Urgent Chamber Application
NDOU J: The
applicant sought a provisional order in the following terms:
“Terms
of the Final Order sought
1.
That the respondent be restrained from attempting to or
repossessing the Peugeot registration number AAO 0197 or 01 BF 04.
2.
That the respondent be ordered to bear the costs of
this application.
Interim Relief granted
1.
That the respondent be and is hereby ordered and
directed to forthwith surrender Peugeot 406 registration number AAO 0197 or 01
BF 04 to applicant at Headquarters 1 Brigade …”
I dismissed the
application after argument and these are the reasons:
The salient facts
of the matter are the following. The
respondent is a widow of the late Brigadier Paul Armstrong Gunda who passed on
whilst a serving member of the Zimbabwe National Army i.e. the applicant. He passed away on 21 June 2007. At the time of his death, the late Gunda, on
account of his senior rank in the applicant, had been allocated a Peugeot 406
motor vehicle, subject matter of these proceedings. The respondent was allowed the continued use
of the said vehicle “for the purpose of winding up the estate of her late
husband.” In September 2008, the
respondent (it is not clear whether it the respondent personally or the estate
of her late husband) was offered a Prado motor vehicle to purchase registration
number AAU 3211 or 17 CT 04. It is the
applicant's case that the said Prado motor vehicle was valued at Z$90 000,00
and the respondent has not paid for it.
According to the applicant, when the respondent received the said Prado
motor vehicle in September 2008, she was supposed to return the Peugeot 406
motor vehicle. She has neglected or
refused to do so resulting in this application.
The
respondent raised four points in limine
which I will address in turn. The first
one is whether this application is urgent.
The only reason proffered that for I am able to glean which makes some
remote reference to urgency is contained in paragraphs (iii) and (iv) of the
certificate of urgency filed. The other
paragraphs do not refer to urgency at all.
These paragraphs state:
“… (iii) Respondent has
also deprived the applicant his right to use the vehicle in line with its
duties.
(iv)
Her [the respondent] continued use of the vehicle is at
the expense of the applicant due to tear and wear.”
Strictly speaking
there is nothing urgent contained in these averments. Realising the deficiency in the certificate
of urgency, Mr Mlobane, for the
applicant, tried to supplement, from the bar, which attempts were naturally
thwarted. According to the respondent on
the one hand, the time to act was in June 2007 when the late Gunda passed
away. On the other hand, the applicant
case seems to suggest that the time to act was in September 2008 when the
respondent was given the Prado. I will be
generous and assume that the respondent was supposed to return the Peugeot vehicle
in September 2008 when she was given the Prado vehicle. The cause of action arose in September
2008. For over four months the applicant
did not take any legal steps to recover the vehicle. The applicant has not explained such careless
abstention from action. The applicant
knew that the estate of the late Gunda, rightly or wrongly, did not accept a
second hand Prado vehicle. An
application, as alluded to above, is urgent when if at the time the cause of
action arises, determination of the matter cannot wait. When the need to act arose, the applicant did
not prosecute the application with diligence and vigilance – Mshonga & Ors v Min of Local Government & Ors HH-129-04; Gulmit Investments (Pvt) Ltd v Ranchville
Enterprises (Pvt) Ltd HH-94-04; 20th
Century Fox Film Corp & Anor v
Anthony Black Films (Pty) Ltd 1982 (3) SA 582 (W) and Kuvarega v Registrar-General
1998 (1) ZLR 188 (H).
Accordingly, I
found that the matter was not urgent and dismissed the application on account
of that point alone without considering the other three points raised.
Director of Legal
Services, Zimbabwe National
Army Headquarters 1 Brigade, Bulawayo,
applicant's legal practitioners
Chihambakwe, Mutizwa
& Associates, respondent's legal practitioners
