rescission except that the award was granted in default.

However, what emerges clearly from the events surrounding this matter, is that the threat the applicant now seeks to avert has always been in existence since 3 February 2011. The day of reckoning cannot be said to have been triggered by the Writ of Execution issued on 23 April 2011 for the attachment of the applicant's goods. The applicant was served with an application for the registration of the award on 22 February 2011. The applicant knew very well that registration of the award was meant to facilitate execution. I find no legal or logical basis for the applicant to hide behind the provisions of section 36 of the Arbitration Act [Chapter 7:15]. The reasons, if any, for resisting the execution of the registered order must have existed prior to its registration.

In General Transport & Engineering Private limited & Ors v Zimbank Corporation Private Limited 1988 (2) ZLR 301 (H) GILLESPIE J said -

“A party who brings proceedings urgently gains a considerable advantage over persons whose disputes are being dealt with in the normal course of events. This preferential treatment is only extended where good cause can be shown for treating one litigant differently from most litigants. For instance, where, if it is not afforded, the eventual relief will be hollow because of the delay in obtaining it.”

I associate myself with the above remarks because, given what transpired, I am unable to find good cause for giving the applicant preferential treatment. A litigant seeking assistance through the urgent window of this court must demonstrate having taken immediate action (i.e. timeous action) when the danger to be averted first arose. As already explained, that is not the case in casu. In my view, the need to take action arose long before 10 May 2011. It was also a long time before the award was registered by this court on 25 March 2011. Apart from the aspect of default, I believe that the main reasons for applying to set aside the award were in existence on 22 February 2011 and cannot therefore be conveniently ignored through a restrictive interpretation of Article 36 of the Arbitration Act [Chapter 7:15].

In view of the foregoing, my view is that this application does not qualify to be heard on an urgent basis. That view disables me from considering the merits of the case. The applicant can proceed on the basis of an ordinary application.

I dismissed the urgent chamber application firstly for lack of urgency.

It was argued on behalf of the applicants that the need to act had arisen from 13 April 2013 when Stephen Nhuta had caused the re-attachment of the assets. In the certificate of urgency it was stated that the removal of the assets had been scheduled for Monday 22 April 2013. That was the very day the urgent chamber application was filed. Therefore, somehow it was expected that the application would be filed, and on the same day the registry would complete all the necessary administrative procedures of receipting the court fee, issuing the application, allocating it to the duty judge, who, in turn, would peruse the papers, arrange set down and advise the applicants' counsel, who, in turn, would have had to serve the papers and still have the matter heard on the same day. As it happened, the application was only heard on 25 April 2013 after the applicants' counsel had intimated that the removal of the attached property was no longer going ahead on 22 April 2013. But it was never explained when next it was feared it would happen.

In Kuvarega v Registrar-General & Anor 1998 [1] ZLR 188 [H] CHATIKOBO J said…., -

“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.”

When Stephen Nhuta had registered the arbitral award with this court, in September 2012, it must have become obvious to the applicants that his next step would be execution. Indeed, he executed. Therefore, when the Finance [No.2] Act, Act No.6 of 2012 was promulgated in 2012, and if the applicants should have thought that the legislation applied to them, they would necessarily have had to act then. They would have applied that their assets be declared exempt from attachment. They did not. And neither the certificate of urgency nor the founding affidavit explains this delay. Instead, there has been an attempt to mislead. It was concealed from the application that the parties had entered into some payment arrangement. What then triggered the urgent application was not the re-attachment of the assets in April 2013, but, rather, Air Zimbabwe Holding's own default of the agreed payment arrangement.

In Kuvarega v Registrar-General & Anor 1998 [1] ZLR 188 [H]…, the delay between the need to act and when the application was eventually filed was some 8 days. The court said that there had been no explanation until the very last working day of the day of reckoning.

In casu, even if I were to accept the applicants' contention that the need to act had arisen only in April 2013, when the re-attachment happened, and not in December 2012 when the Finance [No.2] Act, Act No.6 of 2012 came into being, there is still the problem that the applicants' deponent has not been truthful in the founding affidavit on yet another point. It was false to say that the re-attachment was on 13 April 2013. Actually, the first attempt at re-attachment had been on Air Zimbabwe. That had been on 10 April 2013. Apparently, Air Zimbabwe had flagged the Finance [No.2] Act, Act No.6 of 2012 to the Deputy Sheriff. The Deputy Sheriff had retreated. But he had then come back for Air Zimbabwe Holdings. That had been on 12 April 2013. All this is borne by the Deputy Sheriff's returns which were attached to Stephen Nhuta's opposing papers. In the founding papers, no explanation was given why such precious time was wasted and why action was taken only some 12 days later - and on the very day of reckoning.

During argument, counsel for the applicants proffered the explanation that the applicants are large corporations and that it was not feasible to assemble their Boards to pass the necessary resolutions.

This is unacceptable.

The applicants had been seized with Stephen Nhuta's litigation since 2010. Furthermore, attached to the applicants' founding papers was an extract of a resolution by Air Zimbabwe on 13 November 2012, among other things, authorising the deponent to sign all legal documents and to do any legal acts on its behalf to safeguard its interests in the dispute between Air Zimbabwe Holdings and Stephen Nhuta. If Air Zimbabwe had felt that it was its assets that had been re-attached as was contended why did it wait? ...,.

Furthermore, the applicant avers, that this matter is…, deserving of urgent attention by this court…..,.

Furthermore, the respondent contends, the matter is not urgent as the applicant was aware since 21 June 2013 that its application for a petroleum licence was refused but did not do anything until now - some three months later….,.

WHETHER OR NOT THE MATTER IS URGENT

The case relied upon by both sides is the often cited one of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H).

On the papers before me, the need to act arose on 5 June 2011 when the first respondent switched off the first applicant's access to the IT platform. This prompted the first applicant to contact its attorneys in Johannesburg, South Africa on 6 June 2011 and travelling to that country for consultations. The attorneys then wrote to the first respondent on 8 June 2011 clarifying the first applicant's position regarding the purported cancellation of the agreement by the first respondent and threatening urgent injunctive relief to restore the status quo ante.

On 9 June 2011, the first respondent's attorneys wrote a letter to the first applicant's attorneys indicating that the agreement was considered cancelled. Between then and 24 June 2011, when this application was filed, the first applicant explained the reason for the delay as follows:

(i) It briefed its South African attorneys in respect of the highly technical aspects of its Trustco Mobile System in relation to the copyright, patent and other intellectual property related issues;

(ii) Had to seek the input of a further South African advocate experienced in intellectual property-related issues;

(iii) Had to secure and appoint and obtain advice from local attorneys and counsel relating to various procedural and substantive aspects of Zimbabwean law in order to draft and finalise the application papers;

(iv) The first draft of the application papers was received by it on 13 June 2011 for consideration, comment and review. This was done over the next three days since various versions were exchanged and the first applicant's Namibian-based technical development employees had to be roped in; various amendments were effected;

(v) After briefing Messrs Bhana SC and Puckrin SC, who previously were admitted to practice in Zimbabwe, it was realized, following advice from Messrs Gill, Godlonton and Gerrans – the local correspondent attorneys – that the briefed South African counsels would need to apply for a residency exemption to be allowed audience in Zimbabwean courts and its granting was not guaranteed and its application would further prolong the delay;

(vi) On 16 June 2011, Advocate Erik Morris (local counsel) was briefed and on 17 June 2011 (a Friday) Advocate Morris indicated that he needed the weekend to consider a few technical issues he had reservations about;

(vii) On the same Friday, the first applicant's Group Managing Director, Quinton van Rooyen, and Jan Jones came to Zimbabwe to consult with Advocate Morris. Their South African attorney also came and consulted with the same advocate and the local correspondent attorneys on 20 and 21 June, 2011;

(viii) The papers were ultimately finalised on 22 June 2011 and the application filed on 24 June 2011.

Given the logistical difficulties encountered in the preparation, drafting and issuing the application over three different jurisdictions, the delay did not defeat the urgency of the matter.

The orbiter in the Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H) case is that where there has been a delay in bringing the application to court, either the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action. Law, unlike mathematics, is not an exact science. Whatever the length of the delay, if a reasonable or credible explanation for the delay is tendered, that delay should not detract from the urgency of the matter.

In regard to the first preliminary point, the first respondent produced nothing to show that the matter was not urgent. 

What it only did was to state that the application was not urgent and to educate the court on what it means when one says a matter is urgent. Its volunteered education of the court on the meaning of the phrase 'urgent chamber application' did not serve any real purpose as the court is well-versed with the meaning, nature and extent of that phrase which is, more often than not, part and parcel of its day-to-day work.

When the default judgment was granted on, 1 November 2012, no action was taken by the defendant until 16 November 2012 when it filed its appeal. A writ of execution was served on it on 7 November 2012 but the defendant did nothing to protect whatever right it might have thought it had until 27 November 2012 when it filed the present application. 

The defendant itself did not treat the matter as urgent until the imminent arrival of the day of reckoning. The matter is not urgent – see Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188.

The respondent has raised a point in limine that the matter is not urgent.

I propose to firstly deal with this issue and consider the other issues if need be. Because of the point in limine, I have to determine whether the applicant has established that it will suffer irreparable harm if this applicant is not treated urgently - CABS v Ndlovu HH03-06.

Looking at the certificate of urgency, paragraphs 1 and 2 are irrelevant as they pertain to the merits and are, therefore, the province of hearing of the main matter. Paragraph 3 of the certificate of urgency is pertinent as it is the only one that alleges urgency. Paragraph 3 reads:

“3. The urgency however arises especially from the fact that applicant's account has now been garnished meaning therefore that the applicant will not be able to access its funds from its account which will cripple its operations. Since the applicant is a company domiciled in Zimbabwe with assets in Zimbabwe it seems to me that the respondent's action is rather drastic and borders on vindictiveness and for that reason I submit that it is in the applicant's interest for, at the very least, an interdict to be granted suspending the operation of the garnishee to enable the applicant to continue operating whilst challenging the respondent's decision to dismiss its objection.”

In paragraph 21 of the founding affidavit, the applicant avers:

“21. If the garnishee is given effect to, it will totally cripple the applicant's cash flow and will render them unable to operate.”

This is the sole ground advanced by the applicant.

The deponent to the applicant's founding affidavit is not an employee of the applicant but a Tax Expert engaged in an effort to resolve the tax problem between the parties. What she is stating in the affidavit is hearsay. Further, no supporting facts have been tendered to confirm, even on prima facie basis, that indeed if the garnishee is effected, operations of the applicant will be crippled. There is no cash flow statement. There is no allegation how much the applicant requires on a daily or monthly basis to operate. It has not been shown that the applicant's bank account has very little funds so much that once the Zimbabwe Revenue Authority gets what it is demanding in the garnishee the applicant will be left broke. The applicant has not disclosed the amount of money that is in that bank account to prove the crippling effect of the garnishee that was placed on the account. The applicant has just made a naked statement, and, as such, the court has no material to work with to satisfy itself that there will be irreparable harm. In the circumstances, it cannot begin to exercise the discretion without the benefit of that crucial information – Silver Trucks and Anor v Director of Customs 1999 (1) ZLR 490 (H)…,.

There is a direct link between urgency and irreparable harm….,.

From the foregoing, it is clear that the applicant has failed to satisfy the court that it will suffer irreparable harm if the matter is not dealt with under a certificate of urgency. This court cannot exercise its discretion to hear the matter on an urgent basis when there is no such foundation.

I propose to deal first with the issue of urgency.

Counsel for the respondent strongly argued that the applicant does not state in his founding affidavit why he considers the matter urgent, that the certificate of urgency itself is not helpful at all and that it has not been shown that the applicant will suffer irreparable harm or prejudice if the matter proceeds by ordinary court application.

Looking at the certificate of urgency, the only relevant parts are paragraph 2(b) and 3 as they are the only ones which attempt to address the issue of urgency. The rest are irrelevant narrations which do not impact on urgency at all. Paragraph 2(b) reads:

''Respondent is currently holding the Applicant's car in their yard charging him rentals of $10= per day, since 8 January 2011, when, as a returning resident, he should be allowed to get a rebate.''

Paragraph 3 reads:

''Irreparable harm will be occasioned on applicant if the matter is not heard urgently and an order granted in terms of the Draft.''

It has been submitted, on behalf of the respondent, that the rental of $10= being charged for the detained vehicle is merely a paper tray as the applicant is not paying that money. Whether he will have to pay that money will depend on the success or otherwise of his claim. The court is still entitled to order the release of the vehicle without payment of storage charges and the respondent may still waive the charges if the applicant's claim for a rebate has merit. For those reasons, it cannot be a vehicle for urgency.

The averment relating to irreparable harm is a bald one not supported by any fact and why the certifying legal practitioner thinks irreparable harm will be suffered is not stated. The applicant cannot expect the court to exercise its discretion to accord him audience on an urgent basis without useful information to sustain such claim. That there is a close relationship between urgency and irreparable harm is obvious. Triangle Limited v Zimbabwe Revenue Authority HB12-11…,. I did state, in Gapare & Another v Mushipe & Another HB17-11.., that the hearing of a matter as urgent is entirely the discretion of the court and that the court exercises its discretion in favour of the applicant to jump the queue on the strength of a certificate issued by a legal practitioner. Where there is nothing to suggest that the legal practitioner applied his mind before certifying the matter as urgent, a conclusion may be drawn that he acted dishonestly. See also General Transport & Engineering (Pvt) Ltd v Zimbank Corp (Pvt) Ltd 1998 (2) ZLR 301…,.

There is nothing in the founding affidavit, or, indeed, the certificate of urgency, to suggest how the applicant will suffer irreparable harm as would attract the hearing of the matter on an urgent basis.  Counsel for the applicant did not dispute that even the storage charge of $10= per day in not being paid at all and may be waived after all. All she submitted is that the applicant is being discriminated against without elaborating.

I agree with counsel for the respondent that the fact that a party is suffering some form of prejudice does not, standing on its own, amount to urgency. As stated in Madzivanzira & Others v Dexprint Investments (Pvt) Ltd & Another 2002 (2) ZLR 316 (H)…,:

''Matters that come before the courts are, without doubt, dealing with prejudice or potential prejudice to the plaintiff or applicant in one way or another. In asking that a matter be dealt with on an urgent basis one does not over emphasis the aspect of prejudice. What is most important to me is whether the matter can or cannot wait. If the matter can wait there is no justification in hearing the matter as urgent. To do so will result in that matter unfairly jumping the queque of other matters that are waiting to be heard by the court. I would add that if the application is one that cannot wait, then that opinion must be brought home to the court, not as an opinion but as a matter of fact. The affidavit must establish that the applicant will suffer some form of prejudice or harm, and probably irreparable at that, if relief is not afforded him instanter. …., the element of harm should not be confused with urgency.''

I find myself in total agreement with that pronouncement, and, in casu, there is nothing, other than the fact that the applicant is being deprived of the use of his VW Polo, to suggest irreparable harm or even an iota of urgency. I therefore conclude that urgency has not been proved.

Having come to that conclusion, it is unnecessary for me to consider the second point in limine taken by counsel for the respondent relating to the incompetence of the interim relief sought. The matter fails on the first hurdle.

Accordingly, the application is dismissed with costs for want of urgency.

1. Urgency

The respondent contends that there is no urgency in the matter in that default judgment was obtained on 16^th June 2011 and application for rescission of judgment was only filed on the 29^th November 2011. There was no application for condonation for late filing of the application for rescission of judgment and there are no prospects of success for the application.