MAVANGIRA
J: This
urgent chamber application was placed before me on 15 August 2011.
After perusing the papers, I endorsed thereon, on the same date:
“The
papers do not establish how or when the urgency arose. The matter is
not urgent”.
On
16 August 2011 a letter with an “urgent” sticker was addressed to
the Registrar requesting that the applicant be afforded audience to
make submissions on the question of urgency. I directed that the
parties appear in chambers on 17 August 2011 for the purpose. On 17
August 2011 the matter was postponed to 18 August 2011 at the request
of counsel for the applicant. Counsel indicated that he had only been
requested to argue the matter on the previous day by the counsel who
had originally been briefed by the applicants' instructing legal
practitioners but had had to travel outside the country unexpectedly.
He stated that he had only realised earlier in the morning of 17
August that he could not argue the matter on behalf of the applicants
as he had found that he faced a situation where he had a conflict of
interest. He had since managed to arrange for yet another counsel to
argue the matter but the new counsel would require some time to
peruse the papers to enable him to argue the matter. The matter was
then postponed to 18 August 2011.
At
the hearing on 18 August 2011 Mr Chingwena
for the applicants was invited to address the court first on the
question of urgency. Before I deal with his submissions it is
apposite at this stage to indicate that the urgent chamber
application and the certificate of urgency which are almost identical
in content only deal in para 13 which is the final paragraph in both,
with the issue of urgency. The paragraph reads:
“The
matter is urgent because the day on which this illegality will be
given effect to is nigh and the applicants have failed in all efforts
to have the constitution respected”.
With
the exception of a few words and phrases which have been occasionally
thrown into the certificate of urgency, the certificate otherwise has
repeated the contents of para(s) 1 to 12 of the urgent chamber
application but has compressed the contents of para(s) 1 to 7. There
are no para(s) 8 to 12 in the certificate of urgency. It leaps from
paragraph 7 to paragraph 13 which again merely repeats paragraph 13
of the urgent chamber application as quoted earlier.
In
the applicants' founding affidavit the deponent thereto purports to
deal with the question of urgency in para(s) 12.1 to 12.7. It would
appear that only para(s) 12.2, 12.3 and 12.4 are anywhere near
addressing the question of urgency. The other paragraphs are of
limited if any assistance in determining the question. The three
paragraphs read:
“12.2 A
General Conference is about to be held. It will be held on 19–20
August 2011. The day of reckoning is upon us. The urgency is not of
the applicants' making. The first and second respondents have
created the urgency by their failure to enforce the Constitution.
12.3
The applicants have not set back and done nothing about it. They have
attempted to have the second respond (sic)
act in accordance with the constitution and to ensure that all
constitutional processes are respected.
12.4
The applicants had faith in the constitutional process. They hoped
that the credentials committee will be respected. It was not, and the
general conference will now proceed without its full input and
contrary to the constitution.”
The
other paragraphs relating to urgency in the founding affidavit are
also in as generalised terms as the paragraphs cited about except
that they appear to be more concerned with the merits of the matter.
The
endorsement made on 15 August 2011 that the matter is not urgent was
thus made after having perused the papers and noted the above.
At
the hearing Mr Chingwena
submitted that the urgency arose on 30 July 2011 when an ad hoc
committee which had been appointed to complement the incomplete
efforts of the credentials committee in verifying delegates to attend
the imminent conference gave its report to the Special General
Council meeting.
Firstly,
this is the first time that the court is being advised as to how and
when the applicants perceive the urgency to have arisen. Secondly,
this being not part of the contents of the papers filed, constitutes
evidence given from the bar. Thirdly, even if such “evidence”
were to be accepted, there is no explanation given for the lack of
action as from 30 July 2011 until 12 August 2011 when the application
was filed.
In
Kuvarega
v Registrar
General & Anor
1998 (1) ZLR 188 (H) at 193 E to G CHATIKOBO J stated:
“In
the present case, the applicant was advised by the first respondent
on 13 February 1998 that people would not be barred from putting on
the T-shirts complained of. It was not until 20 February 1998 that
this application was launched. The certificate of urgency does not
explain why no action was taken until the very last working day
before the election began. No explanation was given about the delay.
What
constitutes urgency is not only the imminent arrival of the day of
reckoning; a matter is urgent, if at the time the need to act arises,
the matter cannot wait. Urgency which stems from a deliberate or
careless abstention from action until the dead-line draws near is not
the type of urgency contemplated by the rules. It necessarily follows
that the certificate of urgency or the supporting affidavit must
always contain an explanation of the non-timeous action if there has
been any delay”.
(emphasis added)
The
reference made to the rules in the above quotation obviously includes
a reference to rule 244 which provides:
“244
Urgent Applications
Where
a chamber application is accompanied by a certificate from a legal
practitioner in terms of para (b) of subrule (2) of rule 242 to the
effect that the matter is urgent, giving reasons for its urgency, the
registrar shall immediately submit it to a judge who shall consider
the papers forthwith.
Provided
that, before granting or refusing the order sought, the judge may
direct that any interested person be invited to make representations,
in such manner and within such time as the judge may direct as to
whether the application should be treated as urgent.”
In
casu
the first respondent's stance was that the applicants became aware
as early as 16 April 2011 that the dates for the Congress or
Conference were 19 and 20 August 2011 and that they could not now
talk of urgency for the purposes of this court entertaining their
application. However, even if it were to be accepted that the urgency
only arose on 30 July 2011, as urged by the applicants, the papers do
not comply with the requirements of the rules as ably clarified in
the Kuvarega
case
(supra).
I need not repeat the analysis already made above save to add that
the papers create the irresistible impression that the practitioner
who signed the certificate of urgency may not have seriously and
properly addressed his mind to the issue. This is not proper. Neither
it is acceptable for a legal practitioner to adopt such a cursory
approach.
Mr
Chimuriwo
for the second respondent submitted that rule 242(2)(b) gives
guidelines on what matters ought to be considered as urgent. He
submitted that the second respondent's affidavit addresses the
issue of perverse conduct and that this should persuade the court to
treat the matter as urgent.
On
a reading of rule 242, it appears to me that it deals with service
of chamber applications on all interested parties and specifies
situations when such service may be dispensed with. In my view the
second respondent's stance does not assist the court nor the
applicants in so far as the question of urgency is concerned.
The
third respondent's legal practitioner indicated that he had no
submissions to make on the question of urgency.
In
his reply to the respondents' submissions Mr Chingwena
indicated that he had been served with the first respondent's
opposing papers immediately before entering chambers for the hearing
and he thus was not in a position to answer some of the issues raised
as he had not had ample time to peruse them. A request for deferment
of the proceedings to afford him an opportunity to do so would not
have been out of place but none was made. However, it appears to me
that even so, the applicants' papers do not establish the type of
urgency contemplated by the rules. He then also referred to a
supplementary affidavit filed in support of the applicant's case.
Such affidavit was not before the court, neither had the court's
leave at any stage been obtained to file the same.
For
the above reasons I find that this matter is not urgent.
Mr
Muchadehama
for the first, third, fourth, fifth and sixth respondents urged this
court to dismiss the application with costs on the higher scale. He
submitted that the justification for this was that after my initial
indication or endorsement on 15 August 2011 that the matter was not
urgent, the applicants had neither sought to file further papers with
the leave of the court, to address the question of urgency nor had
they at the hearing shown how the papers they filed establish any
urgency. The applicant had thus caused the affected respondents to
incur unnecessary and avoidable costs for which the applicants ought
to be made liable.
In
response Mr Chingwena
submitted that this matter is not frivolous or vexatious and that its
validity and urgency have been supported by the second and seventh
respondent. He submitted that there is potential flouting of the
constitution and that this illegality must not be allowed to happen.
In
view of my finding above and the reasons therefor, I have no
hesitation in acceding to Mr Muchadehama's
submission in this regard. The respondents have been made to incur
unnecessary costs.
In
the result it is ordered as follows:
1.
This matter is not urgent.
2.
The applicants shall pay the first, third, fourth, fifth and sixth
respondents costs on the legal practitioner client scale.
Uriri
Attorneys-at-law,
applicants' legal practitioners
Mbidzo,
Muchadehama
&Makoni,
first, third, fourth, fifth and sixth respondents' legal
practitioners
Gonese
Jessie Majome & Company, second
respondents' legal practitioners
Maganga
& Company, seventh respondents' legal practitioners
