Ruling
on issue of urgency of the application filed as Urgent Chamber
Application
FOROMA
J:
Applicant
filed this application as an Urgent Chamber Application seeking the
following order:
(1)
That the execution of the eviction ordered under SC138/21 and allowed
to continue under HH83/22 be allowed pending finalization of the
appeal under CV SC63/22.
(2)
That the first respondent pays applicant's costs of suit on the
higher scale of legal practitioner and client.
The
application is opposed by the first respondent who objected in limine
that the matter is not urgent.
After
hearing the parties counsels on the point in limine I reserved the
ruling in order to consider first respondent's notice of opposition
which was only brought to my attention right at the end of Mr
Gumiro's address in support of his argument that the application
was not urgent.
Applicant
was served the said notice of opposition prior to the hearing and for
this reason its counsel had no objection to the untimely production
of the first respondent's notice of opposition.
I
must take this opportunity to remind legal practitioners involved in
handling urgent matters filed as urgent chamber or court applications
that when filing documents in matters where the application has
already been allocated to a duty judge they ensure that after having
the documents stamped by the registrar at the civil registry, they do
not leave the copies for the court/duty judge in the civil registry
but ensure that the said documents are delivered at the duty judge's
chambers.
In
the event that the clerks at civil registry object to parting with
the registry copy of the process /document filed the party filing the
process should serve an additional copy on the allocated judge's
clerk immediately.
This
ensures that as the duty judge peruses the record in preparation for
the hearing set down he/she does peruse a complete file as more often
than not some documents only surface at the hearing despite the party
filing same having done so in good time. By then the duty judge will
not have had an opportunity to consider such document(s) and this
results in the determination of the matter being delayed as very
often the matter must be postponed to enable the judge to peruse and
consider such documents.
The
judge's clerk /assistant cannot be expected to guess that the file
he refers to the judge to prepare for the hearing is incomplete on
account of some documents floating somewhere in the civil registry.
Such
postponements as are necessitated by failure to bring documents
timeously to the judge tend to defeat the whole purpose of the Urgent
Chamber Application procedure.
That
said I proceed to consider the point in limine raised by first
respondent namely that the applicant's application is not urgent.
The
applicant's application is for leave to execute the High Court
judgement in HC214/22 Annexure D on page 38 of the applicant's
papers which judgement has been appealed against by first respondent.
Applicant
considers that the appeal noted has no prospects of success and has
been noted for purposes of frustrating the applicant's efforts to
recover its property from first respondent as ordered by the Supreme
Court per judgment no. SC138/21.
I
do not propose to comment on the merits of the application as that is
not necessary for purposes of determining the preliminary objection
taken by the first respondent. In any event it would be undesirable
to do so before the issue of urgency (the preliminary point raised)
is determined.
The
authority often cited when arguing determination of the issue of
urgency in matters filed as urgent applications and which many regard
as the locus classicus is the case of Kuvarega v The Registrar
General & Anor 1998 (1) ZLR 188 (H).Both counsels referred me to
it and its ratio cannot be gain said.
The
rules of the court do not define the term urgent or urgency.
The
High Court Rules 2021 in Rule 60(3)(d) provides for situations where
an applicant is excused from serving a chamber application on all
interested parties.
In
that rule urgency is addressed as follows:
“(3)
a chamber application shall be served on all interested parties…..
or unless that applicant reasonably believes one or more of the
following:
(a)……………………………
(b)……………………………
(c)……………………………
(d)
the matter is so urgent and the risk of irreparable damage to the
applicant is so great that there is insufficient time to give due
notice to those otherwise entitled to it”.
This
type of urgency is not necessarily the type of urgency which
distinguishes ordinary chamber applications and ordinary court
applications from urgent chamber applications. It is one of the types
of situations which justify the non-service of the chamber
application on interested parties. It however would qualify a matter
to be instituted as an urgent chamber application.
The
requirements for an urgent chamber application are governed by Rule
60(6) which provides as follows:
“(6)
where a chamber application is accompanied by a certificate from a
legal practitioner in subs r(4)(b) to the effect that the matter is
urgent giving reasons for its urgency the registrar shall immediately
submit it to the duty judge handling urgent applications who shall
consider the papers forthwith”.
As
indicated herein above the High Court Rules 2021 do not define the
term urgent or urgency and in my view advisedly so.
The
court and the legal practitioners per force must be guided by
precedent in determining the purview of this term which tends to
elude many who believe that it must subjectively be assessed yet it
can only be objectively tested and established.
On
the authority of Kuvarega case (supra) a matter is urgent if its
determination cannot wait when the need to act has arisen lest by
waiting irreparable damage/loss will be occasioned to a party craving
the court's intervention on an urgent basis.
In
casu applicant seeks leave to execute a judgement appealed against
pending the determination of the appeal noted against the said
judgement. The judgement appealed against is that of the High Court
which judgement dismissed an application for a stay of execution of
the Supreme Court judgement granting applicant the right to eject
respondent from premises known as Number 12 Le Roux Drive, Hillside,
Harare.
The
applicant argued that the matter is urgent as the appeal noted by
first respondent not being meritorious and having no prospects of
success will cause irreparable loss to applicant who:
(i)
must endure deprivation of the enjoyment of the right of use of its
property;
(ii)
risks vandalizing of the property or and including diminishing of the
property's value by the day on account the day an amount of
mounting judgements against him to vacate.
In
the certificate of urgency filed in support of the urgent chamber
application (para 9) the legal practitioner claims:
“Applicant
herein thus seeks an urgent order for execution pending appeal that
was filed by the first respondent in the Supreme Court”.
Quite
clearly once a party has successfully obtained an order from a court
the speed with which its execution is achieved is not dependant on
any further orders by the court as court orders are executed in the
sheriff's office.
Generally
an application for leave to execute pending appeal is pursued as a
court application for good reason.
This
is understandable as such applications are sometimes not dealt with
by the judge whose judgement is subject of appeal (even though that
would be preferable) and for that reason the court will require a
complete record which may take time to prepare.
This
is also in recognition of the fact that the judge whose judgement is
on appeal being functus does not concern himself/herself with the
speed with which his judgement is executed.
The
desirability of saving a party from the risk of a nulla bona or
brutum fulmen on execution is never the test of urgency. Rather the
test is the risk of irreparable damage/loss.
Applicant
has not placed before me tangible bases for the argument that this
matter is urgent to justify its being pursued as an Urgent Chamber
Application. The matter could have been pursued as an urgent court
application in terms of Rule 60(12) of the High Court Rules 2021 –
see also Andrew John Pascoe v Ministry of Lands and Rural
Resettlement & W Bungu & The Attorney General NO HH391/17.
Most
of the arguments advanced address the merits of the relief sought as
opposed to the aspect of urgency.
In
terms of Rule 60(18) I find that the application is not urgent within
the meaning of this rule and I accordingly strike it from the roll of
Urgent Chamber Applications. Applicant is at liberty to proceed in
terms of Rule 60(19) of the High Court Rules 2021.
Mushoriwa
Pasi Corporate Attorneys, applicant's legal practitioners
Moyo
Chikono & Gumiro, respondent's legal practitioners
