Urgency re: Approach iro Time, Consequent and Remedial Alternative Considerations of Urgency

HH115-15 : MEGALINK INVESTMENTS vs OWEN MURIMBI and THERESA MUSINA and AFRICAN CENTURY LIMITED and SHERIFF, HIGH COURT OF ZIMBABWE
Ruled By: TSANGA J

On urgency, the respondent's argument is that the existence of the default judgment was brought to the attention of the second applicant as way back as October 2014. It was then that the applicants were informed that the property which is the subject matter of the case would be sold. It was also then that it was ...

HB143-16 : SIFISO KHUMALO vs SIHLESENKOSI NDLOVU and ZANELE NDOWA and POLKA EXECUTORS SERVICES PL and OFFICER IN CHARGE LUVEVE POLICE STATION and ASSISTANT MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

This urgent application was filed on the 24th of May 2016….,. The applicant conceded that she was aware of the meeting by the Master of the High Court of the 26th April 2016. She, however, did not have the report of the meeting. The minutes of the meeting show that relatives from both camps made their views known at ...

This urgent application was filed on the 24^thof May 2016….,.

The applicant conceded that she was aware of the meeting by the Master of the High Court of the 26^th April 2016. She, however, did not have the report of the meeting. The minutes of the meeting show that relatives from both camps made their views known at the meeting. From the 26^th April 2016 up to the filing of the application the applicant knew of the Master's position in the matter.

No explanation is given as to why the matter was not brought earlier. It is not clear when the perceived urgency arose. The certificate of urgency does not specify when urgency arose…,.

The certificate of urgency refers to the 13^th May 2016 as the date the applicant sought assistance from the police and the Assistant Master's office. That is simply untrue as an edict meeting was held as far back as 26^th April 2016. The urgency which the applicant invokes is not urgency contemplated by the Rules. See the case of Progressive Teachers Union v Zimbabwe Congress of Trade Unions & Others HH173-11.

In Kuvarega v Registrar General & Another 1998 (1) ZLR (H)…, CHATIKOBO J stated as follows:

“In the present case, the applicant was advised by the first respondent on 13 February 1998 that people would be barred from putting on the T-shirts complained of. It was not until 20 February 1998 that this application was launched. The certificate of urgency does not explain why no action was taken until the very last working day before the election began. No explanation was given about the delay. What constitutes urgency is not 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 ad deliberate or careless abstention from action until the dead-line draws near is not the type of urgency contemplated by the Rules. It necessarily follows that the certificate of urgency or supporting affidavit must always contain an explanation of the non-timeous action ii there is any delay.”…,.

The principle in Kuvarega v Registrar General & Another 1998 (1) ZLR (H) has been consistently applied in our courts.

The applicant…, failed to act when the need to act arose…,.

HH127-15 : NATIONAL PROSECUTING AUTHORITY vs NOEL MUPEYIWA (as a Regional Magistrate) and NAVISTER INSURANCE BROKERS (Pvt) Ltd (Represented by Wesley Simba Sibanda as Judicial Manager) and OTHERS
Ruled By: BHUNU J

The applicant is the National Prosecuting Authority duly established as such in terms of section 258 of the Constitution. It is responsible for instituting and undertaking criminal prosecutions on behalf of the State. The third to fifth respondents are directors in the second respondent, Navister Insurance Brokers (Pvt) Ltd, with whom they were jointly charged of fraud as defined ...

The applicant is the National Prosecuting Authority duly established as such in terms of section 258 of the Constitution. It is responsible for instituting and undertaking criminal prosecutions on behalf of the State.

The third to fifth respondents are directors in the second respondent, Navister Insurance Brokers (Pvt) Ltd, with whom they were jointly charged of fraud as defined in section 136 of the Criminal Law (Codification and Reform Act) [Chapter:9:23] before the first respondent, the Regional Magistrate for the Eastern Region.

In the alternative, they were charged with theft as defined in section 133 of the Criminal Law (Codification and Reform Act) [Chapter: 9:23]. They are alleged to have prejudiced the complainant, Air Zimbabwe, of substantial amounts of money acting in consort and common purpose in the course of duty as Navister directors.

The four respondents applied for discharge at the close of the State case in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter. 9:07] which provides that:

“(3) If at the close of the case for the prosecution the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.”

Before the trial magistrate had delivered judgment it was drawn to his attention that a provisional and final orders had been issued by the High Court, under case number HC5607/14, placing the second respondent under judicial management. The relevant paragraph, 1(e), of MTSHIYA J's order, dated 10 September 2014, reads:

“All actions and applications and executions of all writs, summons and other process against the Applicant shall be stayed and not proceed without leave of this Honourable Court.”

The first respondent interpreted the above order to mean that the second respondent could not be legally prosecuted in any court without the leave of the High Court. In his ruling, this is what he had to say:

“The settled position is that once a corporate entity is placed under judicial management or under liquidation no legal proceedings should commence or proceed without leave of the High Court. This then means this trial against Accused One cannot proceed without leave of the High Court. The State is not prepared to separate Accused One from Accused 1, 2, 3 and 4 and what this means is that the trial cannot proceed till the State (has) obtained leave from the High Court.”

At that juncture, the State applied for a longer postponement to enable it to apply, in the interim, for leave to prosecute the second respondent. The State then decided to stall the entire proceedings indefinitely by refusing to separate trials so as to proceed against the third to fifth respondents to whom MTSHIYA J's order did not apply. The application was opposed. The defence countered that an indefinite postponement would prejudice the accused. They then moved for removal from remand arguing that when the State is ready they can always be summoned to court for continuation of trial.

The first respondent ruled in favour of the defence saying:

“All four accused persons are hereby removed from remand. The State will proceed by way of summons and the application by the State for a longer remand is hereby dismissed.”

Aggrieved by the above rulings, the State launched this urgent chamber application challenging the correctness of the rulings made by the first respondent. In that application it sought a provisional order couched in the same terms as the final order sought. It is needless to say that this is undesirable but I shall not dwell on that as the application does not fall to be determined on that aspect at this stage. The provisional order sought is couched in the following terms:

“IT IS HEREBY ORDERED THAT:

1. The Order granted on 10 September 2014, in case number HC5607/14, does not have the effect of terminating criminal prosecution of the 2^nd Respondent.

2. The 2^nd, 3^rd, 4^th and 5^th Respondents be and are hereby ordered, upon service of this order, to appear before the 1^st Respondent for continuation of trial there pending on the same bail conditions that existed before their removal from remand.”

Urgency was premised on the argument that the removal of the accused persons from remand would compromise the ends of justice.

With due respect, this is clearly self-created urgency which the courts have said, time without number, does not qualify to have a matter treated as urgent. It is trite that a matter is not urgent where the applicant has an alternative remedy to avert the envisaged harm, damage or prejudice.

In this case, it is abundantly clear that the applicant has an option to separate trials and continue with the trial of the natural persons whom it fears might flee from justice. Surely, the applicant cannot plead urgency in circumstances where it is prepared to wait indefinitely until it has sorted out its legal problems with one accused person when in the interim it can proceed with the other accused persons.

The trial magistrate's ruling, releasing the accused from remand while the applicant is putting its house in order is salutary as the determination promotes the right to personal liberty enshrined in section 49 of the Constitution without compromising the ends of justice because the respondents can always be summoned to Court when the State is ready to continue with the trial.

That being the case, I come to the conclusion that the matter is not urgent. At this stage, I do not wish to embroil myself in the legal controversy concerning the validity or otherwise of a certificate of urgency signed by a litigant's legal practitioner or one from the same firm. The bottom line is that this matter is not urgent.

HH128-15 : KUKURA KURERWA BUS COMPANY (PVT) LTD vs JAPHET LUNGA and 55 OTHERS and ADDITIONAL SHERIFF
Ruled By: MANGOTA J

APPLICANT'S FOUNDING AFFIDAVIT What the court observed in respect of the certificate of urgency repeated itself in the affidavit of the applicant in a very obvious manner. The applicant stated, in paragraph 7 of its affidavit, that:- “7. On the 5th of September 2014 the High Court registered the award for execution but the issue of the amount due and owing ...

APPLICANT'S FOUNDING AFFIDAVIT

What the court observed in respect of the certificate of urgency repeated itself in the affidavit of the applicant in a very obvious manner. The applicant stated, in paragraph 7 of its affidavit, that:-

“7. On the 5^th of September 2014 the High Court registered the award for execution but the issue of the amount due and owing to the respondents remained contentious as the judgment did not specify the amount to be paid, in addition to the challenge by the applicant of the misdirection by the arbitrator to make an award other 55 parties to the award.

8. On the 24^th October 2014 a Notice of Removal was issued against and served on the applicant by the 2^nd respondent attaching and placing under seizure certain property at 29 Willowvale Road, Harare.”…,.

The applicant did not state what action, if any, it took between 5 September and 24 October 2014. Paragraph 9 of its affidavit makes reference to the removal of its assets. It did not state when those were removed from its premises. Paragraph 10 stated that the applicant filed an application with a view to having the award suspended. The impression it created was that the application was filed after 24 October 2014 which is the date that the second respondent, according to it, served it with the Notice of Removal….,.

Two matters assist the court in determining applications of the present nature. These are:-

(a) Whether or not the application is urgent – and, if it is;

(b) Whether or not the applicant treated it with the urgency which it deserved.

The applicant stated that the second respondent served upon it the Notice of Removal on 24 October 2014. It did not state the date on which the goods were removed from its premises. It left that matter in abeyance, so to speak. It left the court in the dark on what could have occurred on the issue which pertained to the attachment and/or removal of its assets by the second respondent.

The court will, for argument's sake, work with 24 October 2014 as the date which it said the second respondent's conduct was adverse to its interests. Going by that date, therefore, it is evident that the respondent remained inactive as regards what was threatening its business interests for some six days running. It gave no reasons for its inaction from 24 to 31 October 2014 when it filed the present application. Its conduct in this regard was not consistent with that of a person who saw any urgency in the matter which was before it.

NDOU J…, made some succinct remarks on what urgency, in the manner that the rules of this court contemplate, means in Madzivanzira v Dexprint Investments (Pvt) Ltd & Anor 2002 (2) ZLR 316 (H). The learned judge said:-

“…, for an application to be treated as urgent, not only must there be the danger of irreparable prejudice if the matter is not dealt with immediately but also the applicant must himself have treated the matter as one of urgency.”

The court associates itself with the learned judge's abovementioned words of wisdom.

The applicant was aware, as far back as September 2014, that the first respondent had successfully registered the arbitral award of 5 June 2014 with the court. It was also aware, at the time, that the registration was aimed at the enforcement of the award. It knew, further, that once registered, as it was, the first respondent would likely move the court to have it enforced - the challenges which it had mounted notwithstanding. For reasons which are known to itself, the applicant did nothing to ensure that enforcement of the award would not take place. Its application for stay of execution was only filed with the Labour Court on 30 October 2014 and not earlier than the mentioned date. What it did in this regard is certainly not the conduct of a party which was desirous of protecting its interests from being adversely affected.

A party which wants to protect its interests, as the applicant would have the court believe, would not have remained inactive to the threat which was about to occur to it. Such a party would not have waited from the beginning of September to the end of October 2014 before it asserted its rights. In casu, the applicant waited for the stated period before it applied to the Labour Court for stay of execution.

In the case of Independent Financial Service (Pvt) Ltd v Colshot Investments (Pvt) Ltd & Anor 2003 (2) ZLR 494 this court stated, in clear and unambigious terms, that:-

“A matter cannot be deemed urgent simply because property has been attached.”

In casu, property was attached and the applicant was notified of that fact. It did nothing. After some days, the attached property was removed from the applicant's premises. It was then that it cried foul and filed the present application.

GOWORA J…, stated in Gwaranda v Johnson & Ors 2005 (2) ZLR 161 that:-

“The existence of circumstances which may, in their very nature, be prejudicial to the applicant is not the only factor that a court has to take into account, time being of the essence in the sense that the applicant must exhibit urgency in the manner in which he has reacted to the event or the threat whatever it may be.”

The manner in which the applicant reacted to the event or threat does not, by way stretch of imagination, exhibit urgency.

C. CONCLUSION

The court remained satisfied that the applicant did not treat its case with any urgency when it realized, as far back as September 2014, that its interests were under threat. It did not act or react to the obvious threat. The urgency which it said was present was nothing other than self-created urgency.

The court was, and still is, of the single view that the applicant's application did not come anywhere near the concept of urgency which the rules contemplate. It is for the mentioned reasons, if for no other, that it dismissed the application.

HH139-15 : MANLINE FREIGHT (PTY) LTD vs PETER KANENGONI and OTHERS
Ruled By: MAFUSIRE J

The respondents' third point in limine was that there was no urgency; the applicant allegedly having failed to act within a reasonable time when the need to act had arisen. It was argued that the applicant had wasted valuable time in pursuing futile remedies in the Labour Court of South Africa; in Zimbabwe before the Minister and the ...

HB232-16 : MTUMANI MLAUZI vs EASY GAS (PVT) LTD and SHERIFF OF ZIMBABWE N.O. and MXOLISI MPOFU
Ruled By: TAKUVA J

Counsel for the first respondent also submitted that the applicant jumped the gun by filing this application instead of approaching the Deputy Sheriff in terms of Rule 359….,. The second respondent did not comply with Rules 356 and 359 of this court's rules - which rules are mandatory. On the facts of this case, Rule 359 cannot be ...

HH141-15 : GOODWELL CHIPURIRO vs CITY OF HARARE
Ruled By: UCHENA J

Counsel for the respondent, in submitting that the case was not urgent, gave details on how the impounding took place on 12 January 2015 and the applicant filed this application on 28 January 2015 - two weeks after the impounding. He submitted that the applicant did not himself treat his case with urgency….,. Counsel for the applicant, relying ...

Counsel for the applicant, relying on paragraph 8 of the applicant's founding affidavit, submitted that the case was urgent because the applicant's livelihood depends on the use of that motor vehicle as a commuter omnibus and that he has no means from which he can pay for the release of his motor vehicle.

The respondent's view, that the allegation of the involvement of a bogus police officer is a ploy to found urgency is supported by Dr Tendai Mahachi, who deposed the respondent's opposing affidavit, where he said the motor vehicle was impounded by constable Moyo. He further said that the allegation of the involvement of bogus police officers is a ploy by the applicant to avoid paying for his offence through the use of police officers who have been issuing many letters to that effect some of which he attached to his opposing affidavit, when their records reveal that those motor vehicles will have been impounded by genuine identifiable police officers. Dr Mahachi…, pointed out that the applicant has alternative remedies which he should pursue. He said:

“The vehicle which was impounded on 12 January 2015 would have been released by now if the applicant had approached the respondent with all the relevant papers relating to the vehicle. He probably would have been made to pay the fines for the traffic offences and he wouldn't be talking about losing his source of livelihood.”

The existence of an alternative remedy is demonstrated by the applicant's own attachment to his answering affidavit, the State Outline which, in paragraph 3, says;

“Circumstances are that on the 19^th of January 2015, and at Harare Central Stores, the complainant was at Harare Central Stores intending to pay a fine for his commuter omnibus which had been impounded at Harare Central Stores on the 12^th January 2015.”

This statement suggests, as is confirmed in the State Outline, that the applicant then saw Epah Muguti being arrested for impersonation in respect of another motor vehicle after which he claimed that he was the bogus officer who had caused the impounding of his motor vehicle. He then abandoned what he had gone to Central Stores to do and sought to get his motor vehicle released through the alleged impersonation with the assistance of police officers the respondent says are notorious for seeking the release of motor vehicles through allegations of impersonation of police officers.

The issue, at this stage, is whether or not the applicant has alternative remedies.

The answer is he has and he is aware of it as demonstrated by the State Outline. He in fact previously attempted to pay for the release of his motor vehicle but abandoned it for the cheaper option, according to his own founding affidavit, where he complains about what he has to pay for the motor vehicle to be released. The State Outline also establishes that the applicant's alleged penury is merely being used to fain inability to pay the fines when he in fact previously went to Central Stores to pay fines for his impounded vehicle.

The urgent chamber application procedure is intended to serve litigants whose cases deserve to jump the queue of cases awaiting determination by judges. The jumping of the queue must be justified. Precedents on urgency clearly state that only cases which cannot wait should be allowed to jump the queue. A case cannot wait if the day of reckoning is about to arrive and there is no other way to avoid the impending harm.

In this case, I am satisfied that the applicant has alternative remedies through which he can get the release of his motor vehicle. He can therefore not be allowed to jump the queue. His case is not urgent.

In the result, I make the following orders;

1. The applicant's application is removed from the roll.

2. If the applicant intends to pursue this application he must, in view of his having filed his answering affidavit, set it down for hearing on the opposed roll within 30 days of the granting of this order.

3. The applicant shall pay the respondent's costs.

HH635-14 : ECONET WIRELESS vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY OF ZIMBABWE (POTRAZ)
Ruled By: DUBE J

The respondent submitted that the application is not urgent as the applicant has always been aware of the respondent's intentions. Counsel for the respondent submitted that the dispute has been raging on since 2013 when research was conducted by the respondent with the participation of the applicant. This resulted in the applicant penning a letter, dated 24 June 2014, wherein the applicant threatened to take the matter to court if the respondent did not withdraw its intentions. He submitted that this matter became urgent and ripe for taking to court in June 2014 and that the applicant has not explained its failure to take any action from July to 24 October 2014….,.

On the issue of urgency, counsel for the applicant asserted that this application was triggered by the regulatory determination of 16 October 2014. He asserted that the applicant acted timely and shortly after receiving the determination, and, further, that the matter is urgent because the applicant seeks to prevent the implementation, on 14 November 2014, of a decision to reduce its tariffs. He contended that the letter threatening legal action was in relation to a different matter concerning the Lyric Model and a tariff proposal to set up a Group 5 tariff which application was declined by the respondent. The applicant is not pursuing that matter. The applicant contends that both the founding affidavit and the certificate of urgency are valid and disclose urgency….,.

The requirements of urgency have been articulated in numerous decisions and the law is considered settled. The law is basically that in any matter where an applicant brings an application on an urgent basis he should show that the matter cannot wait to be determined in the sense that if not dealt with immediately irreparable harm will result, and, secondly, that the applicant himself did treat the matter as urgent. See Madzivanzira v Dextprint Investment (Pvt) Ltd HH145-02.

In Gwarada v Johnson 2009 (2) ZLR 159 (H) the court added its voice to the debate and remarked thus;

“Urgency arises when an event occurs which requires contemporaneous resolution the absence of which would cause extreme prejudice to the applicant. The applicant must exhibit urgency in the manner in which he has reacted to the event or threat.”

Similar sentiments were expressed in Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (H) where the court remarked as follows;

“What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is also urgent if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. If there has been any delay, the certificate of urgency or supporting affidavit must contain an explanation of the non-timeous action.”

The evidence on record reveals that there has been extensive correspondence and consultations with all stakeholders inviting representations regarding the proposed tariff and inviting licensees to submit tariff proposals. The applicant failed to disclose correspondence that took place between the parties prior to this application. The following letters were not attached to the application and were made available by the respondent. On 20 March 2014, the applicant wrote to the respondent and expressed its views over the subject. The letter reads in part as follows;

“We remain fully committed to the current initiative that will provide the Regulator with a tool…, for use in evaluating tariff proposals that may be submitted by operators for approval by the regulator.”

This letter was followed by another dated 12 June 2014 from the respondent to the applicant advising of the results of the survey and its intention to implement same. The applicant was invited to submit its views and comments on the exercise. On 24 June 2014, the applicant wrote to the respondent giving its views on the results of the survey. Part of the letter reads;

“Our client has briefed us with your letter of 17 June 2014 in terms of which you declined its tariff proposal for the proposed Group 5 (hard to reach). We have also been briefed on your plans to implement a change to the tariff regime using the LCRIC MODEL…,. It is clear from this section that the authority does not have power to impose tariffs. Once the authority has approved a tariff, it cannot amend or replace the tariff mero motu. The authority's power is restricted to approving or disapproving a tariff proposed by a licensee. The process of changing a tariff has to be initiated by the licensee.”

In concluding this letter the applicant writes;

“We hereby notify you that unless you withdraw your request for our client to submit a plan for the implementation of the results of the LCRIC model within the next seven days we shall apply to court for an order declaring that our client is entitled to maintain its tariff regime for the entire duration of the licence.”

Two issues emerge from the letter of 24 June;

(i) The first relates to the refusal by the respondent to approve a tariff proposed by the applicant for the Group 5.

(ii) The second issue relates to the applicant's plan to implement a change to the tariff regime using the LCIC Model.

In that letter, the applicant challenges the respondent's authority to impose, amend or replace a tariff mero motu in terms of section 100 of the Postal and Telecommunications Act [Chapter 12:05] and threatens legal action if the respondent does not withdraw its request for submission of a plan for implementation of the results.

The applicant became aware that the respondent intended to introduce the disputed tariff as early as 24 June 2014. By that date, the applicant was noticeably aggrieved and concerned about the respondent's authority or power to impose and amend the tariffs mero motu. Even though the determination had not been issued, the applicant was fully aware of the applicant's plans and undoubtedly disgruntled by the respondent's desired course of action. They saw it coming. The challenge raised in the letter of 24 June relates to the respondent's powers to take the intended measures. The same challenge raised then, is the same pursued in this application.

I am satisfied that the applicant was aware, as early as June 2014, that the respondent had plans to implement a change to the tariff regime in issue using the LCRIC model. What the applicant ought to have done then is to stop the respondent in its tracks and thwart its intentions. The applicant did nothing from June until 24 October 2014 to assert its rights. The applicant elected, instead, to threaten legal action which threats it did not pursue.

The need to act arose when the applicant became aware of the respondent's plans to implement the proposed tariffs based on the new model. The determination of 16 October simply put ice on the cake.

The applicant chose to act after the determination and only a few days before the determination was to be finalized.

What constitutes urgency is not 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. This approach was well articulated in Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (H) where the court remarked thus;

A party who brings a matter on an urgent basis should show that the matter cannot wait in the sense that if it is not immediately dealt with some irreparable harm will ensue. He must assert himself and take corrective action as soon as he becomes aware of the imminent harm. He must exhibit urgency in the manner in which he reacts to the event or threat and not wait until the deadline draws near.

The applicant failed to take corrective measures when it was expected to take action. The applicant has decided to act now and expects everyone to jump in accordance with its whims. The applicant sat on its laurels, did absolutely nothing and cannot expect any sympathy from the court. The applicant did not treat this matter as urgent. This is not the sort of urgency envisaged by the rules. The urgency is self-created. I find that there was a deliberate or careless abstention from action until the deadline drew near.

HH279-18 : CECILIA KASHUMBA vs AAROLA IDEHEN and AMOSORGE IDEHEN and OSARETIN IDEHEN and SHORAI NZARA and THE SHERIFF OF ZIMBABWE
Ruled By: MUSAKWA J

This brings me to the issue of whether the matter is urgent. The applicant claims to have become aware of eviction when notice of removal was served her on 10 May 2018. Surely, that cannot be the time when the need to act on her part arose. See Kuvarega v Registrar General 1998 (1) ZLR 188. The impression given is ...

HB239-16 : KELVIN ZINDODYEYI and THERESE CHIKETSANI vs ASPINAL INVESTMENTS (PVT) LTD and PHILLIPAH MUSEVE t/a SIMMRAN and MESSENGER OF COURT N.O.
Ruled By: TAKUVA J

Assuming, however, that I am wrong, there is another reason why this application has no merit. The applicants have a satisfactory alternative remedy provided by statute in section 39 of the Magistrates' Court Act [Chapter 7:10]. The section provides a sufficient platform for litigants who feel that they should have been part of a process to be ...

HH151-15 : CMED (PRIVATE) LIMITED vs KENNETH MAPHOSA and SHERIFF OF ZIMBABWE N.O. and ZIMBABWE REVENUE AUTHORITY
Ruled By: CHIGUMBA J

The question that arose for determination before me was whether the applicant had any other suitable and satisfactory alternative remedy available to it, in which case it could not be heard by this court on an urgent basis.

HB252-16 : ROBERT MAFU and 54 OTHERS vs AGRICULTURAL & RURAL DEVELOPMENT AUTHORITY (ARDA) and TREK PETROLEUM
Ruled By: MAKONESE J

The applicant alleges, in the founding affidavit of Robert Mafu, that the alleged cause of complaint arose on 5th September 2016. The applicants allege that a bulldozer and various earthmoving equipment had been demolishing their dwelling structures since the 5th of September 2016. No explanation has been advanced as to why no action has been taken to seek this ...

HH156-15 : MICHAEL MUPFUMIRA vs DELTA BERVERAGES (PVT) LTD and PASSION AND DREAMS (PVT) LTD
Ruled By: TAGU J

Counsel for the first respondent submitted that the applicant avoided to explain why he did not have sight of the first respondent's Summons instituted in the action proceedings under case HC5914/12. According to counsel for the first respondent, the Summons as well as the Notice of Attachment of the applicant's property were served at the same address, ...

Counsel for the first respondent submitted that the applicant avoided to explain why he did not have sight of the first respondent's Summons instituted in the action proceedings under case HC5914/12.

According to counsel for the first respondent, the Summons as well as the Notice of Attachment of the applicant's property were served at the same address, which is the applicant's immovable property. No explanation was proffered from the applicant's tenants why they did not bring the Summons to the attention of the applicant. More importantly, the applicant's son, one Milton Mupfumira, has been aware of the existence of the court order in case HC5914/12 since the 13^th of October 2014 and has been making efforts to come up with a payment plan to pay off the amount owed to the first respondent. In fact, the reason why it was taking him long to come up with the payment plan was because he was consulting with the rest of his family - the applicant included.

Reference was made to annexures 3, 4, 5 and 6. It was counsel for the first respondent's contention that the applicant cannot hide behind, and blame, his tenants for not bringing the court processes to his attention….,.

Annexures 1 and 2 are the Deputy Sheriff's returns showing that the processes were being served at the applicant's residence since the 14^th of June 2012. The parties involved in those processes were Delta Beverages (Pvt) Ltd) (the plaintiff), Passion and Dreams (Pvt) Ltd (1^st defendant) and Michael Tigere Mupfumira (2^nd defendant).

The applicant's explanation is that he was away in Mhondoro…,.

Further to that, counsel for the first respondent referred to annexures 7, 8, 9 and 10. These referred to a string of email exchanges between the said Milton Mupfumira and the first respondent's legal practitioners. For avoidance of doubt, I will quote the relevant annexures.

Annexure 3 is an email dated 17 October 2014 sent by the applicant's son, Milton Mupfumira, to the first respondent's legal practitioners. It read as follows -

“Re: Delta Beverages v Passion and Dreams P/L Michael Tigere Mupfumira

Good morning Sir. Thank you for your email received and noted. I am currently based in South Africa and was wondering if I could submit a proposal here via email. I would also appreciate the opportunity to call you if you could advise when you are available. Kind regards M T Mupfumira.”

When Mr M T Mupfumira sent the above email he was responding to an email dated 13^th October 2014, sent by the first respondent's legal practitioners, which was couched in the following words –

“Dear Mr Mupfumira

We refer to the above matter.

We attach hereto a copy of the court order which we obtained against both yourself and Passion & Dreams (Pvt) Ltd. You will note that your immovable property was declared specially executable. Unless we start receiving payments from you towards liquidating the debt of US$147,952= together with interest and our legal costs, we shall be proceeding to instruct the Sheriff to sell your immovable property. Kindly let us hear from you in the next seven business days failing which we shall be proceeding with execution.

Yours faithfully

Zvobgo Tawanda Zvobgo

Associate

Trade & Investment Unit

DUBE, MANIKAI & HWACHA”

Then, on 28 November 2014, Milton Mupfumira sent another email to the first respondent's lawyers worded as follows -

“Re: Delta Beverages v Passion and Dreams P/L Michael Tigere Mupfumira

Dear Sir. I apologise for the late response. I have been away. Please may we contact you by Tuesday afternoon. There is a lot involved here therefore it's a family decision. Again, I apologise and look forward to communicating before end of day Tuesday. Kind regards Milton”…,.

From the above correspondence there is no basis for the applicant to blame the tenants. His own son was aware of the court processes. It has not been explained why the son did not bring all this to the father since October 2014….,.

Even if that is not enough, annexure 8 is a General Power of Attorney purportedly signed by the applicant himself on 13 August 2011 authorising one Kefasi Machaya to use the applicant's Title Deeds for the immovable property as a security for a debt owed to the first respondent.

This power of attorney is buttressed by an affidavit deposed to by the applicant confirming his authority to Kefasi Machaya to use the title deeds. Attached to the affidavit is annexure 10, a copy of the applicant's driver's licence.

In my view, it is not correct to say the applicant only became aware of court processes on 31 January 2014.

The respondent's first point in limine has merits.

In coming to this decision, I am guided by what CHATIKOBO J said in the case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188…, where he said -

“There is an allied problem of practitioners who are in the habit of certifying that a case is urgent when it is not one of urgency…,. What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if, at the time the need to act arrives, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been a delay.”

The property in question belongs to the applicant. He apparently authorised his relatives to use his title deeds. The son was aware of the court processes. He clearly stated that the decision, as far as the property in question was concerned, was a family issue. Since the 13^thof October 2014 they were aware of the court order and the fact that the property in question had been declared executable. They did nothing until the day of reckoning arrived.

On the basis of the above I decline to hear the matter on an urgent basis….,.

(a) The application is not urgent.

HH720-14 : PANDHARI LODGE (PVT) LTD and SUNDAY CHIFAMBA and SWISIDAYI NYAMUFUKUDZA vs CENTRAL AFRICA BUILDING SOCIETY and DEPUTY SHERIFF
Ruled By: MANGOTA J

It is evident that, from the time that the consent to judgement and Deed of Settlement (annexures A1 + 2 and B1 + 2) were concluded, the parties engaged themselves into some negotiations. The negotiations aimed at having an amicable resolution of the issue which pertained to the applicants' effort to clear their indebtedness to the first respondent. ...

(i) Paid the sum of $1,060,000= to the first respondent;

(ii) Entered into negotiations with the Ministry of Higher and Tertiary Education to which they wanted to sell their Stand number 739 Glen Lorne Township 15 of Lot 41 of Glen Lorne, Harare, to raise further sums of money which they said they would channel towards the liquidation of their indebtedness to the first respondent; and

(iii) Made a commitment to pay a monthly sum of $20,000= which they said was designed to bridge over their indebtedness while the case of the Stand which has been referred to in para (ii) was being concluded.

The applicants stated that, despite indications on both sides of the divide pointing to the fact that both parties were interested in a mutually beneficial resolution of the matter which related to the liquidation of the debt, communication regarding the collapse of the negotiations reached them on 16 December 2014. They attached to their application Annexure 1. The annexure is a letter which the first respondent's legal practitioners addressed to the applicants' legal practitioners. The letter is dated 16 December 2014. It, in part, reads:-

“…, our instructions are that the sale should proceed as advertised. Whilst our client acknowledged receipt of the $5,000= payment, it has advised that such payment does not significantly reduce the debt owed by yours to ours.”

It is on the basis of the above-mentioned annexure that the applicants filed the present application on the basis of urgency. The applicants attached to their applications Annexures E, F, G and H which they said were correspondences which took place between the parties during the period 8^th to 16^th December 2014. The annexures constitute the negotiations which the applicants said took place between the parties.

The applicants, it is evident, became aware of the first respondent's resolve to satisfy its claim by way of attaching and selling in execution their immovable properties on 16 December 2014. They filed the present application with the court on 17 December 2014. They realised the urgency of the matter and wasted no time. There can, therefore, be no doubt that the application which the applicants placed before the court is not only urgent but also that the applicants themselves treated the application with the urgency which it deserved.

HH260-14 : UZ – UCSF COLLABORATIVE RESEARCH PROGRAMME vs ISDORE HUSAIWEVHU and WALTER MUTOWO and FUNGAI ZINYAMA and THE SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

The last point taken in limine by the respondents was that the application was not urgent. Counsel for the respondents submitted that once the arbitral award had been registered as an order of this court, way back in 2010, it must have been obvious to the applicant that the next stage by the respondents would be execution. ...

The last point taken in limine by the respondents was that the application was not urgent.

Counsel for the respondents submitted that once the arbitral award had been registered as an order of this court, way back in 2010, it must have been obvious to the applicant that the next stage by the respondents would be execution. She submitted that the applicant had itself not treated the matter as urgent. Its appeal against Mr Matsikidze's quantification had been dismissed by the Labour Court on 28 March 2014. The applicant had only applied for leave to appeal to the Supreme Court only on 14 May 2014, which, counsel submitted, was outside the 30 day period permitted by the Rules of the Labour Court. Thus, the need to act had arisen much earlier than the 15^th of May 2014 when the urgent chamber application had been launched.

Reference was made to the well-known case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H).

I dismissed that point in limine, firstly, because it appeared the respondents had miscalculated the 30 day dies induciae the applicant was entitled to in order to file the application for leave to appeal. 14 May 2014 was the 30^th day. Secondly, until the respondents had issued the writ and had caused the attachment of the applicant's property for the somewhat staggering amount that was inserted in that writ and which none of the parties nor any of the courts or quasi-courts had previously mentioned in express terms, one cannot really say the need to act by the applicant had arisen earlier.

The imminent harm for which the applicant sought an interdict had arisen on 14 May 2014 when the fourth respondent had attached its entire office furniture and had been poised to return for its upliftment - probably in two days' time. To all the other processes that the respondents had instituted towards enforcing Mr Matsikidze's quantification the applicant had mounted appropriate opposition, albeit, without success. The applicant had also instituted processes of its own to reverse Mr Matsikidze's quantification and one such was still pending when the writ had been issued.

Under such circumstances it cannot be said that the applicant had been sluggard.

HH173-15 : BAYRICH ENTERPRISES (PVT) LTD vs XGMA ZIMBABWE (PVT) LTD and THE SHERIFF
Ruled By: MATHONSI J

Even more baffling is why the applicant, which says it became aware that its property would be sold on 14 February 2015 as far back as 6 January 2015 not only did not do anything until the day of reckoning but also elected to proceed by ordinary application on 10 February 2015.

HMA26-18 : DYNAMIC MINING SYNDICATE vs ZIMASCO (PVT) LTD and ENELY MUZENDA and BUSYWORK DUBE and PROVINCIAL MINING DIRECTOR, MIDLANDS PROVINCE and OFFICER IN CHARGE, LALAPANZI and ANOTHER
Ruled By: MAWADZE J

Counsel for the fourth to sixth respondents raised the point that this matter is not urgent. He submitted that the ruling by the fourth respondent was served on the applicant on 19 January 2018 and that the applicant only noted the appeal against that ruling some two months later, on 22 March 2018. He reasoned that ...

Counsel for the fourth to sixth respondents raised the point that this matter is not urgent.

He submitted that the ruling by the fourth respondent was served on the applicant on 19 January 2018 and that the applicant only noted the appeal against that ruling some two months later, on 22 March 2018. He reasoned that the applicant did not treat this matter as urgent and has not bothered to explain, in its founding affidavit, the reason for this apparent inordinate delay. Consequently, he argued that the applicant cannot be allowed to jump the queue, as it were, as it did not treat the matter as urgent.

What constitutes urgency in matters of this nature is now settled in our law and should not really detain this court too much. The locus classicus is the case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 at 193 (H).

See also Grifford v Mazarire & Ors 2007 (2) ZLR 131..., and Boniface Denenga & Anor v Ecobank (Pvt) Ltd and 2 Ors HH177-14.

I understand the applicant's contention to be that what has triggered this urgent chamber application is the first respondent's actions, through the second and third respondents, to continue mining activities at the disputed area after the applicant has noted an appeal to this court on 22 March 2018. It is trite that generally the noting of an appeal suspends the order appealed against. It logically follows that what triggered the urgency in this matter is the noting of an appeal by the applicant. Put differently, the urgency in this matter arose after the applicant noted the appeal and not before. The applicant stated that it only became aware of the first respondent's adverse activities on 25 March 2018 and proceeded to file this application on 3 April 2018. That delay cannot be said to be inordinate. Indeed, counsel for the fourth to sixth respondents could not continue with this argument and grudgingly accepted that the point in limine he had raised had not been properly taken. Even his colleague, counsel for the first to third respondents was clearly unwilling to fight in counsel for the fourth to sixth respondents corner on this point.

The point in limine raised by counsel for the fourth to sixth respondents is clearly untenable in the circumstances. It is improperly taken and cannot succeed.

HH180-15 : HERSEL INVESTMENTS (PVT) LTD vs THE REGISTRAR OF DEEDS N.O. and THE SHERIFF OF THE HIGH COURT and TREDCOR ZIMBABWE (PVT) LTD and ESTRELAC INVESTMENTS (PVT) LTD and ROSELYN MANDEBVU
Ruled By: TAGU J

The applicant had included in its relief a request to be allowed to file, within ten working days, the application for the setting aside of the sale of the property in question. This relief, from the submissions of counsel for the applicant, has since been overtaken by events. An application for the setting aside of ...

HH180-15 : HERSEL INVESTMENTS (PVT) LTD vs THE REGISTRAR OF DEEDS N.O. and THE SHERIFF OF THE HIGH COURT and TREDCOR ZIMBABWE (PVT) LTD and ESTRELAC INVESTMENTS (PVT) LTD and ROSELYN MANDEBVU
Ruled By: TAGU J

What constitutes urgency has been clearly stated by CHATIKOBO J in the case of Kuvarega v Registrar General Anor 1998 (1) ZLR 188…, where the learned judge 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 arrives, ...

HH475-18 : ETHEL TSITSI MPEZENI vs ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: ZHOU J

The question of the absence of an alternative remedy must be understood in the context of the remedy envisaged by law. For it to qualify as an alternative remedy, it must: (a) Be adequate, having regard to the circumstances of the matter; (b) Be ordinary and reasonable; (c) Be a legal remedy; (d) Grant similar protection. HERBSTEIN Van WINSEN, The Civil Practice of ...

View Appeal
HB102-17 : TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS vs SIPHIWE DUBE and OTHERS
Ruled By: TAKUVA J

As regards the availability of a satisfactory remedy, I prefer SACHS LJ's approach in Evans Marshal Co Ltd v Bertola SA [1973] IALL ER 992 (CA)…, where the learned judge, who was dealing pertinently with the enquiry as to whether damages were an adequate remedy, said: “The standard question in relation to the grant of an injunction, ...

Appealed
SC23-19 : SERGEANT KHAUYEZA vs THE TRIAL OFFICER and THE COMMISSIONER - GENERAL OF POLICE
Ruled By: PATEL JA, BHUNU JA and BERE JA

During the course of submissions by counsel, it became apparent that the review proceedings in Case No. HC5385/17 were not actually pending at the time that the urgent chamber application was heard and determined by the court a quo. It was common cause that the decision of the trial officer was made on 29 March 2017. However, ...

SC27-19 : SYNOHYDRO ZIMBABWE (PVT) LTD vs TOWNSEND ENTERPRISES (PVT) LTD and DAVID WHATMAN N.O. and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: MAKARAU JA

Urgency Clearly, the matter before me is urgent. What has created the urgency is the first respondent's unwillingness to advise the applicant in time its intention to proceed with execution notwithstanding the filing of the application for condonation and extension of time within which to note an appeal. Had that intention been communicated to the applicant, when ...

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

The first respondent's third point in limine was that the matter was not urgent. It was argued that the mainstay of the applicants' complaint was the report by the Zimbabwe Human Rights Commission the findings of which had been based on events almost a year old. Counsel for the first respondent's point was that the need ...

The first respondent's third point in limine was that the matter was not urgent.

It was argued that the mainstay of the applicants' complaint was the report by the Zimbabwe Human Rights Commission the findings of which had been based on events almost a year old. Counsel for the first respondent's point was that the need to act had arisen when the perceived violations had occurred way back then. For support, he referred to the well-known and oft quoted case of Kuvarega v Registrar-General & Anor 1998 [1] ZLR 188 [H], particularly the following seminal statement by CHATIKOBO J, at p 193 F-G:

“What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the dead-line draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay.”

Counsel for the first respondent argued that there was no explanation for the apparent delay by the applicants in bringing the urgent chamber application and that therefore there was no reason at all why it should be given priority ahead of all other matters pending before the courts. He submitted that the last of the incidents complained of had been more than 18 days old. Despite the founding affidavit having been commissioned on 14 June 2018, it was not until 19 June 2018 that the application had finally been filed. The application was no more than political grandstanding designed to attract media coverage….,.

Counsel for the first respondent's argument, that the application largely hinged on the report by the Zimbabwe Human Rights Commission, or that there had been an unexplained delay in bringing the matter to court conveniently glossed over the sorrowful lamentation by the applicants that the violations were continuing. The application was a compilation of disparate grievances by disparate teachers from the disparate districts of Zimbabwe on the manifold wrongful activities by the respondents. The abuses were said to be on-going. Thus, each one of them gave rise to a cause of action. Practically, it would have taken time to put it all together.

That was counsel for the applicant's explanation. It made sense.

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O.
Ruled By: MAFUSIRE J

The respondents' first point in limine was that the application was not urgent. Counsel for ZINARA, said by 24 June 2014 the applicant had written to the Minister of Transport objecting to his intention to increase the toll. Thus, the applicant had become aware of the pending legislation by then. That should have been the time for ...

The respondents' first point in limine was that the application was not urgent.

Counsel for ZINARA, said by 24 June 2014 the applicant had written to the Minister of Transport objecting to his intention to increase the toll. Thus, the applicant had become aware of the pending legislation by then. That should have been the time for it to have acted. It had not….,.

In response to the respondents' first point in limine, aforesaid, counsel for the applicant countered that the clock on urgency could not possibly have started to tick on 24 June 2014 when the applicant had written to the Minister of Transport. Nothing had been promulgated by then. Even after its promulgation, on 4 July 2014, the Minister of Transport had, on 6 July 2014, consciously taken an administrative decision to defer the coming into operation of the regulation to 11 July 2014. 4 July 2014 had been a Friday. There had been a supervening weekend. 6 July 2014 had been a Sunday. The application had been filed on 9 July 2014. There had been no significant delay. Among other things, it had been necessary for the applicant to collate the information and to prepare and present it properly.

I hereby dismiss the respondents' first point in limine. It amounts to nit picking on a matter of such public importance.

I agree with the applicant's contention.

It cannot be said the clock for urgency had started to tick around the time it had written to the Minister of Transport. The application is not about the Minister of Transport's failure or refusal to respond to the applicant's letter. It is about the subsidiary legislation that the Minister had subsequently promulgated and brought into force. At the time the applicant had written to him, the Minister of Transport had not yet acted, or at least his action in the form of the regulation had not yet come into the public domain. It would have been premature for the applicant to have rushed to court, at that stage, to attack what was no more than a mere intention. When the Minister of Transport did eventually act, by publishing the regulation, it was on the eve of a weekend. But, even before that weekend was up, ZINARA, with the Minister of Transport's blessing, had already published the public notice to defer by one week the operation of the regulation. That was precious more time for the applicant. It then launched its application on 9 July 2014.

The delay was only two working days. In such circumstances, it would be unreasonable and cruel to declare the applicant non-suited.

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O.
Ruled By: MAFUSIRE J

The respondents' second point in limine was that there was no cause of action for me to sit in judgment. The argument was that…, the applicant was, in effect, seeking a review of the Regulation. Such a review would have to be in the form of a court application on Form 29 as prescribed by the High ...

The respondents' second point in limine was that there was no cause of action for me to sit in judgment.

The argument was that…, the applicant was, in effect, seeking a review of the Regulation. Such a review would have to be in the form of a court application on Form 29 as prescribed by the High Court Rules. The true nature of the present urgent chamber application was that it was one for an interdict pendete lite. An application pendete lite is an interlocutory application. It is one pending something, or a lite.

But, for the applicant, there was no other lite pending. It had filed no review application….,.

I have to blow away the smoke that purports to screen off the real issue. Part of this smoke or cloud was the respondents' argument, or insinuation, that there always ought to be some lite pending before one can bring an urgent chamber application for interim relief.

It seems true that in the majority of urgent chamber applications the interim relief is sought pending the determination of some main dispute. An obvious example is where a provisional order is sought to stay the execution of a judgment pending the determination of an application for the setting aside of that judgment. However, in my view, the granting of relief on an interim basis cannot always be pending something. It cannot always be predicated on some other application having been filed of record first.

There is no such requirement in the Rules.

Rule 226 of Order 32 only provides as follows:

“226. Nature of applications

(1) Subject to this rule, all applications made for whatever purpose in terms of these rules or any other law, other than applications made orally during the course of a hearing, shall be made –

(a) As a court application, that is to say, in writing to the court on notice to all interested parties; or

(b) As a chamber application, that is to say, in writing to a judge.

(2) An application shall not be made as a chamber application unless –

(a) The matter is urgent and cannot wait to be resolved through a court application; or

(b) These rules or any other enactment so provides; or

(d) The relief sought is for a default judgment or a final order where -

(i)…,.

(ii)…,.

(iii)…,.

(e) There are special circumstances which are set out in the application justifying the application.”…,.

In the present matter, I have accepted the applicant's argument that what it placed before me was both the review application and the urgent application for interim relief. In terms of Order 32 an urgent chamber application must be accompanied by, inter alia, a certificate of urgency. Except for a mandament van spolie which is itself a final order; see Mankowitz v Loewenthal 1982 (3) SA 758…; and, my recent judgment in Trustees of the S.O.S. Children's Village v Bindura University & Ors HH349-14…, where relief is granted in an urgent chamber application it is invariably of a temporary or interim nature because there would not have been enough time to canvass and ventilate the issues. At this stage, the court is being asked to consider the matter in summary fashion. If it is satisfied that the applicant has made out a prima facie case, the court can grant the interim relief. But it is not un-common for that interim relief to be discharged on the return date when the matter has been considered more extensively and the issues canvassed and ventilated more properly.

Therefore, I dismiss the first leg of the respondents' second point in limine for lack of merit.

HB41-15 : CHITRINS GARAGE (PVT) LTD (In Provisional Liquidation) vs CHYCRY TRADING (PVT) LTD and DUMISANI MUTORERA
Ruled By: MOYO J

This is an urgent application wherein the applicant seeks an order that the Deputy Sheriff be authorized to enter the premises leased by the respondents and attach and seize all movable assets therein including motor vehicles.

The applicant alleges, that, the respondents owe a total sum of $52,950 in rental arrears since May 2013. The applicant alleges, that, the lease agreement expires on 1 February 2015, and, therefore, they are apprehensive that the respondents will flee without making good the arrears.

It is important to note, at this stage, that, this application was in fact heard after 1 February 2015.

The applicant has instituted legal proceedings for the recovery of the rentals in HC360/13, a matter which is still pending before this Honourable court.

The applicant alleges, that, it was prompted into action by the respondent's plea filed of record in HC360/13. The applicant further alleges, that, the plea was filed and served on 2 December 2014, prompting it to file this application on 19 December 2014. It further alleges that the plea is frivolous and vexatious.

Paragraph 9 of the founding affidavit states thus:

“On the 25th of November 2014, respondents were called upon to file a plea to the claim on the merits and such plea was filed on 2 December 2014. It is patently clear from the contents of the plea, that, respondents have no bona fide defence to the applicant's claim on the merits and have only raised frivolous and vexatious defences to the claim. I propose to demonstrate this by reference to material aspects of the plea.”

In paragraph 14 of the applicant's heads of argument, it is stated thus:

“In casu, the respondents filed their plea in the main action on the 2nd December 2014. The plea obviously caused alarm bells to ring due to the nature of the frivolous defences raised.”

The applicant's heads of argument go further and correctly state, in paragraph 12, that, in the case of Kuvarega v Registrar General and Others 1998 (1) ZLR 188, it was held, that, the supporting affidavit should always contain an explanation for the non-timeous action if there is a delay.

In paragraph 13 thereof, the applicant proceeds to submit that the non-timeous action is not always fatal to an application and that the court has a discretion to hear an application on the merits if there is an explanation for the delay.

The applicant further submits, in paragraph 15 of the heads of argument, that, technically, the lease agreement expired on 21 November 2014, that is when the applicant's provisional liquidator was appointed.

The respondents, on the other side, raised points in limine with regard to this application....,.

The respondents also contend that the case is not urgent....,.

The application would still fail on the basis of lack of urgency.

This is an application premised on the exercise of the landlords hypothec where a tenant has allegedly fallen into arrears.

The papers show, that, as at 2013, two years ago, the tenant had fallen into arrears; the lessor was entitled, as at that juncture, to seek to exercise the landlord's hypothec, as clearly, the law of Landlord and Tenant provides that the landlord's hypothec is exercisable anytime from the occasion of the tenant falling into arrears.

The tenant allegedly fell into arrears dating back to 2013 - no action was taken to exercise the landlord's rights except that a civil suit for the arrears was initiated.

It is at that juncture that the process of exercising the landlord's lien, on the movables of the tenant, should have been initiated.

Again, the applicant further states, that, the application was prompted by the imminent expiry of the lease; this, in my view, does not formulate any basis for urgency at all as the applicant has always known that come February 2015, the lease expires - the applicant had all the time, prior to the expiry of the lease, to exercise its rights and seek protection in terms of the law.

We are also not told why nothing was done to protect the landlord's interests for all this time.

There is, in my view, no reasonable explanation for the delay to act.

Kuvarega v Registrar General and Others 1998 (1) ZLR 188 states clearly, that, there must be a reasonable explanation for the inaction. None has been given in this case.

I accordingly uphold the points in limine and dismiss the application with costs.

HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE
Ruled By: CHIGUMBA J

There is a plethora of cases in which the question of what constitutes urgency was exhaustively discussed, then settled. It has been held 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 ...

There is a plethora of cases in which the question of what constitutes urgency was exhaustively discussed, then settled. It has been held 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 & Ors v Dexprint Investments (Private) Limited & Anor HH145-02; Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 364 (H); Williams v Kroutz Investments (Pvt) Ltd & Ors HB25-06; Lucas Mafu & Ors v Solusi University HB53-07.

In my view, which I have previously expressed in other cases, in order for a matter to be deemed urgent, the following criteria, which have been established in terms of case law, must be met: A matter will be deemed urgent if:

(a) The matter cannot wait at the time when the need to act arises.

(b) Irreparable prejudice will result if the matter is not dealt with straight away without delay.

(d) The applicant gives a sensible, rational and realistic explanation for any delay in taking action.

(e) There is no satisfactory alternative remedy.

The applicant contended that the matter cannot wait because eleven years is a long time and the dispute has taken too long to resolve resulting in his being impoverished. He contended, further, that he will be irreparably prejudiced if the matter is not dealt with straight away without delay.

It is common cause that the applicant treated the matter as urgent. The question for determination is whether the applicant has no satisfactory alternative remedy.

The certificate of urgency, which was signed by Mr. Phineas Ngarava, states that the respondent is unjustifiably, unfairly, and unreasonably refusing to furnish the applicant with information relating to his salary, back-pay, and benefits, which refusal is in contempt of the order of the Labour Court. This has resulted in the applicant being distressed because he has no other source of income.

The court can hear a matter urgently where the urgency arises out of the need to protect commercial interests. See Silver's Trucks (Pvt) Ltd v Director of Customs & Excise 1999 (1) ZLR 490 (HC).

The respondent submitted that there is no justification for urgent relief because the judgment of the Labour Court (LC/H/21/16) was served on it on Monday 25^th January 2016 and this application was filed seven days later, on 4 February 2016. The contention is that this application is premature because the respondent has thirty working days within which to file an application for leave to appeal and another fifteen days within which to lodge an appeal after leave is granted. The respondent has indicated to the applicant that it wishes to note an appeal and it is of the view that it cannot be compelled to comply with a judgment that it wishes to appeal against before its entitlement to appeal expires. The respondent contends, further, that the applicant has an alternative remedy in the Labour Act and has not satisfied the requirements of an interdict.

What alternative remedies are provided in the Labour Act?

Section 89(2)(c) of the Labour Act allows the Labour Court to hear and determine any application in terms of the Labour Act. In the exercise of its functions, the Labour Court may make an order for payment of back-pay calculated from the time when the dispute or unfair labour practice arose. It has power to order payment of compensation to a prejudiced employee. It can order reinstatement or damages in lieu of reinstatement or punitive damages (section 89(c)(i)-(iii), proviso (i)-(iii)).

That is what the Labour Court did on the 6^th of February 2008. It ordered that the respondent reinstate the applicant with effect from the date of dismissal without loss of salary or benefits, or, alternatively, that the respondent pay damages in lieu or reinstatement. The applicant was directed to approach the Labour Court for quantification of damages.

That is the alternative remedy that is available to the applicant.

In seeking to utilize this remedy, can the applicant be guided by the provisions of section 90A of the Labour Act which stipulate that the Labour Court shall not be bound by the strict rules of evidence and may ascertain relevant facts by any means which the presiding officer thinks fit and which is not unfair or unjust to any party?

In other words, a finding that an applicant who is before us on an urgent certificate has suitable alternative remedies would ordinarily result in the applicant being struck off the urgent chamber roll and referred to the ordinary court application roll. In this case, such a finding, that an alternative remedy exists, does not, in my view, necessarily have to result in the matter not being heard urgently. I say so because the applicant's contention is that the alternative remedy is not suitable or adequate because of the paucity of evidence available to the applicant regarding details of backpay and benefits.

With all due respect to the respondent, the issue is not whether or not its right to appeal is being curtailed. The issue is whether the applicant is able to mount a credible case for damages in lieu of reinstatement and payment of backdated salaries when he has no idea what the salaries that he was entitled to actually were.

It is trite that only this court can grant a mandatory interdict. Such an interdict will compel the respondent to supply the information required by the applicant in order to utilize his remedy in the Labour Court, that of seeking payment of arrear salaries and damages in lieu of reinstatement. See National Railways of Zimbabwe v Zimbabwe Railway Artisans Union & OrsSC08-05, where the following guidance was given;-

“As a general statement, it is correct that the Labour Court has no jurisdiction to entertain claims that are brought at common law. It can only determine applications and appeals among others that are brought in terms of the Act. Where, however, a dispute can either found a cause of action at common law, or in terms of the Act, a case of apparent concurrent jurisdiction between this court and the Labour Court appears to arise. I say appears to arise because the apparent conflict can easily be resolved by paying regard to the overall intention of the legislature in creating the Labour Court. In my view, in such a case, the Labour Court's jurisdiction being special must prevail. It would make a mockery of the clear intention of the Legislature to create a special court if the jurisdiction of such a court could be defeated by the mere framing of disputes into common law cause of action where the Act has made specific provisions for the same. In my view, if the dispute is provided for in the Act, the Labour Court has exclusive jurisdiction even if the dispute is also resolvable at common law.”…,.

This case was decided in 2005, before the advent of the current Constitution, and it would be interesting to see if the Supreme Court's guidance remains the same when the provisions of section 171(1)(a) of the Constitution are taken into consideration.

For purposes of determining whether an application for an interdict ought to be dealt with by this court because it is a common law remedy which the Labour Court has no power to grant, this case is indeed instructive. See also DHL International (Private) Limited v MadzikandaHH51-10; Surface Investments (Private) Limited v Maurice ChinyaniHH295-14.

The requirements of an interdict are;

1. A clear or definitive right - this is a matter of substantive law.

2. An injury actually committed or reasonably apprehended - an infringement of the right established and resultant prejudice.

3. The absence of similar protection by any other ordinary remedy - the alternative remedy must be; adequate in the circumstances; be ordinary and reasonable; be a legal remedy; grant similar protection.

See Tribac (Pvt) Ltd v Tobbacco Marketing Board1996 (2) ZLR 52 (SC)…,.; Setlogelo v Setlogelo1914 AD 221…,.; Flame Lily Investment Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd & Anor1980 ZLR 378; Boadi v Boadi & Anor1992 (2) ZLR 22; Diepsloot Residents' and Landowners' Association & Anor v Administrator Transvaal 1994 (3) SA 336 (A)…,.

For purposes of the interim relief sought, we need only be furnished with proof on a prima facie basis.

The applicant has a clear right which was affirmed by two judgments of the Labour Court. It is common cause that the two judgments have not been complied with so an injury has been committed against the applicant to his prejudice as set out in the founding affidavit. We have already found that although the Labour Act provides an alternative remedy, it is not adequate, and does not grant the applicant similar protection. Section 93 of the Labour Act only gives a sitting Judge power to compel the production of evidence. It does not assist a litigant to compel the production of documents or supply of information which he requires for the preparation of his case.

HH93-18 : CHITUNGWIZA MUNICIPALITY vs MAXWELL KARENYI
Ruled By: TAGU J

The applicant seeks an order of rei vindicatio. It seeks recovery of its property, namely, motor vehicle, a Toyota Hilux Double Cab Registration Number AAE 7098, HP 450 laptop, Samsung Galaxy S5, and a Samsung Tablet 4 presently in the possession of the respondent without the applicant's consent. The circumstances are that the respondent was employed by the ...

The circumstances are that the respondent was employed by the applicant as a Director of Works in terms of a written contract. The respondent gave notice of his intention to resign from the applicant's employment. He indeed resigned on the 18^thofDecember 2017. During the term of his employment the respondent was issued with a motor vehicle and other gadgets for use in the performance of his duties. Upon resignation, the respondent remained in possession of the vehicle and the gadgets. Despite the termination of his employment the vehicle and the gadgets remained registered in the names of the applicant. The applicant requested the respondent to surrender the motor vehicle and other gadgets that were issued to the respondent during the course of his employment. The respondent, despite lawful demand, declined to return the property in question prompting the applicant to file a police report at ZRP St Marys CR68/01/18, CID Chitungwiza DR17/1/18. The docket was referred to the Prosecutor General who declined to prosecute holding that the dispute was civil.

This prompted the applicant to file this urgent chamber application for rei vindicatio.

The respondent opposed the application. He raised three points in limine in his Notice of Opposition which he thought could dispose of this matter which can be summarized as follows -

(a) The application is frivolous and vexatious;

(b) The application is not urgent;

(d) That the High Court has no jurisdiction to hear this matter....,.

THE APPLICATION IS NOT URGENT

The respondent's argument was that this matter is not urgent because he advised the applicant on or about the 15^th of December 2017 that he was not willing to release the said assets but the applicant took about 15 days without bringing this application. He attacked the certificate of urgency in that it did not disclose what the applicant was doing all along; that is, it failed to disclose the reasons for the delay. For this contention, the respondent referred the court to the case of Kuvarega v Registrar General and Another 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.”

See also Document Support Centre v Mapuvire HH117-06.

In casu, the applicant disputed the assertions made by the respondent. It argued that it first of all advised the respondent to return the assets. When the respondent refused to release the assets it lodged a report with the police. It was only three days after the Prosecutor General declined to prosecute the matter that it lodged this application.

Indeed, I had sight of both the certificate of urgency and the founding affidavit. It is not true that the urgency in this matter was self–created because the papers clearly showed that the applicant firstly requested the respondent to return the assets. When he refused, a police report was made. The matter was referred to court and the Prosecutor–General then declined to prosecute. Only then did the applicant lodged this application.

In my view, this matter is urgent and the second point in limine is dismissed.

HH208-15 : GOOD LIVING REAL ESTATE PL vs ADAM AND COMPANY PL and SGI PROPERTIES PL and HONOURABLE JUSTICE SMITH
Ruled By: MUREMBA J

On 16 February 2015 I delivered an ex tempore judgment in this matter dismissing this application with costs on a legal practitioner client scale. Now I have been asked for the written reasons thereof and these are they.

The facts of this matter are common cause.

The applicant and the first and the second respondents are involved in an arbitration dispute before the third respondent. The arbitration proceedings started in October 2013 and are still on going. When the applicant filed this application, on 13 February 2015, the hearing of the arbitration proceedings had been postponed to 16 February 2015 for continuation.

The background of the matter is that during the course of the arbitration proceedings, and on 29 May 2014 and 8 September 2014, the third respondent granted two interim awards in favour of the first and the second respondents. Dissatisfied by the granting of the interim awards, the applicant filed two applications in this court challenging the awards. The reference files are HC5209/14 and HC750/15. These two applications are still pending before this court.

The applicant filed this urgent application for the purposes of having the arbitration hearing scheduled for the 16th of February 2015 stayed pending the determination of the two pending applications. The applicant is of the view that the outcomes of the two applications have a bearing on the dispute, and, as such, the arbitration proceedings ought to be stayed until the two applications have been disposed of by this court.

On 11 February 2015, the applicant filed an ordinary court application under case number HC1268/15 seeking the same relief as the present one.

That application was served on the first and the second respondents' legal practitioners on the same day of 11 February 2015 and on the third respondent on 12 February 2015 at 10:28am. On the same day of 12 February 2015 the applicant's counsel wrote a letter to the third respondent and this letter accompanied the court application. The letter was asking the third respondent to give an assurance to the applicant that he was not going to proceed with the hearing on 16 February 2015 since he had been served with the court application to stay proceedings pending the determination of the two applications, HC5209/14 and HC750/15. In that letter, the applicant's lawyers indicated that if they did not get a response on that day, by 4pm, from the third respondent in writing to the effect that proceedings were not going to continue, they were going to file an urgent chamber application.

The applicant's lawyers did not get any response from the third respondent by 4pm of 12 February 2015. This prompted them to file the present urgent chamber application on Friday the 13th of February 2015 in the evening.

I had to be called from home around 7:30pm to attend to it. I set the matter down for hearing on Sunday 15 February 2015 at 2pm because I was not available on Saturday 14 February 2015.

As the hearing started, I was served with the first and the second respondents' notice of opposition. As a result, I was not able to read through the opposing affidavit before the hearing. It being a Sunday, and all the parties being in attendance, I decided to hear the parties and then go through the opposing affidavit later. The third respondent, who is a retired judge of this court, who was a self-actor, had not prepared any written response to the application. He made submissions that as the arbitrator between the applicant and the first and the second respondents he was not taking any sides, but he said that he just wanted to shed light on some issues for my benefit. So he made some submissions during the hearing.

I started by asking counsel for the first and second respondents if he had any points in limine that he wanted to raise and he said he had none. So we went straight into the merits of the matter with the applicant addressing me first.

He submitted that the application should be granted for the reason that since the High Court, which is superior, is now seized with the applications, the arbitrator ought to stay proceedings until determinations have been made.

What emerged from counsel for the first and second respondents was that the letter of 12 February 2015 from the applicant's lawyers which was addressed to the third respondent asking the third respondent to give an assurance that he was not going to proceed with the arbitration proceedings on 16 February 2015 was not served on the first and the second respondents despite them being interested parties. I found it a very shameful thing that Advocate Hashiti, counsel for the applicant, insisted that the first and the second respondents had been served with that letter when they had not been served. There was no proof to that effect. Even the letter itself does not show that it was copied to the first and the second respondents.

All the three respondents indicated that from the time the arbitration proceedings started, about five (5) postponements of the hearing had been made by consent but they were all made at the instance of the applicant. They said each time the applicant sought a postponement it would engage new lawyers. The other reason was that the applicant continued to say its key witness, one Mr Okeke, was not feeling well and was out of the country. The third respondent indicated that on the occasions that he granted the requests for postponement for this reason, he was never furnished with medical proof of the witness' illness. He said that he recently told the applicant that he now wanted medical proof of Mr Okeke's illness if he was going to grant another postponement because they were not making any progress with the arbitration proceedings.

Counsel for the applicant did not make any submissions to challenge these averments by the respondents.

The three respondents also highlighted that the hearing of the arbitration proceedings was postponed to 16 February 2015 on 29 January 2015, by consent, and the request for the postponement had been made by the applicant.

Again, counsel for the applicant did not dispute that.

The first and the second respondents were surprised that the applicant was now making the present application. To them, it was just an afterthought by the applicant which was meant to delay the finalisation of the arbitration proceedings.

Counsel for the first and second respondents argued that the matter had been postponed on 29 January 2015 and there was no reason why the applicant had waited until 11 February 2015 to file the court application and less than 24 hours later to file the present chamber application. To counsel for the first and second respondents the matter was not urgent at all.

Let me say this submission on urgency by counsel for the first and second respondents, during the hearing of the merits, surprised me because, naturally, it should have come as a point in limine. Earlier on he had said he had no points in limine that he wanted to raise.

Personally, I had not raised any query on the issue of urgency because it was not apparent on the face of the application that the matter was not urgent. The application did not disclose, on the face of it, that the arbitration hearing had been postponed to 16 February 2015 from 29 January 2015.

Be that as it may, counsel for the first and second respondents further submitted that since the continuation of the arbitration hearing was scheduled for 16 February 2015 the application should be dismissed to allow the parties to appear before the third respondent. He said since the third respondent is seized with the matter, the applicant can make his application for stay of arbitration proceedings before the third respondent.

The third respondent also made submissions that since he was already seized with the matter he did not see why the applicant had not made the application for stay of proceedings before him all along from the time it made the two High Court applications. He said that if the applicant had made the application he would have heard the application and made a ruling on whether or not to grant it....,.

As correctly submitted by counsel for the first and second respondents, and the third respondent, there is an alternative satisfactory remedy that is available to the applicant. The remedy is for the applicant to make this application for stay of proceedings before the third respondent who is already seized with the arbitration matter.

Despite the availability of that remedy, the applicant never sought to make an application before the third respondent from the time it filed the two applications to this court.

This is a case where the applicant ought to have exhausted that domestic remedy before rushing to this court with the present application....,.

I would like to make some remarks on the issue of urgency.

In the case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188…, 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.”

In casu, if this issue had been raised as a point in limine I would have struck off the matter from the roll for the reason that the matter was not urgent.

The interim awards were granted in May and September 2014. The two court applications to challenge them were made last year and in January this year, before 29 January 2015. So the urgency arose at the time the court applications were made. Obviously it dawned on the applicant, at the time of filing the applications, that their outcomes had a bearing on the main dispute. Under the circumstances, I do not see why the applicant waited until 12 February 2015 to make the court application for stay of the arbitration proceedings.

Before that, the applicant had been making requests for postponements of the hearings for totally different reasons; for instance, that its key witness was ill.

The question is why were they not raising the issue of the need to stay proceedings pending the determination of the two court applications?

It would appear that the application was made as an afterthought, just to delay the finalization of the arbitration proceedings.

In any case, the latest arbitration hearing was postponed to 16 February 2015 on 29 January 2015, by consent, at the instance of the applicant. Honestly, by that time, the applicant already knew that the outcomes of the two applications pending in this court had a bearing on the main dispute. There is no explanation why the applicant asked for a postponement of the hearing to 16 February 2015 instead of making an application for stay of the proceedings. That application could have been made to the third respondent since he is the one who is presiding over the matter. There was no justification for the applicant to wait until the 11th of February 2015 to make the ordinary court application and the 12th of February 2015 to make the present urgent chamber application.

It is apparent that the urgency was self-created....,.

Despite the lack of urgency, I decided to dispose of the matter on the merits.

The point being that the applicant has an alternative satisfactory remedy of making the same application before the third respondent who is already dealing with the main dispute as the arbitrator. Even if I had felt inclined to grant the application on the merits I still would not have granted it for its lack of urgency.

HH213-15 : BERNARD DUMBURA vs CHIEF LANDS OFFICER (MASH CENTRAL) (NO) and GEORGE MANYAME
Ruled By: NDEWERE J

The applicant was issued with an offer letter, Annexure A on 7 October 2004 for Subdivision 2 of Pimento Farm in Bindura District measuring 46 hectares.

On 28 November 2014, the applicant received a note from the Provincial Chief Lands Officer advising him of a re-planning of the land carried out in 2007 which resulted in his offer being withdrawn on 17 June 2013 by a withdrawal letter signed by the then Minister of Lands and Rural Resettlement. The withdrawal letter of 17 June 2013 was attached to the note by the Provincial Chief Lands Officer.

The applicant is challenging the withdrawal of the offer through a court application HC10653/14 which is still pending.

On 2 December 2014, the applicant then filed the current urgent application seeking an interdict against the first and second respondents to stop interfering with his rights on the disputed land pending the determination of his court application in HC10653/14.

Both respondents opposed the application....,.

The first respondent said the matter was not urgent because the note which the applicant received from the Chief Lands Officer on 28 November 2014 advised him to approach the Minister of Lands within seven days with any representations.

The first respondent said, instead of approaching the High Court four days after receiving notification from the Chief Lands Officer on behalf of the Minister, he should have approached the Minister of Lands and Rural Resettlement with his representations within the seven days communicated to him.

The first respondent submitted that the applicant should not have approached the court before exhausting the domestic remedies available to him as an occupier of State land.

The first respondent said the urgency is therefore self-created by the applicant's failure to make representations to the Minister of Lands and Rural Resettlement as advised; which was an alternative remedy available to the applicant....,.

The first respondent's argument that this application is not urgent is also convincing.

On 28 November 2014, the applicant received a note from the Chief Lands Officer, attaching a withdrawal letter by the Minister of Lands and Rural Resettlement. The last paragraph to that note of 28 November 2014 is very relevant. It stated as follows:

“Any representations that seek to contest that decision have to be in writing to the Acquiring Authority who is vested in the Minister of Lands and Rural Resettlement, Dr D. Mombeshora, within a 7day period.”

In that paragraph, the applicant, if aggrieved, was being given a chance to ventilate his grievances to the Acquiring Authority within seven days. The seven day period shows that the matter was being treated urgently by the Acquiring Authority.

Instead of using that avenue, the applicant decided to ignore it, and, instead, approached the High Court on an urgent basis.

In my view, this is self-created urgency in that the applicant deliberately refrained from utilising an alternative remedy available to him of making representations to the Minister of Lands and Rural Resettlement within 7 days.

In addition, the act of issuing offer letters and withdrawing them is an administrative act by the Acquiring Authority. It would be improper for the High Court to get involved in that administrative act before all the remedies provided in accordance with the Administrative Justice Act have been exhausted. In this regard, section 7 of the Administrative Justice Act [Chapter 10:28], referred to by the first respondent's counsel, is instructive. It provides as follows:

“Without limitation to its discretion, the High Court may decline to entertain an application made under section 4 if the applicant is entitled to seek relief under any other law, whether by way of appeal or review or otherwise and the High Court considers that any such remedy should first be exhausted.”

The invitation to the applicant to make representations to the Minister, within 7 days, was an invitation to make the Minister review his decision, if necessary, and the applicant ought to have seized that opportunity instead of mounting an application to this court on an urgent basis.

As correctly pointed out in Musunga v Utete and Another HH90-03…,;

“…, no litigant is entitled, as of right, to have his matter heard on an urgent basis; the test provided by the Rules is that the matter must be so urgent and the risk of irreparable damage so great that the matter cannot proceed within the normal time frames provided in the Rules.”

Consequently, this application cannot be dealt with as an urgent matter.

Having ruled that the application is not urgent, I shall not delve into the merits of the matter.

The applicant shall pay the respondents' costs.

HMT09-18 : MUBUSO CHINGUNO vs MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT and PROVINCIAL LANDS OFFICER MANICALAND and DISTRICT LANDS OFFICER CHIPINGE and COLONEL MAKUYANA
Ruled By: MWAYERA J

The applicant approached the court through the Urgent Chamber Book seeking for an interdict pendente lite.

The order sought seeks to restrain the respondents, in particular the fourth respondent, from evicting and or disrupting the applicant's farming activities at Subdivision 11 of Chipinge West Annex pending the finalisation of proceedings under case number HC52/18.

The order sought by the applicant, as discerned from the papers, is as follows:

“TERMS OF THE FINAL RELIEF:

(a) That the respondents, or anyone acting through them, be and are hereby interdicted from implementing the changes made to the applicant's farm and location by the letter dated 7 June 2018 from the 1st respondent pending the determination filed by the applicant under case number HC52/18.

(b) The respondents pay costs of suit on attorney client scale.

INTERIM RELIEF:

1. The 4th respondents, or anyone acting through him or under his instructions, be and are hereby ordered to stop, immediately, all evictions of the Applicant and removal of his property or farm workers.

2. The 4th respondent, or anyone acting through him or under his instructions, in particular members of the Zimbabwe National Army, be and are hereby interdicted from entering any part of the Applicant's farm where he is presently occupying and staying.”...,.

For the sake of completeness, I shall set out the brief background to the application.

Both the applicant and fourth respondents are beneficiaries of the land reform programme. They both were issued with offer letters by the first respondent, the relevant issuing authority.

The applicant was issued with an offer letter for Subdivision 11 of Chipinge West Annex on 9 May 2011. The applicant has been in situ since then, and, as at the time of the hearing, had been in possession of the land in question for about 7 years. The fourth respondent was issued with an offer letter on 18 June 2018 and the offer letter allocated him Subdivision 8 of Chipinge West Annex.

Following the issuance of the fourth respondent's offer letter, the fourth respondent sought to take occupation, and, in so doing, conflict arose with the applicant who was already on the ground.

The applicant was aggrieved by the relevant Ministry's re-allocation of the land on which he was settled and thus approached this court in terms of section 4(1) of the Administrative Justice Act [Chapter 10:28] under HC52/18.

The applicant further sought, on an urgent basis, an interdict to bar the fourth respondent from moving in and disturbing the applicant and his workers' activities at the farm pending determination of HC52/18.

Both the second and fourth respondents had no submissions on urgency.

Urgency, as contemplated by the rules of this court, is fairly settled and well defined in plethora of case law. One can safely summarise circumstances in which a matter can be viewed as urgent as follows:

1. That when the need to act arose, the party concerned sprang into action.

2. That the matter cannot wait; for waiting would render hollow any other remedy to be availed by the court in future.

3. That the party concerned will suffer irreparable harm and that there is no other remedy available.

4. The balance of convenience favours the granting of the application.

The requirements of urgency are ably and succinctly laid out in Kuvarega v Registrar General and Anor 1998 (1) ZLR 188; Document Support Centre v Mapuvire and Another 2006 (2) ZLR 240.

See also the case of Madzivanzira and 2 Ors v Dexprint Investments (Pvt) Ltd HH245-02 which quoted with approval sentiments of Paradza J…, in Dexprint Investments (Pvt) Ltd v Ace Property and Investments (Pvt) Ltd HH120-02 wherein the learned Judge stated that:

“For a court to deal with a matter on 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 that matter on urgent basis.”

Further, in Dexprint Investments (Pvt) Ltd v Ace Property and Investments (Pvt) Ltd HH120-02 the court stated as follows:

“…,. It must be clear that the applicant did, on his own part, treat the matter as urgent.”…,.

This same reasoning has been rehashed by the courts with emphasis on the importance of the party seeking redress on an urgent basis and not waiting for doomsday or the day of reckoning to arrive.

If the applicant in this case swiftly acted in the face of impending irreparable harm in circumstances where the matter cannot wait then there is justification in allowing the matter to jump the ordinary que and be heard on an urgent basis.

Given the common cause aspects emanating from submissions by Colonel Makuyana that he was advised by Mr Mukoyi that he should not move in too soon but give the applicant, who was already in situ, time to harvest his crop, and, also given the undisputed evidence by the fourth respondent that he moved in and that he intended to help the applicant with a sheller to shell his maize, it became apparent that the applicant, on realizing the disruption at his farm, had to urgently seek redress by way of an interim interdict.

The applicant received notification to vacate and that at more or less the same time the fourth respondent, and other people, moved and started settling in - in a manner tantamount to evicting the applicant and/or his workers.

In reaction to this disruption, the applicant, who had lodged an application with this court under HC52/18, also sought a provisional relief on an urgent basis.

Mr Mukoyi did not make any submissions as whether or not the application was urgent. This was despite the explanation by the court of the requirements of urgency as contemplated by the Rules of the court. He had no submissions to make on urgency and so did Mr Makuyana, the fourth respondent.

From the circumstances of this matter, going by the manner the applicant sought redress from the time of hearing about the intended evictions and disruptions on 18 June 2018, the requirements of urgency appear to have been met.

The applicant approached the High Court on 22 June 2018. The applicant treated the matter as urgent, and, indeed, the application is one which qualifies to be heard on an urgent basis.

HH223-18 : YEYANI MOYO vs ZB BANK LTD and SHERIFF OF THE HIGH COURT OF ZIMBABWE and TAMBANASHE ENTERPRISES PL and DOMINIC BENHURA and GOLD RECOVERY GROUP PL and PAUL DIAMOND
Ruled By: TAGU J

The applicant invoked Rule 348A of the High Court Rules, 1971 to stop the sale in execution of a dwelling house scheduled for 16th March 2018 that was purportedly attached on the 28th of February 2018 by the second respondent acting under the instructions of the first respondent.

The attached property is a piece of land situate in the district of Salisbury called Stand Number 48 Emerald Hill Township 2 of Stand 26B Emerald Hill measuring 2,002 square metres.

This application was brought as an urgent chamber application seeking the following relief -

“TERMS OF FINAL ORDER SOUGHT

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

1. The 2nd Respondent be and is hereby interdicted from selling the property belonging to the Applicant.

2. That 1st Respondent be and is hereby ordered to pay the costs of this suit at a higher scale.

INTERIM RELIEF GRANTED

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

3. That 2nd Respondent be and is hereby ordered to stay the execution scheduled for the 16th March 2018 pending the finalization of matter HC2454/18.

4. In the event that the 2nd Respondent has proceeded with execution scheduled for 16th March 2018, the 2nd Respondent be and is hereby ordered to cancel any other steps towards finalization of the matter pending finalization of matter HC2454/18.

SERVICE OF PROVISIONAL ORDER

This provisional order shall be served upon the Respondents by Applicant's legal practitioners.”...,.

At the hearing of the matter, the first respondent opposed the application. Counsel for the first respondent raised two major points in limine;

(i) The first point in limine was that the matter was not urgent as contemplated in the case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H);...,.

As regards the first point, that this matter is not urgent, counsel for the first respondent submitted that the fact that the day of reckoning has arrived does not create urgency if the following is to be taken into account.

The first respondent obtained judgment against the applicant, third, fourth, fifth and sixth respondents on the 13th of May 2014 as per copy of which is attached hereto marked “A”. The first respondent then executed against the applicant's movables in April 2015 whereby a sum of US$37,477=96 was realized as more fully appears from annexure “B”. Thereafter, a nulla bona return was rendered as per annexure “C”. A writ of execution against immovable property, including the one in issue, was issued on the 29th of May 2015 as more fully appears from annexure “D”. The second respondent attached the property in issue at the Deeds Office and served a copy of a notice of attachment on the applicant as per annexures “E” and “F” in July 2015. Upon receipt of the notice of attachment, the applicant, Fred Moyo, and Dominic Benhura requested a meeting which was held at the first respondent's legal practitioners' offices in August 2015. They indicated that they were looking for investors for their mines and the first respondent agreed to suspend execution on condition that there was noticeable progress by the 30th of November 2015. Since then, no progress was made at all regarding the coming on board of investors and the first respondent resumed execution.

Therefore, the applicant has been aware of the attachment of the property in issue since July 2015 (more than two and half years ago) and did not take any action since then. For these reasons, this matter cannot be said to be urgent now and should be dismissed for want of urgency....,.

The first preliminary point has not been materially disputed. The facts as outlined by counsel for the respondents were not disputed either.

In my view, there has been material non-disclosure of material facts by the applicant in that the history of the matter, as outlined by counsel for the first respondent, were not disclosed. An impression had been created that the dwelling had been attached on the 28th of February 2018 by the second respondent and was due to be sold on the 16th of March 2018 - yet the attachment took place more than three years ago.

For these reasons, I agree with counsel for the first respondent that this application does not meet the requirements of urgency.

HH223-15 : ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) vs ALFRED MAKWARIMBA and KENNIAS SHAMUYARIRA and ELIAS MADZIVA and FREEDOM MUDUNGWE and OTHERS
Ruled By: MANGOTA J

The applicant represents workers in the sugar industry. It allegedly carries a membership of 16,000 workers. It is an affiliate of the Zimbabwe Federation of Trade Unions…,.The National Executive Committee is the applicant's governing body. The committee manages the affairs of the applicant. Its elected office bearers comprise:(a) The President;(b) ...

The applicant represents workers in the sugar industry. It allegedly carries a membership of 16,000 workers. It is an affiliate of the Zimbabwe Federation of Trade Unions…,.

The National Executive Committee is the applicant's governing body. The committee manages the affairs of the applicant. Its elected office bearers comprise:

(a) The President;

(b) The Vice-President;

(c) The Secretary-General; and

(d) Three other committee members.

In or about 24 February 2014, the deponent to the applicant's affidavit, one Simbarashe Nyemba, and members of his National Executive Committee, were removed from their positions and replaced by the fourth respondent and his team of committee members.

Mr Nyemba, and members of his committee, made an urgent chamber application to the court. The application was filed under case number HC1603/14. The court granted a provisional order to the applicant. It, in effect, directed that paragraphs 3, 4, 5 and 6 of the letter which the second respondent addressed to the seventh respondent on 24 February 2014 should not be executed until proceedings which pertained to case number HC1603/14 had been completed.

The court mentions, in passing, that the proceedings in question are still pending determination.

The present urgent chamber application was premised on the allegations that, on 14 February 2015, the first and second respondents visited Chiredzi in the company of persons who, it was claimed, were from the office of the fifth respondent. The visitors, the applicant averred, appointed the third and fourth respondents as members of the applicant's Executive Committee. The fourth respondent, it said, was appointed president of the applicant's governing body.

It, accordingly, made every effort to move the court to prohibit the fourth respondent and the latter's committee members from representing the applicant until case number HC1603/14 has been conclusively dealt with.

The applicant attached to its application Annexure D. The annexure is a letter which the fifth respondent (the Minister of Public Service) addressed to the applicant's secretary-general. The letter is erroneously dated 16 January 2014. It should have read 16 January 2015 which the applicant said was the correct date.

In the letter, the fifth respondent prohibited the applicant from deducting union dues from the seventh respondent (Tongaat Hullet Zimbabwe).

The fifth respondent stated that, from reports which had been submitted, she had reasonable cause to believe that the funds of members of the applicant were being abused and mis-appropriated. She said she would appoint an investigator who would look into the affairs of the applicant. She prohibited the applicant's national executive committee from using the funds for any purpose other than what the investigator or she herself would have directed.

The fifth respondent copied her letter to, among other authorities, the seventh respondent.

The applicant appealed to the Labour Court against the decision of the fifth respondent. It did so on 22 January 2015 under case number LC/MS/03/15.

The appeal is pending before the Labour Court.

The first, second, third and fourth respondents opposed the application and so did the seventh respondent. The fifth and sixth respondents did nothing about the application. They remained uncommitted to the matter notwithstanding the fact that they were served with the application.

The Sheriff's returns of service showed that both respondents were served on 19 February 2015. Their attitude to the application, therefore, remained unknown. It was, in the premise, assumed that they would abide by the decision of the court as they did not appear in person or through legal representation.

The first four respondents raised some preliminary issues after which they proceeded to deal with the substance of the application.

The seventh respondent adopted a pattern which, to all intents and purposes, was similar to that of the first, second, third and fourth respondents.

The first four respondents' in limine matters were that:

(a) The application was not compliant with the Rules;

(b) The certificate of urgency was defective;

(c) The application was not urgent; and

(d) Simbarashe Nyemba did not have the authority to represent the applicant.

The seventh respondent's preliminary matters were that:

(i) The citation of the seventh respondent by the applicant was defective; and

(ii) The application was not urgent.

In so far as the urgency or otherwise of the application was concerned, the court noted that the conduct which the applicant complained of occurred on 14 February 2015 and the applicant filed the present application on 17 February 2015. There was, therefore, no doubt that the applicant treated its application as urgently as it reasonably could.

The seventh respondent's submissions, which were to the effect that “the facts giving rise to the application at hand must have arisen on or about the 16th of January 2015” was, therefore, misplaced.

Equally, the first four respondents' assertion, which was to the effect that the cause of action arose on 4 February 2015, was not a true reflection of the correct position of the matter.

The respondents laid a lot of emphasis on an obvious typographical error and sought to advance an argument around it. The argument could not, for the stated reasons, hold. That was so because the action complained of, it was agreed, occurred not on 16 January 2015, or on 4 February 2015 but on 14 February 2015.

HH230-15 : CHITUNGWIZA CENTRAL HOSPITAL vs MOTOR FIX (PVT) LIMITED and THE REGISTRAR OF THE HIGH COURT and SHERIFF OF THE HIGH COURT
Ruled By: MAWADZE J

This is an urgent chamber application in which the applicant seeks interim relief in the following terms;“INTERIM RELIEF GRANTEDPending the confirmation or discharge of the Provisional Order, the applicant is granted the following interim relief;1. The execution of the writ issued under Case No. HC10108/13 be and is hereby stayed ...

This is an urgent chamber application in which the applicant seeks interim relief in the following terms;

“INTERIM RELIEF GRANTED

Pending the confirmation or discharge of the Provisional Order, the applicant is granted the following interim relief;

1. The execution of the writ issued under Case No. HC10108/13 be and is hereby stayed pending the finalisation of this matter.”

The terms for the final order sought are couched as follows;

“TERMS OF THE FINAL ORDER

1. It is hereby declared that property and assets of the State are immune from the process of judicial attachment by virtue of the provisions of section 5 of the State Liabilities Act [Chapter 8:14].

2. It is hereby further declared that the property and assets appearing hereunder are property and assets of the State, and, consequently, should be released from judicial attachment they were placed under by the 3rd respondent acting pursuant to a writ of execution issued in case No. HC10108/13 on 20 May 2014, on which Notice of Seizure and Attachment was issued on 17th February 2015, that is to say;

2.1 ABT 8829 Isuzu – white Reg 3228.

2.2 ADF 3648 Toyota Hilux- ABH 5021.

2.3. Land Rover Discovery – ACH 1225.

2.4. Mazda Swaraj, staff bus T3500 - CCH 06.

2.5. Mazda Swaraj staff bus T3500 - CCH 02.

2.6. Mazda Swaraj staff bus T3500.

2.7. Tata Mini Bus 1391 GHCW.

3. First respondent to pay the cost of suit.”

The appellant is a Government hospital. In terms of section 18(1) of the Health Service Act [Chapter 15:16] it is capable of being sued and suing in its own right. The relevant section 18(1) of the Health Service Act provides as follows:

“18 Corporate status of Central, Provincial, District and General Hospitals

(1) Subject to subsection (3), each central, provincial, district or general hospital shall be a body corporate capable of suing and being sued in its own name, and, subject to the Act, performing all acts that bodies corporate may by law perform.”

The first respondent is a duly incorporated company in terms of the laws of Zimbabwe.

The second and third respondents, being the Registrar of the High Court of Zimbabwe and the Sheriff of the High Court, are cited both in the official capacities.

The background facts of this matter are as follows;

The first respondent instituted proceedings by way of action in HC10108/13 against the applicant and the applicant apparently did not enter an appearance to defend. On 12 March 2014 my sister CHIGUMBA J granted a default judgement in the following terms;

“IT IS ORDERED THAT;

1. The defendant be and is hereby ordered to pay the sum of US$74,068= to the plaintiff.

2. The defendant to pay interest at an prescribed rate calculated from the date of summon to date of payment in full.

3. Defendant to pay cost of suit.”

After obtaining the said default judgement, the first respondent caused a writ of execution against the applicant's movable property to be issued on 20 May 2014, by the second respondent.

Pursuant to the writ of execution, the third respondent, on 17 February 2015, issued a Notice of Removal. The Notice of Seizure and Attachment, dated 17 February 2015, shows that the following motor vehicles were attached;

(a) ABT 8229 Isuzu white.

(b) ABP 3228 Isuzu.

(c) ABH 5021 Isuzu.

(d) ADF 3648 Toyota Hilux.

(e) Staff bus Swaraj Mazda T3500 CCH 06.

(f) Staff bus Swaraj Mazda T3500.

(g) Tata mini bus 1391 GHCW.

(h) Land Rover Discovery 4 ACH 1225.

The removal date of the attached property was 20 February 2015, but, the third respondent, through a letter dated 5 March 2015, filed of record, indicated that the removal of the attached goods has been stopped pending this outcome of this urgent chamber application which was issued on 20 February 2015.

As per the founding affidavit deposed to by the applicant's Chief Executive Officer, one Dr Obadiah Moyo, while the applicant does not deny or dispute liability, the applicant contends that in terms of section 5 of the State Liabilities Act [Chapter 8:14] no execution or attachment or process shall be issued against in State or any property of the State.

The applicant contends that the correct position of the law is that the nominal defendant, who should have been cited by the defendant in its initial claim, is the one which may cause to be paid out of the Consolidated Revenue Fund such sum of money to satisfy the judgement or order of this court.

The basis of the provisional order sought is that the property attached, listed in the Notice of Seizure and Attachment, is State property.

The relevant provisions of section 5 of the State Liabilities Act [Chapter 8:14] are as follows;

“5. No execution or attachment to be issued, but nominal defendant or respondent authorised to pay the sum awarded.

(1)…,. not relevant.

(2) Subject to this section, no execution or attachment or process in this nature thereof shall be issued against the defendant or respondent in any action or proceedings referred to in section two or against any property of the State but the nominal defendant or respondent may cause to be paid out of the Consolidated Revenue Fund such sum of money as may, by a judgment or order of this court, be awarded to the plaintiff, the applicant or the petitioner, as the case may be.

(3)…,. not relevant.”

The basis of the provisional order sought is that the property attached is State property, and, as such, the attachment has been done in breach of the cited statutory provisions which would render the whole process or procedure unlawful.

Counsel for the first respondent took the point in limine that this matter is not urgent, and, on that basis, should he dismissed….,.

In argument, counsel for the first respondent submitted that there are a number of reasons as to why this matter should not be treated as urgent. He submitted that when the default judgement was granted, on 12 March 2014, the applicant, who had been served with summons for the money owed and had not entered an appearance to defend, should have known that judgment against the applicant would be granted.

Counsel for the first respondent submitted that the debt, which has been owing as far back as 2012, is acknowledged and has never been disputed as the applicant has absolutely no defence to offer.

In addition to that, counsel for the first respondent said after the default judgement had been granted he wrote, on 20 January 2015, to the applicant, on behalf of the first respondent, advising them of the amount due as per the order of the court.

Counsel for the first respondent argued that the writ of execution which was subsequently issued should not have come as a surprise to the applicant as the applicant ought to have known that a writ follows judgement. Counsel for the first respondent submitted that this was also the case since, in November 2014, the first respondent had engaged the applicant on the modalities of liquidating the judgment debt to no avail.

It is the first respondent's contention that the applicant, after having been aware of this default judgement as way back as 2014, did nothing about the matter by either seeking to have this default judgment set aside or to ensure that no writ is issued. Counsel for the first respondent submitted that all what the applicant did was to wait until the day of reckoning arrived, when the attachment of the property was done through the Notice of Removal on 17 February 2015, as the applicant only filed this urgent application three (3) days later on 20 February 2015. It is submitted that the applicant only sprung into action because of this attachment hence the urgency is self-created.

Counsel for the first respondent concluded by stating that the point in limine raised should be upheld and this matter dismissed as the applicant has not been able to overcome this hurdle and has dismally failed to explain in the papers filed how the urgency has arisen.

Counsel for the applicant conceded that the sequence of events, as submitted by counsel for the first respondent, is not in issue. She acknowledged the applicant's indebtedness to the first respondent and that indeed the applicant has been aware, as far back as 2014, of the default judgement. She admitted that efforts were made to resolve the matter by engaging the first respondent in 2014.

Counsel for the applicant denied that the applicant did nothing as alleged. She produced deposit schedules which show that on 30 May 2014, 10 July 2014, 8 January 2015, 16 February 2015, 23 February 2015 and 26 February 2015 the applicant has made various deposits into the first respondent's Barclays Bank account in a bid to liquidate the debt.

I however note that the total amount paid in all the deposits is a paltry $7,531=75 leaving an outstanding balance on the judgement debt of US$65,536=25.

As counsel for the first respondent correctly pointed out, such payments were not being done with the consent or in consultation with the first respondent hence it is too little too late.

Counsel for the applicant insisted, however, that even as late as 24 February 2015 she had engaged counsel for the first respondent to agree on a payment plan, and, therefore, disputes that the applicant has done nothing about that matter.

Counsel for the applicant submitted that the urgency in this matter arose from the fact that the property attached is not the applicant's property but State property which State property is immune to judicial execution as provided for in section 5 of the State Liabilities Act [Chapter 8:14].

Counsel for the applicant argued that the urgency therefore arose when the State property was attached on 17 February 2015.

She further produced a number of documents to show that the motor vehicles in issue do not belong to the applicant but to the State and that the Master Asset Register of the Ministry of Health shows that some of the vehicles attached belong to the Ministry.

Counsel for the first respondent took issue with the fact that these documents were not part of the founding affidavit.

I however allowed the applicant to avail them as this is an urgent application.

What I have been able to glean from the documents, in relation to the inventory of the vehicles in the Notice of Seizure and Attachment, is as follows;

(a) The registration book of the Isuzu ABP 3228 shows the owner as the Ministry of Health.

(b) The registration book of the Toyota mini bus GHCW 1391 shows that the owner is the Ministry of Health.

(c) There is prima facie evidence that the Land Rover Discovery 4 ACH 1225 was issued by CMED (Pvt) Ltd to the Ministry of Health as per the vehicle voucher 335525.

(d) There is also prima facie evidence that an Isuzu KB 250 D/TEQ identified by the Government Registration Number LLD 754 was issued to the Ministry of Health.

(e) There is a letter dated 3 March 2015 from the Reserve Bank of Zimbabwe which confirms that a number of vehicles, which include, inter alia, buses, were issued by the Bank to the Ministry of Health. The applicant submitted that these vehicles include the three Swaraj Mazda T3500 staff buses attached by the Sheriff.

What constitutes urgency in matters of this nature is settled in our law. See Kuvarega v Registrar General and Anor 1998 (1) ZLR…,; Gifford v Mazarire & Ors 2007 (2) ZLR 131 (H)…,.

In broad and general terms, a matter is urgent if;

(a) It cannot wait the observance of the normal procedures and time limits prescribed by the rules of this court in ordinary applications as to do so would render nugatory the relief sought.

(b) The applicant has treated the matter as urgent by acting timeously when the need to act arose and if there is any delay good or sufficient explanation is proffered for such delay.

(c) The applicant has no other alternative remedy.

(d) The relief sought is both interim in nature and proper at law.

I agree with counsel for the applicant that the need to act in this manner did not arise in 2014 but arose on 17 February 2015 when the vehicles in issue were attached.

The urgency arises from the fact that the vehicles attached do not belong to the judgement debtor, being the applicant, but is State property which the applicant believes is protected from judicial attachment for execution.

The point in limine taken by the first respondent is dismissed for want of merit....,.

Counsel for the first respondent correctly argued that any third party laying claim to these attached vehicles should institute interpleader proceedings.

I am not however persuaded that the availability of such a remedy precludes the applicant who was the custodian of these vehicles to seek the interim relief claimed.

I am satisfied that the applicant has locus standi in judicio to seek to protect property which might indeed be State property and is not capable of execution as provided for in section 5(2) of the State Liabilities Act [Chapter 8:14].

Further, while interpleader proceedings may be appropriate in respect of two of the motor vehicles referred to which may be owned by other third parties, I understand the applicant to be seeking, on the return date, a final order to the effect that the property placed under attachment is immune to judicial attachment or execution by virtue of section 5(1) of the State Liabilities Act [Chapter 8:14].

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI
Ruled By: MANGOTA J

The applicants are foreign legal entities. The first is a German company. It is owned by a Bulgarian Corporation. The second is a Bulgarian entity. It is a subsidiary of the first.

Until 22 November 2017 the first applicant was the owner of a certain piece of land which is situated in the district of Salisbury. The piece of land is called Stand Number 295, Northwood Township 2 of Sumbeni. It was held under Deed of Transfer number 5022/2008. It is commonly known as Number 116 Twickenham Road, Mount Pleasant, Harare [“the Mount Pleasant property”].

On 9 December 2013 one Rajendrakumah Jogi [Jogi] purchased the property. He took title in the property on 22 November 2017 following its sale to him. It is now registered under Deed of Transfer number 4766/17 which Deed records the name of the purchaser as the new owner of the same.

The second applicant was, and still is, the owner of a certain piece of land which is situated in the district of Salisbury. It is called Lot 12 of Lot 15 Block C of Avondale. It is held under Deed of Transfer number 1657/89. It is commonly known as Bath Mansions Flats. It is at Number 32, Bath Road, Avondale, Harare [“The Avondale property”].

The abovementioned two properties lie at the centre of the main application, HC12074/16 and the urgent chamber application, HC2012/18.

The applicants filed the main application on 28 November 2016. They successfully moved the court to interdict the first and second respondents from dealing in any way with the two properties and/or from coming within 100 metres of the same. The interim order which the applicants obtained in the mentioned regard is dated 2 December 2016.

On 22 February 2018 l heard the matter which related to the confirmation or discharge of the provisional order of 2 December 2016. Having heard submissions from both parties, I reserved judgment.

Before the ink which related to my hearing of the main application had dried up, the applicants filed the urgent chamber application, HC2012/18. They did so on 5 March 2018. They moved the court to restore to them possession of the Mount Pleasant property and to interdict:

(a) The first (Bulchimex GMBH Import Export Chemikalien und Produkte (Pvt) Ltd), second (Sarah Hwingwiri) and third (Rajendrakumar Jogi) respondents from selling, or, in any way, alienating or encumbering the Mount Pleasant property.

(b) The fourth respondent (Registrar of Deeds) from facilitating or making further transfer of the Mount Pleasant property which is held under Deed of Transfer number 4766/17 in favour of Rajendrakumah Jogi to anyone.

(c) All the respondents from facilitating or transferring title in the Avondale property which is registered under Deed of Transfer number 1637/89 to anyone.

(d) The fifth respondent (the Sheriff of Zimbabwe) from evicting occupants of the Avondale property.

Because title in the Mount Pleasant property had already changed hands from the first applicant to Mr Jogi when the application was filed, I disallowed paragraphs 1, 2 and 3 of the applicants draft order.

I allowed paragraphs 6 and 9 of the draft order with some amendments. I directed that the word Lease which appeared in paragraph 6 should be deleted. I further directed that the phrase or 116 Twickenham Drive, Mount Pleasant, Harare which appeared in paragraph 9 should also be deleted.

I, accordingly, allowed paragraphs 4, 5 and 6 as amended, 7, 8, 9 as amended and paragraph 11 to remain as the interim relief for the applicants.

The interim order was issued with the consent of all the parties.

My reading of the record satisfied me that HC2012/18 was urgent.

The applicants stated that they were not aware that their Mount Pleasant property had been sold and transferred to someone. They said they became aware of that fact on 1 March 2018 when the deponent to their founding affidavit received a call from one Kudzai Kupambana, the caretaker of the property. He submitted that Mr Kupambana informed him that the Messenger of Court was carrying out eviction at the premises. He said he immediately notified the applicants' legal practitioners of the development. These and him, he said, visited the Mount Pleasant property. He averred that the legal practitioners and him later established that it was not the Messenger of Court but the Deputy Sheriff who had carried out the eviction.

The supporting affidavit of Mr Kubambana was on all fours with that of the deponent of the founding affidavit especially on the portion which related to the latter's eviction.

The applicants filed the urgent chamber application a day after their discovery of what had occurred. They most certainly treated the matter with the urgency which it deserved.

The first, second and third respondents opposed the urgent chamber application. They, however, and to their credit, consented to the interim relief which I granted to the applicants in its amended form. They did so in the interests of progress. They agreed with me that the situation had to be arrested. All the parties shared the view which the court had. The view was that the situation of the parties' case did not have to get out of hand whilst judgment in the main application, HC12074/16, was being awaited.

Two characters stand out clearly in both applications. These are;

(1) One Borislav Boynov (“Borislav”); and

(2) One Sarah Hwingwiri (“Sarah”).

Borislav Boynov is the deponent to the founding and the answering affidavits of the applicants. He is so for the main application as well as the urgent chamber application.

Sarah Hwingwiri is the second respondent in both applications. She is the deponent to the affidavits of the first and the second respondents in both applications.

Sarah Hwingwiri and one Ivan Pantchev (“Ivan”), a Bulgarian who is domiciled in Bulgaria, registered the first respondent in terms of the laws of Zimbabwe. They are both its Directors.

Borislav Boynov's averments, in the main application, were that the applicants own the Mount Pleasant and the Avondale properties. He said they also used to own a certain piece of land which is situated in the district of Salisbury called Lot 9 of Lot 9 of Glen Lorne measuring 4,047 square metres [“the Glen Lorne property”]. This, he alleged, was sold by Sarah Hwingwiri and Ivan Pantchev for $150,000 and transferred into the name of the purchaser.

The sale, he stated, was with the authority of the applicants.

He submitted that Sarah Hwingwiri and Ivan Pantchev did not transmit the proceeds of the sale to the applicants. He successfully moved the court to grant to the applicants the provisional order which prohibited the first and the second respondents from dealing, in any way, with the remaining two properties as well as from coming within 100 metres of the same. He, in the final order, prayed that:

(i) The first applicant be declared the owner of the Mount Pleasant property;

(ii) The second applicant be declared the owner of the Avondale property; and

(iii) The first and second respondents be declared to have no ownership rights or interests in either property.

The first and the second respondents opposed the application. The third did not. My assumption is that he chose to abide by the decision of the court.

The two respondents raised a number of preliminary matters in their opposition to HC12074/16.

(a)...,.

(b) Their second in limine matter was that the application was not urgent.

(c) The third was that an alternative remedy was available to the applicants....,.

The issue of the urgency or otherwise of the application remains of no use to the respondents. That is so because the application was heard and determined on the basis of urgency.

In so far as the respondents' third in limine matter was concerned, the respondents made a statement which they did not substantiate. They did not mention the alternative remedy which they said was available to the applicants. These stated that they had no other remedy which was available to them. The onus, therefore, rested on the respondents to mention the remedy which the applicants could employ for a quick redress of their situation – i.e. a remedy which was outside the urgent chamber application which they had filed.

Given the circumstances of what was confronting the applicants at the time of the application, I remain satisfied that the only course which was available to them was to apply as they did. There was, therefore, no other remedy which was available to them.

HB81-18 : FRANK MUTEZO and OTHERS vs ZIMBABWE SCHOOL EXAMINATIONS COUNCIL and THE MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MOYO J

This is an urgent chamber application in terms of Rule 223A of the High Court Rules. The Rule reads as follows:

“Where a legal practitioner has certified in writing that a matter is urgent, giving reasons for its urgency, the court or judge may direct that the matter should be set down for hearing at anytime, and, additionally, or alternatively, hear the matter at any time or place, and, in such event, Rule 223 shall not apply or shall apply with such modifications as the court or judge may direct.”

My reading of Rule 223A does not seem to entail that a court application should be filed and then an urgent application be filed to get an order setting the other matter down urgently. I hold the view that that particular application which is being sought to be set down should be the one that is certified as urgent in terms of Rule 223 as opposed to Rule 244.

However, this is just a comment on the proper procedure in relation to Rule 223A; it is not an issue between the parties.

The facts of this matter are that on 12 February 2018, the fourteen applicants received a whatsapp message from the headmistress of Regina Mundi High School where their minor children were enrolled and had sat for their Ordinary Level examinations during November last year. In the message, amongst other things, they were advised that their children had been blacklisted as they had cheated in the examination of November 2017 and that consequently their results had been cancelled.

Aggrieved with that decision they then mounted an application for review on 23 February 2018 under case number 619/18 seeking to have the first respondent's decision of cancelling the results set aside.

The gist of the application for review is that the decision to cancel the results was made without the affected parties having been heard and that this violated section 3 of the Administrative of Justice Act [Chapter 10:28]. The other reason for review being that the decision to cancel the results is contrary to the provisions of section 75 of the Constitution of Zimbabwe.

Section 3 of the Administrative Justice Act [Chapter 10:28] deals with the right to fair administrative justice. Section 75 of the Constitution deals with the rights to education.

The basis of this application is to seek that the other application (the application for review) be heard as a matter of urgency as it affects the minor children's rights to proceed to Advanced Level and that should happen during this school term.

The respondents have raised two points in limine in response; they say that;

(i) The matter is not urgent;...,.

Urgency

The first respondent contends that this matter is not urgent since the applicants, from 12 February 2018, only acted on 23 February 2018, to file the application for review, and, later, on 27 February 2018 to file this application.

From 12 February to 27 February it's a period of about fifteen days.

This is a considerable period of time although the applicants say they were waiting for the Zimbabwe School Examinations (ZIMSEC) national challenge on the English Paper 2.

The other problem is that Rule 223A provides for a court application to be certified urgent - not for a separate application to be filed on urgency, in my view.

The problem that immediately arises on the issue of urgency is that if the applicants considered that the application for review should be heard as a matter of urgency, then they should have filed it in terms of Rule 223A, that is, it is the one that should have had a certificate of urgency affixed to it.

To file an ordinary application on 23 February 2018 and then file an urgent application four days down the line gives an impression that the urgency came as an afterthought but that the applicants did not consider the matter urgent at the time of filing.

However, the applicants submit that the application is urgent because of the Advanced Level rush for vacancies.

Indeed, if the matter is resolved timeously the applicants' children might make it into Advanced Level classes this term if the result of the application is in their favour. However, their conduct at the material time did not exhibit urgency. There is some blunder that the applicants committed in not filing an application and exhibiting urgency at the inception.

The point in limine relating to the applicants' tardiness in so far as urgency is concerned is not without merit.

The applicants did not act with urgency when the situation arose. It follows that, by virtue of their own conduct, that application must join the queue with all other applications.

HH124-18 : MIKE VELAH and ALBERT NYAMURONDA and JOSEPH PEDZAYI and BRENDA HATINAHAMA vs THE MINISTER OF PRIMARY & SECONDARY EDUCATION and ZIMBABWE SCHOOL EXAMINATIONS COUNCIL
Ruled By: ZHOU J

The four applicants are parents of minor children who wrote Ordinary Level examinations in November 2017. The examinations are managed by the second respondent, a body corporate duly established by and in terms of section 3 of the Zimbabwe School Examinations Council Act [Chapter 25:18].

The results for the November 2017 examinations were released by the second respondent on 23 February 2018. When the applicants and/or the children they represent attended at St David's Bonda Secondary School, which was their examination centre, to collect the results they were informed by the authorities there that their results had been withheld by the second respondent on grounds of alleged cheating.

The precise dates on which the withholding of the results was communicated to the applicants is not clear from their affidavits. Be that as it may, what is evident is that the applicants then instituted the instant urgent chamber application on 2 March 2018.

At the commencement of the hearing, the fourth applicant notified that she was withdrawing from the matter. Three applicants persisted with the application.

The application is opposed by both respondents.

Before hearing submissions on the merits of the application I heard argument on the objections in limine taken by the respondents....,.

The second respondent also objected in limine to the determination of the matter on the merits on five (5) grounds. These are:

(1)...,.

(2) That the matter is not urgent;...,.

On the question of urgency, the application was filed within seven (7) days after the results were released by the second respondent. While the applicants do not give the precise dates on which they were notified of the withholding of the results, and do not explain what they were doing in the seven (7) or so days prior to the filing of this application, I do not think that in the circumstances of this matter a period of seven (7) days deprives the matter of its urgency.

The application was filed about five (5) days before the date upon which the urgency appears to be founded, which is the 7th of March 2018, the date on which enrolment for Form 6 was due to commence. The applicants did not therefore wait for the day of reckoning to arrive. They acted expeditiously in the circumstances.

HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT
Ruled By: CHAREWA J

The applicant filed an urgent chamber application for a provisional order of stay of eviction as interim relief and a final order that he should remain in peaceful occupation of immovable property known being Stand number 107 of Salisbury Township, also known as Number 102 Harare Street, Harare.

I heard the application on 10 February 2017 and dismissed it with costs, giving reasons ex tempore, in the presence of the applicant, for lack of urgency and locus standi by the applicant.

On 22 May 2017, three and a half months later, the applicant wrote to the Registrar requesting the reasons for my decision, which I render hereunder.

The Facts

Stand 107 of Salisbury Township belonged to the late Sushila Natverlal Naik whose estate was duly registered on 9 May 2016 and administered under the Master's supervision to its final conclusion; (Letters of Administration issued to the deceased's son, Joytindra Natverlal Naik, dated 22 June 2016, refer). As part of the finalisation of the administration of the estate, the property was disposed of to the first defendant on 21 July 2016.

Upon finalisation of the administration of the estate, and the disposal of the estate property, three months' notice was properly given to the legal tenant, Goldpack Investments (Pvt) Ltd and all those claiming occupation through it, to vacate the property in favour of the new owner.

Upon failure of the occupants to vacate, the matter went before the Magistrates Court which granted an order of eviction on 3 February 2017.

Prior to her death, the deceased had leased the property for five years, commencing 1 November 1999 to 31 October 2004, to Goldpack Investments (Pvt) Ltd. The terms of the lease agreement did not allow for subletting or cession without the deceased's consent.

Contrary to the lease agreement, and subsequent to the deceased's death, Goldpack Investments (Pvt) Ltd “ceded” its rights to a company called Clintvest Investments (Pvt) Ltd. While the directors of the two companies were the same, the companies were, and are, separate legal entities.

Clintvest Investments (Pvt) Ltd subsequently allegedly sublet to several flea market stall-holders as is apparent from Magistrates Court Case No. 41044/2016. The applicant's name is not included as one of the stall holders in that matter though he swore an affidavit on their behalf - the basis of which is unclear. Nothing on the record, or in previous litigation, supports that the applicant was also a stallholder and subtenant of Clintvest Investments (Pvt) Ltd.

The applicant instituted the present application on his own behalf as appears from his founding and “supplementary founding affidavit” (sic). However, he purports to speak for other subtenants without laying the basis for doing so.

When the parties appeared before me, on 9 February 2017, I noted challenges with the draft order which the applicant sought; the interim order of which was to the effect that pending the determination of the urgent application before me, execution of any judgment of a Magistrate Court seeking his eviction be stayed in circumstances where the applicant had already been evicted.

Further, I could not grant any order pending the determination of the very application before me.

In addition, the final order sought continued peaceful occupation pending the determination of his application for a declaratory order that the sale of the property was invalid – when the applicant was no longer in occupation.

I also noted that the applicant had not properly laid the basis for seeking that the matter be heard on an urgent basis or established his locus standi to bring the application.

With the consent of the first respondent, I therefore directed the applicant to attend to his draft order to seek reinstatement of occupation and stay of any further execution thereafter.

In addition, I granted the applicant the indulgence, if necessary, to file a supplementary affidavit regarding;

(1) This change in the draft order.

(2) To traverse the issue of urgency, the requirements of which were explained to him; and

(3) To establish his locus standi after which the first respondent could file its opposing affidavit.

On the next hearing date, on 10 February 2017, the applicant submitted a supplementary founding affidavit which was effectively a new application for an interdict, bringing up new issues rather than reinstatement of occupation and stay of further execution contrary to the directions of the court.

Being mindful of the fact that the applicant was a self-actor, I however allowed the parties to make submissions on urgency and locus....,.

At the conclusion of the parties' submissions I dismissed the application on the basis that, firstly, it was not urgent, and, secondly, and in any event, the applicant lacked the locus standi to bring this or any other application in the matter - and these were my reasons:

Urgency

On urgency, the applicant submitted that he was being evicted, and had in fact been evicted, by someone with improper title. He averred that he should not be evicted until the issue of propriety of the administration of the estate of Late Sushila Naik was resolved.

In his affidavit of urgency…, the applicant averred that the matter was urgent because;

1. He had “been served with a writ, default judgment, and notice of removal to take place on the 9th of February 2017”…,.

2. He “was not cited in the matter…, threatening (his) rights in the premises and…, was not given the opportunity in the Magistrates Court to defend (his) rights.”

3. Unless this court intervened, he stands “to suffer repairable (sic) harm and it is clear that the 1st Respondent approached that (sic) Court with dirty hands by citing a party which is not in occupation and has ceased to have an interest in the premises.”

4. “…, 1st Respondent has abused the lower court by seeking such an order (presumably the order of eviction) when there is a case HC137/16 pending…,.”

5. “The reasons why 1st Respondent has acted in such a manner is that…, we both sale (sic) electrical goods and hardware and so he wants to kill competition.”

It is apparent that the applicant advanced no grounds at all why his application should be treated as urgent.

In fact, by his own admission, he knew by, at the very least, January 2017, that the first respondent had acquired title and intended to convert the property for its own use. And, as at that date, he had long been aware that in 2016, the first respondent had instituted eviction process against the legal tenant, Goldpack Investments (Pvt) Ltd and all those claiming occupation through it. If the applicant had any rights to protect, then, the need to act arose, at the latest, then.

As it turns out, and according to documents in the applicant's possession, and paragraph 5 of his supplementary founding affidavit, as at 25 August 2016, all subtenants at 102 Harare Street were given notice by Clintvest Investments (Pvt) Ltd that the property had been sold and that they had to vacate within three months. They sought an extension of the notice period to the end of December 2016, which was turned down by letter dated 16 November 2016.

At the earliest, therefore, the applicant was, as from 25 August 2016, always aware that the property had been sold as a consequence of the administration of the estate and he was required to vacate in favour of the new owner. The need to act arose then, should the applicant have had any remedy against the first respondent, and not as at the date of eviction by the Messenger of Court.

Instead of seeking to protect his alleged rights to occupation, what the applicant did, in fact, was to seek to impugn the administration of the estate of the late Sushila Natverlal Naik, in letters dated 21 and 29 December 2016. In response, the Master informed him, by letter dated 11 January 2017, to approach the courts for a review of the administration of the estate as it had been finalised.

Contrary to the advice from the Master, what the applicant did was to seek a declaratur, a month down the line. Thus, he himself did not treat his own cause as urgent.

Besides, execution of judgment being the natural consequence of an order of court, and the applicant having already been evicted, it is a principle of our jurisprudence that once the status quo ante has been lost, it can generally not be restored, unless there is a palpable miscarriage of justice, which is not apparent in this case.

Clearly, this matter did not deserve to be treated as urgent as it fell far short of the requirements necessary to jump the queue and take precedence over other matters.

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O.
Ruled By: HUNGWE J

The applicant seeks interim relief, through the Chamber Book, couched in the following terms:“TERMS OF FINAL ORDER1. The execution of the taxed costs allowed in Case No. HC953/15 by the Taxing Officer, Mr R Matangaidze, be and is hereby ordered to be stayed pending the determination of Application for Review ...

The applicant seeks interim relief, through the Chamber Book, couched in the following terms:

“TERMS OF FINAL ORDER

1. The execution of the taxed costs allowed in Case No. HC953/15 by the Taxing Officer, Mr R Matangaidze, be and is hereby ordered to be stayed pending the determination of Application for Review of the Taxing Officer's decision filed under Case No. HC953/15.

1. The execution of the taxed costs allowed in Case No. HC953/15 by the Taxing Officer, Mr R Matangaidze, be and is hereby ordered to be stayed pending the determination of Application for Review of the Taxing Officer's decision filed under Case No. HC953/15.

2. Costs of suit shall be costs in the cause in the Application for Review of the Taxing Officer's decision under Case No. HC10209/15.

INTERIM RELIEF GRANTED

Pending the application for Review of Taxing Master's decision, under case number HC953/15, the first and second respondents be and are hereby ordered to stay execution and attachment of applicant's movable property to satisfy the amount of taxed costs in Case Number HC953/15.”

The parties were involved in a long running dispute in which the applicant appears to have earned the wrath of the courts and slapped with an adverse order for costs on the turn. The first respondent alleges that the applicant unreasonably refused to make payments of certain funds held by it as a banker. The courts into which the suit spilled found that the resistance to the claim was unreasonably offered, resulting in several orders for costs against the applicant.

The first respondent alleges that the applicant has, to date, not paid any amount in terms of the various orders for those costs.

In this application, the parties appeared before the Taxing Officer of this court on 23 October 2015 at the behest of the first respondent. Before the Taxing Officer, the applicant raised several objections, chief of which related to item 48 on the bill. That item related to disbursement for fees paid to Advocate De Bloc, the first respondent's lawyer in Belgium. Despite these objections, the Taxing Officer allowed that item. In the end, the Taxing Officer allowed costs on a party and party scale in the sum of US$439,546=70 to the first respondent.

At the taxation, the applicant indicated to the first respondent that it intended to take the Taxing Officer's decision on review. On its part, the first respondent proceeded to instruct the second respondent to place under attachment the movable property on the applicant's premises on 23 October 2015.

The applicant filed an application for review of the Taxing Officer's decision under case number HC10209/15 citing various irregularities, especially the allowance of Advocate De Bloc's fees.

In order to prevent immediate execution of the writ, obtained by the first respondent, the applicant filed the present application under a certificate of urgency to stay the execution of the writ pending the determination of the application for review.

On 24 October 2015 I issued an order staying execution pending the determination of the present chamber application.

The first respondent took two points in limine;

(i) The first point taken by the first respondent is that the application is deficient for lack of compliance with Rule 241(1) of the Rules of this court which governs chamber applications in that there is no Form 29 as required. As such there is no urgent application before the court.

(ii) The second point in limine taken by the first respondent is that the applicant has approached this court with dirty hands as it has not paid any of the three or so bills of costs awarded against it.

Counsel for the applicant argued that the first respondent raises these points in limine in order to deflect the court from dealing with the merits of the matter. He submitted that the issue before the court was whether the item 48 in the bill of costs ought to have been allowed. He further submitted that the applicant enjoyed bright prospects in the proposed review application for the Taxing Officer's decision allowing that item.

In any event, the first respondent did not raise these points in limine in the opposing affidavit. In his submission, points in limine should not impede proceedings unnecessarily.

Whilst it is correct that the form used by the applicant does not strictly comply with Rule 241(1), I am of the view that the respondents have not shown that they have suffered some prejudice which could not be cured by an appropriate order for costs in opposing the application.

In taking this view, I am cognisant of the fact that the courts do not take lightly failure to comply with its Rules. In this regard, I associate myself with the views expressed by Honourable MAFUSIRE J in Ordar Housing Development Consortium v Sensene & Ors HH709-15.

As for the dirty hands doctrine, the first respondent argued that this court ought to refuse the grant of the relief sought as, for its part, the applicant has not paid any of the bills of costs awarded against it.

As I understand it, the dirty hands doctrine is an equitable defence that allows the defendant to defeat the plaintiff's claim against it. It is a defence that bars relief to a party who has engaged in inequitable behaviour such as fraud, deceit, unconscionability or bad faith related to the subject matter of that party's claim.

The nature of the conduct constituting lack of probity, or bad faith, in the present matter is that the applicant has ignored paying that part of the bill of costs which is undisputed nor has it made tender of the same in these proceedings. The first respondent claims that there are other bills of costs which the applicant has not paid up besides the one subject of the present application.

Clearly, it sounds unconscionable for this court to grant relief which, in effect, serves to deprive a successful party of its dues in favour of a party which has persistently and stubbornly refused to accede to the other party's just claim. However, the onus lay on the first respondent to show that indeed, there were such instances of bad faith in respect of the subject matter of the present claim which were grave or sufficient enough for this court to frown upon by declining relief to the applicant.

I am unable to say that the first respondent has discharged that onus. Had it done so, notwithstanding the countervailing constitutional right to access to the courts urged by counsel for the applicant, I would have been prepared to uphold this point. In the absence of sufficient proof of such behaviour, I am reluctant to refuse giving consideration to the merits of the application thereby excluding the applicant from this court.

I venture to suggest that for the future, such averments ought to be part of the opposing affidavit so as to allow the applicant, against who the allegations are made, a right of reply.

Once a prima facie proof of such behaviour is placed before the court, in my view, on that principle, the court may fairly exclude relief to the applicant.

In conclusion, I must add that the courts are reluctant to exclude parties from seeking legal recourse on the basis that they have not complied with certain of its orders lest in the process more fundamental rights may be infringed.

It was for those reasons that I decided to proceed to hear the matter on the merits notwithstanding the points in limine raised on the first respondent's behalf.

In its founding affidavit, the applicant avers that it will suffer irreparable harm if the present application is not granted. As such, the applicant says that the matter must be heard ahead of others on the roll.

The applicant also believes that it has high prospects of success in the review application in light of the “clear gross irregularities rampant in the whole proceeding before the Taxing Officer.” The presence of these high prospects of success, the applicant argued, result in it enjoying a prima facie right. Since it is the applicant who will suffer irreparable harm, it says that the balance of convenience favour the granting of the relief it seeks. On the other hand, the applicant says the first respondent will not be prejudiced were the relief to be granted....,.

The applicant claims that its movable assets, which have been attached, if removed and sold in execution, would bring its banking business to its knees....,.

The first respondent filed papers in opposition to the application on the merits too. In the opposing papers, the first respondent did not raise any issue regarding the question of urgency.

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O.
Ruled By: HUNGWE J

A matter qualifies to be heard on an urgent basis if the relief being sought will be rendered academic or if there would be irreparable prejudice to the applicant if that relief is not granted.

HH634-15 : TETRAD HOLDINGS (PVT) LTD and OTHERS vs NATIONAL SOCIAL SECURITY and OTHERS
Ruled By: BHUNU J

On 28 May 2014 the first respondent, National Social Security Authority, obtained default judgment against the 11 applicants. The default judgment reads:

“WHEREUPON after reading documents filed of record and hearing counsel;

IT IS ORDERED That:

1. The 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, and 11th defendant(s) be and are hereby ordered, jointly and in solidium, the one paying and the other to be absolved, to pay the sum of US$4,988,564=29 (four million nine hundred and eighty-thousand, five hundred and sixty four United States Dollars and twenty nine cents) together with interest thereon at the rate of 7% per annum with effect from the 11th September 2013 up to date of payment in full and such interest being capitalised monthly.

2. The immovable properties situate in the district of Salisbury, which properties are described in the schedule hereto, be and are hereby declared specially executable.

2.1 Industrial plot 3 Salisbury Township of the Agricultural and Horticultural Society Showground of Salisbury Township Lands registered in the name of the 2nd defendant under Deed of Transfer (Reg. No. 11942/01);

2.2 Stand 11 Newlands, registered in the name of the 3rd defendant under Deed of Transfer (Reg. No. 7160/95) dated the 23rd day of October 1997.

2.3 An undivided 12.5 share being Share No.7 in lot 7B Rietfontein registered in the name of the 4th defendant under Deed of Transfer (Reg. No.1461/08) dated 8th day of April 2008.

2.4 An undivided 12.5 share being Share No.8 in lot 1 of lot 7B Reinfontein registered in the name of the 5th defendant under Deed of Transfer (Reg. No.1462/08) dated the 21st day of April 2008.

2.5 An undivided 12.5 share being Share No.9 in lot 1 of lot 7B Reinfontein registered in the name of the sixth defendant under Deed of Transfer (Reg. No.1484/08) dated the 9th day of April 2008.

2.6 An undivided 12.5 share being Share No.10 in lot 1 of lot 7B Reinfontein registered in the name of the 7th defendant under Deed of Transfer (Reg. No.1482/08) dated the 16th day of April 2008.

2.7 An undivided 12.5 share being Share No.11 in lot 7B Reinfontein registered in the name of the 8th defendant under Deed of Transfer (Reg. No.1461/08) dated the 16th day of April 2008.

2.8 An undivided 12.5 share being Share No.12 in lot 1 of lot 7B Reinfontein registered in the name of the 9th defendant under Deed of Transfer (Reg. No.1483/08) dated the 9th day of April 2008.

2.9 An undivided 12.5 share being Share No.14 in lot 1 of lot 7B Reinfontein registered in the name of the 10th defendant under Deed of Transfer (Reg. No.1460/08) dated the 24th day of April 2008.

2.10 An undivided 12.5 share being Share No.15 in lot 1 of lot 7B Reinfontein registered in the name of the 11th defendant under Deed of Transfer (Reg. No.1477/08) dated the 9th day of April 2008.

3. The 1st to the 11th defendant(s) be and are hereby ordered jointly, severally, and in solidium, the one paying the others to be absolved, to pay costs on legal practitioner and client scale.”

Following the granting of the above default order, the second respondent sold the said properties in execution at various public auctions in March 2015 according to law. The relevant respondents were duly declared the highest bidders of the respective properties on offer for which they sought transfer.

Aggrieved by the prices obtained for the properties, the applicant challenged confirmation of the sales which challenges were dismissed by the second respondent on 11 May 2015. With full knowledge of the dismissals, the applicants only approached the court on 5 June 2015, more than 20 days later, on an urgent basis challenging transfer of the properties in question to the respective highest bidders.

The applicants seek an urgent order interdicting transfer pending its challenge to the sales in execution in terms of Rule 359 arguing that the properties were sold for unreasonably low prices.

The applicant started by inviting the court for an inspection in loco to enable it to view the disputed properties and make its own assessment. They also endeavoured to argue that there was no finality to litigation as they were still vigorously pursuing rescission of the default judgment in question.

The respondents countered by quickly raising the point in limine that the matter was not urgent.

It is common cause that the applicant delayed in bringing this application by more than 20 days with full knowledge that its properties had been sold for that much. The applicant openly admitted the delay but sought to shift the blame to its erstwhile legal practitioner, Mr Mlotshwa, whom it accused of incompetence and delaying the proceedings by clinging onto the case despite being asked to renounce agency.

The applicant's strategy, in this respect, reminds me of two village pranks in our area who used to start a fight between themselves whenever food and drink were running low only to regroup, sit down, and enjoy the left overs after everyone else had fled in panic.

The change of lawyers appears to be a trick to explain the inexplicable inordinate delay in bringing this application.

I take that view because the applicants have filed no affidavit or explanation from Mr Mlotshwa explaining his alleged misconduct. I would therefore hesitate to ascribe any wrong doing to Mr Mlotshwa without hearing him.

A perusal of the papers shows that the applicants current lawyers are not saying anything different from what Mr Mlotshwa has always been saying. In any case, Mr Mlotshwa was the applicants' agent and it is an established principle of the law of agency that he who does a thing through another does it himself. Thus, Mr Mlotshwa's conduct became theirs and his principals cannot, without more, easily discard him and seek to distance themselves from his actions. This is for the simple reason that in the ordinary run of things a principal is bound by the conduct of his agent.

The onus is on the principal who seeks to resile from the conduct of his agent to show why he might not be bound by his agent's conduct.

In this case, the applicants have fallen far too short of proving that onus.

Unfortunately, the conclusion that the admitted inordinate delay in this case was self-made is unavoidable.

Although the applicants have told me that they have filed an application for rescission of judgment they have omitted to dwell on their prospects of success and reason for default. That omission has a bearing on the urgency of the matter because the respondents already have a lawful judgment in their favour and the courts generally lean in favour of the urgent and timely enforcement of its judgments to the exclusion of any unwarranted delay or interference.

The headnote in the case of Chibanda v King 1983 (1) ZLR 116 clearly puts the point home thus:

“It must also be borne in mind that if the court were to extent mercy it will be doing it at the expense of a litigant who has already established, in court, his right and title to what is being claimed. Such mercy should rather be sought in the action itself, before judgment is given, not afterwards.”

For the foregoing reasons, in the absence of any justifiable excuse, I cannot countenance any further delay in giving effect to a lawful judgment of this court.

I accordingly hold that the matter before me is not urgent.

HH509-14 : INNSCOR AFRICA LTD vs COMPETITION AND TARIFF COMMISSION and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE
Ruled By: UCHENA J

This application was filed as an urgent chamber application on 29 August 2014. It was assigned to me for determination on 1 September 2014. After reading the file I endorsed on it the following statement;

“There is a pending application for stay of execution. This application is therefore not urgent.”

The endorsement was communicated to the applicant's legal practitioners.

By letter dated 16 September 2014 the applicant's counsel sought to be heard on the issue of urgency.

I set the matter down for 17 September 2014. I heard the parties' submissions from 2.15pm to 16.29pm. This was due to the applicant's counsel's failure to appreciate the significance of the applicant's earlier application and the procedural law on expediting it when the need to set it down on an urgent basis arose. My attempt to draw his attention to this during the hearing yielded no meaningful response. It has to be spelt out in this judgment.

Counsel for the first respondent raised preliminary issues of lis pendens and urgency, among others.

The issues could have been resolved easily and quickly if the provisions of Rule 223A as read with Rule 223(3) of the High Court Rules, 1971 had been taken into consideration by both parties.

It is common cause that the applicant has a pending application in this court, HC6819/14, in which it seeks stay of execution on the basis that the first respondent's decision has been appealed against to the Administrative Court. The parties in that case, and this case, are the same and the cause of action is the same, giving rise to the raising of the preliminary issue of lis alibi pendens.

The applicant's counsel's submissions sought to get round this predicament by relying on the earlier application being slower than the later.

That is where he got it wrong and missed the essence of my endorsement. He should simply have expedited the earlier application when the need to be heard on an urgent basis arose or on seeing my endorsement.

I am aware of the case of DW Hattingh & Sons (Pvt) Ltd v Cole NO 1991 (2) ZLR 176 (SC)…, where KORSAH JA said;

“The court has a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens, and, in the exercise of that discretion, it will have regard to the equities and to the balance of convenience in the matter. See Michaelson v Loweinstein 1905 S 324; Osman v Hector 1933 CPD 503; and Loader v Dursot Bros (Pty) Ltd 1948 (3) SA 136 (T).”

In this case, I cannot exercise that discretion as there is a clear procedure which the applicant should have used and can use to expedite its earlier application.

Rule 223A provides for the expediting of the earlier application as follows;

“223A. Where a legal practitioner has certified, in writing, that a matter is urgent, giving reasons for its urgency, the court or a judge may direct that the matter should be set down for hearing at any time, and, additionally, or alternatively, may hear the matter at any time or place, and in such event Rule 223 shall not apply or shall apply with such modifications as the court or judge may direct.”…,.

This procedure is distinct and separate from that provided for in Rule 242 and Rule 244 of the High Court Rules 1971, which provide for urgent chamber applications.

Rule 223A provides for urgency which arises after an applicant will have filed an ordinary application as the applicant had done in this case. Rule 223, which has to be modified or can be rendered inoperative by Rule 223A, provides for the setting down of ordinary applications in not less than eight business days after the filing of the notice of opposition and opposing affidavit. It, in subsection (3), provides as follows;

“(3) Subject to Rule 223A, without the consent of the respondent, no application in which a notice of opposition and an opposing affidavit have been filed shall be set down for hearing less than eight business days after the notice of opposition and opposing affidavit were filed.”

The applicant filed this urgent application after the respondent had filed its notice of opposition and opposing affidavit in which it pointed out the applicant's tardiness in trying to stay execution through an ordinary application. Instead of immediately invoking the provisions of Rule 223A the applicant filed this urgent chamber application in terms of Rule 244.

The applicant's earlier application can be expedited by invoking the provisions of Rule 223A, which, in spite of the filing of the first respondent's notice of opposition and opposing affidavit, can, if a legal practitioner certifies its urgency, be set down as provided in Rule 223A, and be heard at any time or place, and, in such event, Rule 223 shall not apply or shall apply with such modifications as the court or judge may direct.

I therefore find that the first respondent correctly raised the preliminary issues of lis pendens and urgency.

The pending application takes away urgency from the current application because it provides an alternative remedy to the applicant.

A case can only be heard on an urgent basis if it cannot await its turn in the queue of cases filed for hearing by other litigants. It must be a case in which the applicant has no other remedy besides seeking an order through the urgent chamber application. Where a litigant has alternative remedies his case should not be allowed to jump the queue.

The applicant should, therefore, expedite its earlier application if it believes that it can justify the existence of urgency.

I will refrain from making a determination on the general urgency of the circumstances existing between the parties, as it is the issue to be decided by the court which shall hear the applicant's earlier application.

This application must fail on the preliminary issue of lis alibi pendens and there being no urgency in this application because the applicant has another remedy through the urgent set down of its ordinary application.

The hearing of this application before me was therefore unnecessary and could have been avoided.

I gave the applicant a hint of its being an unnecessary application. The applicant insisted on being heard causing unnecessary costs to the first respondent.

It must pay the first respondent's costs on the higher scale.

The applicant's application is dismissed. The applicant shall pay the first respondent's cost on the legal practitioner and client scale.

Appealed
SC28-18 : NYAKUTOMBWA MUGABE LEGAL COUNSEL vs GETRUDE MUTASA and DIDYMUS MUTASA and SHERIFF OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and GUVAVA JA

This is an appeal against the judgment of the High Court of Zimbabwe ordering the return of all the goods belonging to the first and second respondents attached pursuant to a default judgment granted earlier by the same court against the second respondent.

The judgment appealed against also ordered that the returned goods remain under judicial attachment until the finalisation of the proceedings between the parties.

The facts of this matter are common cause. I summarise them hereunder.

The appellant rendered legal services to the second respondent and others which services were not paid for. The appellant sued for the unpaid fees in the High Court and was granted a default judgement against the second respondent. To satisfy the judgment, the third respondent attached certain goods and chattels at the residence of the first and second respondents, which is their matrimonial residence. The attached goods were removed.

The second respondent approached the High Court seeking an order staying the execution process that was underway. That court, being of the opinion that the application to stay execution had been brought after the event, the goods having been removed, declined to hear the application and accordingly dismissed it on the turn without going into the merits of the matter.

The first respondent approached the court a quo, on a certificate of urgency, seeking an order returning all the attached property that had been removed by the third respondent. The court a quo granted the application as prayed, prompting the appellant to note this appeal.

In attacking the decision of the court a quo, the appellant raised four grounds of appeal as follows:

1....,.

2....,.

3. The court a quo erred at law in granting an interdict in circumstances where there was an alternative satisfactory remedy;...,.

In the third ground of appeal, the appellant contends that the court a quo erred in awarding an interdict in circumstances where there was a satisfactory alternative remedy.

As correctly argued by counsel for the respondents, in my view, the first respondent had the option to approach the court as she did or to approach the third respondent for the issuance of an interpleader notice in terms of the High Court Rules, 1971.

In approaching the court as she did, the first respondent was not only contending that she has a proprietary interest in the attached property, she also contended that the default judgment pursuant to which the property was attached was granted in error and in her absence as an interested party and that she had approached the court for such erroneous judgment to be set aside. In the interim she prayed for the return of the attached property.

The decision by the court a quo was clearly a value judgment. In its words:

“…, in the face of the application for rescission, it would make little sense to permit the goods to be sold off at this point.”

The court a quo proceeded to observe that “it would also make little sense for the goods to remain in storage accumulating high storage charges pending hearing of the matter”, before it ordered the release of the goods to the first respondent.

A different court, faced with the same facts, may have exercised its discretion differently and come to a different conclusion. This court may have come to a different conclusion were it the court of first instance. This is inevitable with decisions based on the exercise of judicial discretion.

There is no one standard answer.

The law recognises this diversity in values as expressed in value judgments and has sought to protect the exercise of discretion by restraining the Appeal Court from substituting its own discretion for that of the lower court in the absence of an error on the part of the lower court.

The settled position at law holds that it is not sufficient that the Appeal Court considers that if it had been in the position of the court a quo it would have arrived at a different decision. For the Appeal Court to interfere with the discretion of the court a quo, “…, it must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account relevant considerations, then its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution…,.”; per GUBBAY CJ in Barros & Anor v Chimponda 1999 (1) ZLR 58 (S).

I find no error in the manner that the lower court reasoned and exercised its discretion.

In the absence of a finding of an error on the part of the court a quo, this Court is constrained to respect and recognise the exercise of discretion by the lower court.

HH177-17 : GILBERT JONGA vs NYASHA CHABATA
Ruled By: CHATUKUTA J

The applicant seeks an interdict restraining the respondent from interfering with his farming operations at Subdivision 3 of Farm 45, Glendale (the farm).

This is not the first time that the parties are before this court. The parties are fighting over who has the right to occupy the farm which belongs to the State. On 6 December 2016, the respondent successfully approached this court in case number HC12380/16, on an urgent basis, seeking spoliatory relief. On 9 December 2016, MATANDA-MOYO J ruled in favour of the respondent in case number HC12380/16 and issued the following order:

“TERMS OF FINAL ORDER SOUGHT

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

1. The interim order be confirmed.

2. It be and is hereby declared that applicant, his representatives, employees and invitees are entitled to remain in peaceful and undisturbed possession, occupation and use of subdivision 3 of Farm 45 of Glendale in Mazowe District of Mashonaland Central measuring 36.21 hectares.

3. The respondent pays the costs of this (application) on the higher scale of legal practitioner and client.

TERMS OF THE INTERIM ORDER GRANTED

Pending the finalisation of this matter, the applicant is granted the following interim relief –

1. That the respondent restore to the applicant possession of subdivision 3 of Farm 45 Glendale in Mazowe District of Mashonaland Central measuring 36.21 hectares.

2. The Deputy Sheriff be and is hereby authorised and empowered to ensure that such restoration is done and that the applicant remain in peaceful and (undisturbed) occupation of the above property.

3. The respondent and all those claiming through him vacate the said property forthwith of which the Deputy Sheriff is authorised to evict same from the property.

4. That the respondent pays costs of suit.”

On 13 December 2016 the applicant noted an appeal against the judgment of MATANDA-MOYO J.

On 22 December 2016, the respondent destroyed part of the applicant's crop resulting in the present application.

The background to this application was articulated in case number HC12380/16 in which the court found that the respondent is a holder of an offer letter for a portion of the farm measuring 36.21 hectares. The offer letter was issued on 6 November 2015. The applicant produced documents proving that he was in occupation of the Remaining Extent of Farm 45 (Truro) Glendale and Plots 1, 4, and 5 of Dunmaglas Farm in Mazoe. The court found that the portions allocated to the two parties are different.

The applicant contended, in HC12380/16, and still contends in the present application, that the portions are one and the same and he has a 99 year lease over the entire farm. He has been in occupation of the entire portions since 2002 - well before the respondent was issued with the offer letter on 6 November 2015.

Believing that the court in case number HC12380/16 erred in holding that the portions are different and that he was not in possession of the farm, the applicant filed an appeal against that decision in SC771/16.

The applicant avers, in the present case, that, at the beginning of 3 October 2016, he entered into an agreement to grow 100 hectares of maize with the Government under the Special Programme on Maize Production for Import Substitution (popularly known as “the Command Programme”). He was given inputs under the Programme, and, during the first half of November 2016, and before the respondent had filed her application in case number HC12380/16, he planted his maize. On 13 December 2016 he filed the appeal against the decision. On 21 December 2016, the respondent returned to the farm and destroyed 7 hectares of the maize crop. Fearing that the respondent could proceed to destroy further hectarage, the applicant has approached this court on a certificate of urgency for an interdict.

At the commencement of the hearing, the respondent contended that the application was not urgent. The issue was abandoned during argument.

Thereafter, she raised four other preliminary points;

(i)...,.

(ii)...,.

(iii)...,.

(iv) Lastly, it was submitted that the applicant had an alternative remedy precluding the matter to be heard on an urgent basis. It was contended that he can seek the discharge of the order in case number HC12380/16, and, in the alternative, claim damages for any loss incurred....,.

Regarding the existence of an alternative remedy, the applicant submitted that the discharge of the order was not adequate to stop the respondent from interfering with his operations on the farm....,.

The last preliminary point is whether or not the applicant has an alternative remedy.

As rightly submitted by the applicant, the confirmation of the order in case number HC12380/16, and a future award of damages, will not prevent the respondent from continuing to interfere with the applicant's operations....,.

The requirement on the existence of an alternative remedy is well explained in Neptune (Pvt) Ltd v Venture Enterprises (Pvt) Ltd HH127-89. At page 8 ADAMS J quotes LEWIS J in Reserve Bank of Rhodesia v Rhodesia Railways 1966 RLR 451 that -

“…, NATHAN, in his well known works on INTERDICTS, states the position as follows, at p32 -

'Lastly, as Van der Linden says, there must be no other ordinary remedy by which the applicant can be protected with the same result….,. The most familiar example, however, which comes to a lawyer's mind is that of damages. It is clear that, if the applicant will have adequate compensation by the award of damages, he will have another ordinary remedy….,. Generally speaking, however, the fact that the applicant has a remedy open to him by way of action for damages is sufficient to bar an interdict where the interference or breach of a right is capable of measurement in money.'

The operative part of the quotation, in fact, the essence of it, really, is, that there is an existing remedy for the protection of the applicant 'with the same result';…, if that is the situation, then, so it seems to me, the interdict should be refused.”…,.

As alluded to earlier, there is no other remedy that would compel the respondent from interfering with the applicant's farming operations other than an order from this court.

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

This was an urgent chamber application for a stay of execution.

It was filed on 6 March 2015. It was brought to my chambers at 17:15 hours three days later, i.e. on 9 March 2015. There were eleven applicants. Their case was that on 6 March 2015, i.e. the date the application was filed, the Sheriff, the second respondent herein, was scheduled to sell a number of properties belonging to applicants two to eleven.

The basis for seeking a stay was that the first respondent, National Social Security Authority (hereafter referred to as “NSSA”), had a judgment against the first applicant, Tetrad Holdings Limited (hereafter referred to as “Tetrad Holdings” or simply “Holdings”). It was said that that judgment had been obtained in error. NSSA's debt was said to be with Tetrad Investment Bank Limited (hereafter referred to as “Tetrad Bank” or simply “the Bank”) and not with Tetrad Holdings.

Apparently, Tetrad Investment Bank Limited was a subsidiary of Tetrad Holdings Limited.

However, in the founding papers, it was stressed that Tetrad Investment Bank Limited and Tetrad Holdings Limited were two distinct and separate entities. As such, it was said that an application for the rescission of the National Social Security Authority's (NSSA) judgment against Tetrad Holdings Limited had already been filed with this court. Thus, it was argued, if the Sheriff's sale went ahead there would be prejudice, not only to the shareholders of the applicants but also to the creditors.

After reading the papers, I agonised over whether or not to set down the matter for hearing.

The application was extremely economic with information. For example, other than describing all the applicants as companies incorporated according to the laws of Zimbabwe, and mentioning that the National Social Security Authority (NSSA) had a judgment against Tetrad Holdings Limited, which judgment was what the Sheriff was executing, the founding papers said nothing about the nature of the relationship between NSSA, as the judgment creditor, and the rest of the applicants. But, the main matter in which the writ of execution had been issued being a debt collection claim, I guessed that respondents two to eleven must have been guarantors or sureties of some sort. As it turned out, indeed they were.

But, that was not all.

The certificate of urgency, signed on 6 March 2015, said the matter was urgent because the sale was scheduled to take place that day; that Tetrad Holdings Limited was not, and had never been, the National Social Security Authority's (NSSA) debtor, but that it was Tetrad Investment Bank Limited that was; that for that reason the application for rescission of judgment had excellent prospects of success, and that, if the matter was not heard on an urgent basis, there was a risk of irreparable prejudice to the applicants' shareholders and creditors.

Only one date was mentioned, namely 6 March 2015 - the date of the sale.

Nothing was said about when the National Social Security Authority (NSSA) had obtained the judgment. It was not mentioned when the applicants had become aware of that judgment. No information was given as to what action, if any, the applicants had taken upon getting to know about that judgment. Neither the date of NSSA's writ nor that of the Sheriff's attachment was given. The property that the Sheriff had attached and was selling was not disclosed. Finally, it was not said when the application for rescission of judgment had been filed.

I turned to the founding affidavit and the rest of the papers. They were essentially an extension of the certificate of urgency.

Only two other dates were mentioned, namely, 8 August 2014 and 16 February 2015. It was said 8 August 2014 was when Tetrad Investment Bank Limited had held a Scheme Meeting with its creditors which the National Social Security Authority (NSSA) had attended, which, allegedly signified NSSA's acceptance that its debt was with the Tetrad Investment Bank Limited not Tetrad Holdings Limited. It was said 16 February 2015 was when the Sheriff had served the notice of sale on Tetrad Investment Bank Limited.

That was about all that the founding affidavit ever disclosed by way of additional information. The rest were basically legal arguments on why the sale had to be stopped....,.

The case number for that rescission application was just left blank!...,.

On urgency, it was said the National Social Security Authority's (NSSA) judgment had been given on 28 March 2014. That was almost a year ago. NSSA's writ had been served on 15 August 2014 but the applicants had turned the Sheriff away on the basis that execution had been suspended pending an order for leave to convene a Scheme Meeting in terms of the Companies Act [Chapter 24:03]. On 20 August 2014 and 10 October 2014 NSSA had sent the Sheriff back to the applicants with the writ. Movable properties for applicants two to eleven had then been attached.

Thus, the National Social Security Authority (NSSA) argued, the applicants had been aware of the attachment as far back as August 2014 but had chosen to do nothing until the day of the sale - almost seven months later.

On 16 February 2015, the applicants had been served with the Notice of Sale - again they had chosen to do nothing.

Only on 27 February 2015 did they file an ordinary court application for the condonation of the late filing of the application for rescission of judgment. However, they had withdrawn that application on 5 March 2015. They had then proceeded to file the urgent chamber application on the next day, 6 March 2015....,.

As I invited the parties into my chambers, it was manifestly obvious that the applicants could not reasonably persist with their urgent chamber application in the state that it was in.

Indeed, counsel for the applicants advised that it was no longer necessary to argue the aspect of urgency and waste the court's time.

HH417-18 : STUTTAFORDS REMOVALS (PVT) LTD vs ZIMBABWE ASSET MANAGEMENT CORPORATION (PVT) LTD and YCOB INVESTMENTS (PVT) LTD
Ruled By: CHIKOWERO J

I have no doubt at all that this application is not urgent.

Upon receipt of the application, on 3 July 2018, I perused same and instructed that it be set down for hearing on 5 July 2018 at 9:00am.

The second respondent was not cited. It was not a party to the proceedings at that stage.

This notwithstanding, around 2:30pm, on 3 July 2018, I received copy of letter of the same date wherein the second respondent's legal practitioners expressed, among other things, Ycob Investments (Pvt) Ltd's real and substantial interest in the matter. The letter was addressed to the applicant's legal practitioners and copied to the Registrar. The latter placed the correspondence before me.

Come 5 July 2018, at 9:00am, legal practitioners for all the parties herein appeared before me.

Upon the second respondent's counsel stating that an application for joinder would be filed, I postponed the hearing to the next day to enable such an application to be instituted.

This resulted in the second respondent's joinder, by consent, when the parties and their legal practitioners appeared on 6 July 2018 for the hearing.

The first respondent had filed opposing papers. The second respondent had not, but was ready to make oral submissions.

The first respondent raised a single point in limine. It submitted that the application was not urgent.

I agree that this is a classic case of self-created urgency.

That is not the type of urgency contemplated by the Rules. I refer to a few only of the decided cases on what urgency is: Kuvarega v Registrar General and Another 1998 (1) ZLR 188 (H) and Documents Support Centre (Pvt) Ltd v Mapuvire 2006 (1) ZLR 2323 (H).

In sum, a matter is urgent if, when the need to act arises, the matter cannot wait.

In this matter, the applicant waited from 16 March 2017 to 2 July 2018.

On the former date, it sold its rights, title and interest in Stand 1578 Ardbennie Township measuring 2,0371 hectares held under Deed of Transfer number 5348/2011 to the second respondent. On the latter date it filed the present application.

The applicant seeks an interim order compelling the first respondent to furnish the former with its requirements for cancellation of mortgage bonds registered in its favour in respect of the property concerned and, against payment of the value of the loan, delivery of the title deed.

The first respondent had taken over the applicant's non-performing loan from NMB Bank. It then proceeded to register mortgage bonds against the applicant's immovable property.

The second respondent had seven days, from 16 March 2017, to pay the balance of the purchase price, the transfer fees, and agent's commission. Part of the purchase price was payable upon signing the agreement of sale on 16 March 2017.

Between then and filing of the application there was a lengthy period of inaction by the applicant. Same was punctuated, among other events, by the applicant waking up from its slumber to cancel the agreement of sale (which was contested), entering into another agreement of sale in respect of rights, title and interest in the same property with Nyaradzo Life Assurance Company (Private) Limited (“Nyaradzo”), on 15 June 2018, and the applicant's letter of 27 June 2018 requesting the first respondent to state its bond cancellation requirements.

The urgency is premised on the continued accrual of interest on the loan for as long as the debt is not cleared. It also is based on the fear that Nyaradzo Life Assurance Company (Private) Limited may resile from the agreement of sale if the bond cancellation requirements are not availed urgently to facilitate transfer to this second purchaser.

But, interest has always been running ever since the first respondent took over the applicant's debt on a date not disclosed in the application.

Equally, interest has always been accruing since 16 March 2017 when the agreement of sale between the applicant and the second respondent was entered into.

The matter cannot become urgent now just because the applicant has entered into an agreement of sale with Nyaradzo Life Assurance Company (Private) Limited and is desperate to effect transfer of title to Nyaradzo and not to the second respondent.

I totally agree with both respondents that this application is not urgent but is a clear abuse of court process. It is, I am compelled to remark, a mischievous application.

I therefore uphold the point in limine. The application is clearly not urgent.

HH26-08 : MOVEMENT FOR DEMOCRATIC CHANGE vs TIMOTHY MUBHAWU
Ruled By: HUNGWE J

This matter was placed before me through the Chamber Book as an urgent application on March 10, 2008. The applicant seeks the following provisional order against the respondent:

“Pending confirmation or discharge of this Provisional Order;

1. The respondent be and is forthwith hereby interdicted and restrained from using the applicant's name and materials and posters resembling the applicant's materials and posters in his campaign for the House of Assembly seat of Mabvuku-Tafara.

2. The respondent be and is hereby ordered to forthwith remove the posters he plastered in and around the Constituency, failing which the applicant's structures in Mabvuku-Tafara Constituency be and are hereby authorised to remove the said posters in the company of the Deputy Sheriff or members of the Zimbabwe Republic Police, if necessary.

SERVICE OF THE PROVISIONAL ORDER

This Provisional Order shall be served by the respondent by the applicant's Legal Practitioners or the Deputy Sheriff of Chinhoyi. (sic)”...,.

The applicant is a registered political formation in terms of the laws of Zimbabwe.

The respondent is the outgoing Member of the House of Assembly for the Mabvuku-Tafara constituency for the applicant. The applicant has fielded hundreds of candidates in the forthcoming harmonised Presidential, Senatorial, Parliamentary and Council elections. In an internal candidate selection process, the respondent failed to garner the support of his political party to stand as that party's chosen representative for the House of Assembly seat of Mabvuku-Tafara constituency. Instead, one Shepherd Madamombe is the official candidate for the applicant.

The applicant approaches this court for the above relief.

Sekai Holland, the applicant's Secretary for Policy Research and Ideology, deposed to the founding affidavit.

In it, she states that the applicant, on 14 February 2008, notified the Zimbabwe Electoral Commission of its intention to substitute the respondent with Shepherd Madamombe.

On 15 February 2008, the Nomination Court sat to receive the nomination of candidates. Shepherd Madamombe's papers were accepted as representing the applicant. The respondent, who had earlier been endorsed by the applicant, also filed his nomination papers - but as an independent. His papers were accepted by that Court as such.

The applicant now seeks to interdict the respondent from conducting his campaign using its materials and posters.

This application has been brought to the wrong Court.

The Nomination Court is the proper court to decide the eligibility of each candidate.

Once it was satisfied that a candidate is eligible to be registered, and registered him, then it was up to the applicant to deal with the question of use of its materials in terms of its internal disciplinary procedures, if any was applicable.

The applicant does not say, in its papers, that the respondent is no longer its member.

If he is, then all the more reason this matter should have been dealt with internally. There is no evidence to suggest that all internal remedies had been exhausted by the applicant nor is there an averment that the respondent has been expelled from that party so as to require the adoption of conflict management mechanisms available in terms of Part XX1A of the Electoral Laws Amendment Act Number 17 of 2007.

Assuming in favour of the applicant, that, once it had accepted a candidate's nomination, the Nomination Court and the Electoral Court had no role to play in respect of how candidates conducted their campaigns, I am unable to hold that this is not self-created urgency.

The applicant, by it own admission, approved the candidature of the respondent in the impending election.

I also must assume that in preparation for the election campaign, it incurred all the expenses usually associated with a national election, like printing materials and posters for use by its candidates, and generally making its political manifesto public.

It would have appropriately armed such of its candidates as it had settled upon. This included the respondent.

The papers do not show that upon request for the return of such material, the respondent had refused.

The applicant has already incurred such cost as are incidental to the running of its campaign.

I am unable to point to what extra harm or prejudice the applicant would suffer from allowing one of its own to continue with that campaign.

From the papers, the applicant, at some point, recommended the respondent to the Nomination Court. It sought to withdraw this recommendation “at the door of Court” so to speak - and succeeded. The respondent had, in all probability, prepared his personal campaign materials for the job at hand. To interdict him on the present papers, in my view, would result in more harm to an otherwise properly laid campaign course.

In any event, it seems to me that this Court cannot grant, on an urgent basis, relief that will, in effect, limit an election candidate's entrenched constitutional right to political activity.

There is no evidence, on the papers, that he has breached the country's criminal laws, or that his conduct, on the face of it, will create or occasion a breach of the peace. The applicant, without more, cannot succeed in securing, by an order of court, a curtailment of lawful political activity.

Section 21 of the Constitution guarantees a private citizen's freedom of association and assembly. This right, like any other right, is subject to lawful limitations which place a duty upon such citizen not to act in a manner that infringes other citizen's rights. Section 21 of the Constitution of Zimbabwe accords with Article 13 of the African Charter on Human and Peoples' Rights and the general tenor of Article 22 of the International Covenant on Civil and Political Rights.

Further, the likely prejudice which a political party suffers in such circumstances, as obtain in the present case, is far outweighed by the need to protect and promote the right in question. It is a right that supersedes any prejudice the applicant may lawfully lay claim to.

Generally, passing-off, as applicable in commercial disputes, involves unfair trade competition.

I do not agree, with respect, that a political party can claim successfully that one of its members is passing-off when such member uses that party's political campaign material for the furtherance of the party's common political objective.

It seems to me the better approach is to promote the right which serves the principle of democratic participation of the wider public in the running of their affairs than to stifle such participation by way of court interdicts as sought here.

In the result, I remove the matter from the roll of urgent matters.

HH477-16 : RICHARD SEAGER vs ALESTER ZIYANGA
Ruled By: DUBE J

The applicant applies for an anti-dissipation order to restrain the respondent from removing and disposing of joint venture farm equipment owned by a partnership pending his claim.

The circumstances surrounding this application are as follows:

The applicant was the owner of UNA Farm, Wedza. The farm was subsequently offered to the respondent under the Land Reform Programme and the allocation is subject of disagreement between the parties.

The parties entered into a joint venture agreement in terms of which they would engage in farming activities.

The applicant was, in terms of the agreement, to supply farming equipment - including the farm. The respondent was responsible for the financial aspects of the joint venture as well as supervision of the growing of crops. The parties were to share profits and losses.

The applicant avers that the respondent has failed and refused to pay him his share of profits. The applicant also avers that the joint venture has bought a number of farming equipment which he lays a claim to.

On 23 June 2016, the applicant caused a summons to be issued under HC6415/16 claiming his share of the partnership profits. The applicant's protest is based on the averment that the respondent has started to remove agricultural equipment and other assets purchased from proceeds of the joint venture from the farm. The applicant has the apprehension that the respondent intends to defeat the object of his claim by removing assets from the farm so that there will be no evidence of the assets when he finally obtains judgment.

The applicant seeks an order barring the respondent from removing the joint venture equipment from the farm pending the finalisation of the summons action. The applicant avers that he has no other remedy to stop the respondent from removing and disposing of the agricultural equipment.

The respondent is opposed to the application.

He challenges the urgency of the matter as well as the propriety of this application.

The applicant's pleadings disclose what is called an anti-dissipation interdict. This type of interdict has its origins under English Law where it is known as the Mareva injunction. The interdict is named after the famous case of Mareva Compania Naviera SA v International Bulkcarriers SA (1980) 1 All ER 213 (CA). The case involved an application to restrain removal and disposal of monies owed out of the court's jurisdiction. The court held that where a creditor is owed a debt, and has led evidence to show that there is a danger that a debtor may dispose or conceal assets so as to escape execution, the court may grant an interdict to prevent disposal of the assets.

In the Civil Practice of the High Courts of SA, 5th ed, HERBSTEIN and Van WINSEN define this type of interdict as follows:

“A special type of interdict which may be ground where a respondent is believed to be deliberately arranging his affairs in such a way as to ensure that by the time the applicant is in a position to exercise judgment he will be without assets or sufficient assets on which the applicant expects to execute.”

The authors state that the purpose of the interdict is to preserve assets from dissipation pending final execution against the defendant and hence serves to ensure that an applicant will not be left with a hollow judgment. The authors also state that the requirements of this interdict are the same as for any other interdict.

This form of interdict was debated in Knox D Aray Ltd and Ors v Jamieson 1995 (2) SA 579 (W) 1996 (4) SA 348 (A).

The court accepted that the injunction is of a sui generis type. There was extensive debate regarding the nature and requirements of the interdict. What is important about the discussion is the acceptance that this type of interdict is not the usual interdict where a party seeks to preserve an asset which is subject of the issue between the parties. The Appeal Court accepted that this sort of interdict could be sought where a litigant sought to preserve assets which were not in issue between the parties. The court was unable to find a name appropriate for this interdict under the Roman Dutch Law. The court seemed to want to come up with a name for the interdict different from that used under English Law but was unable to find agree on an appropriate term to be used under Roman Dutch Law. STEGMANN J called it an anti-dissipation interdict. He also proposed the term interdict securitatem debiti, a term by which the interdict is widely known in South Africa.

In Odar Housing Development Consortium v Sensene Investments (Pvt) Ltd & Ors HH709-15 and Mine Minerals Trading (Pvt) Ltd v NRZ Resources Ltd SC40-14 our courts discussed this interdict.

What the authorities reveal is that an anti-dissipation interdict is granted in circumstances where a respondent has been shown to be disposing or concealing property so that by the time that judgment is obtained against him, he has no assets on which the other party may be able to execute, thereby defeating the applicant's claim.

It restrains an owner, or holder, of property from disposing of the property in a particular fashion.

It is in the nature of a prohibitory interdict and has the same requirements as those of an ordinary interdict.

A party seeking to bar another from dissipating property does not have to show that the property is connected with the subject of the applicant's claim for loss suffered. All a litigant has to show is that the applicant has instituted a claim against the respondent. Further, that the respondent is in the process of disposing or concealing all or some of the property concerned. It must be apparent from the pleadings that the applicant has a real apprehension, that, by the time he is in a position to exercise his judgment, he will be without assets or sufficient assets on which he expects to execute.

The application of anti-dissipation interdicts has been criticised.

In Investec Employee Benefits Ltd and Anor v Electrical Industry Kwazulu–Natal Pension Fund and Ors 2010 (1) SA 446 (W), the court expressed reservations over this type of interdict. The court was concerned about the approach that a person may be able to stop disposal of property simply because he has a judgment he wishes to be satisfied in the future.

There is no doubt that the interdict restricts the manner in which a person may want to deal with his property simply because someone has a claim laid against him.

The effect is a violation of one's constitutional right to property. The interdict remains part of our law.

Like in any other matter, the court dealing with such an application has a wide discretion which it must exercise judiciously and would be expected to cautiously weigh the competing interests of the parties.

The applicant seeks an order interdicting the respondent from removing assets from the farm on the premise that if he is allowed to do so, he may defeat the object of his claim.

What the applicant seeks is clearly an anti-dissipation order.

An application for an anti-dissipation interdict is invariably brought ex parte. This application was brought on notice and hence the normal rules of procedure apply.

A litigant wishing to have his matter dealt with on an urgent basis should be able to show that the matter is urgent in the sense that if it is not dealt with on an urgent basis he is likely to suffer irreparable harm. He is also required to show that he, on his part, treated the matter as urgent.

This approach to matters brought on an urgent basis was laid out in Kuvarega v Registrar General 1998 (1) ZLR 188. See also Madzivanzira and 2 Ors v Dexprint Investments (Pvt) Ltd and Anor HH145-02.

In order to show that a matter is urgent, a litigant should craft his papers in such a way that it is apparent, on a reading of his papers, that his matter is urgent.

A court seized with an urgent application is expected, on the face of the papers, without any further persuasion from the applicant, to be satisfied that the matter is urgent before it sets down the matter and hears the parties.

The court should, on the basis of the contents of the certificate of urgency alone, be able to ascertain whether the matter is urgent.

The certificate of urgency serves to inform and guide the court regarding the urgency of the matter. A certificate of urgency must place facts before the court with sufficient detail as to enable the court to decide on the urgency of the matter. It should outline details sufficient to inform the court of the nature of the application, the harm likely to be suffered if the matter is not dealt with on an urgent basis, and that the applicant treated the matter as urgent.

A legal practitioner certifying a matter urgent must state reasons for his own belief in the urgency of the matter. He must apply his mind to the facts and circumstances of the case and must allege facts that render the matter urgent justifying its placement on the urgent roll. In addition to the brief circumstances of the case, the certificate of urgency is required to state the following factors;

(a) The conduct complained against and the circumstances surrounding such conduct.

(b) When the applicant became aware of the facts giving rise to the complaint.

(c) What the applicant did after becoming aware of the conduct complained against.

(d) The nature of the application being made and relief sought to address the situation, which should be of an interim nature.

(e) The applicant must show that he treated the matter as urgent.

(f) He must show that if the conduct is not addressed, on an urgent basis, irreparable harm will occur to him.

(g) The nature and extent of the irreparable harm likely to be suffered and the consequences thereof require to be stated.

Failure to comply with the requirements governing the certificate of urgency may result in a matter being removed from the roll for lack of urgency.

The urgency of an application for an anti-dissipation interdict arises at the point when the need to bring the application for an interdict arises.

In a case where a litigant seeks to stop dissipation of assets on the premises that a respondent is removing assets, the need to act arises the moment the conduct complained against commences or when an applicant becomes aware of the conduct complained of.

Such a litigant is expected to show that he asserted himself and acted timeously in order to stop the harm or danger posed. He must also show that if the conduct complained against is not stopped he stands to suffer irreparable harm, in that, he will be left without assets or sufficient assets on which he expects to execute.

The respondent takes issue with the fact that the certificate of service was done by a legal practitioner from the applicant's law firm.

The Rules do not specify who should certify a matter urgent.

The mischief behind the rule that an urgent matter be certified urgent was to streamline matters being brought on an urgent basis and to eliminate abuse of the process.

A practice has arisen where a legal practitioner from a different firm is requested to certify the matter urgent. The objective was to seek an independent view of the matter and prevent abuse of the system.

There have been divergent views over the propriety of the certificate being done by a legal practitioner from the same firm bringing the application.

A school of thought has developed that a legal practitioner from the same law firm is usually conflicted and may pass matters as urgent when they are not and usually has an interest in such a matter and may not give an independent and professional view of the matter.

There are also challenges with requiring a legal practitioner from a different law firm to certify a matter. The reality is simply that some legal practitioners may simply be un-interested in the matter resulting in them just signing certificates prepared by a colleague without applying their minds to the contents.

When one looks at the state of certificates that come before the courts, that conclusion is inescapable.

Another school of thought is that the certificate of urgency should be done away with as it has seized to be useful to the court.

I am of the view that a certificate of urgency is crucial as it aids the court to streamline and recognise urgent matters. What is essential is that the certificate meets the criteria and is crafted in such a manner that it assists the court in the decision it has to make.

A matter should not be certified urgent as a matter of course.

Legal practitioners certifying matters urgent should bear in mind the responsibility and duty they have and such is to the court alone. Legal practitioners are expected to address their minds to the contents of the certificate and ensure that it meets the requirements. It should not matter who certifies a matter urgent for as long as the same legal practitioner bringing the application does not certify the matter as urgent.

The certificate of urgency filed in support of this application was done by Felicity Ndou. She is from the same legal firm representing the applicant.

My view is that this alone is not fatal to the application. What F. Ndou ought to have done is to ensure that the certificate meets the standards expected.

The certificate of urgency does not comply with Rule 244 and is defective.

The certificate is lacking in particularity regarding the facts and circumstances surrounding urgency. It is not clear from the certificate that the interdict sought is an anti-dissipation order.

Whilst the certificate speaks to the claim in the summons, and states that the respondent started to remove joint venture agricultural equipment from the farm after he learnt of the claim, the certificate does not include any facts as to why the matter should be dealt with urgently.

Nowhere in the certificate of urgency does she make reference to any irreparable harm likely to be suffered if the conduct complained against is not stopped. The nature of the harm likely to be caused is not outlined. It does not clearly set out the legal nexus between the removal of the assets and the summons issued by the applicant in order to reveal what harm is apprehended.

The certificate of urgency stated that the “applicant acted with agency to file this application.” It is clear that reference to “agency” refers to urgency. This goes to show that legal practitioners do not check their work.

It is not clear from the application where the goods where being removed to.

F. Ndou did not show that she applied her mind to what was required of her. The certificate of urgency is hollow. Her conclusion that the matter is urgent has no legal basis.

Both the certificate of urgency and the founding affidavit do not speak to the harm that is likely to ensue if the conduct complained against is not stopped.

For an application to qualify as an anti-dissipation application, an applicant should show that if the conduct complained against is not stopped, the applicant will have a hollow judgment rendering the main application brutum fulmen.

This averment should be part of the certificate of service.

SC06-13 : UNIVERSITY OF ZIMBABWE vs KWANELE MURIEL JIRIRA and LOUIS MASUKO and THE DEPUTY SHERIFF, HARARE N.O.
Ruled By: ZIYAMBI JA

In chambers in terms of Rule 5 of the Supreme Court Rules.

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement. Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution. The applicant's property was attached and scheduled for removal and sale.

Both the arbitral award and the quantification thereof were, at that time, the subject of appeals before the Labour Court.

The High Court found;

(i) Firstly, that it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order.

(ii) Secondly, that the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted, on behalf of the applicants, that the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court. In the circumstances, only the High Court could entertain an application for stay of execution of the award: see Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents, however, argued that an appeal against an arbitrator's award is an appeal in terms of the Labour Act [Chapter 28:01] (“the Act”) and is not suspended pending appeal. They referred me to Zimphosphate v Matora & Ors SC44-05.

The decision in NetOne Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), they argued, was given prior to the introduction of section 92E of the Labour Act, and, in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O. SC20-12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award. Accordingly, the applicant ought to have proceeded in terms of section 92E(3) of the Labour Act, to apply to the Labour Court for a stay of execution pending appeal - which it failed to do.

It was submitted that the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of section 92E of the Labour Act.

They submitted that the application before me was not urgent, that the applicant had been lax in safeguarding its rights, and that this application constituted an abuse of process.

As counsel for the applicant submitted, there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Labour Act, it can be concluded that appeals on points of law from an arbitrator's decision in terms of section 98(10) would operate to suspend the execution of the judgment appealed against: see, for example, Nyasha v Dodhill SC28-09; Net One Cellular (Pvt) Ltd v NetOne Employees & Anor 2005 (1) ZLR 275 (S); Tel One (Pvt) Ltd v Communication & Allied Services Workers' Union of Zimbabwe 2007 (2) ZLR 262 (H).

Divergent positions, he submitted, create uncertainty.

He submitted that once the order was registered as an order of the High Court, execution was suspended and leave of the High Court was required to execute the judgment pending the determination of the appeals. Accordingly, the execution against the applicant's property was unlawful, having been undertaken without leave of the High Court.

Although by the time of the hearing of this application, the appeals before the Labour Court had been dismissed, the applicant had applied for leave to appeal to the Supreme Court in terms of section 92F of the Labour Act.

Further, it was submitted that the sheer magnitude of the arbitrator's award, the execution of which could cause the shutdown of the University, was prima facie evidence of unreasonableness and it was within the power of this Court to act in terms of section 25 of the Supreme Court Act [Chapter 7:13] and review the award of the arbitrator.

A warrant of execution had already been issued and the entire library of the University, as well as all its vehicles, have been attached and are awaiting removal for sale by the Deputy Sheriff.

The respondents, it was submitted, would not be prejudiced by the grant of the order sought and the balance of convenience favoured the applicant.

I granted the application at the end of the hearing because I was of the view that, the award having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought. It may be that a Bench of three Judges of the Supreme Court may come to a different conclusion but the very fact of a divergence of positions on this issue of law is what causes me to conclude that the applicant has established a prima facie right entitling it to the order sought.

The balance of convenience favours the applicant, and, a refusal to grant the order would have rendered the appeal academic.

As to the invitation to act in terms of section 25 of the Supreme Court Act, as well as the submission that the arbitrator's award is prima facie unreasonable, it was my view that this was a matter best dealt with by the Court itself, and not by a single judge.

It was therefore ordered as follows:

“Pending the determination of the appeal filed under case reference SC360/12, the following interim relief is granted:-

1. The first, second, and third respondents shall not do, allow to be done or cause to be done anything the effect of which is to commence or continue with the levying of execution of the judgment obtained under case No. HC2288/12, the stay of execution of which was refused under case no. HC12199/12 and which refusal is now the subject of appeal before this Court.”

2. Costs of this application shall be in the cause.”

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Law Portal Zimbabwe

Urgency re: Approach iro Time, Consequent and Remedial Alternative Considerations of Urgency

HH115-15 : MEGALINK INVESTMENTS vs OWEN MURIMBI and THERESA MUSINA and AFRICAN CENTURY LIMITED and SHERIFF, HIGH COURT OF ZIMBABWE Ruled By: TSANGA J

HB143-16 : SIFISO KHUMALO vs SIHLESENKOSI NDLOVU and ZANELE NDOWA and POLKA EXECUTORS SERVICES PL and OFFICER IN CHARGE LUVEVE POLICE STATION and ASSISTANT MASTER OF THE HIGH COURT Ruled By: MAKONESE J

HH127-15 : NATIONAL PROSECUTING AUTHORITY vs NOEL MUPEYIWA (as a Regional Magistrate) and NAVISTER INSURANCE BROKERS (Pvt) Ltd (Represented by Wesley Simba Sibanda as Judicial Manager) and OTHERS Ruled By: BHUNU J

HH128-15 : KUKURA KURERWA BUS COMPANY (PVT) LTD vs JAPHET LUNGA and 55 OTHERS and ADDITIONAL SHERIFF Ruled By: MANGOTA J

HH139-15 : MANLINE FREIGHT (PTY) LTD vs PETER KANENGONI and OTHERS Ruled By: MAFUSIRE J

HB232-16 : MTUMANI MLAUZI vs EASY GAS (PVT) LTD and SHERIFF OF ZIMBABWE N.O. and MXOLISI MPOFU Ruled By: TAKUVA J

HH141-15 : GOODWELL CHIPURIRO vs CITY OF HARARE Ruled By: UCHENA J

HH635-14 : ECONET WIRELESS vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY OF ZIMBABWE (POTRAZ) Ruled By: DUBE J

HH279-18 : CECILIA KASHUMBA vs AAROLA IDEHEN and AMOSORGE IDEHEN and OSARETIN IDEHEN and SHORAI NZARA and THE SHERIFF OF ZIMBABWE Ruled By: MUSAKWA J

HB239-16 : KELVIN ZINDODYEYI and THERESE CHIKETSANI vs ASPINAL INVESTMENTS (PVT) LTD and PHILLIPAH MUSEVE t/a SIMMRAN and MESSENGER OF COURT N.O. Ruled By: TAKUVA J

HH151-15 : CMED (PRIVATE) LIMITED vs KENNETH MAPHOSA and SHERIFF OF ZIMBABWE N.O. and ZIMBABWE REVENUE AUTHORITY Ruled By: CHIGUMBA J

HB252-16 : ROBERT MAFU and 54 OTHERS vs AGRICULTURAL & RURAL DEVELOPMENT AUTHORITY (ARDA) and TREK PETROLEUM Ruled By: MAKONESE J

HH156-15 : MICHAEL MUPFUMIRA vs DELTA BERVERAGES (PVT) LTD and PASSION AND DREAMS (PVT) LTD Ruled By: TAGU J

HH720-14 : PANDHARI LODGE (PVT) LTD and SUNDAY CHIFAMBA and SWISIDAYI NYAMUFUKUDZA vs CENTRAL AFRICA BUILDING SOCIETY and DEPUTY SHERIFF Ruled By: MANGOTA J

HH260-14 : UZ – UCSF COLLABORATIVE RESEARCH PROGRAMME vs ISDORE HUSAIWEVHU and WALTER MUTOWO and FUNGAI ZINYAMA and THE SHERIFF FOR ZIMBABWE Ruled By: MAFUSIRE J

HH173-15 : BAYRICH ENTERPRISES (PVT) LTD vs XGMA ZIMBABWE (PVT) LTD and THE SHERIFF Ruled By: MATHONSI J

HMA26-18 : DYNAMIC MINING SYNDICATE vs ZIMASCO (PVT) LTD and ENELY MUZENDA and BUSYWORK DUBE and PROVINCIAL MINING DIRECTOR, MIDLANDS PROVINCE and OFFICER IN CHARGE, LALAPANZI and ANOTHER Ruled By: MAWADZE J

HH180-15 : HERSEL INVESTMENTS (PVT) LTD vs THE REGISTRAR OF DEEDS N.O. and THE SHERIFF OF THE HIGH COURT and TREDCOR ZIMBABWE (PVT) LTD and ESTRELAC INVESTMENTS (PVT) LTD and ROSELYN MANDEBVU Ruled By: TAGU J

HH180-15 : HERSEL INVESTMENTS (PVT) LTD vs THE REGISTRAR OF DEEDS N.O. and THE SHERIFF OF THE HIGH COURT and TREDCOR ZIMBABWE (PVT) LTD and ESTRELAC INVESTMENTS (PVT) LTD and ROSELYN MANDEBVU Ruled By: TAGU J

HH475-18 : ETHEL TSITSI MPEZENI vs ZIMBABWE ELECTORAL COMMISSION and OTHERS Ruled By: ZHOU J

View Appeal HB102-17 : TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS vs SIPHIWE DUBE and OTHERS Ruled By: TAKUVA J

Appealed SC23-19 : SERGEANT KHAUYEZA vs THE TRIAL OFFICER and THE COMMISSIONER - GENERAL OF POLICE Ruled By: PATEL JA, BHUNU JA and BERE JA

SC27-19 : SYNOHYDRO ZIMBABWE (PVT) LTD vs TOWNSEND ENTERPRISES (PVT) LTD and DAVID WHATMAN N.O. and THE SHERIFF OF ZIMBABWE N.O. Ruled By: MAKARAU JA

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION Ruled By: MAFUSIRE J

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O. Ruled By: MAFUSIRE J

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O. Ruled By: MAFUSIRE J

HB41-15 : CHITRINS GARAGE (PVT) LTD (In Provisional Liquidation) vs CHYCRY TRADING (PVT) LTD and DUMISANI MUTORERA Ruled By: MOYO J

HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE Ruled By: CHIGUMBA J

HH93-18 : CHITUNGWIZA MUNICIPALITY vs MAXWELL KARENYI Ruled By: TAGU J

HH208-15 : GOOD LIVING REAL ESTATE PL vs ADAM AND COMPANY PL and SGI PROPERTIES PL and HONOURABLE JUSTICE SMITH Ruled By: MUREMBA J

HH213-15 : BERNARD DUMBURA vs CHIEF LANDS OFFICER (MASH CENTRAL) (NO) and GEORGE MANYAME Ruled By: NDEWERE J

HMT09-18 : MUBUSO CHINGUNO vs MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT and PROVINCIAL LANDS OFFICER MANICALAND and DISTRICT LANDS OFFICER CHIPINGE and COLONEL MAKUYANA Ruled By: MWAYERA J

HH223-18 : YEYANI MOYO vs ZB BANK LTD and SHERIFF OF THE HIGH COURT OF ZIMBABWE and TAMBANASHE ENTERPRISES PL and DOMINIC BENHURA and GOLD RECOVERY GROUP PL and PAUL DIAMOND Ruled By: TAGU J

HH223-15 : ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) vs ALFRED MAKWARIMBA and KENNIAS SHAMUYARIRA and ELIAS MADZIVA and FREEDOM MUDUNGWE and OTHERS Ruled By: MANGOTA J

HH230-15 : CHITUNGWIZA CENTRAL HOSPITAL vs MOTOR FIX (PVT) LIMITED and THE REGISTRAR OF THE HIGH COURT and SHERIFF OF THE HIGH COURT Ruled By: MAWADZE J

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI Ruled By: MANGOTA J

HB81-18 : FRANK MUTEZO and OTHERS vs ZIMBABWE SCHOOL EXAMINATIONS COUNCIL and THE MINISTER OF PRIMARY AND SECONDARY EDUCATION Ruled By: MOYO J

HH124-18 : MIKE VELAH and ALBERT NYAMURONDA and JOSEPH PEDZAYI and BRENDA HATINAHAMA vs THE MINISTER OF PRIMARY & SECONDARY EDUCATION and ZIMBABWE SCHOOL EXAMINATIONS COUNCIL Ruled By: ZHOU J

HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT Ruled By: CHAREWA J

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O. Ruled By: HUNGWE J

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O. Ruled By: HUNGWE J

HH634-15 : TETRAD HOLDINGS (PVT) LTD and OTHERS vs NATIONAL SOCIAL SECURITY and OTHERS Ruled By: BHUNU J

HH509-14 : INNSCOR AFRICA LTD vs COMPETITION AND TARIFF COMMISSION and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE Ruled By: UCHENA J

Appealed SC28-18 : NYAKUTOMBWA MUGABE LEGAL COUNSEL vs GETRUDE MUTASA and DIDYMUS MUTASA and SHERIFF OF ZIMBABWE Ruled By: GARWE JA, MAKARAU JA and GUVAVA JA

HH177-17 : GILBERT JONGA vs NYASHA CHABATA Ruled By: CHATUKUTA J

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O. Ruled By: MAFUSIRE J

HH417-18 : STUTTAFORDS REMOVALS (PVT) LTD vs ZIMBABWE ASSET MANAGEMENT CORPORATION (PVT) LTD and YCOB INVESTMENTS (PVT) LTD Ruled By: CHIKOWERO J

HH26-08 : MOVEMENT FOR DEMOCRATIC CHANGE vs TIMOTHY MUBHAWU Ruled By: HUNGWE J

HH477-16 : RICHARD SEAGER vs ALESTER ZIYANGA Ruled By: DUBE J

SC06-13 : UNIVERSITY OF ZIMBABWE vs KWANELE MURIEL JIRIRA and LOUIS MASUKO and THE DEPUTY SHERIFF, HARARE N.O. Ruled By: ZIYAMBI JA

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Zimbabwe

HH115-15 : MEGALINK INVESTMENTS vs OWEN MURIMBI and THERESA MUSINA and AFRICAN CENTURY LIMITED and SHERIFF, HIGH COURT OF ZIMBABWE
Ruled By: TSANGA J

HB143-16 : SIFISO KHUMALO vs SIHLESENKOSI NDLOVU and ZANELE NDOWA and POLKA EXECUTORS SERVICES PL and OFFICER IN CHARGE LUVEVE POLICE STATION and ASSISTANT MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

HH127-15 : NATIONAL PROSECUTING AUTHORITY vs NOEL MUPEYIWA (as a Regional Magistrate) and NAVISTER INSURANCE BROKERS (Pvt) Ltd (Represented by Wesley Simba Sibanda as Judicial Manager) and OTHERS
Ruled By: BHUNU J

HH128-15 : KUKURA KURERWA BUS COMPANY (PVT) LTD vs JAPHET LUNGA and 55 OTHERS and ADDITIONAL SHERIFF
Ruled By: MANGOTA J

HH139-15 : MANLINE FREIGHT (PTY) LTD vs PETER KANENGONI and OTHERS
Ruled By: MAFUSIRE J

HB232-16 : MTUMANI MLAUZI vs EASY GAS (PVT) LTD and SHERIFF OF ZIMBABWE N.O. and MXOLISI MPOFU
Ruled By: TAKUVA J

HH141-15 : GOODWELL CHIPURIRO vs CITY OF HARARE
Ruled By: UCHENA J

HH635-14 : ECONET WIRELESS vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY OF ZIMBABWE (POTRAZ)
Ruled By: DUBE J

HH279-18 : CECILIA KASHUMBA vs AAROLA IDEHEN and AMOSORGE IDEHEN and OSARETIN IDEHEN and SHORAI NZARA and THE SHERIFF OF ZIMBABWE
Ruled By: MUSAKWA J

HB239-16 : KELVIN ZINDODYEYI and THERESE CHIKETSANI vs ASPINAL INVESTMENTS (PVT) LTD and PHILLIPAH MUSEVE t/a SIMMRAN and MESSENGER OF COURT N.O.
Ruled By: TAKUVA J

HH151-15 : CMED (PRIVATE) LIMITED vs KENNETH MAPHOSA and SHERIFF OF ZIMBABWE N.O. and ZIMBABWE REVENUE AUTHORITY
Ruled By: CHIGUMBA J

HB252-16 : ROBERT MAFU and 54 OTHERS vs AGRICULTURAL & RURAL DEVELOPMENT AUTHORITY (ARDA) and TREK PETROLEUM
Ruled By: MAKONESE J

HH156-15 : MICHAEL MUPFUMIRA vs DELTA BERVERAGES (PVT) LTD and PASSION AND DREAMS (PVT) LTD
Ruled By: TAGU J

HH720-14 : PANDHARI LODGE (PVT) LTD and SUNDAY CHIFAMBA and SWISIDAYI NYAMUFUKUDZA vs CENTRAL AFRICA BUILDING SOCIETY and DEPUTY SHERIFF
Ruled By: MANGOTA J

HH260-14 : UZ – UCSF COLLABORATIVE RESEARCH PROGRAMME vs ISDORE HUSAIWEVHU and WALTER MUTOWO and FUNGAI ZINYAMA and THE SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

HH173-15 : BAYRICH ENTERPRISES (PVT) LTD vs XGMA ZIMBABWE (PVT) LTD and THE SHERIFF
Ruled By: MATHONSI J

HMA26-18 : DYNAMIC MINING SYNDICATE vs ZIMASCO (PVT) LTD and ENELY MUZENDA and BUSYWORK DUBE and PROVINCIAL MINING DIRECTOR, MIDLANDS PROVINCE and OFFICER IN CHARGE, LALAPANZI and ANOTHER
Ruled By: MAWADZE J

HH180-15 : HERSEL INVESTMENTS (PVT) LTD vs THE REGISTRAR OF DEEDS N.O. and THE SHERIFF OF THE HIGH COURT and TREDCOR ZIMBABWE (PVT) LTD and ESTRELAC INVESTMENTS (PVT) LTD and ROSELYN MANDEBVU
Ruled By: TAGU J

HH180-15 : HERSEL INVESTMENTS (PVT) LTD vs THE REGISTRAR OF DEEDS N.O. and THE SHERIFF OF THE HIGH COURT and TREDCOR ZIMBABWE (PVT) LTD and ESTRELAC INVESTMENTS (PVT) LTD and ROSELYN MANDEBVU
Ruled By: TAGU J

HH475-18 : ETHEL TSITSI MPEZENI vs ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: ZHOU J

View Appeal
HB102-17 : TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS vs SIPHIWE DUBE and OTHERS
Ruled By: TAKUVA J

Appealed
SC23-19 : SERGEANT KHAUYEZA vs THE TRIAL OFFICER and THE COMMISSIONER - GENERAL OF POLICE
Ruled By: PATEL JA, BHUNU JA and BERE JA

SC27-19 : SYNOHYDRO ZIMBABWE (PVT) LTD vs TOWNSEND ENTERPRISES (PVT) LTD and DAVID WHATMAN N.O. and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: MAKARAU JA

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O.
Ruled By: MAFUSIRE J

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O.
Ruled By: MAFUSIRE J

HB41-15 : CHITRINS GARAGE (PVT) LTD (In Provisional Liquidation) vs CHYCRY TRADING (PVT) LTD and DUMISANI MUTORERA
Ruled By: MOYO J

HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE
Ruled By: CHIGUMBA J

HH93-18 : CHITUNGWIZA MUNICIPALITY vs MAXWELL KARENYI
Ruled By: TAGU J

HH208-15 : GOOD LIVING REAL ESTATE PL vs ADAM AND COMPANY PL and SGI PROPERTIES PL and HONOURABLE JUSTICE SMITH
Ruled By: MUREMBA J

HH213-15 : BERNARD DUMBURA vs CHIEF LANDS OFFICER (MASH CENTRAL) (NO) and GEORGE MANYAME
Ruled By: NDEWERE J

HMT09-18 : MUBUSO CHINGUNO vs MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT and PROVINCIAL LANDS OFFICER MANICALAND and DISTRICT LANDS OFFICER CHIPINGE and COLONEL MAKUYANA
Ruled By: MWAYERA J

HH223-18 : YEYANI MOYO vs ZB BANK LTD and SHERIFF OF THE HIGH COURT OF ZIMBABWE and TAMBANASHE ENTERPRISES PL and DOMINIC BENHURA and GOLD RECOVERY GROUP PL and PAUL DIAMOND
Ruled By: TAGU J

HH223-15 : ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) vs ALFRED MAKWARIMBA and KENNIAS SHAMUYARIRA and ELIAS MADZIVA and FREEDOM MUDUNGWE and OTHERS
Ruled By: MANGOTA J

HH230-15 : CHITUNGWIZA CENTRAL HOSPITAL vs MOTOR FIX (PVT) LIMITED and THE REGISTRAR OF THE HIGH COURT and SHERIFF OF THE HIGH COURT
Ruled By: MAWADZE J

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI
Ruled By: MANGOTA J

HB81-18 : FRANK MUTEZO and OTHERS vs ZIMBABWE SCHOOL EXAMINATIONS COUNCIL and THE MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MOYO J

HH124-18 : MIKE VELAH and ALBERT NYAMURONDA and JOSEPH PEDZAYI and BRENDA HATINAHAMA vs THE MINISTER OF PRIMARY & SECONDARY EDUCATION and ZIMBABWE SCHOOL EXAMINATIONS COUNCIL
Ruled By: ZHOU J

HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT
Ruled By: CHAREWA J

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O.
Ruled By: HUNGWE J

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O.
Ruled By: HUNGWE J

HH634-15 : TETRAD HOLDINGS (PVT) LTD and OTHERS vs NATIONAL SOCIAL SECURITY and OTHERS
Ruled By: BHUNU J

HH509-14 : INNSCOR AFRICA LTD vs COMPETITION AND TARIFF COMMISSION and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE
Ruled By: UCHENA J

Appealed
SC28-18 : NYAKUTOMBWA MUGABE LEGAL COUNSEL vs GETRUDE MUTASA and DIDYMUS MUTASA and SHERIFF OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and GUVAVA JA

HH177-17 : GILBERT JONGA vs NYASHA CHABATA
Ruled By: CHATUKUTA J

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

HH417-18 : STUTTAFORDS REMOVALS (PVT) LTD vs ZIMBABWE ASSET MANAGEMENT CORPORATION (PVT) LTD and YCOB INVESTMENTS (PVT) LTD
Ruled By: CHIKOWERO J

HH26-08 : MOVEMENT FOR DEMOCRATIC CHANGE vs TIMOTHY MUBHAWU
Ruled By: HUNGWE J

HH477-16 : RICHARD SEAGER vs ALESTER ZIYANGA
Ruled By: DUBE J

SC06-13 : UNIVERSITY OF ZIMBABWE vs KWANELE MURIEL JIRIRA and LOUIS MASUKO and THE DEPUTY SHERIFF, HARARE N.O.
Ruled By: ZIYAMBI JA