On 9 March 2013, the applicant simultaneously filed this application on a certificate of urgency and an application for rescission of a default judgment in case number HC3223/12 granted on 13 December 2012. Summons was properly served on the defendant on 26 September 2012 which entered appearance to defend on 12 October 2012. That was two days after the expiration of the dies induciae.

Instead of seeking condonation for entering appearance to defend out of time the defendant wrote a letter to the plaintiff arguing that the matter was being defended. The plaintiff could, therefore, not apply for a default judgment as it had done. The defendant went on to point out that in any event, the summons did not comply with the Rules of Court as there was no address of service that was within the 5km of the radius of the courthouse. In essence, there was no process before the court. The defendant concluded that the appearance to defend had been entered ex abundante cautela and suggested that the plaintiff should seek legal advice. The plaintiff held a different view and continued with the application for a default judgment on the basis that the appearance to defend was entered out of time. 

The default judgment was granted on 12 December 2012.

The defendant did not seek to have the default judgment rescinded. The result was that the Deputy Sheriff in Chiredzi executed that judgment by attaching the defendant's property on 20 December 2012. The defendant knew, from that date, that the property would be auctioned one day or another but did not take any action such as seeking to have the default judgment rescinded. On 4 January 2013, the respondent's legal practitioners addressed a letter to the Registrar of this Court effectively seeking rescission of the judgment by letter. That was not the proper way to seek rescission of a judgment which the defendant believed had been erroneously granted. The letter by the defendant was referred to a Judge who directed that both parties should appear before him in chambers so that they could explain what was happening. The parties did appear before the Judge on 22 February 2013 who pointed out that the defendant should have made a proper application for rescission if it wished to have the judgment which, in its view, had been erroneously sought and granted.

The defendant still did not act until it saw an advert in the Herald Newspaper of 7 March 2013 showing that the attached property would be auctioned on 9 March 2013. It was only then that it simultaneously filed the application for rescission and this urgent application - fifteen days after it was advised that the proper route to take was to apply for rescission….,.

The defendant, who is now the applicant, has only decided to take action because the auction of its property was imminent. The applicant was, for a long time, well aware that its attached property would be auctioned one day or another but chose not to act. It now seeks to have the matter jump the queue to be dealt with urgently. A matter does not become urgent because the inevitable is imminent. See Kuvarega vs Registrar General and Anor 1998 (1) ZLR 188…,. No satisfactory explanation was proffered why the applicant could not have acted earlier.

The respondents have raised a preliminary point that the application is not urgent.

The respondents' assertion is that when the the Presidential (Powers) (Temporary Measures) [Amendment of the Reserve Bank Act] Regulation, 2010 (S.I.115 of 2010) expired in December 2010, the applicant knew that its protection had ceased. They aver that the applicant did not do anything to further stay execution of the judgments. They submit that the applicant was made aware of this and still it did not do anything because it had, after realizing the futility of trying to extend the period of operation of the Presidential (Powers) (Temporary Measures) [Amendment of the Reserve Bank Act] Regulation, 2010 (S.I.115 of 2010) beyond 180 days sought legislative intervention. It should have sought the stay of execution of the judgments granted in favour of the first – fifth respondents pending the legislative intervention it had sought.

It is trite that in urgent applications, the applicant has to establish that he will suffer irreparable harm if the application is not treated urgently - Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188 (H); CABS v Ndlovu HH03-06 and Triangle Limited v Zimbabwe Revenue Authority HB12-11.

The applicant has just made a naked and casual statement on the issue of irreparable harm it will suffer if the matter is not treated urgently. In the founding affidavit, the applicant avers:

“16(i) …,.

(ii) A well found apprehension that an irreparable injury will be committed and permanent loss suffered if the goods are sold. The sale is set to begin on Wednesday the 11^th up to Friday 13^th May 2011. Other than an urgent no other remedy is available.”

The certificate of urgency is not helpful either. All that the certifying legal practitioner states is the following -

“3. It is clear that the applicant has approached the legislature and the executive in an attempt to protect its assets and such pieces of legislation are pending before the relevant authorities. All those will come to naught and will be brutum fluman if no interdict is granted. The auctioning of property to satisfy debts of US$6,236,093=86 and ZAR485,566= with interest from 2009 will cause serious economic loss to the applicant and by extension the national economy as applicant is a public institution.”

All these are bare allegations.

This court has no material to work with to satisfy itself that there will be irreparable harm. In the circumstances, this court cannot begin to exercise the discretion in the absence of such crucial information. There is a direct link between urgency and irreparable harm – Silver Trucks and Anor v Director of Customs 1999 (1) ZLR 490 (H)…, and Triangle Limited v Zimbabwe Revenue Authority HB12-11.

As alluded to above, even if the applicant's interpretation of the reckoning of the 180 days is accepted, the need to act arose over two months before this application was filed. There is no explanation why the applicant did not seek stay of execution soon after the expiry of its protection under the Regulations.  The applicant knows that Parliament and the President will not merely rubber stamp the intervention that it seeks.  The applicant should have sought stay of execution upon the expiry of the Presidential (Powers) (Temporary Measures) [Amendment of the Reserve Bank Act] Regulations, 2010 (S.I.115 of 2010). The applicant has not explained why it would suffer prejudice by being made to pay its debts bearing in mind that it does not dispute its indebtedness to the respondents. The law, as it presently stands, allows the respondents to execute their judgments. It is only this court that can stay these judgments yet from 4 March 2011 - the applicant did nothing to seek the interdict for over two months.The applicant has been jolted into action by the arrival of the evil day. This is not the urgency that is contemplated by the Rules of this Court.

The brief circumstances of this matter are that the first respondent was employed as a Stores Clerk by the applicant on a fixed term contract for a period of six months. The contract was extended for twelve months and after this extension the applicant refused to extend the contract of employment. A dispute arose between the parties and the matter was referred to an Arbitrator who ruled in favour of the first respondent. The Arbitrator made an award on 25^th October 2012 in terms of which the applicant was ordered to pay the sum of $32,209=34 being damages in lieu of reinstatement inclusive of back-pay and payment for leave days.The applicant, however, filed an appeal with the Labour Court within the stipulated 21 days under case number LC/MT/140/12. The applicant proceeded to file an application staying the registration of the award and an order was granted by the Labour Court on the 1^st day of February 2012 in the following terms:-

“INTERIM RELIEF GRANTED

Pending the determination of this matter, the Applicant is granted the following relief:-

1. The Arbitral Award granted by the Honourable I. Bonda dated 21^st December 2012 being the supplementary Arbitration Award and the main Award of the 25^th October 2012 be and are hereby suspended pending the finalisation of the Appeal filed by the Applicant on the 14^th November 2012.

2. There will be no order as to costs.”

In spite of the above order, which has not been set aside, the first respondent filed an application for registration of the ward with this court under case number HC6/13.

It is instructive to observe here that the applicant confirmed that they were served with a copy of this Chamber Application for the registration of an Arbitral Award on the 3^rd January 2013. The applicants deliberately and consciously took a decision not to oppose the granting of an order for the registration of the Arbitral Award. The attitude of the applicant on this aspect is covered in paragraph 5.3 of the founding affidavit of Silbah Chido Zimwara where he states:-

“5.3 I am also advised by my legal practitioners of record that opposing the registration of the Arbitration Award with this Honourable Court is procedurally impossible as the court does not deal with the merits of arbitration awards emanating from the Labour Court and its subsidiary legislation thus opposition does not stop the registration on the merits of the Award.”

I find it difficult to appreciate the basis of the above submission. If the applicant was aware that the first respondent sought to register the award notwithstanding the order granted by the Labour Court suspending execution pending appeal why then did they not oppose the registration of the award and bring to the attention of the court this vital information.

What the facts clearly show is that from the 3^rd of January 2013 onwards, the applicant was aware that the first respondent was proceeding with the matter and seeking to enforce the award. As things turned out the order was registered by the Honourable KAMOCHA J on the 12^th February 2013. On these facts, it is my view that the applicant decided to take a position not to oppose registration of the award concious of the consequences. The applicant must have been aware that once the award was registered with this court the first respondent would be free to execute the order. On the 1^st February 2012 the first respondent obtained a Writ of Execution against property. The Deputy Sheriff, cited herein as the second respondent, was instructed to remove the applicant's attached property on the 26^th February 2013. This is what jolted the applicant into action. The applicant filed the urgent chamber application on the 1^st of March 2013 for the purposes of staying execution. In seeking an order for stay of execution, the applicant states, in the founding affidavit, in paragraph 6.7, as follows:

“6.7 Thus, 1^st Respondent's order registering the award under case No. HC06/13 granted on the 14^th of February 2013 had been superceded by the Labour Court order suspending registration of the award which order was granted on 1^st February 2013…,.”

One wonders why the granting of the order by this Court on the 14^th February 2013 could have been said to have been superceded by the order of the Labour Court of the 1^st February 2013. In any event, the Honourable Judge who granted the order on the 14^th February 2013 would not have been aware of the order of the Labour Court unless the applicant, who was in possession of such order, had brought it to the attention of the court. The applicant had the opportunity to bring the order to the attention of the court because he was given the opportunity to do so. He was served with a copy of the application for registration of the arbitral award on the 3^rd of January 2013 and decided to ignore it on the basis that this court did not deal with the merits of the matter. I have no doubt that this is but a lame excuse. The applicant knew the consequences of not opposing the registration of the arbitral award. The applicant was aware that once the award was registered it would become an order of the court capable of enforcement. The applicant's failure to act led to the issuance of a Writ of Execution. They only had themselves to blame. In my view, once I came to the conclusion that the applicant's failure to act timeously was deliberate, then the issue of urgency did not arise. The urgency, if at all, was self-created by the applicants who had all the time to take appropriate action and failed to do so….,. 

I am satisfied that from January 2013, when the applicant became aware that the first respondent intended to register the arbitral award, they should have taken positive steps to protect their interests. They failed to do so to their detriment. The applicants were represented and they had the benefit of legal counsel - which they did not utilize to their benefit. They deliberately chose to ignore the registration of the arbitral award. See Kuvarega v Registrar-General and Another 1998 (1) ZLR 188 (H). In this matter, CHATIKOBO J laid down the principle that urgency which stems from a deliberate or careless abstension from action until the deadline draws near is not the type of urgency contemplated by the Rules. In casu, I am satisfied that the applicant deliberately refrained from taking action well aware of the consequences that would ensue.

This case has a long and unpleasant history. The applicant has been in and out of this same court with only the objective to save his property from being sold as a result of what he refers to as fraudulent conduct of the respondent. In other matters related to this case, which I have become privy to as a result of this case, the fraud has been extended to the Directors of a company called Prinsbourough Marketing.

I am particularly concerned that from 2010 up until today in 2014 there has been no application to specifically deal with the rescission of judgment forming the basis of the applicant's concerns. That judgement remained extant until execution was completed.

The law on what constitutes urgency, for the purpose of jumping the first hurdle to being heard promptly via the urgent chamber book, is settled and has been settled for quite some time. It has been said that:

“Applications are frequently made for urgent relief. 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.” See Kuvarega v Registrar General and Anor 1998 (1) ZLR 189.

It has also been held that:

“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 guidelines to be followed. If by its nature the circumstances are such that the matter cannot wait in the sense that if not dealt with immediately irreparable prejudice will result, the court can be inclined to deal with it on an urgent basis. Further, it must be clear that the applicant did, on his own part, treat the matter as urgent. In other words, if the 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 one that warrants to be dealt with on an urgent basis…,.” See Mathias Madzivanzira & 2 Ors v Dexprint Investments (Private) Limited & Anor HH145-02.”

Clearly, the need to act arose in July 2013 when the order in HC5208/13 was granted. The applicant was not a party to those proceedings. Nothing in the founding affidavit tells us of the date when the applicant became aware of the judgment. Nothing in the founding affidavit convinces the court that the matter cannot wait. No submissions were made in regards to any irreparable prejudice that was likely to befall the applicant, except a vague and unsubstantiated averment that the applicant was afraid of being removed from Dodge Mine when the order was executed. We are not told whether the applicant had received a notice to vacate or been served with a Writ of Execution. There is no day of reckoning that is imminent except in the applicant's mind because no evidence of a day of reckoning is placed before the court. In the absence of prima facie evidence of the imminent arrival of the day on which irreparable prejudice will be visited upon the applicant, the matter is simply not urgent.

The certificate of urgency amply demonstrates the fallacious basis on which the application is made. Paragraph 2 thereof avers that:

“The applicant has made out a strong prima facie case entitling it to the rescission of the judgment granted in the matter HC5208/13…,. If this is not done urgently, there is no telling what harm can be done to the existing mining operations of the applicant should 2^nd respondent be allowed to occupy the mine by virtue of registration of the tribute agreement.”

The background facts of this matter are the following. On 19 May 2010, the applicant and the first respondent entered into an agreement in terms of which the first respondent sold to the applicant the above-mentioned property. The applicant made some payments towards liquidating the purchase price. Somewhere along the line, the applicant had problems in paying the balance of the purchase price resulting in the first respondent instituting proceedings under HC2309/10. The result of that case was an order against the applicant in favour of the first respondent couched in the following terms:-

“It is ordered that:

(a) The agreement of sale entered into by and between applicant [i.e. 1^st respondent in casu] and the first respondent [i.e. applicant in casu]…, on the 19^th May 2010 be and is hereby cancelled on the basis that the first respondent has fundamentally breached clauses 1, 5 and 8 of the agreement of sale.

(b) Applicant refunds first respondent all monies paid by first respondent towards the purchase price less expenses charged for rates, electricity, water and legal costs duly taxed and allowed by the Deputy Registrar of the High Court in Bulawayo.

(c) …,.

(d) …,.

(e) First respondent and all those who claim occupation of House Number 4 Gannet Close, Burnside, Bulawayo through first respondent be and are hereby ordered to vacate House Number 4 Gannet Close, Burnside, Bulawayo within 7 days of service of this order on first respondent failing which the Deputy Sheriff, Bulawayo be and is hereby directed to evict the first respondent and all those who claim occupation of House Number 4 Gannet Close, Burnside, Bulawayo through first respondent.

(f) …,.

(g) …,.

(h) …,.”

This order was granted on 27 January 2011.

The first respondent did not execute this judgment from January until September 2011. The parties had, after the granting of this order, reached an agreement that the property be sold and the applicant be refunded the deposit of US$31,000= that she paid less expenses like rentals, electricity and water and legal costs. In pursuant to this latter arrangement, the first respondent referred prospective buyers to view the said property but the applicant, or those claiming through her, told them the property was not for sale. This conduct on the applicant's part made the first respondent resolve to execute the above-mentioned judgment under HC2309/10 about eight (8) months after it was granted. 

This is what prompted this application under a certificate of urgency.

The applicant now seeks stay of execution of a judgment it was aware of for such a long period of time. She has not shown how she will suffer irreparable harm in light of the protection of her interest in the property in paragraph (b) of the order granted under HC607/11 which she has not bothered to prosecute. She is not in a hurry to pursue her application for rescission and summons matter under HC2107/10 because she is in occupation of the said property. The applicant is not paying the agreed rental of US$250= per month. The applicant is clearly abusing court process and there is nothing urgent about this application. The day of reckoning has arrived.

(c) Urgency

It was the respondent's submission on this preliminary matter that the present application was not urgent. The respondent stated that the applicants should have foreseen that disciplinary proceedings would be instituted. This intended process, it said, became apparent to the applicants as far back as early January 2013 when the respondent brought the application in the matter which the court determined under HC770/13 wherein the court ruled in its favour. It stated that, if the applicants needed to act to interdict any disciplinary proceedings, they should have done so in early January 2013 or at the latest in December 2013 when the respondent instituted the vindication action.

The applicants, on their part, argued that they acted when they saw the charges which had been preferred against them and not before that time.

The court agrees with the position which the applicants took of the matter on this point. They could not act on nothing. They were not joined to the application which the respondent filed with the court under case number HC770/13. The respondent did not inform the court that it drew the applicants' attention to the outcome of its mentioned application. It, on its part, did not prefer any charges against them at about the time which it says they should have foreseen that disciplinary proceedings would come their way. All it did was to engage them - verbally or otherwise – to return ownership of the motor vehicles to it. Nor would the applicants have been persuaded to think that the vindication action which the respondent instituted in December 2013 would lead to some misconduct charges being preferred against them three months after the action was filed with the court. Everything appeared normal and lawful to them until 28 March 2014 when they saw that the respondent's conduct was going outside the law and had, therefore, to be arrested.

In explaining the urgency of the matter, both applicants admit being served with the summons on 29 July 2013.

They both said they took the summons to one Mr. Munyaka who was the Judicial Manager of the second respondent and were advised to leave the matter in Mr Munyaka's hands. Thereafter, from July 2013, they both did nothing to check if anything had been done by Mr. Munyaka. Both applicants only sprang to action when the Sheriff of Zimbabwe visited their residence on 30 January 2014 armed with a Notice of Seizure and Attachment. The applicants blame Mr. Munyaka, whose affidavit is not even attached, for their predicament, for their failure to enter an appearance to defend. The applicants believe they have a bona fide defence to the first respondent's claim as they challenge the correctness of the amounts due both in respect of the loan facility and the overdraft facility. They seem to admit to be in breach of the agreement but do not state the amount they believe to be due.

As already said, after I perused the documents filed by both applicants, I formed the opinion that the matter is not urgent and declined to set down the matter for hearing.

The question of what constitutes urgency is settled in our law. See Kuverenga v Registrar General and Anor 1998 (1) ZLR 188…,; Gifford v Mazire and Ors 2007 (2) ZLR (H)…,.

The general thread which runs through all these cases is that a matter is urgent if;

(a) It cannot wait the observance of the normal procedural and timeframes set by the Rules of the Court in ordinary applications as to do so would render negatively the relief sought.

(b) There is no other alternative remedy.

(c) The applicant treated the matter as urgent by acting timeously and if there is a delay to give good or a sufficient reason for such a delay.

(d) The relief sought should be of an interim nature and proper at law.

I am not satisfied that the applicants have been able to make a case for the matter to be heard on an urgent basis.

Firstly, both applicants were sued in their respective capacities as co-principal debtors in terms of the agreement they both signed. The cause of action is clear. They were both properly served with the summons and did not enter an appearance to defend. It is clear that both applicants did not treat this matter as urgent themselves. The mind boggles why both applicants believed one M. Munyaka would absolve them of their obligations at law. Both applicants were being sued in their personal capacities in terms of the agreement they both signed. There is nothing in the papers filed to show what other action the applicants took after the inexplicable decision to leave their fate to the hands of Mr. Munyaka. They simply waited for the day of reckoning. Indeed, the day arrived on 30 January 2014 - six (6) months later after service of summons; and in order to avert the inevitable doom they rushed to court seeking to be heard on an urgent basis. There is no good reason why the court should treat this matter as urgent when the applicants themselves did not treat it as such. The urgency alleged is self-created. To sum it all, the applicants have not even applied for the rescission of the default judgement. They are clearly out of time. They are yet to file an application for Condonation of Late Filing of an application for rescission of judgement.

It is upon this basis that I am asked to grant the interim relief sought! In other words, I am being asked to treat this matter as urgent and grant temporary stay of execution pending nothing.

The second preliminary point raised by counsel for the respondents is that the matter is not urgent because although the application was signed on 16 May 2011, it was only filed on 3 June 2011. Furthermore, from the narration of events in the founding affidavit, the applicant has known about the problems at the Renaissance Group for quite some time and chose not to do anything about it until after the second respondent was placed under curatorship….,.

In support of the contention that the matter is not urgent, counsel for the respondents referred the court to Makamure v Devon Engineering (Pvt) Limited 2008 (2) ZLR 319 HH106-08 and Nyika Investments (Pvt) Limited v Zimasco Holdings & Others 2001 (1) ZLR 212…,.

On the issue of urgency, counsel for the applicant submitted that when the applicant realised that the respondents were in financial problems, it had to write the letter of 20 May 2011 because the 30% shareholding, or US$8 million, does not belong to an individual but to a company and a response to that letter would have enabled it to answer to its shareholders who are the owners of the money. By 3 June 2011, ten working days later, there being no response to the letter, the applicant had to bring the matter to court. He submitted that the urgency must be calculated or deemed to have been set in motion on 20 May when the letter was written and that the need to act arose when the letter went unanswered by the respondents….,.

It is trite that the first and the second respondents are legally two separate corporate entities. It is also common cause that it is the second respondent which has been placed under curatorship, and not the first respondent. The placement of the second respondent under curatorship, and any submissions made in relation thereto, are thus of no consequence in this matter. It also a fact established on the papers that by its letter of 25 April 2011, the first respondent took over and assumed the second respondent's indebtedness to the applicant. In terms of the contents of that letter the applicant gave the first respondent up to 30 October 2011 to settle its indebtedness. However, there appear to be competing claims which subsequently became known to the applicant, for the same 30% shareholding which the first respondent ceded to the applicant as already stated above. Hence, the applicant's letter of 20 May 2011 requesting an undertaking to the effect that the shares would not be disposed of before its indebtedness is settled. The applicant waited about ten or so days after writing the letter before it filed this application.

In the circumstances of this case, a period of about ten days cannot, in my view, be said to be inordinate….,.

The first respondent has taken a point in limine that the matter is not urgent because the dispute concerning the vehicle arose on 30 October 2013 when the applicant notified her of the non–renewal of her contract. When she was sent on leave, on 17 January 2014, and did not return the vehicle, the applicant should have acted then and not now.

In my view, that argument misses the point completely.

The right to act arose when the first respondent's employment contract expired on 28 February 2014 and she remained in possession of the vehicle. I do not agree that there was an inordinate delay in acting when the need arose. 

The historical background of the matter is that the first respondent, who is Bindura University of Science Education, deposited US$550,000= on 9 October 2013 into the applicant, Tetrad Investment Bank Limited. The applicant Bank made an undertaking to pay back the full capital amount within thirty (30) days together with interest at the rate of 13% per annum making a total of US$555,958=33. 

But, by the 8^th of November 2013, the applicant was owing the first respondent an amount of US$473,025=52.

When the applicant Bank failed to pay back, the first respondent duly issued Summons for Provisional Sentence against the applicant under case HC2106/14 calling upon the applicant to appear in court on 26 March 2014.

The applicant was served with the summons for Provisional Sentence on the 17 March 2014. On the 26 March 2014, the matter was on the court roll as number 33, though under Default Judgments and not under Provisional Sentences. The applicant's legal practitioners were in default hence did not appear when the matter was heard. Mr T. Mpofu, for the applicant, said the legal practitioner left before the matter was dealt with because he did not see it under Provisional Sentences. He argued that the default judgment was erroneously granted. However, the matter was postponed to 2 April 2014 when the default judgment was eventually granted. According to HC2106/14, the matter was postponed because the applicant still had up to 31 March 2014 to enter appearance to defend or to file opposing papers. On 14 April 2014, following the granting of the default judgment the writ of execution was granted leading to the attachment of the applicant's property on 15 April 2014.

It is the attachment of the applicant's property that jolted the applicant to make the urgent chamber application.

On the same day, the applicant wrote two letters. One was directed to the first defendant's lawyers wherein they stated as follows:

“We write to advise that our client hereby proposes to settle the amount claimed by your client together with the claimed interest thereon and collection commission in terms of the Law Society of Zimbabwe tariff by way of eight (8) equal and successive monthly instalments commencing on the 30^th April 2014 until the date of payment in full. Please advise whether your client is amenable to such proposal.

We look forward to hearing from you soon.”

Apparently, the applicant was acknowledging its indebtedness to the first respondent. It appears the offer was not accepted by the first respondent.

The second letter was directed to the Registrar pointing out that the writ had been issued in error since there was no security de restituendo assessed by the Registrar.

The Registrar responded by letter dated 17April 2014 to the first respondent acknowledging that the writ was issued in error without compliance with Order 4 Rule 31 and Rule 32 of the High Court Rules 1971. The Registrar then withdrew the writ of execution.

It is the withdrawal of the writ that prompted the first respondent to make a Counter Urgent Chamber Application seeking to compel the Registrar to accept the letter of undertaking dated 23 April 2014 as sufficient for purposes of Rule 31 and Rule 32.

Having outlined the apparent historical background to this matter, I have to deal first and foremost with the issue of urgency before dealing with other issues raised since it is the first hurdle that any applicant in an application of this nature has to satisfy first.

Mr Miranda Khumalo, legal practitioner for the applicant certified this matter as -

“2…, urgent for the reason that Applicant's entire movable goods were attached yesterday, the 15^th April 2014, and the Sheriff has stated that such goods will be removed tomorrow, the 17^th April 2014 on the strength of the court order and writ of execution issued in matter number HC2601/14 which Applicant only learnt of yesterday.”

On the other hand, Tariro Faith Rumhuma, who deposed to an affidavit on behalf of the first respondent, countered and said, among other things, that- 

“…,

8.10. On the 26^th of March 2014, the Applicant and their legal practitioners deliberately absconded Court in the full knowledge that 1^st Respondent would be seeking judgment. Surely, in light of these stubborn facts how does the Applicant and their legal practitioners now make a sudden turn to try and avoid the consequences of their inaction? In any case, the Applicant had no defence whatsoever to the claim for provisional sentence and thus any action that would have been taken would not have made any difference.

8.11. On the 26^th March 2014, the matter was properly on the roll as number 33. Emmanuel Chikaka is clearly committing perjury by alleging that the matter was not on the roll yet he has attached a motion roll in which the matter is enrolled. How more dishonesty can one be? The clear truth is that Applicant did not attend Court on the 26^thof March 2014 and when the matter was rolled over to the 2^nd April 2014 Applicant, by their inaction, have only themselves to blame….,.

12. To worsen matters for Applicant, the fact that a judgment was imminent was well known to Applicant on the 17^th of March 2014 upon being served with a summons. Further, on the 24^th of March 2014, Applicant, through their legal practitioners, manifested acquiescence with the imminence of an Order against Applicant and attempted to have asettlement. Applicant and their legal practitioners cannot be allowed to abuse the Court by stampeding it with a preposterous claim of their inaction since the 17^th and 24^th of March 2014.

13. Even more striking is the inherent admission of liability and half-hearted offers for settlement made by Applicant's legal practitioners in their letter dated 15^th April 2014 attached to their papers on page 35….,.

17. The Court made an order to the effect that the matter is not urgent. The order is extant and has not been set aside. The Court further found that stay of execution cannot be made pending nothing as at the time the Urgent Chamber Application was made, no Application had been made pending which stay was being sought. What the court then did was to dismiss the Urgent Chamber Application for stay of execution.”

In short, what the first respondent was trying to say was that the urgency was self–created and is one that is not contemplated by the Rules.

However, what constitutes urgency was dealt with by JUSTICE CHATIKOBO in Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (H)…, where he stated:-

“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.”

Clearly, as observed by counsel for the first respondent, there was an element of inaction on the part of the applicant and its legal practitioners.

When I perused the file, and taking into account the interim relief sought, my immediate reaction was that this matter did not meet the requirements of urgency. My concern was that the application for a stay of execution was filed prematurely at a time when no application for rescission of judgment had been made, and, as such, it was bad at law. The applicant was seeking an order to be allowed to file his application for rescission within three (3) days after granting the order. That is why I said the application could not be granted pending nothing. My view was that the application for rescission should have been filed before, simultaneously or immediately after the preparation of the Urgent Chamber Application and proof of such filing should be attached to the application for stay of execution to show seriousness on the part of the applicant.

Even when counsel for the applicant addressed the court, I did not hear him to say the applicant has since filed its application for rescission. Emphasis was being placed on the fact that the Court Order, as well as the Writ, were issued in error. At the time the default judgment was granted, whether rightly or wrongly, which issue I do not seek to resolve in this application, since it is an issue that falls for determination in an application for rescission, what is clear is that the applicant has not even entered an appearance to defend the summons for provisional sentence nor filed any opposing papers. If the same had been done surely copies should have been attached to show seriousness on the part of the applicant.

In making the decision as I did, I was guided by the decision of JUSTICE MATHONSI in the case of Metallion Gold Zimbabwe v Eurotech Plant and Equipment (Pvt) Ltd and The Deputy Sheriff HB87-10. In that case, the urgent application was filed on 5 August 2010 while the application for rescission of judgment was only filed, under case no. HC1558/10, on 12 August 2010. The court was not persuaded that the urgency arising out of the facts of that matter is one contemplated by the Rules. See Grace Khumalo v Paris Mpofu and the Deputy Sheriff HB56-10.

In casu, it is apparent from the relief sought that the applicant seeks a stay of execution pending nothing at all and yet the first respondent is executing a judgment of this court which still stands.

Accordingly, after hearing the parties, I found that the matter is not urgent and I dismiss the application with costs on account of this point alone without considering the other points raised.

As if that was not enough, one would assume that execution would be stayed for purposes of allowing the applicants to make an application for rescission of judgment.

Usually such application would be filed at the same time the application for a stay of execution is made. A full week had lapsed at the time of hearing but no application for rescission had been made epitomizing the lackadaisical manner in which the applicants have conducted themselves throughout this litigation.

Counsel for the first respondent submitted that the matter is not urgent at all, this being self-created urgency because the applicant delayed in approaching this court by about 18 days.

The applicant is a Director of Vlei Creations, a company trading as Sunset Savemore, Budiriro 4, doing business with the first respondent, a company called Radchart Investments, a wholesale/retail chain.

Sometime in October 2011, and on various dates, the first respondent sold and supplied various grocery goods to the applicant, on credit, totalling $2,658=45 which the applicant failed to pay for. As a result of that failure, the first respondent issued summons out of this court against the applicant claiming payment of $2,658=45 in case no. HC5823/12. The summons cited the applicant as Mr MUZA T/A SUNSET SAVEMORE, BUDIRIRO 4 SHOPPING CENTRE, HARARE.

The applicant was then represented by A R Chizikani Legal Practitioners who entered appearance to defend on behalf of the applicant. The applicant failed to file his plea within the stipulated timeframe. The lawyers for the first defendant then filed a Notice to Plead and an Intention to Bar. Still, the applicant failed to file his plea and was duly barred. The first respondent then applied for a default judgment which was granted.

When the first respondent issued a writ of execution causing the attachment of the applicant's motor vehicle, the applicant jolted into action and filed an application for rescission of judgment, in case no. HC2343/14 and filed another urgent chamber application for stay of execution pending determination of his application for rescission in case no. HC2394 /14. The application for rescission is still pending before this court. However, his urgent chamber application was dismissed and the applicant was directed to issue interpleader summons since he claimed that the vehicle belonged to Jaggers, a company under liquidation.

On 13 May 2014, the first respondent obtained another writ of execution and this time attached the applicant's property. This prompted the applicant to make this current urgent chamber application for stay of execution pending the determination of his application for rescission in case no. HC2343/14.

This application is opposed by the first respondent.

Both the applicant and counsel for the first respondent made submissions. It is not the intention of this court to decide on the application for rescission since this will be dealt with by another court. What this court will decide is whether the application is urgent or not and whether the applicant is entitled to the relief he is seeking.

It is common cause that the first respondent has a judgment against the applicant which was granted in default. It is common cause that this judgment is subject to an application for rescission. It is again common cause that the first respondent has caused a number of the applicant's personal property to be attached in execution. It follows, therefore, that this property can be removed and sold any time soon. This makes this matter urgent. The court had to decide whether the applicant could be prejudiced if execution is not stayed, particularly in the event that the applicant succeeds in his application for rescission. The court is of the view that if execution is not stayed, the applicant may be prejudiced in the event that the default judgment is set aside. In the event that the application for rescission fails the first respondent can still enforce his judgment.

As mentioned by the learned judge, Shah had, on two occasions, issued threats to liquidate the security.

There were letters written by on behalf of Chidawu in answer to the threats. The threats would have caused fear of irreparable harm yet there was no explanation as to why action was not taken soon after the threats were uttered to stop the sale of the shares. This assumes paramount importance when regard is had to the fact that the shares had been tendered to Shah in negotiable form and could be transferred without the need to notify any of the appellants.

On 13 October 2011, the appellants were advised that Shah had found a purchaser for the shares and that they should pay the loan. They did not pay up or approach the court immediately to obtain an interdict stopping Shah from liquidating the security. They did not even seek to engage the buyer. They issued a threat to institute legal proceedings but took no further action. There is no explanation as to why none was taken.

This application was filed on a certificate of urgency. The applicant was seeking the following order:

“It is ordered that:-

(1) The meeting of creditors set for the 28^th February 2014 at 9:00 am at the Bulawayo High Court be and is hereby stayed pending determination of the application filed under case number HC312/14;

(2) The cause filed under case number HC312/14 shall be heard on an expedited basis in connection with which -

(a) 1^st respondent shall file his opposing papers in that matter within 3 days of the date of this order.

(b) Applicant shall thereafter file its answering papers and heads of argument within 5 days of service upon its legal practitioners by 1^st respondent of his opposing papers.

(c) The Assistant Registrar is directed upon receipt of applicant's heads of argument to set the matter under number HC312/14 on the earliest available court date.

(3) The meeting of creditors shall be held in terms of the order of MUTEMA J after determination of the court application referred to above.

(4) Costs of this application shall be in the cause of the application under HC312/14.”

After hearing the parties on whether or not this matter was urgent, the court held that it was not urgent and did not merit to jump the queue. Accordingly, the application was dismissed and I indicated to the parties that my reasons would follow in due course. 

These are they.

On 4 April 2011, Archer Clothing Manufacturers (Pvt) Ltd (“Archer”) was placed under judicial management. A final order was granted, and Phillip Ndlovu, the first respondent in this matter, was appointed the Judicial Manager. On 15 January 2013, it was placed under provisional liquidation and Phillip Ndlovu was appointed provisional liquidator.

According to the provisional liquidator, the applicant had always been treated as a creditor of Archer Clothing Manufacturers (Pvt) Ltd, albeit as an unsecured creditor, but the applicant had never raised any objection to the claim being accepted as an unsecured claim. The applicant was aware that the validity of the mortgage bond was put into question since such a mortgage bond was registered in favour of the applicant over Lasker Brothers property not Archer Clothing Manufacturers (Pvt) Ltd property. The mortgage bond was not a surety mortgage bond and therefore could not be used as security for Archer Clothing Manufacturers (Pvt) Ltd's debts to the applicant.

The applicant was aware of the issue relating to the mortgage bond in question as far back as 2009. The applicant should have sought to rectify the said bond by registering it as a surety bond. The applicant had been advised by letter from the provisional liquidator that its bond was invalid. The deficiencies relating to the applicant's security were highlighted at a creditors meeting. One such meeting was held on 20 August 2013 at which the provisional liquidator was actually tasked to investigate the validity of the said bond. The second such meeting was on 28 November 2013 whereat the invalidity of the applicant's security was highlighted.

The applicant should have acted urgently a long time ago but did not. The urgency is self-created. 

The applicant had been classified as an unsecured creditor for quite some time and was aware of that. It had only been spurred by the meeting of 28 February 2014 to file this application on a certificate of urgency.

The first respondent owns a building formerly known as Toppers Building, situate at corner Fort Street and 13th Avenue, Bulawayo [the premises].

The applicant leased the premises for several years carrying on the business of manufacturing and retailing school uniforms and other items of school wear. During that period, the applicant was wholly owned by the directors of the first respondent.

In about 2007, the then directors of the applicant sold their entire shareholding in the applicant to the applicant's current directors, viz Mohamed Zakariya Patel and Daud Isa Patel. The business was sold as a going concern.

The parties also concluded a restraint of trade agreement wherein it was agreed that the former shareholders would, for a period of five years, not engage in any school uniform manufacture and retail in competition with the applicant.

The applicant continued trading from the premises under a five year lease agreement.

Subsequently, the parties got embroiled in several acrimonious legal battles whose culmination was the conclusion of an out of court settlement on 30 October 2012 which was imbued with a Magistrates' Court order – annexure “B”.

Pursuant to paragraph 1 of the consent order, the applicant vacated the premises on 31 January 2014 and handed over the premises to the first respondent.

Upon retaking possession of the premises, the first respondent immediately put on display in the shop windows various types of uniforms for different schools in alleged direct contravention of the terms of paragraph 5 of the consent order, annexure “B”.

That paragraph 5 reads as follows:

“5. The plaintiff [1st respondent herein] shall not, directly or indirectly, after 31st January 2014, and on the entire property described in paragraph 1 above, sew and/or sell school wear and/or raw materials thereof or school related products for a period of 5 years from 31 January 2014….,.”

Alarmed by this development, the applicant's legal practitioners wrote a letter to the first respondent protesting at the unlawfulness of its actions and demanding that it removes the displayed uniforms from the shop windows.

This letter was responded to by the fourth respondent, on behalf of the first respondent, on 6 February 2014 stating, inter alia, that, they were only displaying the uniforms and not selling them so therefore there was no contravention of paragraph 5 of the consent order.

The applicant, however, contends that the real reason for displaying the uniforms is that across the road from the premises there is a shop called Totally Uniforms owned by the second respondent which is conducting the business of retailing school uniforms.

The second respondent is wholly owned by the directors of the first respondent.

What happens is that if a customer enters the premises enquiring about the displayed uniforms, the first respondent's staff refers the customer to Totally Uniforms across the road to buy. This, according to the applicant, amounts to the first respondent directly and indirectly manufacturing and selling school uniforms in breach of paragraph 5 of annexure “B”.

Further, the applicant contends, the premises are well known and generally associated with the manufacture and sale of school uniforms of virtually all schools in Bulawayo and the Matabeleland region if not throughout the country. The mention of the name Toppers is naturally linked to the premises. The name Totally Uniforms is displayed boldly and prominently in red on the second respondent's premises. The name somewhat resembles the applicant's trading name, Toppers Uniforms.

What the respondents are doing is all intended to hoodwink the school uniform buying public into thinking that the applicant is still operating from the premises and that the second respondent is somehow associated with the applicant – some form of passing off.

The foregoing is the reason why the applicant filed the urgent chamber application whose interim relief sought is:

“Pending the finalization of this matter, applicant is granted the following interim relief:

1. 1st, 3rd, 4th and 5th respondents be and are hereby ordered and directed to remove all school uniforms and any other type of school wear on display in the shop windows of or anywhere inside the premises formerly known as Toppers Building situated at 129A Fort Street/13th Avenue, Bulawayo.

2. 1st, 2nd, 3rd, 4th and 5th respondents be and are hereby interdicted and prohibited from manufacturing, selling, and advertising for sale in any manner whatsoever including referring customers to 2nd respondent any school wear, raw materials, or any school related products from the aforesaid premises.”

Counsel for the respondents, who said was standing in for Mr Lubimbi who is seized with the matter but is still at the Lupane Magistrates' Court, said his instructions were to raise the point in limine that the matter was not urgent for the following reasons:

The applicant once filed an ex parte application in the Magistrates' Court on 20 May 2012, in case number 2721/12, wherein it was alleged that some of the respondents herein had violated the court order granted by consent (annexure “B”). That application was dismissed on 12 November 2013. Thereafter, the applicant issued summons in the Magistrates' Court, under cover of case number 8616/13, against the first respondent herein raising the same issues. That litigation is still pending and is at plea stage of the pleadings.

In the event, the applicant is precluded from approaching this court three months after the plea was filed alleging that the matter is urgent.

The applicant deliberately omitted to disclose this information in its founding affidavit thereby hiding lack of urgency in the matter by omission.

Also, in paragraph 34 of its founding affidavit, the applicant avers that it has no alternative remedy, yet, the summons alluded to above constitute an alternative remedy.

I must say that the timing of the raising of the point in limine was a poor technique in litigation on the part of counsel for the respondents.

A point in limine must be timeously raised even where no opposing papers have been filed such as in casu. One cannot raise it after the other party had finished making submissions on the merits.

Be that as it may, the point in limine is ill-conceived.

If the ex parte application alleged to have been dismissed was under cover of case number 2721/12, as stated by counsel for the respondents, then, that averment cannot be true because that case number relates to the consent order granted on 30 October 2012 (annexure “B”). That order does not exhibit dismissal of any exparte application.

Over and above that, the parties in that suit were only the first respondent as plaintiff and the applicant as defendant.

Further, the parties in the summons in case number 8616/13 are only the applicant as plaintiff and the first respondent as defendant and the cause of action therein is hinged on alleged contempt of court of the consent order of 30 October 2012 (annexure “B”).

The allegations therein are that the defendant breached the consent order by leasing part of the premises to As Busy As A Bee and Tamara Fashions which entities were into manufacturing of school wear.

That relief, sought against the first respondent only, cannot ground lack of urgency and/or alternative relief against the second – fifth respondents cited in the present application. The respective reliefs being sought in the two instances are totally disparate in nature and the harm alleged in the present application being of a continuing nature; the point in limine has no leg to stand on.

The second point was that the application was not urgent in that the applicant should have acted on or about the 13^th March 2014. Instead, it waited until 23 May 2014.

This submission is without merit, in my view, for the simple reason that the certificate of urgency gives an explanation for that delay. The law does not say wherever there is a delay the matter should be viewed as not urgent; rather it says the delay must be explained in the certificate of urgency or in the founding affidavit. See Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 and Trust Co Mobile (Pty) Ltd & Anor v Econet Wireless (Pvt) Ltd & Anor (1) 2011 (2) ZLR 14 (H). 

Although the two respondents were served with notices of this hearing, there was no response or appearance to oppose.

My initial gut feeling was that the matter was not urgent because the applicant had a remedy at the end of the day regardless of the outcome of the proceedings.

Counsel for the applicant vociferously argued that the matter was extremely urgent because of the element of illegality in that the applicant was about to be subjected to an illegal trial.

As regards urgency, the facts show that it is not self-created.

Upon realizing that the third respondent had a writ, the applicant immediately sought an explanation from the first respondent as regards the status of the record. When an explanation was profferred, he then instructed his lawyers to file the two applications on the 5^th of November 2015. In the circumstances, the nine day delay cannot be described as inordinate in that the explanation for it is reasonable. 

[a] Urgency

The respondents charged that the applicants had slept on their rights.

Quoting from Kuvarega v Registrar–General & Anor 1998 [1] ZLR 188 [H] and Econet Wireless [Pvt] Ltd v Trustco Mobile [Pty] Ltd & Anor 2013 [2] ZLR 309 [S], the respondents argued 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, it 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.

The respondents argued that the need to act had arisen on 30 January 2017. The delay to 9 February 2017 had not been explained. Therefore, the matter ought not be treated as urgent and must therefore be dismissed on that basis.

Counsel for the applicants argued that there was no real delay. The dates bandied about by the respondents had to be viewed in context. The applicants were rural teachers. There were great distances between their school and the lawyers' offices in Zvishavane, a town about 100 kilometres away. There were also great distances between their school or the lawyers' offices and the Labour Court Registry in Gweru; and between their school and the High Court Registry at Masvingo. Given that several documents had to be procured from various places and from various offices, and given that affidavits had to be drafted and signed by people far away, and given that it was processes for two different courts that were being prepared at the same time, the delay was neither fatal nor inordinate. Counsel for the applicants stressed that the delay was a mere seven working days.

In Econet Wireless [Pvt] Ltd v Trustco Mobile [Pty] Ltd & Anor 2013 [2] ZLR 309 [S], the delay was three weeks. The applicants [respondents on appeal] had been based in Namibia. Their counsel of choice was based in South Africa. The matter was proceeding in the Zimbabwean High Court. The applicants had to brief lawyers on highly technical matters. Both this court, on first instance, and the Supreme Court, on appeal, accepted that the explanation for the delay had been reasonable. The matter was treated as one of urgency.

The applicants' situation herein is not quite comparable.

However, nothing is ever cast in stone. Every case depends on its own set of facts. Given that the applicants were teachers at a rural school; that they had to cover appreciable distances to go and brief their lawyers; that it had been necessary for the lawyers to prepare draft affidavits and run them past the applicants before having them commissioned; and given the distances to be covered in filing documents at two different courts, the registries of which were in two different towns, almost 200 kilometres apart, I considered it exceedingly harsh to non-suit the applicants by reason of a mere seven day delay. I did accept counsel for the applicant's submissions “from the Bar.”

On page 5 of the cyclostyled judgment in Chief Gampu Sithole and Gampu Tours (Pvt) Ltd v K.C. Ndlovu & the Deputy Sheriff of Bulawayo N.O. HB63-13, the court said:-

“The chronology of the case leading to the day of reckoning, including when the need to act arose as well as justification for the delay, if there is any, must be clearly explained so as to persuade the court to properly exercise its discretion in extending the desired protection/preferential treatment.”

I associate myself with the views expressed above that the chronology of the case is relevant.

In the present application, the applicant was never diligent in the handling of its case. It did nothing for fifteen (15) days after the arbitral award was granted against it and it did nothing for seventeen (17) days after the application to register that award in the High Court was made. It also did nothing when the first respondent advised it that it had filed its purported opposition late and was thus automatically barred. No reasonable explanation has been given for the delay. The only explanation is that the deponent to the applicant's affidavit was “out of town”, yet, the applicant is an organisation with other officers who could have acted on its behalf in the absence of the deponent. Even the applicant's Heads of Argument were filed late - without any explanation.

As correctly pointed out in Ndebele v Ncube 1992 (1) ZLR 288…, the law will help the diligent and not the sluggard. Because of the lack of diligence on the applicant's part, the court is not persuaded to exercise its discretion in its favour.

In Kuvarega v Registrar General 1998 (1) ZLR 188…, the court said:

“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.”

As stated above, in the present case, no reasonable explanation has been given for the failure to act timeously throughout this case.

I am therefore of the view that the application is not urgent. It arises from self-created urgency caused by a failure to act timeously throughout the chronology of the case. The application does not therefore warrant any preferential treatment against other applications. Having ruled that the application is not urgent, I will not proceed to deal with the other issues raised in the application on the merits.

The urgent chamber application was filed on 2 February 2017.

The first respondent said the order of eviction had been given on 25 November 2016, thus almost three months ago, and that after the applicant had appealed, the first respondent had obtained leave to execute on 27 January 2017. The first respondent's point was that the applicant had slept on his rights since November 2016.

I dismissed the first point in limine. It was ill-conceived. Legal practitioners should not waste precious time by raising dud points in limine as if they are a mandatory ritual in every case.

Plainly, the applicant never slept on his rights.

The one major weakness with the applicant's application was that the determination of that main dispute was pending nowhere….,.

On 10 November 2015, the applicant filed an Urgent Application seeking the following relief:

“INTERIM RELIEF SOUGHT

The respondents be and are hereby interdicted from forcibly taking the applicant to go and serve at Fairbridge detention barracks before the finalization of Constitutional Court Application under case number CCZ90/15.”

After hearing the parties, I dismissed the matter and indicated that my full reasons would follow. I indicated that the matter was not urgent for reasons that will become apparent in this judgment.

The applicant is a regular member of the Zimbabwe Republic Police stationed at Stops/Rose Camp, Bulawayo. He holds the rank of Seargent. In February 2012, the applicant appeared before a single officer charged with two Counts of contravening paragraph 35 of the Schedule to the Police Act [Chapter 11:10] as read with section 29 and 34 of the said Act. It was alleged that the applicant acted in an unbecoming or disorderly manner or in any manner prejudicial to good order or discipline or reasonably likely to bring discredit to the Police Force. In the first Count, it was alleged that the applicant sold “infringed” disks to members of the public. In the second Count, the applicant was arrested for driving without a valid driver's licence on 12 December 2011. The applicant conducted his own defence, pleaded not guilty to both Counts, but, at the end of the trial, he was convicted and sentenced to five days imprisonment on each Count at Fairbridge Detention Barracks. The applicant lodged an appeal against conviction and sentence with the Commissioner General of Police on 29 February 2012. The appeal was dismissed on 20 June 2012. The applicant was advised that he was to serve his sentence without delay.  The applicant employed various tactics to avoid serving the sentence which clearly amount to flagrant abuse of court process.

In his urgent application, the applicant contended that for the past few years he had not laid his hands on the judgment by the Commissioner General. The applicant raised spurious allegations against the second respondent whom he accused of holding personal grudges against him. The applicant further argued that he was being frustrated by the first respondent who was blocking his request for study leave. The applicant claimed to have filed a Constitutional challenge with the Constitutional Court.

The applicant failed to prove that he had filed such an application. At the time of the hearing of the application, the respondents had not been served with any court papers from the Constitutional Court.

The other important point to note is that both the certificate of urgency and the founding affidavits do not show how if this matter is not heard on an urgent basis it would become a brutem fulmen and the specific irreparable harm the applicants would suffer.

This point was hammered home by MAKARAU JP…, in Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 240 (H)…, when she said;

“In my view, urgent applications are those where if the courts fail to act, the applicants may well be within their rights to dismissively suggest to the court that it should not bother to act subsequently as the position would have become irreversible and irreversibly so to the prejudice of the applicant.”

Both the certificate of urgency and the founding affidavit vaguely refer to the irreparable harm the applicants would suffer if the matter is not entertained on an urgent basis. There are bald assertions that the interim division of proceeds ratio directed by the Minister, based on some scientific assessment, albeit flawed report, would signal an end to sugar cane farming by indigenous farmers as they would be put in debt and be financially crippled. It is even said this is against the land reform programme!

At the hearing, counsel for Recskill took a point in limine that the application was not urgent.

However, he soon abandoned it.

He conceded that the applicant had taken action reasonably soon after she had become aware of the summons for eviction. She had applied for joinder….,.

I was briefly concerned that the applicant, having become aware of the order of eviction on 30 December 2014, was still talking about wanting to file an application for rescission some eight days later, given the urgency of the matter to her. Furthermore, in the urgent chamber application there was no mention, or even a hint, that such an application was intended or being contemplated.

However, I was satisfied by counsel for the applicant's explanation.

The urgent chamber application had been filed on 5 January 2015. There had been no delay to talk of. All effort had previously been focused on it because of the real and imminent danger posed by the writ of eviction. The rescission application had since been drafted and was ready for lodging any moment.

I was also satisfied that the applicant could still proceed with her joinder application whereafter, if successful, she could still seek rescission under Rule 63.

In answer to my query on that point, counsel for Prime Ventures or Godwills Masimirembwa was emphatic that the Rules were clear. The applicant, as “…, the party affected…, thereby…,” could, straight away, seek rescission under Rule 449 without having to be joined to any proceedings first.

I do not agree.

The grounds for rescission under Rule 449 are different from those under Rule 63. Very briefly, under Rule 449, an applicant must show that he or she is the person affected by the order; that the order was erroneously sought or erroneously granted in his or her absence; or that the order has an ambiguity or a patent error or an omission in it; or that it was as a result of a mistake common to the parties. Under Rule 63, the applicant needs to show “good and sufficient cause.” But, unlike Rule 449, the right to apply for rescission under Rule 63 is not extended to any party affected thereby.

It is closed to the party against whom the judgment was given in default.

The respondent's fourth and last point in limine was that the matter was not urgent.

By July 2016, when it published the public notice aforesaid, the applicants had become aware of the respondent's intention to seize the vehicles if they did not regularise their importation of them by 30 September 2016. The last paragraph of that public notice read:

“Please utilise this opportunity to get the clearance for your motor vehicle[s] regularised urgently, before 30 September 2016. If you fall into the category of importers of motor vehicles which were imported within the period in which ZIMRA wants to check, as mentioned above, and you fail to comply within the period provided for in this notice, you risk having your motor vehicle seized wherever it is found.”

The respondent went on to engage the applicants personally, in correspondence dated 28 and 29 November 2016; 11 and 19 January 2017. In all of them, the respondent had been unequivocal about the Zimbabwe Revenue Authority's powers to carry out post-clearance audits and its threat to seize the vehicles unless the outstanding duties were paid. In addition, in Case 1, one of the officers had actually held a meeting with Patrick Muguti, on 14 September 2016, during which, among other things, the import of section 223A of the Customs and Excise Act [Chapter 23:02] was fully explained. It was at that meeting that Patrick Muguti revealed that the vehicle had already been sold to a third party.

The respondent argued that for the applicants to have waited until 1 February 2017 to launch their urgent chamber applications did not show that they had treated their matters with the urgency that they claimed they deserved.

The applicants maintained that their matters were urgent.

They argued that the respondent's last correspondence was only dated 19 January 2017, i.e. some twelve days before they filed the applications. Such a delay was not inordinate.

On 23 January 2017, the applicants had given due notice of their intention to sue for the review of the respondent's decision on post-clearance audits. Section 196 of the Customs and Excise Act [Chapter 23:02], among other things, requires that sixty days' notice for any civil proceedings against the State or the Commissioner or any officer for anything done, or omitted to be done, be given before action is taken. Section 119 of the Customs and Excise Act [Chapter 23:02] provides that one may appeal to this court against any determination of the Commissioner after payment of any duty or tax demanded by the Commissioner….,.

Furthermore, and at any rate, in substance, the applications were not urgent in the sense that the applicants themselves had not treated them as such. As early as July 2016, the respondents had evinced unequivocally his desire to seize and embargo the vehicles if the top-up duties remained unpaid. In all correspondence and engagements with the applicants, the respondent had been steadfast in wanting the outstanding duties paid or else he would cause the vehicles to be impounded. Therefore, the clock did not start to tick for the applicants only from 19 January 2017 when the respondent addressed the last correspondence to them. It had always been ticking since July 2016. There was no reason why the notice to sue that the applicants, eventually dispatched on 23 January 2017, was not dispatched any time from July 2016.

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 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.”

“…,. [T]he need to act…,” timeously, is not just to take any type of action. The action must be one that is effectual in protecting one's rights or averting impending peril….,.

Recently, in the case of Cawood v Madzingira & Anor HMA12-17 I said:

“Justice delivery requires that in every case the real or main dispute between the parties be determined finally. It is like surgery. The main dispute is the cyst or boil or ulcer that is threatening the social harmony that must exist between people. That ulcer must be opened up and treated….,. Until the ulcer is removed, the pain may remain….,.

It often happens that pending the determination of the main dispute, i.e. the treatment of the ulcer by surgery, other side issues or disputes may develop. But these are mere symptoms of the main problem. They may not require elaborate surgery. A simple prescription may be all that is necessary to provide interim relief. That simple pain killer is the provisional order that may be granted in an urgent chamber application. But it is granted on the understanding that the main surgery to deal with the real problem is awaiting determination.”

So, in these two cases, quite apart from the fact that in substance the urgency was manifestly self-created, there was also the additional problem that nowhere was, or is, the resolution of the main dispute between the Zimbabwe Revenue Authority and the applicants pending.

The facts were these.

On 25 January 2017, in the main action under HC81/16 [“the main action”], I granted a default judgment in favour of the first respondent for $6,400= being damages arising out of an assault by the applicant on the person of the first respondent. On 14 March 2017, pursuant to the court order and the writ issued subsequently thereto, the second respondent attached the applicant's goods – a tractor and a single cab truck. On 17 March 2017, the applicant filed an application for rescission of the default judgment under case no HC82/17 [“the rescission application”]. This was on the basis that when the summons was served he had been away from his residence; that when he had come back and had been given the summons, he had done nothing thinking that he would be called to court for a hearing as no ordinary or reasonable court would enter judgment in his absence. The applicant charged that the default judgment had been entered in error because there were numerous triable issues in the first respondent's claim for damages. The rescission application was made, purportedly, under Order 49 Rule 449 of the Rules of this Court.

Simultaneously with the rescission application, the applicant filed this application.

On urgency, the first respondent's argument was that the applicant had not acted when the need to do so had arisen. His point was that when the applicant eventually saw the summons and did nothing about it, he ought to have realised that the first respondent would eventually apply for a default judgment. The first respondent relied on the seminal and ageless passage in Kuvarega v Registrar-General & Anor 1998 [1] ZLR 188 [H] where 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 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.”

Counsel for the applicant argued that even though a traditional leader himself (the applicant is the incumbent Chief Serima of Gutu, Masvingo), who, as such, exercises quasi-judicial functions, the applicant's conduct should not be judged by the standard of a reasonable man, the diligens paterfamilias. Rather, his conduct should be judged on the basis of his own subjective state of mind at the time. On that basis his own clock had begun to tick only on 14 March 2017 when his goods had been attached. Three days later, he had filed this application.

I am not persuaded.

Rules are rules. They apply to everybody in the same way. Without good cause being shown, no litigant should urge that the Rules should be applied to them selectively. The applicant is judged by the objective standard of the reasonable man, the diligens paterfamilias, just like everyone else.

The first respondent's summons in the main action was served on the applicant's wife. In his founding papers, the applicant says when he returned from some political party meeting he was “…, advised..,” of the summons - whatever that means. Curiously, he does not say when he was advised.

Where urgency is central, dates are crucial. But this was just one of the problems with the application.

In my view, the major problem with the application was what the applicant did, or did not do, after being advised of the summons. He says:

“I anticipated that I would be called to attend court and answer to the claims in the summons.”

Now, that was very unreasonable. What he anticipated is substantially, if not exactly, what the summons called upon him to do.

The summons, which was accompanied by a declaration, was an ordinary summons. It was on Form 2 of the Rules. Among other things, it informed the applicant that the first respondent was claiming US$51,400= as damages arising out of the applicant's assault on the first respondent. It called upon the applicant to enter an appearance to defend within ten days of the date of service; Saturdays, Sundays and public holidays excluded. It then warned the applicant of the consequences of a failure to enter an appearance to defend, namely, that the first respondent's claims would be heard and dealt with by the High Court “…, without further notice to you.”

A Form 2 summons is a very simple and straightforward writ.

The language is quite plain. Virtually all the legalese is cut out. In my view, a diligens paterfamilias, on reading such a summons, or, to use the applicant's own words, on being “advised” of it, would, at the very least, have checked whether or not he was still within the prescribed time limits. The applicant has not said he is illiterate or that he could not read or write. But even if he was all that, a diligens paterfamilias would, at the very least, either have complied with the directive in the summons, or sought advice. If he was indigent, which he never said he was, legal aid is abundantly available.

When the summons is summoning you to enter an appearance to defend within a given period or else the High Court will deal with your opponent's claim without any further notice to you, it is very unreasonable for you to wait to be summoned to court yet again. How many times must you be summoned? If such folly is excused, chaos will reign in the courts. Concluded matters cannot always be revisited just because someone was sluggard in the protection of their rights. As McNALLY JA said in Ndebele v Ncube 1992 [1] ZLR 288 [SC]…,:

“The time has come to remind the legal profession of the old adage; vigilantibus non dormientibus jura subveniunt – roughly translated, the law helps the vigilant but not the sluggard.”

See also Masama v Borehole Drilling [Private] Limited 1993 [1] ZLR 116 [SC]…,; Mubvimbi v Maringa & Anor 1993 [2] ZLR 24 [HC]…,; Maravanyika v Hove 1997 [2] ZLR 88 [HC]…,; Beitbridge Rural District Council v Russell Construction Co [Private] Limited 1998 [2] ZLR 190 [SC]…,; and Kodzwa v Secretary for Health & Anor 1999 [1] ZLR 313 [SC]…,.

For the applicant, the clock began to tick when he was “advised” of the summons.

As noted above, he curiously refrains from mentioning when that was. But it was either before or after the dies induciae had lapsed. If it was before, he could still have complied with the summons. If it was after, then he had become automatically barred. But a diligens paterfamilias would then have taken steps to uplift the bar, or, at the very least, sought legal advice. Default judgment might not have been entered.

Only after his goods had been attached did the applicant wake up from his self-induced slumber. He sprang into action by asking that his matter be allowed to jump the queue. But that exactly is the situation dealt with in the above passage in Kuvarega v Registrar-General & Anor 1998 [1] ZLR 188 [H]. A matter does not become urgent just because the day of reckoning has arrived. 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.

The applicant did not treat his matter as urgent. For that reason, the court should not.

Where a matter has been adjudged to be not urgent, the general practice is simply to remove it from the roll for urgent matters: see African Consolidated Resources Plc & Ors v Minister of Mines and Mining Development & Ors 2010 (1) ZLR 208 (H); Mariyapera v Eddies Pfugari (Private) Limited & Anor SC03-14; Air Zimbabwe (Private) Limited & Anor v Stephen Nhuta & Ors 2014 [2] ZLR 333 [SC]; and Madza v The Reformed Church in Zimbabwe Daisyfield Trust & Ors SC71-14.

The second reason why I dismissed the argument on urgency was that the applicants could hardly be accused of having slept on their rights.

The time to start counting was not when the respondent had noted the appeal. It was when the applicants had got to know that the respondent had instructed the Sheriff to proceed with execution in spite of the provisional order. That time was 6 July 2015. Two days later, the application was launched.

The applicants stated that they learnt of the intended auctioning of their property on 17 August 2015. 

This is an urgent chamber application filed on 1 July 2015 and argued on 6 July 2015.

The application and relief sought are clear and straight forward. However, the same cannot be said about the history of the numerous cases filed by the same parties in this court. The following exposition will show how thoroughly confusing the situation has become.

The applicant is the registered owner of Tengold Reef claims named Eric 21. The first and second respondents are former Directors of the first applicant who were dismissed as Directors of the company by virtue of a High Court order under HC3986/12. On 16 September 2014, the first and second respondents filed an urgent chamber application, under case number HC2167/14, seeking to interdict the applicants from interfering with Tengold Reef Mine. The respondents obtained a default interim order. Later, on 15th January 2015, the respondents obtained a final order. The applicants then filed an application for rescission of judgment which was granted on 26 March 2015. The applicants then instructed their erstwhile legal practitioners, Cheda & Partners, to file a notice of opposition in case number HC2167/14. Apparently, no notice was filed due to problems that bedeviled that legal practice at that time. The applicants then searched for the file which could not be located timeously.

Be that as it may, the respondents set the matter down on the unopposed roll and a default judgment was granted on 24 June 2015. There was a notice of opposition filed of record as at that date. In the provisional order under case number HC2167/14, granted on 26 November 2014, the first and second respondents sought a final order in the following terms:

“(a) The respondents be and are hereby ordered not to sell the mine in question.

(b) The respondents be and are hereby interdicted from selling mining equipment situated on the mine in question or anywhere else unless in terms of the law.

(c) The respondents to pay costs of suit on an attorney-client scale.”

It appears that without first filing and serving the applicants' practitioners with a notice of amendment, the first and second respondents unilaterally altered the terms of the final order sought by including the following clauses which are not supported by their founding affidavit:-

“(2) The respondents be and are hereby ordered not to interfere with the applicants' operations at the mine and not to interfere with equipment thereat.

(4) The respondents be and are hereby interdicted from going to the mine known as Eric 21 Trianic Investments (Pvt) Ltd, Filabusi.”

Armed with a default judgment incorporating the above clauses, the respondents obtained a writ directing the third respondent to evict the applicants from the mine on 3 July 2015. The applicants were served with the notice of eviction on 30 June 2015 and have since filed an application for rescission in this court under HC1713/15. They also filed this application on 1 July 2015 seeking the following interim relief:-

“Pending the finalization of the matter, the applicants be granted the following relief:-

1. That execution of case number HC2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under case number HC1713/15.

2. The 3rd respondent be and is hereby interdicted from evicting the applicants or anyone claiming possession through them from Eric 21 Mine.”

The application was vigorously opposed by the respondents.

The history I have set out earlier helps one to appreciate counsel for the first and second respondents' preliminary points.

The first point in limine raised is that the matter is not urgent at all in that the order was granted in September 2004 and the applicants waited for doomsday before acting.

He referred to the background and explained how the following cases were filed.

(a) HC141/15, an application for rescission of judgment granted on 26 March 2015.

(b) HC390/15, an urgent chamber application filed on 19 February 2015 for stay of execution. Application dismissed on 19 March 2015.

(c) HC2167/14, an application for rescission of judgment.

(d) HC1713/15, an application for rescission of a default judgment issued on 24 June 2015 under case number 2167/14.

When the application was filed, all these records were not attached to this record.

The court had to request the Registrar to attach them - and this took quite sometime. Upon perusing all of them, it became clear that while they explain the historical background they are of little help in deciding the question of urgency. What is critical is how the applicants treated this matter after they became aware of the default judgment granted on 24 June 2015 – See Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (H) where CHATIKOBO J…, said –

“What constitutes urgency is not an 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…,.”

In this case, the applicants became aware of the judgment on 30 June 2015 and they immediately filed an application for rescission under case number HC1713/15 and this application.

In the circumstances, it cannot be said that the applicants did not treat this matter with urgency. For these reasons, I find that the matter is urgent.

The focus should be on the default judgment and the respondents' conduct shortly after obtaining the default judgment on 24 June 2015.

The second point in limine was that there is no proper application before the court for the following reasons:

(a) The application is tainted with fraud in that Mr Chikarara's (the deponent) signature on the documents filed is different.

(b) That the deponent to the founding affidavit has no locus standi in that annexure A does not state who gave him authority to represent the first applicant.

(c) That since the main application (that is the one for rescission of judgment) is not in terms of Rule 449, the applicant cannot obtain an order in terms of Rule 449 by way of an urgent chamber application.

(d) That one cannot obtain a relief for stay of execution pending nothing....,.

The final point, that one cannot obtain a relief for stay of execution pending nothing, is without merit in that the applicants successfully made an oral application to amend his papers to include the citation of case number HC1713/15 which is the application for rescission of judgment.

Litigation between the parties seems to have begun in earnest in July 2008.

Takunda Mujumi did not recognise the revocation of the purported abandonment of SMM Holdings' claims.

He continued to mine, mill and process the ore. SMM Holdings went to court. Under case no HC2721/08 aforesaid, and at Harare, it obtained, in July 2009, a comprehensive provisional order barring Mujumi, and anyone else claiming any rights through him, from carrying out any mining operations at the sites. This was pending determination of the claim for a declaratory order sought by SMM Holdings to the effect that Takunda Mujumi had no interest of any sort over the mines; and a final interdict barring him from carrying out any mining operations at the sites. Two months later, i.e. in September 2009, the provisional order was confirmed. Another two months later, i.e. on 9 November 2009, SMM Holdings issued a writ to enforce the order. Takunda Mujumi, and all persons claiming rights through him, would be ejected from the sites.

The applicants complained that the respondents' employees were interfering with the general operations at the acquired mines, including blocking trucks from leaving the site. Under HC1908/09, at Bulawayo, they applied for an interdict to restrain the first and second respondents from interfering. But the respondents claimed Mujumi had merely stopped fronting himself. He had just switched over to using the two applicants. They said he was their alter ego. The applicants themselves had no lease, permit or any colour of right over the mines.

As a result, SMM Holdings contested the applicants' claim for an interdict. It raised a preliminary point on the basis of the provisions of the Reconstruction of State-Indebted Insolvent Companies Act [Chapter 24:27].

Paragraph [b] of section 6 of the Reconstruction of State-Indebted Insolvent Companies Act [Chapter 24:27] provides that no action or proceeding shall proceed or commence against a company that is subject to a reconstruction order, except by leave of the Administrator, and subject to such terms as he may impose.

The respondents' point was that the applicants had not sought, and therefore did not have, the leave of the first respondent to institute HC1908/09.

For seven years, HC1908/09 remained outstanding. I was not told of the efforts, if any, that the applicants might have made to have the matter determined expeditiously.

In 2010, the fourth respondent began to enforce the writ issued against Takunda Mujumi under HC2721/09 aforesaid. The applicants rushed to court. On 22 April 2010, at Bulawayo, under HC721/10, they obtained a provisional order for an interdict against all the respondents herein, and the Ministry of Mines. Effectively, it was a final order. Among other things, the final relief to be sought on the return day was almost identical to the interim order granted. The evictions were stayed. The provisional order remained extant for more than six years. It was not confirmed or discharged. Again, the applicants did not say what efforts, if any, they had taken to have it confirmed.

Armed with that provisional order, the applicants went back to the mines. They resumed operations.

The first and second respondents alleged the applicants' application for an interdict under HC721/10 was heard without them having been served. As a result, they had not immediately become aware of the provisional order. When they did, they sought to have it discharged. But they faced enormous problems. The court record kept disappearing. Their lawyers ended up supplying duplicate papers to have the record reconstructed.

The applicants' long outstanding application under HC1908/09, the one for an interdict to restrain SMM Holdings from interfering with their operations at the mines, and against which the first and second respondents had raised a preliminary point about the absence of leave to sue, was dismissed on 14 October 2016. It was dismissed on the basis that the applicants did indeed require the first respondent's leave to sue and that they did not have it. Also discharged automatically, by operation of the law, was the provisional order under HC721/10 staying eviction.

The first and second respondents argued that when HC1908/09 and HC721/10, aforesaid, were finally dismissed and discharged, the applicants had become exposed to eviction. They ought to have appreciated that SMM Holdings would now come for them. At the very least, the clock for urgency had begun to tick from this time. It was at this juncture that they ought to have taken steps to restore their right, if any, to the occupation, possession, use and enjoyment of the mines. They had not done so. They had been content to carry on mining, but without any legal right or any form of legal cover. It was only in March 2017, following the Sheriff's move to evict them, that they had then rushed back to court with the current urgent chamber application.

The applicants denied they had been sluggard.

They said, on 2 November 2016, they had written to the first respondent to seek his leave to sue SMM Holdings. They maintained they had a lease over the mines or seeking his leave to sue.

The leave was refused on 21 November 2016.

In his lawyers' letter to the applicants' lawyers, the first respondent denied that the applicants had any lease or permit over the mines and said that therefore they had no business being at the mines.

On the following day, 22 November 2016, the first and second respondents unleashed the Sheriff to evict the applicants on the basis of the old writ against Takunda Mujumi. The date for the evictions was set for 28 November 2016.

The applicants said, in 2017 [the precise date was not given], they approached the third respondent to clear the issue since they thought they did have a permit over the mines. They claimed the third respondent did assure them that their operations were within the ambit of the law. They said they were allowed to renew their lease. It was then that they made the payment [for $300=] in respect of which they were issued with that receipt dated 17 February 2017. It was the one endorsed “Mining Levy”.

On 22 February 2017, at Masvingo, the applicants filed the aforesaid court application under HC67/17. Curiously, the founding affidavit had been executed way back on 28 November 2016.

HC67/17 was pending at the time of the hearing of this urgent chamber application. In it, the applicants sought an order to set aside the first respondent's refusal to grant the leave to sue. They also sought to have this court issue the leave instead.

I dismissed the urgent chamber application for want of urgency because the applicants had been lackadaisical. They had not themselves treated their matter as urgent. For more than six years they had been content to carry out mining operations on the basis of the 2010 provisional order which they had obtained without serving papers on the respondents. The provisional order, which in effect was a final order in both form and substance, had remained un-confirmed. The applicants knew that their right to the mines was under severe contest. They had taken no steps to have the provisional order confirmed. It had been left to the first and second respondents to run around. Further, the applicants had taken no steps to have HC1908/09 resolved expeditiously.

When HC1908/09 and HC721/10 were dismissed, on 14 October 2016, alarm bells should have begun to ring for the applicants. The legal shield that had protected them all this while had disappeared. But they did nothing.

That was not all.

When the first respondent dismissed their request for leave, on 21 November 2016, they did nothing effectual. The affidavit for the application under HC67/17, to reverse the first respondent's refusal of leave, was commissioned on 28 November 2016. But, incredibly, the application was not filed until a whopping three months later.

In Latin, it is said “vigilantibus non dormientibus jura subveniunt.” The English equivalent is 'the law helps the vigilant but not the sluggard.'

See: Ndebele v Ncube 1992 [1] ZLR 288 [SC]…,; Masama v Borehole Drilling [Private] Limited 1993 [1] ZLR 288 [SC]; Mubvimbi v Maringa & Anor 1993 [2] ZLR 24 [HC]; Maravanyika v Hove 1997 [2] ZLR 88 [HC]; Beitbridge Rural District Council v Russel Construction Co [Private] Limited 1998 [2] ZLR 190 [SC]; and Kodzwa v Secretary for Health & Anor 1999 [1] ZLR 313 [SC].

SMM Holdings' writ against Takunda Mujumi was served on the applicants on 22 November 2016. The Sheriff would come back to evict on 28 November 2016. There could have been no clearer demonstration of the respondents' singular intention to reclaim the mines than this. If this could not spur the applicants into action, nothing else could.

They were not spurred.

The applicants' reliance on 17 February 2017 as the trigger date for the urgent chamber application was, at best, tenuous, and, at worst, irrational. This was the date they said they had paid the mining levy. To them, this was proof that they had a permit or lease to remain on the mines. But this is weird. They did not need a receipt for a mining levy to trigger an urgent chamber application. They claimed they had the necessary authority to be occupying the mines and exploiting whatever else was found there.

All they needed to do was to produce the proof and assert their right.

Even though the merits were not argued and therefore undecided, manifestly, it was going to be a mountain to climb for the applicants to prove their title to remain at the mines. But for purposes of urgency, the 17^th of February 2017 had absolutely no significance in the whole matrix.  As demonstrated, there had been various landmarks before which should have triggered the urgent application. For reasons known to them, the applicants had ignored or missed all of them.

The law on urgency is well settled. The principles now sound like a broken record. But it pays to keep repeating them.

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 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 Main Road Motors v Commissioner–General, ZIMRA; Choruwa v Commissioner–General, ZIMRA HMA17-17, I said “…,[t]he need to act…,” timeously, is not just to take any type of action. It is to take action that is effectual in protecting one's rights or averting impending peril.

In that case, out of ignorance of the law, the applicants' lawyers had wasted time mounting a challenge that was manifestly misconceived.

In the present case, the applicants were wasting time writing ineffective and incompetent letters to the Sheriff to issue an interpleader against a writ of eviction; writing letters to the respondents' lawyers, demanding a copy of the letter from the third respondent that had denied their claim to the mines and which the respondents lawyers had omitted from their own response to the applicants' request for leave to sue; writing and visiting the offices of the third respondent, allegedly for confirmation of their title to the mines; paying levies that did nothing to enhance their impeached title, and so on.

Plainly, they were lackadaisical….,.

In her opposing affidavit, Roselyn Mugodhi, the applicant's Managing Director, takes issue with the urgency of the application and is of the view that this is self-created urgency. This is because the applicant was aware of the respondent's intention to pursue the matter to finality but did not do anything until “after execution was to be levied.”

I do not agree.

A matter is urgent if, when the need to act arises, the matter cannot wait. Self-created urgency is that urgency which stems of a deliberate inaction until the hour of reckoning.

A matter is urgent when, it is said, it cannot wait. See Kuvarega v Registrar-General & Another 1998 (1) ZLR 188.

Urgency

The respondents contend that the matter is not urgent.

The applicant's papers confirm that on 2 February 2016, the applicant's legal practitioners received the Sheriff's confirmation of the sale. On the same date, the applicants addressed a letter to the Sheriff. The letter was received by the Sheriff on the 4^th of February 2016. This application was only filed on the 8^th of March 2016.

This is almost one month from the date the applicant became aware of the confirmation of the sale. 

With respect, the amount of the delay is both inordinate and unjustifiable. It is a delay that, in terms of the dictates of the law regarding urgent matters, is not justifiable. There is no excuse for the delay. The applicant's legal practitioner, for his part, did not articulate any reasonable justification for such a delay.  On this basis alone, the court would be entitled to dismiss the application. 

Whichever way, the applicant cannot be heard on an urgent basis at all because this appears to be self-created urgency; that urgency which stems from a deliberate inaction until the day of reckoning is nigh.

The applicant was aware of the dismissal of his appeal in November 2015 but did nothing. It is only after three months that he has decided to come, on an urgent basis, and only because of the attachment of his property. 

It does not work that way….,.

Again, HC2700/14 as read with HC1669/15 are alternative remedies available to the applicants, for, if the applicants are handed Stand 5563 Mkhosana Township, Victoria Falls, they can then take the necessary steps to protect it from an invasion by not only the respondents but by any other person….,.

The applicants have a remedy to address the problem they face in this matter in my view.

It was further submitted that if the property is sold and the application for rescission succeeds thereafter, there is no guarantee that the first respondent, who is now unemployed and carries out no known business, will be able to replace it.

Given the fact that the applicant had no sight of the summons and removal of its goods is imminent this application is clearly urgent.

The background of the facts are that the applicant was a tenant of the second respondent from 4 December 2012 at Number 29 and Number 589 of Rusape, commonly referred to as No.29 Herbert Chitepo Street, Rusape.

The lease agreement between the parties was meant to expire on 30 September 2017. However, on 10 April 2014, the second respondent cancelled the lease because of the applicant's failure to pay rentals in terms of the lease agreement. The applicant did not challenge the cancellation. He however, remained in occupation of the premises despite the cancellation.

Following the cancellation of the applicant's lease agreement, the second respondent concluded a lease agreement with the first respondent on 14 April 2014. It is common cause that the first respondent began to claim the leased premises from the applicant in April 2014. It is common cause that in May 2014, the first respondent took occupation of most of the premises which the applicant was occupying, save for one small office which the applicant was still occupying at the time of filing the application. It is also common cause that the arrival of the first respondent on the scene resulted in a continuing dispute between the applicant and the first respondent. The applicant and the first respondent have been accusing each other of harassment and interference. The allegations of interference include the collection of rentals from sub-tenants by the first respondent, with the applicant being aggrieved thereby.

It is common cause that as a result of this dispute, on 30 June 2014, the applicant filed an application for an interdict with Rusape Magistrate's Court, Case No.743/2014 and that court said it had no monetary jurisdiction over the matter. It referred the parties to the High Court on 28 July 2014.

The first respondent filed its own application for a spoliation order against the applicant at Rusape Magistrate's Court, Case No.782/2014 on 10 July 2014. The court ruled that it had no monetary jurisdiction and referred the parties to the High Court on 28 July 2014.

On 29 July 2014, the first respondent filed a case for the applicant's eviction, Case No. HC6394/14 which is still pending. On 19 August, the first respondent filed an urgent application for an interdict against the applicant, HC7010/14. A judge ruled that the matter was not urgent on 26 August 2014.

On 29 August 2014, the second respondent issued summons against the applicant in Case No.7654/14, seeking confirmation of the cancellation of the lease agreement, eviction of the applicant and payment of arrear rentals of US$36,000= and holding over damages of US$2,000= per month from May 2014 to date of eviction. The case is still pending. During the hearing, the applicant did not dispute the claim of arrear rentals of US$36,000=. He actually consented to production of an acknowledgment of debt he signed for the debt.

On 18 September 2014, the first respondent filed an ordinary court application for an interdict against the applicant and another, Case No. HC8241/14, which is still pending.

The above is the litigation history between the parties since the beginning of the dispute in April 2014. The applicant and the second respondent have each approached the court once previously, while the first respondent has approached the courts on four different occasions. Three of those cases are still pending, namely, the case for the applicant's eviction filed by the first respondent, the case for the applicant's eviction, arrear rentals and holding over damages filed by the second respondent and the case for interdicting the applicant and another filed by the first respondent.

On 24 October 2014, the applicant approached this court on an urgent basis for a provisional order barring the respondents from interfering with its operations at Stand 29 and 589 of Rusape, commonly known as Number 29 Herbert Chitepo Street, Rusape. The relief applied for is for the entire premises, not just for the small office which the applicant is still occupying.

Both the first and the second respondents opposed the urgent chamber application, arguing that the application was not urgent.

The first respondent said the need to act arose in April 2014 when it claimed the property from the applicant. The second respondent says it arose on 28 July 2014 when the Magistrates Court declined jurisdiction and referred the matter to the High Court. The applicant says the need to act arose in mid-October 2014.

In my view, the need to act arose when the Rusape Magistrates Court referred the parties to the High Court on 28 July 2014. That is when the applicant should have approached the court urgently but he did not approach the court then.

In Kuvarega v Registrar General & Anor 1998 (1) ZLR 188, the court said:-

“…, a matter is urgent if, at the time the need to act arises, the matter cannot wait.”

In my view, the fact that the applicant could wait after being referred to the High Court, on 28 July 2014, shows that the application is not urgent. If it was urgent, it could not have waited. Even the applicant himself did not treat the matter urgently. Not only did he fail to act on 28 July 2014, he also delayed in approaching the court even in mid-October when he says the need to act arose. Mid October is 15 October, but he delayed by nine days and filed his urgent application on 24 October 2014. He never bothered to explain the delay in filing the application contrary to the dicta in Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 about the need to explain any delays.

It is clear that this application is about a continuing dispute between the parties from April 2014 and there is nothing new which warrants urgent intervention by this court. That is why the applicant himself did not approach the court in July 2014….,.

Accordingly, my ruling is that the application is not urgent.

Having ruled that the application is not urgent, I shall not proceed to deal with the issues raised by the parties on the merits. The applicant shall pay the first and second respondent's costs on the ordinary scale because I am not convinced that a punitive scale is justified.

The application was brought before me through the Urgent Chamber Book on 2 October 2014.

I formulated an opinion that the application did not disclose the urgency contemplated by the Rules of this Court in that the relief sought before this court appeared to be the same relief that was granted in the Magistrate's Order dated 24 April 2014. The extant Magistrate Order appeared on papers forwarded for the urgent application to be relied on by the applicant, and thus, to that extent, removed the purported urgency.

The applicant's legal practitioners requested for reasons for the decision that the matter was not viewed as urgent.

It was apparent from the papers filed of record that the respondent had embarked on an exercise of demolishing properties in Chitungwiza.

The applicant approached the court fearing that such demolishing would continue. The founding affidavit by Marvellous Kumalo, in particular paragraph 4, outlined that demolitions had occurred to various members of the applicant's properties in the absence of a court order. The applicant feared and anticipated further demolitions. However, in paragraph 7 of the founding affidavit, the deponent made it clear that there was already an existing order barring the respondents from carrying out the unlawful demolitions. Paragraph 7 of the founding affidavit by Marvellous Kumalo reads:

“There is a provisional order granted by Chitungwiza Magistrate Court, on 24 April 2014, by magistrate Gofa, barring the respondent from demolishing houses without a court order. A copy of the judgment is attached and marked as Annexture “D”. It is therefore mischief of the highest order for the respondent to take the law into its own hands. This wanton disregard of the law has left residents in fear that another demolition will be carried out unless this Honourable Court stops the respondent in its cracks. The balance of convenience favours the granting of an interdict whilst the respondent has the option of following the law.”

The impression created from the founding affidavit is that the applicant already had an existing remedy in the form of an extant Magistrate Court Order and what was needed was enforcement of that order. The enforcement would not be actioned by getting further and more court orders to the same effect. The Magistrate's Order barring illegal demolition remained operational and extant. When the applicant approached this court, the demolitions had already been effected. This, coupled with the fact that the applicant sought to rely on an extant Magistrate Court Order, removed the purported urgency contemplated by the Rules. The same relief granted by the magistrate in an existing order at the time of approaching this court was being sought.

Put differently, the applicant appeared to seek a relief which the courts had already granted thereby removing the purported urgency.

It was for these reasons that I held the view that the application was not urgent warranting the court giving it preferential treatment of not appearing through the ordinary roll. There was an existing remedy put across by the applicant thus changing the complexion of the matter.

The interim relief sought by the applicant was that:

1. The respondent be and is hereby barred from carrying out demolitions in its Municipality without a court order.

The applicant then, in the founding affidavit, suggests that the order barring had been granted by the magistrate on an earlier date and that the respondent ignored it. The fact that the respondent ignored it does not mean there was no order and that the order was invalid as it had not been declared so by a competent court of law. It is against this background that I looked at the circumstances of the matter and the requirements of urgency, which are fairly settled, and came to the conclusion that the matter was not urgent.

The test for urgency is objective, and, given the certificate of urgency and the founding affidavit in this case, it was apparent the respondent had already demolished properties and that the applicant had an existing court order. Given the suggestion by the applicant that there is an existing court order then there is a remedy already available for enforcement by other means and not an urgent application to get the same relief. There already is a remedy available and it would not be justifiable to give preferential treatment to the case affording it an opportunity to jump the queue for no good cause.

Accordingly, as there was no justification in the founding affidavit and certificate of urgency for the application to be treated as urgent, I concluded the application did not meet the requirements of urgency and thus removed it from the urgent roll.

In the premises therefore, IT IS ORDERED THAT:

1. The matter be removed from the urgent roll.

Counsel for the first respondent was not done.

He submitted that the applicant should not be entertained on an urgent basis because the matter is simply not urgent - in fact, this is self-created urgency. The applicant was aware of the intention to cancel its licence as at 5 March 2015 when the first respondent advised it of that intention by letter of that date. It should have taken remedial action then instead of waiting until 30 April 2015 to file this application. For that reason, the matter is not urgent and the applicant should be turned away for that reason alone.

In my view, there is no merit whatsoever in that point in limine. I find myself having to repeat what I stated in The National Prosecuting Authority v Busangabanye & Anor HH427-15…,.:

“In my view, this issue of self-created urgency has been blown out of proportion. Surely, a delay of 22 days cannot be said to be inordinate as to constitute self-created urgency. Quite often, in recent history, we are subjected to endless points in limine centered on urgency which should not be made at all. Courts appreciate that litigants do not eat, move and have their being in filing court process. There are other issues they attend to, and, where they have managed to bring their matters within a reasonable time, they should be accorded audience. It is no good to expect a litigant to drop everything and rush to court even when the subject matter is clearly not a holocaust.”

I agree with counsel for the applicant that raising the issue of urgency by respondents finding themselves faced with an urgent application is now a matter of routine. Invariably, when one opens a notice of opposition these days, he is confronted by a point in limine challenging the urgency of the application which should not be made at all. We are spending a lot of time determining points in limine which do not have the remotest chance of success at the expense of the substance of a dispute….,.

A matter is urgent if, when the need to act arises, the matter cannot wait. That is the simple test for urgency.

While there is a catena of authorities pronouncing on urgency, it all boils down to the remarks of MAKARAU JP…, in Document Support Centre (Pvt) Ltd v Mapuvire 2006 (1) ZLR 232 (H)…, where the learned judge pronounced:

“Some actions, by their very nature, demand urgent attention and the law appears to have recognized that position. Thus, actions to protect life and liberty of individuals, or where the interests of minor children are at risk, demand that the courts drop everything else, and, in appropriate cases, grant interim relief protecting the affected rights. The rationale of the courts acting swiftly where such interests are concerned is, in my view, clear…,. It is now accepted that in some cases, even purely commercial interests can be protected urgently in appropriate cases. In Silvers Trucks (Pvt) Ltd & Anor v Director of Customs & Excise 1999 (1) ZLR 490 (H), SMITH J considered the matter of the release of certain attached imports on the basis that the applicant would face bankruptcy and its 67 employees would lose their jobs as a result. In my view, the reasoning adopted by SMITH J in this regard is still in line with the objective test that had the courts waited, there would have been no need for the court to act subsequently. The applicant would have been liquidated and the return to it of the attached imports would not have reversed the effect of non-timeous action by the court. It would be of no further benefit to the applicant to pursue the legal interest. In my view, urgent applications are those where if the courts fail to act, the applicants may well be within their rights to dismissively suggest to the court that it should not bother to act subsequently as the position would have become irreversible and irreversibly so to the prejudice of the applicant.”…,.

See also Triple C Pigs & Anor v Commissioner General, Zimbabwe Revenue Authority 2007 (1) ZLR 27 (H)…,.

It is not factually correct for counsel for the first respondent to suggest that the applicant did not do anything from 5 March 2015. On that date, the first respondent gave notice of an intent to cancel the licence and invited the applicant to make representations as to why such cancellation should not be effected. This was as it should have been in terms of the procedure set out in section 43(2) of the Postal and Telecommunications Act [Chapter 12:05]. The applicant made those representations, which did not find favour with the first respondent and it duly cancelled the licence on 28 April 2015 issuing an order which ignored, completely, the applicant's right of appeal to the Minister.

In my view, the need to act arose when the applicant received the notice of cancellation dated 28 April 2015. It obliged by filing this application on 30 April 2015 – two (2) days later. There can be no possibility of self-created urgency.

For that reason, I dismissed the point in limine as being fanciful and without merit.

Counsel for the first respondent took a point in limine that the matter is not urgent by reason, inter alia, that the need to act arose when the magistrate sentenced Anderson Tagara on 18 March 2015. For the applicant to have waited 22 days to file the application means that this is now self created urgency not contemplated by the Rules.

In my view, this issue of self-created urgency has now been blown out of proportion.

Surely a delay of 22 days cannot be said to be inordinate as to constitute self-created urgency. Quite often, in recent history, we are subjected to endless points in limine centred on urgency which should not be made at all. Courts appreciate that litigants do not eat, move and have their being in filing court process. There are other issues they attend to, and, where they have managed to bring their matters within a reasonable time, they should be accorded audience. It is no good to expect a litigant to drop everything and rush to court - even when the subject matter is clearly not a holocaust.

I am satisfied that this application was brought within a reasonable time and that it is one which deserves to be heard on an urgent basis.

I accordingly dismiss the point in limine.

Even if the merits of that application had been considered, there is no way execution would have been stayed to enable the applicant to make an application for condonation for the late noting of an appeal against an arbitral award issued on 15 August 2011.

Condonation was being sought at the Labour Court more than 2 years later and no attempt had been made to stay the execution of the arbitral award at the Labour Court in terms of section 92E(3) of the Labour Act [Chapter 28:01]. It would be recalled that in terms of section 92E(2) of the Labour Act [Chapter 28:01], an appeal does not suspend the arbitral award.

We have a situation where not only was there no appeal but even the condonation sought had not been granted. There would have been no basis for staying execution. The registration or recognition or enforcement of an arbitral award can only be refused where an application for a stay of execution or suspension of the award is made to the Labour Court in terms of section 92E(3) of the Labour Act [Chapter 28:01]: Greenland v Zichire HH93-13; Kukura Kurerwa Bus Company v Mukwena & Ors HH477-14; Kuzamba v Innscor Africa Ltd t/a Spar Retail (Pvt) Ltd HH505-14.

Further, the applicant has not established that in the event that the application is not heard urgently, she is likely to suffer irreparable harm.

The first point in limine raised by counsel for the respondents is that the matter is not urgent because the applicants have created the urgency. They received the suspension letters on 22 April 2016 and did not do anything about them until doomsday on 18 May 2016, twenty-six (26) days later, when they filed this application.

I do not agree.

This is a matter in which the first respondent exercised his power to suspend the applicants in terms of section 8(3)(d) of the Midlands State University Act [Chapter 25:21], a section which allows him to suspend for an indefinite period. It cannot be said that the need to act arose on 22 April 2016 because the suspension was done pending the convening of a student's disciplinary committee. Up to now that committee has not been convened, and, on the face of it, one cannot say that the first respondent has acted outside his powers.

In fact, it is the failure of the respondents to act which is the source of disquiet and has led to a complaint being made against the failure of administrative justice as provided for in section 3(1) of the Administrative Justice Act [Chapter 10:28] as read with section 68(1) of the Constitution. The challenge brought by the applicants centres around the delay in convening a disciplinary hearing until the examinations time arrived.

The respondents are seeking to rely on their own default to deprive the applicants a remedy, suggesting that the applicants have created the urgency.

While it is true that the applicants could have come to court earlier, in the circumstances, it is a matter in which I am prepared to overlook that delay because the respondents contributed to it. In any event, I have mentioned before that litigants appear to have unduly blown the question of self-created urgency out of proportion and attempted to give it a meaning which authorities have not assigned to it. Courts of law have always appreciated that litigants do not eat, move and have their being in filing court process, if one may be allowed to borrow Biblical language. They have other things to attend to and in a case such as the present, where the respondents are the ones who have failed to act timeously, they cannot use that against the applicants. See The National Prosecuting Authority v Busangabanye and Another HH427-15; Telecel Zimbabwe (Pvt) Ltd v Potraz and Others HH446-15.

It is for that reason that I decided to exercise my discretion, for a discretion it is to hear a matter as urgent, in favour of the applicants.

4. Urgency

It was argued that the matter was not urgent because the cause of action arose in July 2014 when Justice CHIGUMBA gave an order setting aside the writ of ejection which had authorised the applicant to take occupation of the property. Counsel for the respondents argued that it is at the time that the order was granted that the applicant ought to have taken some action to have that order rescinded.

As correctly argued by the applicant's counsel, I found no merit in this point in limine.

This is because after the order by Justice CHIGUMBA, on 2 July 2014, the first respondent did not go on to repossess the property from the applicant. It is not in dispute that at the time Justice CHIGUMBA set aside the writ of ejectment the applicant had already taken possession and occupation of the property on 13 May 2014 pursuant to that same writ which was later set aside. The life-span of that writ had already expired. So, after obtaining the order of 2 July 2014 the first respondent should have had a writ of ejectment issued in her favour to enable her to evict the applicant.

As already stated above, the first respondent tried, without success, to have a writ of ejectment issued. This was simply because the order by CHIGUMBA J did not direct the Sheriff to enforce it. The first respondent tried, in vain, to have Justice CHIGUMBA amend her order in chambers to include a directive to the Sheriff to enforce the order. Justice CHIGUMBA indicated that for such an amendment to be effected the first respondent needed to make a court application - which application the first respondent never made. Counsel for the respondents, in his own words, made submissions that in a bid to enforce the order the first respondent approached various political offices and the second respondent. He said that she did this because the wheels of justice were proving to be unhelpful and were taking too long to turn. To confirm his submissions, there is a letter, dated 19 December 2014, which counsel for the respondents produced; which letter was written by the second respondent to its National Chairman. In that letter, the second respondent said that the first respondent, who is its member, was unceremoniously ejected from her farm and that she had successfully appealed to the High Court and the previous order to remove her had been set aside. The second respondent went on to say;

“It is against this background that War Veterans are now assisting the veteran to repossess her farm. Anytime, the veterans will descend on the farm to repossess it.”

This letter was date stamped 23 December 2014 by the second respondent and was copied to the Minister of Home Affairs, the Propol, and the Officer in Charge of Borrowdale Police Station. Counsel for the respondents went on to submit that following that letter, on 28 December 2014, the second respondent went on to stage a peaceful demonstration at the property in question. He also submitted that on that same day the second respondent had also learnt that the applicant was demolishing the farm house.

All these submissions by counsel for the respondents showed that the applicant had always been in occupation of the property since the time it took occupation on 13 May 2014, before Justice CHIGUMBA's order, up to the 28^th of December 2014 when it allegedly demolished the farmhouse. It was the applicant's averment that its possession and occupation of the property was interfered with on 28 December 2014 and not any time before that date.

My own analysis of the sequence of events led me to the conclusion that the applicant started having problems with the respondent on 28 December 2014 and not any time before that. That is when the second respondent descended on the farm - as it had threatened in its letter of 19 December 2014. It was my conclusion that the cause of action arose on 28 December 2014. By 30 December 2014 the applicant had filed this application.

The applicant acted when the need to act arose. I thus made a finding that the matter was urgent. I dismissed this point in limine.

Counsel for the first respondent submitted that the matter is not urgent because the dispute between the parties started in 2012 and was resolved in favour of the first respondent by the Mining Commissioner. As such, the applicant has no business coming to court now.

I do not agree.

The applicant has made it clear that what has prompted this application are the events which unfolded on 15 May 2016. Prior to that, the applicant had enjoyed peaceful occupation and undisturbed mining activity at his claims. On that date, the first respondent allegedly brought fifteen men who were armed to the teeth and closed the applicant's mining shafts with rubble. From what the applicant says the resolution of the dispute in 2012 resulted in tranquility and nothing untoward happened between the parties until March 2016. There is therefore no merit in counsel for the first respondent's challenge to the application on the basis of lack of urgency. The need to act only arose on 15 May 2016.

I will therefore entertain the application on an urgent basis.