This was an urgent chamber application. At the end of the hearing, I dismissed it with costs on a legal practitioner-and-client scale. I deprecated the conduct of the applicant's legal practitioners.The purported urgent chamber application was not only bad in many respects, it was incurably bad.What I was particularly concerned ...
This was an urgent chamber application. At the end of the hearing, I dismissed it with costs on a legal practitioner-and-client scale. I deprecated the conduct of the applicant's legal practitioners.
The purported urgent chamber application was not only bad in many respects, it was incurably bad.
What I was particularly concerned with were the patent falsehoods in the applicant's papers.
Furthermore, there was an apparent disconnection between the order sought, the facts laid out in support thereof, and the allegations in the certificate of urgency.
Here are the details....,.
(b) Certificate of Urgency Defective
Where a litigant has determined that his matter is so urgent that it cannot wait for determination in the normal course, the Rules of Court permit and facilitate the jumping of the queue.
This is done through an urgent chamber application.
In such a situation, the Rules require, that, if the applicant is to be represented by a legal practitioner, his urgent chamber application should be accompanied by a certificate from a legal practitioner certifying that the matter is urgent, and giving reasons for such belief.
Once that is done, the Registrar of this court is obliged to immediately submit such application to a judge in chambers.
On his part, the judge is implored to consider the matter forthwith, although retaining the discretion to call for oral submissions from interested parties as he or she may direct.
The duties of a legal practitioner, in relation to certificates of urgency, have been expounded in a number of cases.
In General Transport & Engineering (Pvt) Ltd & Ors v Zimbabwe Banking Corporation (Pvt) Ltd 1998 (2) ZLR 301 (H) GILLESPIE J said…,:
“Where the rule relating to a certificate of urgency requires a legal practitioner to state his own belief in the urgency of the matter, that invitation must not be abused.
He is not permitted to make, as his certificate of urgency, a submission in which he is unable to conscientiously concur. He has to apply his own mind and judgment to the circumstances and reach a personal view that he can honestly pass on to a judge and which he can support not only by the strength of his arguments but on his own honour and name.
The reason behind this is that the court is only prepared to act urgently, on a matter where a legal practitioner is involved, if a legal practitioner is prepared to give his assurance that such treatment is required.
It is, therefore, an abuse for a lawyer to put his name to a certificate of urgency where he does not genuinely believe the matter to be urgent.”
In Oliver Mandishona Chidawu & Ors v Jayesh Shah & Ors SC12-13, the Supreme Court (GOWORA JA) stated…,:
“In certifying the matter as urgent, the legal practitioner is required to apply his or her own mind to the circumstances of the case and reach an independent judgment as to the urgency of the matter.
He or she is not supposed to take verbatim what his or her client says regarding perceived urgency and put it in the certificate of urgency.
I accept the contention by the first respondent, that, it is a condition precedent to the validity of a certificate of urgency that a legal practitioner applies his mind to the facts.”
After making reference to General Transport & Engineering (Pvt) Ltd & Ors v Zimbabwe Banking Corporation (Pvt) Ltd 1998 (2) ZLR 301 (H), the learned judge of appeal continued as follows…,.:
“In order for a certificate of urgency to pass the test of validity, it must be clear ex facie the certificate itself that the legal practitioner who signed it actually applied his or her mind to the facts and the circumstances surrounding the dispute.”
In the present case, the certificate of urgency was furnished by legal practitioner Augustine Runesu Chizikani (“Chizikani”).
He certified a number of allegations as facts upon which he said his belief that the matter was urgent had been based.
He said the applicant and its entire membership would be irreparably harmed if the status quo ante was not restored on an urgent basis. He then listed those harmful events as follows:
(a) The fraudulent termination of the applicant's rights of possession of the property in question;
(b) The eviction of the applicant and its members from the property notwithstanding their right of occupation;
(c) The “[l]egitimisation through the back door of the 2nd Respondent's breach…,” of agreement with the applicant;
(d) Rendering homeless more than 7,600 owners of residential properties;
(e) Continuous harassment of the applicant and its membership through the print media by flighting malicious advertisements and through false and malicious police reports.
Chizikani's certificate also referred to the potential loss by the applicant and its membership of some US$10 million which, allegedly, had been invested in developing the property.
The rest of the certificate was largely legal argument on what the second respondent had allegedly done; what the result of a failure to restore the status quo ante could be; the absence of an alternative remedy; and the miscarriage of justice that would ensue if the matter was not heard on an urgent basis.
Plainly, none of what Chizikani stated in his certificate informed anyone how the matter was urgent.
Counsel for the applicant was in obvious difficulty on this.
The certificate said nothing about when those harmful acts, allegedly by the respondents, had occurred. It said nothing about how it would be justified that the matter be treated as urgent, moreso given that it was said that there was pending, before this court, an ordinary application to determine the substantive rights of the parties vis-a-vis the property at the centre of the dispute.
It is doubtful that Chizikani read the application, especially the draft order.
One remarkable thing about the application was the apparent dissonance between the founding affidavit, the certificate of urgency, and the draft order.
I deal with this aspect more fully below when I deal with the nature of the relief sought.
In Chizikani's certificate of urgency, probably only the reference to the alleged continuous harassment of the applicant and its members spoke to the nature of the relief sought. The rest of the averments, and of most of those in the founding affidavit, seemed a dress rehearsal of the arguments to be proffered in the main case.
A certificate of urgency, by a legal practitioner, is a sine quo non for an application being heard on an urgent basis where the applicant is to be represented.
Where that certificate is incurably defective, it is just as good as if there is no application.
That was another reason why, in this case, I declined to entertain the application on the merits.
