The
application was brought before me through the Urgent Chamber Book on
2 October 2014.
I
formulated an opinion that the application did not disclose the
urgency contemplated by the Rules of this Court in that the relief
sought before this court appeared to be the same relief that was
granted in the Magistrate's Order dated 24 April 2014. The extant
Magistrate Order appeared on papers forwarded for the urgent
application to be relied on by the applicant, and thus, to that
extent, removed the purported urgency.
The
applicant's legal practitioners requested for reasons for the
decision that the matter was not viewed as urgent.
It
was apparent from the papers filed of record that the respondent had
embarked on an exercise of demolishing properties in Chitungwiza.
The
applicant approached the court fearing that such demolishing would
continue. The founding affidavit by Marvellous Kumalo, in particular
paragraph 4, outlined that demolitions had occurred to various
members of the applicant's properties in the absence of a court
order. The applicant feared and anticipated further demolitions.
However, in paragraph 7 of the founding affidavit, the deponent made
it clear that there was already an existing order barring the
respondents from carrying out the unlawful demolitions. Paragraph 7
of the founding affidavit by Marvellous Kumalo reads:
“There
is a provisional order granted by Chitungwiza Magistrate Court, on 24
April 2014, by magistrate Gofa, barring the respondent from
demolishing houses without a court order. A copy of the judgment is
attached and marked as Annexture “D”. It is therefore mischief of
the highest order for the respondent to take the law into its own
hands. This wanton disregard of the law has left residents in fear
that another demolition will be carried out unless this Honourable
Court stops the respondent in its cracks. The balance of convenience
favours the granting of an interdict whilst the respondent has the
option of following the law.”
The
impression created from the founding affidavit is that the applicant
already had an existing remedy in the form of an extant Magistrate
Court Order and what was needed was enforcement of that order. The
enforcement would not be actioned by getting further and more court
orders to the same effect. The Magistrate's Order barring illegal
demolition remained operational and extant. When the applicant
approached this court, the demolitions had already been effected.
This, coupled with the fact that the applicant sought to rely on an
extant Magistrate Court Order, removed the purported urgency
contemplated by the Rules. The same relief granted by the magistrate
in an existing order at the time of approaching this court was being
sought.
Put
differently, the applicant appeared to seek a relief which the courts
had already granted thereby removing the purported urgency.
It
was for these reasons that I held the view that the application was
not urgent warranting the court giving it preferential treatment of
not appearing through the ordinary roll. There was an existing remedy
put across by the applicant thus changing the complexion of the
matter.
The
interim relief sought by the applicant was that:
1.
The respondent be and is hereby barred from carrying out demolitions
in its Municipality without a court order.
The
applicant then, in the founding affidavit, suggests
that the order barring had been granted by the magistrate on an
earlier date and that the respondent ignored it. The fact that the
respondent ignored it does not mean there was no order and that the
order was invalid as it had not been declared so by a competent court
of law. It is against this background that I looked at the
circumstances of the matter and the requirements of urgency, which
are fairly settled, and came to the conclusion that the matter was
not urgent.
The
test for urgency is objective, and, given the certificate of urgency
and the founding affidavit in this case, it was apparent the
respondent had already demolished properties and that the applicant
had an existing court order. Given the suggestion by the applicant
that there is an existing court order then there is a remedy already
available for enforcement by other means and not an urgent
application to get the same relief. There already is a remedy
available and it would not be justifiable to give preferential
treatment to the case affording it an opportunity to jump the queue
for no good cause.
Accordingly,
as there was no justification in the founding affidavit and
certificate of urgency for the application to be treated as urgent, I
concluded the application did not meet the requirements of urgency
and thus removed it from the urgent roll.
In
the premises therefore, IT IS ORDERED THAT:
1.
The matter be removed from the urgent roll.
