Urgency re: Approach, the Principle of Equality of Treatment & Discretion of the Court to Hear Oral Arguments on Urgency

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HB102-17 : TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS vs SIPHIWE DUBE and OTHERS
Ruled By: TAKUVA J

The first point in limine was that the founding affidavit does not use the word “urgent” anywhere in its body. Counsel for the applicant conceded that there might have been an inadvertent omission of that word and applied that the court condones this departure in terms of Rule 4C of the Court's rules. In my view, ...

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

In Triple C Pigs Anor v Commissioner-General – Zimbabwe Revenue Authority 2007 [1] ZLR 27 [H] GOWORA J…, said that every litigant would want to have their matters heard urgently. The longer it takes to obtain relief, the more it seems that justice is delayed and thus denied. But, the courts, in order to ensure the ...

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O.
Ruled By: MAFUSIRE J

The respondents' second point in limine was that there was no cause of action for me to sit in judgment. The argument was that…, the applicant was, in effect, seeking a review of the Regulation. Such a review would have to be in the form of a court application on Form 29 as prescribed by the High ...

The respondents' second point in limine was that there was no cause of action for me to sit in judgment.

The argument was that…, the applicant was, in effect, seeking a review of the Regulation. Such a review would have to be in the form of a court application on Form 29 as prescribed by the High Court Rules. The true nature of the present urgent chamber application was that it was one for an interdict pendete lite. An application pendete lite is an interlocutory application. It is one pending something, or a lite.

But, for the applicant, there was no other lite pending. It had filed no review application….,.

I have to blow away the smoke that purports to screen off the real issue. Part of this smoke or cloud was the respondents' argument, or insinuation, that there always ought to be some lite pending before one can bring an urgent chamber application for interim relief.

It seems true that in the majority of urgent chamber applications the interim relief is sought pending the determination of some main dispute. An obvious example is where a provisional order is sought to stay the execution of a judgment pending the determination of an application for the setting aside of that judgment. However, in my view, the granting of relief on an interim basis cannot always be pending something. It cannot always be predicated on some other application having been filed of record first.

There is no such requirement in the Rules.

Rule 226 of Order 32 only provides as follows:

“226. Nature of applications

(1) Subject to this rule, all applications made for whatever purpose in terms of these rules or any other law, other than applications made orally during the course of a hearing, shall be made –

(a) As a court application, that is to say, in writing to the court on notice to all interested parties; or

(b) As a chamber application, that is to say, in writing to a judge.

(2) An application shall not be made as a chamber application unless –

(a) The matter is urgent and cannot wait to be resolved through a court application; or

(b) These rules or any other enactment so provides; or

(d) The relief sought is for a default judgment or a final order where -

(i)…,.

(ii)…,.

(iii)…,.

(e) There are special circumstances which are set out in the application justifying the application.”…,.

In the present matter, I have accepted the applicant's argument that what it placed before me was both the review application and the urgent application for interim relief. In terms of Order 32 an urgent chamber application must be accompanied by, inter alia, a certificate of urgency. Except for a mandament van spolie which is itself a final order; see Mankowitz v Loewenthal 1982 (3) SA 758…; and, my recent judgment in Trustees of the S.O.S. Children's Village v Bindura University & Ors HH349-14…, where relief is granted in an urgent chamber application it is invariably of a temporary or interim nature because there would not have been enough time to canvass and ventilate the issues. At this stage, the court is being asked to consider the matter in summary fashion. If it is satisfied that the applicant has made out a prima facie case, the court can grant the interim relief. But it is not un-common for that interim relief to be discharged on the return date when the matter has been considered more extensively and the issues canvassed and ventilated more properly.

Therefore, I dismiss the first leg of the respondents' second point in limine for lack of merit.

HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE
Ruled By: CHIGUMBA J

There is a plethora of cases in which the question of what constitutes urgency was exhaustively discussed, then settled. It has been held that: “Applications are frequently made for urgent relief. 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 ...

There is a plethora of cases in which the question of what constitutes urgency was exhaustively discussed, then settled. It has been held that:

“Applications are frequently made for urgent relief. 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 deadline draws near is not the type of urgency contemplated by the rules.” See Kuvarega v Registrar General and Anor 1998 (1) ZLR 189.

It has also been held that:

“For a court to deal with a matter on an urgent basis, it must be satisfied of a number of important aspects. The court has laid down guidelines to be followed. If, by its nature, the circumstances are such that the matter cannot wait in the sense that if not dealt with immediately irreparable prejudice will result, the court can be inclined to deal with it on an urgent basis. Further, it must be clear that the applicant did, on his own part, treat the matter as urgent. In other words, if the applicant does not act immediately and waits for doomsday to arrive, and does not give a reasonable explanation for that delay in taking action, he cannot expect to convince the court that the matter is indeed one that warrants to be dealt with on an urgent basis…,.”

See Mathias Madzivanzira & Ors v Dexprint Investments (Private) Limited & Anor HH145-02; Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 364 (H); Williams v Kroutz Investments (Pvt) Ltd & Ors HB25-06; Lucas Mafu & Ors v Solusi University HB53-07.

In my view, which I have previously expressed in other cases, in order for a matter to be deemed urgent, the following criteria, which have been established in terms of case law, must be met: A matter will be deemed urgent if:

(a) The matter cannot wait at the time when the need to act arises.

(b) Irreparable prejudice will result if the matter is not dealt with straight away without delay.

(d) The applicant gives a sensible, rational and realistic explanation for any delay in taking action.

(e) There is no satisfactory alternative remedy....,.

The court can hear a matter urgently where the urgency arises out of the need to protect commercial interests. See Silver's Trucks (Pvt) Ltd v Director of Customs & Excise 1999 (1) ZLR 490 (HC).

HH201-15 : GORDON DUNCAN vs KIRSTY LOUISE LOUW
Ruled By: MATANDA-MOYO J

The applicant is seeking the following order: “TERMS OF FINAL ORDER SOUGHT 1. The respondent be and is hereby barred, interdicted, and stopped from removing the minor child F from within the borders of the Republic of Zimbabwe. 2. The applicant be and is hereby declared and confirmed to be the sole custodian of the minor child F as ordered ...

The applicant is seeking the following order:

“TERMS OF FINAL ORDER SOUGHT

1. The respondent be and is hereby barred, interdicted, and stopped from removing the minor child F from within the borders of the Republic of Zimbabwe.

2. The applicant be and is hereby declared and confirmed to be the sole custodian of the minor child F as ordered by the Children's Court under case number JCC 371/11.

3….,.

INTERIM RELIEF GRANTED

1. The respondent is interdicted, barred, and stopped from removing the minor child F from within the boarders of the Republic of Zimbabwe.

2. In the event that the respondent has already removed F from Zimbabwe, the respondent is hereby ordered to return the child to Zimbabwe immediately.

3. Respondent to immediately surrender the minor child F's passport to the Registrar of the High Court until finalisation of this matter.

SERVICE OF THE PROVISIONAL ORDER

The applicant's legal practitioners are hereby given leave to serve this order on the respondent.”

The brief facts are that the applicant is the father of a minor child born out of wedlock, F, born on 29 June 2007. The applicant and the respondent stayed together for two years after F's birth and separated. Upon separation, the respondent took custody of the minor child. On 15 November 2011 the Magistrates Court granted custody of the said minor child to the applicant – case no. JCC371/11 refers. Aggrieved by that ruling, the respondent, on 12 December 2011, sought and obtained a provisional order from this court which granted her custody of the minor child pending confirmation of the order. On 6 August 2012, such order was confirmed by consent.

This put to rests the question of who is the custodian of the minor child.

It is clear that in terms of the High Court order of 6 August 2012, HC11389/11, the respondent is the custodian of the minor child. The applicant has access rights to such minor child in terms of this court order, HC4747/12, granted on 22 May 2012.

The respondent has applied for and been awarded visas for herself and the minor child to reside in Australia until October 2017. The respondent intends to travel to Australia on 23 February 2015.

Firstly, in bringing this application, the applicant is labouring under a misconception that he is the custodian of the minor child. He relied on an order by the Magistrates Court, JCC 371/11. However, subsequent to that, on 12 December 2011, this court granted an interim order that:

“The applicant (respondent herein) shall have custody of the minor child F (born 29 June 2007), pending the confirmation or discharge of this matter.….,.”

On 6 August 2012 the provisional order above was confirmed by consent of both parties. It effectively meant the respondent herein was confirmed the custodian of the minor child. This court had earlier on, on 16 July 2012, granted the applicant herein access rights to the said minor child.

The applicant attempted to argue that there was an appeal filed against the decision of the magistrate which granted custody rights to the applicant, which appeal the applicant submitted was dismissed. Based on that purported dismissal of the appeal the applicant argued that he is the custodian of the minor child.

Unfortunately, there is no proof before me that there was such an appeal pending before this court. Our law places the onus of proof on he who alleges. The applicant has failed to place any evidence before me in support of his submission. Without any substantive evidence the court threw out the submission as baseless, leaving me with the conclusive evidence of the confirmation order by this court of 6 August 2012 which conferred custodianship of the minor child upon the respondent.

It is my finding therefore that the custodian parent of F is the respondent and not the plaintiff. The applicant could therefore only approach this court as a parent with access rights and not custodian rights. Any submissions by the applicant purportedly as the custodian of the minor child automatically fell away.

The applicant made an application for deferment of the matter to Monday 23 February 2015 to enable him to file the appeal papers.

I dismissed such application.

An applicant who approaches a court on an urgent basis should make sure he or she has all the information relied upon. The applicant in an urgent matter is saying, with all the information in my possession, the matter cannot wait. To file piece meal applications, firstly, tends to show that application is based on suppositions and postponing the matter would defeat the whole purpose of urgency. Secondly, there was no mention of the appeal case number and I was convinced that postponing the matter served no purpose. By 23 February 2015 the applicant would most likely not have the papers. Besides, a litigant who fails to place evidence within his possession on each before the court should not find mercy from the court, unless he adequately explains why such information could not be presented on the outset.

HH208-15 : GOOD LIVING REAL ESTATE PL vs ADAM AND COMPANY PL and SGI PROPERTIES PL and HONOURABLE JUSTICE SMITH
Ruled By: MUREMBA J

On 16 February 2015 I delivered an ex tempore judgment in this matter dismissing this application with costs on a legal practitioner client scale. Now I have been asked for the written reasons thereof and these are they.

The facts of this matter are common cause.

The applicant and the first and the second respondents are involved in an arbitration dispute before the third respondent. The arbitration proceedings started in October 2013 and are still on going. When the applicant filed this application, on 13 February 2015, the hearing of the arbitration proceedings had been postponed to 16 February 2015 for continuation.

The background of the matter is that during the course of the arbitration proceedings, and on 29 May 2014 and 8 September 2014, the third respondent granted two interim awards in favour of the first and the second respondents. Dissatisfied by the granting of the interim awards, the applicant filed two applications in this court challenging the awards. The reference files are HC5209/14 and HC750/15. These two applications are still pending before this court.

The applicant filed this urgent application for the purposes of having the arbitration hearing scheduled for the 16th of February 2015 stayed pending the determination of the two pending applications. The applicant is of the view that the outcomes of the two applications have a bearing on the dispute, and, as such, the arbitration proceedings ought to be stayed until the two applications have been disposed of by this court.

On 11 February 2015, the applicant filed an ordinary court application under case number HC1268/15 seeking the same relief as the present one.

That application was served on the first and the second respondents' legal practitioners on the same day of 11 February 2015 and on the third respondent on 12 February 2015 at 10:28am. On the same day of 12 February 2015 the applicant's counsel wrote a letter to the third respondent and this letter accompanied the court application. The letter was asking the third respondent to give an assurance to the applicant that he was not going to proceed with the hearing on 16 February 2015 since he had been served with the court application to stay proceedings pending the determination of the two applications, HC5209/14 and HC750/15. In that letter, the applicant's lawyers indicated that if they did not get a response on that day, by 4pm, from the third respondent in writing to the effect that proceedings were not going to continue, they were going to file an urgent chamber application.

The applicant's lawyers did not get any response from the third respondent by 4pm of 12 February 2015. This prompted them to file the present urgent chamber application on Friday the 13th of February 2015 in the evening.

I had to be called from home around 7:30pm to attend to it. I set the matter down for hearing on Sunday 15 February 2015 at 2pm because I was not available on Saturday 14 February 2015.

HH213-15 : BERNARD DUMBURA vs CHIEF LANDS OFFICER (MASH CENTRAL) (NO) and GEORGE MANYAME
Ruled By: NDEWERE J

As correctly pointed out in Musunga v Utete and Another HH90-03…,;“…, no litigant is entitled, as of right, to have his matter heard on an urgent basis; the test provided by the Rules is that the matter must be so urgent and the risk of irreparable damage so great that ...

HMT09-18 : MUBUSO CHINGUNO vs MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT and PROVINCIAL LANDS OFFICER MANICALAND and DISTRICT LANDS OFFICER CHIPINGE and COLONEL MAKUYANA
Ruled By: MWAYERA J

Urgency, as contemplated by the rules of this court, is fairly settled and well defined in plethora of case law. One can safely summarise circumstances in which a matter can be viewed as urgent as follows:1. That when the need to act arose, the party concerned sprang into action.2. That ...

HH230-15 : CHITUNGWIZA CENTRAL HOSPITAL vs MOTOR FIX (PVT) LIMITED and THE REGISTRAR OF THE HIGH COURT and SHERIFF OF THE HIGH COURT
Ruled By: MAWADZE J

This is an urgent chamber application in which the applicant seeks interim relief in the following terms;“INTERIM RELIEF GRANTEDPending the confirmation or discharge of the Provisional Order, the applicant is granted the following interim relief;1. The execution of the writ issued under Case No. HC10108/13 be and is hereby stayed ...

This is an urgent chamber application in which the applicant seeks interim relief in the following terms;

“INTERIM RELIEF GRANTED

Pending the confirmation or discharge of the Provisional Order, the applicant is granted the following interim relief;

1. The execution of the writ issued under Case No. HC10108/13 be and is hereby stayed pending the finalisation of this matter.”

The terms for the final order sought are couched as follows;

“TERMS OF THE FINAL ORDER

1. It is hereby declared that property and assets of the State are immune from the process of judicial attachment by virtue of the provisions of section 5 of the State Liabilities Act [Chapter 8:14].

2. It is hereby further declared that the property and assets appearing hereunder are property and assets of the State, and, consequently, should be released from judicial attachment they were placed under by the 3rd respondent acting pursuant to a writ of execution issued in case No. HC10108/13 on 20 May 2014, on which Notice of Seizure and Attachment was issued on 17th February 2015, that is to say;

2.1 ABT 8829 Isuzu – white Reg 3228.

2.2 ADF 3648 Toyota Hilux- ABH 5021.

2.3. Land Rover Discovery – ACH 1225.

2.4. Mazda Swaraj, staff bus T3500 - CCH 06.

2.5. Mazda Swaraj staff bus T3500 - CCH 02.

2.6. Mazda Swaraj staff bus T3500.

2.7. Tata Mini Bus 1391 GHCW.

3. First respondent to pay the cost of suit.”

The appellant is a Government hospital. In terms of section 18(1) of the Health Service Act [Chapter 15:16] it is capable of being sued and suing in its own right. The relevant section 18(1) of the Health Service Act provides as follows:

“18 Corporate status of Central, Provincial, District and General Hospitals

(1) Subject to subsection (3), each central, provincial, district or general hospital shall be a body corporate capable of suing and being sued in its own name, and, subject to the Act, performing all acts that bodies corporate may by law perform.”

The first respondent is a duly incorporated company in terms of the laws of Zimbabwe.

The second and third respondents, being the Registrar of the High Court of Zimbabwe and the Sheriff of the High Court, are cited both in the official capacities.

The background facts of this matter are as follows;

The first respondent instituted proceedings by way of action in HC10108/13 against the applicant and the applicant apparently did not enter an appearance to defend. On 12 March 2014 my sister CHIGUMBA J granted a default judgement in the following terms;

“IT IS ORDERED THAT;

1. The defendant be and is hereby ordered to pay the sum of US$74,068= to the plaintiff.

2. The defendant to pay interest at an prescribed rate calculated from the date of summon to date of payment in full.

3. Defendant to pay cost of suit.”

After obtaining the said default judgement, the first respondent caused a writ of execution against the applicant's movable property to be issued on 20 May 2014, by the second respondent.

Pursuant to the writ of execution, the third respondent, on 17 February 2015, issued a Notice of Removal. The Notice of Seizure and Attachment, dated 17 February 2015, shows that the following motor vehicles were attached;

(a) ABT 8229 Isuzu white.

(b) ABP 3228 Isuzu.

(c) ABH 5021 Isuzu.

(d) ADF 3648 Toyota Hilux.

(e) Staff bus Swaraj Mazda T3500 CCH 06.

(f) Staff bus Swaraj Mazda T3500.

(g) Tata mini bus 1391 GHCW.

(h) Land Rover Discovery 4 ACH 1225.

The removal date of the attached property was 20 February 2015, but, the third respondent, through a letter dated 5 March 2015, filed of record, indicated that the removal of the attached goods has been stopped pending this outcome of this urgent chamber application which was issued on 20 February 2015.

As per the founding affidavit deposed to by the applicant's Chief Executive Officer, one Dr Obadiah Moyo, while the applicant does not deny or dispute liability, the applicant contends that in terms of section 5 of the State Liabilities Act [Chapter 8:14] no execution or attachment or process shall be issued against in State or any property of the State.

The applicant contends that the correct position of the law is that the nominal defendant, who should have been cited by the defendant in its initial claim, is the one which may cause to be paid out of the Consolidated Revenue Fund such sum of money to satisfy the judgement or order of this court.

The basis of the provisional order sought is that the property attached, listed in the Notice of Seizure and Attachment, is State property.

The relevant provisions of section 5 of the State Liabilities Act [Chapter 8:14] are as follows;

“5. No execution or attachment to be issued, but nominal defendant or respondent authorised to pay the sum awarded.

(1)…,. not relevant.

(2) Subject to this section, no execution or attachment or process in this nature thereof shall be issued against the defendant or respondent in any action or proceedings referred to in section two or against any property of the State but the nominal defendant or respondent may cause to be paid out of the Consolidated Revenue Fund such sum of money as may, by a judgment or order of this court, be awarded to the plaintiff, the applicant or the petitioner, as the case may be.

(3)…,. not relevant.”

The basis of the provisional order sought is that the property attached is State property, and, as such, the attachment has been done in breach of the cited statutory provisions which would render the whole process or procedure unlawful.

Counsel for the first respondent took the point in limine that this matter is not urgent, and, on that basis, should he dismissed….,.

In argument, counsel for the first respondent submitted that there are a number of reasons as to why this matter should not be treated as urgent. He submitted that when the default judgement was granted, on 12 March 2014, the applicant, who had been served with summons for the money owed and had not entered an appearance to defend, should have known that judgment against the applicant would be granted.

Counsel for the first respondent submitted that the debt, which has been owing as far back as 2012, is acknowledged and has never been disputed as the applicant has absolutely no defence to offer.

In addition to that, counsel for the first respondent said after the default judgement had been granted he wrote, on 20 January 2015, to the applicant, on behalf of the first respondent, advising them of the amount due as per the order of the court.

Counsel for the first respondent argued that the writ of execution which was subsequently issued should not have come as a surprise to the applicant as the applicant ought to have known that a writ follows judgement. Counsel for the first respondent submitted that this was also the case since, in November 2014, the first respondent had engaged the applicant on the modalities of liquidating the judgment debt to no avail.

It is the first respondent's contention that the applicant, after having been aware of this default judgement as way back as 2014, did nothing about the matter by either seeking to have this default judgment set aside or to ensure that no writ is issued. Counsel for the first respondent submitted that all what the applicant did was to wait until the day of reckoning arrived, when the attachment of the property was done through the Notice of Removal on 17 February 2015, as the applicant only filed this urgent application three (3) days later on 20 February 2015. It is submitted that the applicant only sprung into action because of this attachment hence the urgency is self-created.

Counsel for the first respondent concluded by stating that the point in limine raised should be upheld and this matter dismissed as the applicant has not been able to overcome this hurdle and has dismally failed to explain in the papers filed how the urgency has arisen.

Counsel for the applicant conceded that the sequence of events, as submitted by counsel for the first respondent, is not in issue. She acknowledged the applicant's indebtedness to the first respondent and that indeed the applicant has been aware, as far back as 2014, of the default judgement. She admitted that efforts were made to resolve the matter by engaging the first respondent in 2014.

Counsel for the applicant denied that the applicant did nothing as alleged. She produced deposit schedules which show that on 30 May 2014, 10 July 2014, 8 January 2015, 16 February 2015, 23 February 2015 and 26 February 2015 the applicant has made various deposits into the first respondent's Barclays Bank account in a bid to liquidate the debt.

I however note that the total amount paid in all the deposits is a paltry $7,531=75 leaving an outstanding balance on the judgement debt of US$65,536=25.

As counsel for the first respondent correctly pointed out, such payments were not being done with the consent or in consultation with the first respondent hence it is too little too late.

Counsel for the applicant insisted, however, that even as late as 24 February 2015 she had engaged counsel for the first respondent to agree on a payment plan, and, therefore, disputes that the applicant has done nothing about that matter.

Counsel for the applicant submitted that the urgency in this matter arose from the fact that the property attached is not the applicant's property but State property which State property is immune to judicial execution as provided for in section 5 of the State Liabilities Act [Chapter 8:14].

Counsel for the applicant argued that the urgency therefore arose when the State property was attached on 17 February 2015.

She further produced a number of documents to show that the motor vehicles in issue do not belong to the applicant but to the State and that the Master Asset Register of the Ministry of Health shows that some of the vehicles attached belong to the Ministry.

Counsel for the first respondent took issue with the fact that these documents were not part of the founding affidavit.

I however allowed the applicant to avail them as this is an urgent application.

HH231-15 : TAPFUMANEYI MUDZENGERERE and OTHERS vs CIVIL AVIATION AUTHORITY OF ZIMBABWE
Ruled By: MUREMBA J

Rule 227(4)(a) of the High Court Rules, 1971 states that an affidavit that accompanies a written application shall be made by the applicant or respondent, as the case maybe, or by a person who can swear to the facts or averments set out therein.In Bubye Minerals (Pvt) Ltd ...

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

Rule 246(2) of the High Court Rules allows the court seized with an urgent application to grant a provisional order in terms of the draft order as may be varied so as to accommodate the respective rights and interests of the parties.

HB81-18 : FRANK MUTEZO and OTHERS vs ZIMBABWE SCHOOL EXAMINATIONS COUNCIL and THE MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MOYO J

This is an urgent chamber application in terms of Rule 223A of the High Court Rules. The Rule reads as follows:

“Where a legal practitioner has certified in writing that a matter is urgent, giving reasons for its urgency, the court or judge may direct that the matter should be set down for hearing at anytime, and, additionally, or alternatively, hear the matter at any time or place, and, in such event, Rule 223 shall not apply or shall apply with such modifications as the court or judge may direct.”

My reading of Rule 223A does not seem to entail that a court application should be filed and then an urgent application be filed to get an order setting the other matter down urgently. I hold the view that that particular application which is being sought to be set down should be the one that is certified as urgent in terms of Rule 223 as opposed to Rule 244.

However, this is just a comment on the proper procedure in relation to Rule 223A; it is not an issue between the parties.

The facts of this matter are that on 12 February 2018, the fourteen applicants received a whatsapp message from the headmistress of Regina Mundi High School where their minor children were enrolled and had sat for their Ordinary Level examinations during November last year. In the message, amongst other things, they were advised that their children had been blacklisted as they had cheated in the examination of November 2017 and that consequently their results had been cancelled.

Aggrieved with that decision they then mounted an application for review on 23 February 2018 under case number 619/18 seeking to have the first respondent's decision of cancelling the results set aside.

The gist of the application for review is that the decision to cancel the results was made without the affected parties having been heard and that this violated section 3 of the Administrative of Justice Act [Chapter 10:28]. The other reason for review being that the decision to cancel the results is contrary to the provisions of section 75 of the Constitution of Zimbabwe.

Section 3 of the Administrative Justice Act [Chapter 10:28] deals with the right to fair administrative justice. Section 75 of the Constitution deals with the rights to education.

The basis of this application is to seek that the other application (the application for review) be heard as a matter of urgency as it affects the minor children's rights to proceed to Advanced Level and that should happen during this school term.

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

Whether the court a quo correctly determined that the matter was urgentAs previously stated, the court a quo found that the application was urgent on the basis that it involved the welfare of minor children and that spoliation matters are generally treated as urgent.Placing reliance on the well-known case of ...

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O.
Ruled By: HUNGWE J

A matter qualifies to be heard on an urgent basis if the relief being sought will be rendered academic or if there would be irreparable prejudice to the applicant if that relief is not granted.

HH509-14 : INNSCOR AFRICA LTD vs COMPETITION AND TARIFF COMMISSION and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE
Ruled By: UCHENA J

This application was filed as an urgent chamber application on 29 August 2014. It was assigned to me for determination on 1 September 2014. After reading the file I endorsed on it the following statement;

“There is a pending application for stay of execution. This application is therefore not urgent.”

The endorsement was communicated to the applicant's legal practitioners.

By letter dated 16 September 2014 the applicant's counsel sought to be heard on the issue of urgency.

I set the matter down for 17 September 2014. I heard the parties' submissions from 2.15pm to 16.29pm. This was due to the applicant's counsel's failure to appreciate the significance of the applicant's earlier application and the procedural law on expediting it when the need to set it down on an urgent basis arose. My attempt to draw his attention to this during the hearing yielded no meaningful response. It has to be spelt out in this judgment.

Counsel for the first respondent raised preliminary issues of lis pendens and urgency, among others.

The issues could have been resolved easily and quickly if the provisions of Rule 223A as read with Rule 223(3) of the High Court Rules, 1971 had been taken into consideration by both parties.

It is common cause that the applicant has a pending application in this court, HC6819/14, in which it seeks stay of execution on the basis that the first respondent's decision has been appealed against to the Administrative Court. The parties in that case, and this case, are the same and the cause of action is the same, giving rise to the raising of the preliminary issue of lis alibi pendens.

The applicant's counsel's submissions sought to get round this predicament by relying on the earlier application being slower than the later.

That is where he got it wrong and missed the essence of my endorsement. He should simply have expedited the earlier application when the need to be heard on an urgent basis arose or on seeing my endorsement.

I am aware of the case of DW Hattingh & Sons (Pvt) Ltd v Cole NO 1991 (2) ZLR 176 (SC)…, where KORSAH JA said;

“The court has a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens, and, in the exercise of that discretion, it will have regard to the equities and to the balance of convenience in the matter. See Michaelson v Loweinstein 1905 S 324; Osman v Hector 1933 CPD 503; and Loader v Dursot Bros (Pty) Ltd 1948 (3) SA 136 (T).”

In this case, I cannot exercise that discretion as there is a clear procedure which the applicant should have used and can use to expedite its earlier application.

Rule 223A provides for the expediting of the earlier application as follows;

“223A. Where a legal practitioner has certified, in writing, that a matter is urgent, giving reasons for its urgency, the court or a judge may direct that the matter should be set down for hearing at any time, and, additionally, or alternatively, may hear the matter at any time or place, and in such event Rule 223 shall not apply or shall apply with such modifications as the court or judge may direct.”…,.

This procedure is distinct and separate from that provided for in Rule 242 and Rule 244 of the High Court Rules 1971, which provide for urgent chamber applications.

Rule 223A provides for urgency which arises after an applicant will have filed an ordinary application as the applicant had done in this case. Rule 223, which has to be modified or can be rendered inoperative by Rule 223A, provides for the setting down of ordinary applications in not less than eight business days after the filing of the notice of opposition and opposing affidavit. It, in subsection (3), provides as follows;

“(3) Subject to Rule 223A, without the consent of the respondent, no application in which a notice of opposition and an opposing affidavit have been filed shall be set down for hearing less than eight business days after the notice of opposition and opposing affidavit were filed.”

The applicant filed this urgent application after the respondent had filed its notice of opposition and opposing affidavit in which it pointed out the applicant's tardiness in trying to stay execution through an ordinary application. Instead of immediately invoking the provisions of Rule 223A the applicant filed this urgent chamber application in terms of Rule 244.

The applicant's earlier application can be expedited by invoking the provisions of Rule 223A, which, in spite of the filing of the first respondent's notice of opposition and opposing affidavit, can, if a legal practitioner certifies its urgency, be set down as provided in Rule 223A, and be heard at any time or place, and, in such event, Rule 223 shall not apply or shall apply with such modifications as the court or judge may direct.

I therefore find that the first respondent correctly raised the preliminary issues of lis pendens and urgency.

The pending application takes away urgency from the current application because it provides an alternative remedy to the applicant.

A case can only be heard on an urgent basis if it cannot await its turn in the queue of cases filed for hearing by other litigants. It must be a case in which the applicant has no other remedy besides seeking an order through the urgent chamber application. Where a litigant has alternative remedies his case should not be allowed to jump the queue.

The applicant should, therefore, expedite its earlier application if it believes that it can justify the existence of urgency.

I will refrain from making a determination on the general urgency of the circumstances existing between the parties, as it is the issue to be decided by the court which shall hear the applicant's earlier application.

This application must fail on the preliminary issue of lis alibi pendens and there being no urgency in this application because the applicant has another remedy through the urgent set down of its ordinary application.

The hearing of this application before me was therefore unnecessary and could have been avoided.

I gave the applicant a hint of its being an unnecessary application. The applicant insisted on being heard causing unnecessary costs to the first respondent.

It must pay the first respondent's costs on the higher scale.

The applicant's application is dismissed. The applicant shall pay the first respondent's cost on the legal practitioner and client scale.

Appealed
SC28-18 : NYAKUTOMBWA MUGABE LEGAL COUNSEL vs GETRUDE MUTASA and DIDYMUS MUTASA and SHERIFF OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and GUVAVA JA

This is an appeal against the judgment of the High Court of Zimbabwe ordering the return of all the goods belonging to the first and second respondents attached pursuant to a default judgment granted earlier by the same court against the second respondent.The judgment appealed against also ordered that the ...

HH29-17 : JOSHUA NYAMHUKA and CHURCH OF GOD OF PROPHECY vs ABIGAIL MAPINGURE and OTHERS
Ruled By: FOROMA J

It is apparent from the number of reference cases in the official heading of this matter that the parties have been at each other in the courts on a number of occasions. Their battles appear to be far from over and their legal advisers do not seem to have made it any easier to see an end to the succession dispute arising from the demise of the founder of the second applicant.

It would appear that the dispute may drag on longer as long as correct legal advice is not given on how to apply rules of this court correctly and to best advantage.

The current case is a third urgent approach to the court for relief involving the members engaged in the succession dispute. The ninth (Dispol, ZRP Southerton Harare South HQ) and the tenth (Officer in Charge Machipisa) respondents have been dragged into this seemingly endless dispute.

The applicants approached the court for urgent relief which is summarized in the Provisional Order as follows:

“Terms of Interim Relief

(1) The 1st to 8th respondents and all their functionaries and followers be and are hereby temporarily barred and interdicted from entering or coming within twenty (20) metres of Stand 8679 Mangwende Drive, Canaan, Highfield, Harare or from interfering, interrupting, disturbing or hindering the SPIRITUAL activities of the applicants or their followers and functionaries pending the return date.

(2) The 9th and 10th respondents are directed to enforce the provisions of paragraph 1 herein above pending the return date.

(3) The 1st to 8th respondents show cause, if any, why they should not pay costs of suit on the higher scale.”…,.

At the commencement of the hearing, counsel for the first to eighth respondents took points in limine, namely, that;

(i) There was no urgent application before the court as there had been a failure to comply with the rules regarding the format of the application;...,.

Counsel for the first to eighth respondents, citing the judgments of David Jack and Others v Lloyd Mushipe and Others HH318-15, a judgment of CHITAKUNYE J, and Marick Trading P/L v Old Mutual Life Assurance Company P/L and the Sheriff for Zimbabwe HH667-15 argued that the applicants failure to use Form 29, with appropriate modification, is fatal to its application as that is a failure to comply with Rule 241 of the High Court Rules.

Order 32 Rule 241(1) provides as follows:

“(1) A chamber application shall be made by means of an entry in the chamber book and should be accompanied by Form 29(b) duly completed and except as is provided in sub rule (2) shall be supported by one or more affidavits setting out the facts upon which the applicant relies:

Provided that where a chamber application is to be served on an intended party, it shall be in Form No.29 with appropriate modifications. This proviso was inserted by Statutory Instrument 251/93.”

In casu, it is common cause that the chamber application is one which had to be served on the respondents as evidenced by the initial, albeit invalid, attempt by the applicants to serve the respondents. That, therefore, the chamber application had to be in Form No.29, with appropriate modifications in terms of the proviso to Rule 241(1), cannot be open to any debate.

The applicants counsel's response to this point in limine was therefore startling.

Counsel for the applicants, quite surprisingly, insisted and persisted that the applicant had more than adequately complied with Rule 241(1) as he considered that he was required to use Form 29B and not Form 29. He went so far as to argue that Form 29 was relevant only in court applications and that the applicants was not a court application but a chamber application.

With respect, counsel's reading of the Rule 241(1) was erroneous.

His set of rules was probably not amended in Rule 241(1) otherwise the only other explanation for the reading of Rule 241(1) urged upon by him betrays that he was not aware of the judgments of CHITAKUNYE J and MAFUSIRE J referred to him by counsel for the first to the eighth respondents.

One can well appreciate MAFUSIRE J's opening remarks in Marick Trading P/L v Old Mutual Life Assurance Company P/L and the Sheriff for Zimbabwe HH667-15 when he said legal practitioners should keep abreast with the pronouncements from the courts. It is a duty.

While it is correct, as contented by counsel for the applicant, that Form 29 is for use in ordinary court applications - it is also for use in those chamber applications that require to be served on interested parties.

Both CHITAKUNYE J and MAFUSIRE J make a pertinent observation, namely, that one of its (Form 29) most important features is that it sets out a plethora of procedural rights. MAFUSIRE J additionally observes that it alerts the respondent of those rights and warns the respondent of the consequences of failure to observe those procedural rights.

I dare add that whilst the procedure for barring does not apply in urgent applications, in making the necessary adjustments to Form 29 the other procedural rights will need to be provided for as appropriate.

HH240-18 : KENNETH SCHOFIELD vs FBC BANK LIMITED and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O.
Ruled By: CHIKOWERO J

On 27 April 2018 the applicant filed an urgent chamber application for suspension of a sale in execution of a dwelling in terms of Rule 348A(5b) of the High Court Rules, 1971.In line with Rule 348A(6) l treated this matter as urgent. I caused it to be set down for ...

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

This was an urgent chamber application for a stay of execution.

It was filed on 6 March 2015. It was brought to my chambers at 17:15 hours three days later, i.e. on 9 March 2015. There were eleven applicants. Their case was that on 6 March 2015, i.e. the date the application was filed, the Sheriff, the second respondent herein, was scheduled to sell a number of properties belonging to applicants two to eleven.

The basis for seeking a stay was that the first respondent, National Social Security Authority (hereafter referred to as “NSSA”), had a judgment against the first applicant, Tetrad Holdings Limited (hereafter referred to as “Tetrad Holdings” or simply “Holdings”). It was said that that judgment had been obtained in error. NSSA's debt was said to be with Tetrad Investment Bank Limited (hereafter referred to as “Tetrad Bank” or simply “the Bank”) and not with Tetrad Holdings.

Apparently, Tetrad Investment Bank Limited was a subsidiary of Tetrad Holdings Limited.

However, in the founding papers, it was stressed that Tetrad Investment Bank Limited and Tetrad Holdings Limited were two distinct and separate entities. As such, it was said that an application for the rescission of the National Social Security Authority's (NSSA) judgment against Tetrad Holdings Limited had already been filed with this court. Thus, it was argued, if the Sheriff's sale went ahead there would be prejudice, not only to the shareholders of the applicants but also to the creditors.

After reading the papers, I agonised over whether or not to set down the matter for hearing.

The application was extremely economic with information. For example, other than describing all the applicants as companies incorporated according to the laws of Zimbabwe, and mentioning that the National Social Security Authority (NSSA) had a judgment against Tetrad Holdings Limited, which judgment was what the Sheriff was executing, the founding papers said nothing about the nature of the relationship between NSSA, as the judgment creditor, and the rest of the applicants. But, the main matter in which the writ of execution had been issued being a debt collection claim, I guessed that respondents two to eleven must have been guarantors or sureties of some sort. As it turned out, indeed they were.

But, that was not all.

The certificate of urgency, signed on 6 March 2015, said the matter was urgent because the sale was scheduled to take place that day; that Tetrad Holdings Limited was not, and had never been, the National Social Security Authority's (NSSA) debtor, but that it was Tetrad Investment Bank Limited that was; that for that reason the application for rescission of judgment had excellent prospects of success, and that, if the matter was not heard on an urgent basis, there was a risk of irreparable prejudice to the applicants' shareholders and creditors.

Only one date was mentioned, namely 6 March 2015 - the date of the sale.

Nothing was said about when the National Social Security Authority (NSSA) had obtained the judgment. It was not mentioned when the applicants had become aware of that judgment. No information was given as to what action, if any, the applicants had taken upon getting to know about that judgment. Neither the date of NSSA's writ nor that of the Sheriff's attachment was given. The property that the Sheriff had attached and was selling was not disclosed. Finally, it was not said when the application for rescission of judgment had been filed.

I turned to the founding affidavit and the rest of the papers. They were essentially an extension of the certificate of urgency.

Only two other dates were mentioned, namely, 8 August 2014 and 16 February 2015. It was said 8 August 2014 was when Tetrad Investment Bank Limited had held a Scheme Meeting with its creditors which the National Social Security Authority (NSSA) had attended, which, allegedly signified NSSA's acceptance that its debt was with the Tetrad Investment Bank Limited not Tetrad Holdings Limited. It was said 16 February 2015 was when the Sheriff had served the notice of sale on Tetrad Investment Bank Limited. That was about all that the founding affidavit ever disclosed by way of additional information. The rest were basically legal arguments on why the sale had to be stopped.

The draft order sought a permanent stay of execution by way of a final order. The interim relief sought a stay pending the determination of the application for rescission of judgment.

The case number for that rescission application was just left blank!

In the alternative, it was sought that if the sale had gone ahead already, then the Sheriff was to be ordered not to confirm it. He was also to be ordered to release into the applicant's custody the property that he had attached.

The urgent chamber application was classically a dog's breakfast. But, in spite of my serious misgivings at that stage, I set it down for hearing on 12 March 2015. I decided to let the applicants have their day in court.

In the morning of the day of the hearing, the National Social Security Authority (NSSA) filed a notice of opposition.

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

That was about all that the founding affidavit ever disclosed by way of additional information. The rest were basically legal arguments on why the sale had to be stopped....,.

The case number for that rescission application was just left blank!...,.

The urgent chamber application was classically a dog's breakfast. But, in spite of my serious misgivings at that stage, I set it down for hearing on 12 March 2015. I decided to let the applicants have their day in court....,.

On urgency, it was said the National Social Security Authority's (NSSA) judgment had been given on 28 March 2014. That was almost a year ago. NSSA's writ had been served on 15 August 2014 but the applicants had turned the Sheriff away on the basis that execution had been suspended pending an order for leave to convene a Scheme Meeting in terms of the Companies Act [Chapter 24:03]. On 20 August 2014 and 10 October 2014 NSSA had sent the Sheriff back to the applicants with the writ. Movable properties for applicants two to eleven had then been attached.

Thus, the National Social Security Authority (NSSA) argued, the applicants had been aware of the attachment as far back as August 2014 but had chosen to do nothing until the day of the sale - almost seven months later.

On 16 February 2015, the applicants had been served with the Notice of Sale - again they had chosen to do nothing.

Only on 27 February 2015 did they file an ordinary court application for the condonation of the late filing of the application for rescission of judgment. However, they had withdrawn that application on 5 March 2015. They had then proceeded to file the urgent chamber application on the next day, 6 March 2015....,.

As I invited the parties into my chambers, it was manifestly obvious that the applicants could not reasonably persist with their urgent chamber application in the state that it was in.

Indeed, counsel for the applicants advised that it was no longer necessary to argue the aspect of urgency and waste the court's time. He said that what the applicants would now request was that the matter be removed from the roll for urgent matters and referred to the ordinary roll. The parties could be granted the liberty to file supplementary affidavits. The costs could be made in the cause.

He submitted that the applicants were not prepared to withdraw their urgent chamber application, and that they could not be forced to do so. He said whether I could strike off the matter from the roll for urgent cases or simply refer it to the ordinary roll would amount to the same thing because, ultimately, the matter would one day be heard on the ordinary roll.

Unfortunately for the applicants, their stance was not an agreed position with the National Social Security Authority (NSSA), something which counsel for the applicants, from the remarks which prefaced his submissions, had obviously anticipated. Counsel for NSSA insisted that the matter should simply be dismissed with costs on the higher scale of attorney and client because the application had undoubtedly been an abuse of the court process.

Seeing my inclination towards dismissing the application with costs, counsel for the applicants argued, forcefully, that where a judge decides that a matter brought to him under a certificate of urgency, is, in fact not urgent, the proper course is to refer it to the ordinary roll or strike it off the roll for urgent matters. The judge should then leave the question of costs for determination together with the merits of the case.

He said if I were to order costs at that stage, the applicants would have to seek my leave to appeal to the Supreme Court, thereby entailing the matter being heard again. He submitted that if I were to dismiss the application it would mean that I would have decided the merits of the case yet these had not been argued before me.

He said there were a number of Supreme Court decisions to the effect that if a judge finds the matter not to be urgent the proper course is to strike it off and not to dismiss it. At that stage, counsel for the applicants did not have the citation of those cases but only remembered some of the parties involved. He offered to make the judgments available to me later on.

After hearing argument from both sides I was of the view that the applicants' case for urgency had lacked merit right from the onset; that by refusing to withdraw it and insisting that it be referred to the ordinary roll where they would try and patch it up by filing supplementary affidavits, and that by also insisting that the question of costs be left over for determination together with the merits, the applicants were trying to have their cake and eating it.

I felt I had the discretion to refer or not to refer to the ordinary roll an application that is brought under a certificate urgency when it is not urgent.

However, in this case it was my strong view that the applicants had not supplied me with any useful information that would have enabled me to decide whether or not their case merited to be dealt with on an urgent basis. They had dragged the respondents to court. When they had submitted their application in the first place they had obviously taken the view that it had been complete. However, it was obvious that they now realised how seriously defective it had been. So, instead, of doing the logical thing, namely, to withdraw it and tender wasted costs, they were now cleverly trying to salvage the situation by seeking a referral of the matter to the ordinary roll so that they could supplement their pleadings. In the process they hoped to avoid paying the wasted costs.

I considered that such conduct was inappropriate and that the applicants had to be mulcted in costs. In the end I dismissed the application with costs on an attorney and client scale. I stressed, in my ex tempore pronouncement, that it was because of the serious lack of merit on the aspect of urgency that I was dismissing it.

Subsequent to my order, counsel for the applicants supplied a number of authorities on the point that where a judge decides that an urgent chamber application is in fact not urgent, the proper course is to strike it off the roll.

The first was a judgment of this court by UCHENA J in African Consolidated Resources Plc & Ors v Minister of Mines and Mining Development & Ors 2010 (1) ZLR 208 (H). At p215D-E of his judgment the learned judge said:

“Mr Mutamangira urged this court to dismiss the application if the court found in favour of any of the respondents' preliminary issue.

As I cannot deal with other issues in view of my finding that the application is not urgent, the order sought by the respondents is not appropriate. A finding that a case is not urgent does not mean that the applicant's case has no merits. It means the case does not qualify for hearing on an urgent basis in terms of Rule 244 of the High Court Rules. It should simply take its place among cases awaiting to be set-down for hearing in terms of the rules applicable to [non]-urgent applications. See the comments of CAMERON JA in Commissioner, South African Revenue Service v Hawker Air Services (Pty) Ltd; Commissioner, South African Revenue Services v Hawker Aviation Partnership & Ors 2006 (4) SA 292 (SCA) at 299F–300A.

A case judged to be not urgent should simply be struck off the roll for it to be proceeded with like any other case.”

The second case was that of Phineas Mariyapera v Eddies Pfugari (Private) Limited & Anor SC03-14. On pp1 and 2 of the cyclostyled judgment ZIYAMBI JA said:

“Mr Uriri, for the appellant, in his submissions before us, raised two points. Firstly, that having found the matter was not urgent, the court a quo should simply have removed the matter from the roll and not dismissed it. Secondly, that the order of punitive costs was an improper exercise of the court's discretion and that an award of costs on the ordinary scale would have been the appropriate order.

Dealing with the first issue, Mr Uriri conceded that although the court dismissed the application, such dismissal was not on the merits and therefore would not give rise to a plea of res judicata in any future proceedings. This was, in our view, a proper concession. However, the point needs to be made that in a case such as this one the correct order to be made would be that the matter be removed from the roll, rather than dismissed. The order of the court a quo will be amended accordingly.

On the second issue, namely, the award of costs on the higher scale, we find that the court a quo did make certain findings of fact which could not properly be made without an enquiry into the merits of the matter. However, there were other findings of fact which were either common cause or apparent on the papers, and undisputed, which were properly taken into account by the Court in the determination of the issue….,.

We accordingly find that there is no basis on which it can be said that there was an improper exercise of the court's discretion in awarding costs on the higher scale such as would warrant interference by this Court.”

The third case was Air Zimbabwe (Private) Limited & Anor v Stephen Nhuta & Ors SC65-14. At p5 of the cyclostyled judgment, ZIYAMBI JA said:

“The first ground of appeal makes no sense because the court a quo did not decline to hear the matter. Indeed, having found that the matter was not urgent it nevertheless proceeded to hear and determine it on an urgent basis. In so doing, the court a quo contradicted itself. What it should have done, once a finding of lack of urgency was made, was to strike or remove the matter from the roll of urgent matters and not proceed to hear the merits for, once a hearing has taken place and a decision made on the merits, the question of urgency becomes irrelevant.”

The fourth and last case was that of Edward Tawanda Madza v The Reformed Church in Zimbabwe Daisyfield Trust & Ors SC71-14. Again, the same learned judge of appeal said…,:

“The learned Judge was of the view that the urgency was created by the appellants….,. We do not find any impropriety in the learned Judge's exercise of his discretion in this regard.

However, having concluded the matter was not urgent, the proper course would have been to remove the matter from the roll of urgent matters to allow the appellants, if so minded, to place the matter before the High Court on the ordinary roll for determination. The order of dismissal was improper in the circumstances.

Accordingly, it is ordered as follows:

1….,.

2. The judgment of the court a quo is altered to read as follows:

'The matter is not urgent. It is removed from the roll. The applicants shall pay the costs of this application.'

3….,.”

It seems to me that what the above authorities were concerned with was the dismissal of the entire urgent chamber application as if it would have been determined on the merits.

That was neither the order that I gave in this case nor the import of it.

In my view, an urgent chamber application is one in which there is, unavoidably, the initial or opening application for the matter to be heard on an urgent basis. Only after this has succeeded can the merits of the dispute be considered.

In my view, the application for the matter to be treated as urgent is an inevitable adjunct of the actual application on the merits. Urgency has its own set of considerations. So what I dismissed in this case was that antecedent application for the matter to be heard on urgent basis. Even though both parties and myself did from time to time touch on the merits during the hearing, nonetheless I restricted my order of dismissal to the aspect of urgency. The applicants had not been prepared to withdraw it. I could not force them to do so. But, I did not feel bound to accede to their request to have the matter referred to the ordinary roll. What they had presented to me in the first place had been a complete application by itself. They had made their bed of roses. They could only lie on it.

My order of costs on the higher scale was informed by the spuriousness of the application for the matter to be heard on an urgent basis, and the applicants' attitude that, notwithstanding their realisation and manifest acceptance of the paucity of their papers, they, nonetheless, sought to avoid paying the costs that they had caused the respondents to incur.

I found it unacceptable.

HH318-15 : DAVID JACK and OTHERS vs LLOYD MUSHIPE (in his capacity as joint executor of Estate Late Keresia Jack) and OTHERS
Ruled By: CHITAKUNYE J

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

The applicants filed the application as self actors. Upon perusal of the papers I opined that the matters raised therein needed urgent attention. I thus had the matter set down for hearing.

On the date of the first hearing the applicants appeared in person as self-actors. The respondents' legal practitioner requested for a postponement of the hearing as he had just been served with the application on that day and so he was not ready to argue his clients' case. There was also no proof of service of the application on the fifth respondent.

As a result of the above the matter was postponed to 27 February 2015. I also advised the applicants to seek legal representation so that their case may be well presented and argued.

On 27 February 2015 the applicants came represented by counsel.

Counsel for the respondents raised three points in limine. These were that:

(i)...,.

(ii) Secondly, Rule 244 requires that the urgent chamber application should have a certificate of urgency prepared by a legal practitioner.

The application before court has an affidavit of urgency by the first applicant....,.

On the second point in limine, counsel for the applicants contended that Rule 244 does not make it mandatory for self actors to file certificate of urgency by legal practitioner. The certificate is required where a party is to be represented by a legal practitioner. In this case, the applicants were self-actors at the time of preparing and filing the application. They were still self actors on the date of the first hearing....,.

On the second point in limine, counsel for the applicants aptly responded to this. Rule 244 states that:-

“Where a chamber application is accompanied by a certificate from a legal practitioner in terms of paragraph (b) of sub rule (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.”

Paragraph (b) of the above mentioned sub-rule (2) of Rule 242 states that:-

“Unless the applicant is not legally represented, the application shall be accompanied by a certificate from a legal practitioner setting out, with reasons, his belief that the matter is uncontentious, likely to attract perverse conduct, or urgent for one or more of the reasons set out in paragraph(a),(b),(c),(d) or (e) of sub rule(1).”…,.

I am of the view that where an applicant is a self-actor a judge seized with such an application must assess whether, despite the absence of a certificate of urgency, the matter is urgent. To decline to take such a step just because a legal practitioner has not so certified would do injustice to indigent applicants who cannot afford a legal practitioner.

I do not understand the Rule to imply that such a legal practitioner will provide such a service for free. By this, I am not in any way oblivious of the danger of an influx of such applications hence the judge, once seized with the application, must do a careful assessment, and, based on that, decide on the urgency or otherwise of the application. I am aware of several self actors who have been entertained by this court on urgent basis based on their own papers alleging urgency and the judge assessing that the matter is really urgent.

In casu, the affidavit of urgency clearly shows the circumstances that make the application deserving of this court's urgent attention had it been properly before me.

HH417-18 : STUTTAFORDS REMOVALS (PVT) LTD vs ZIMBABWE ASSET MANAGEMENT CORPORATION (PVT) LTD and YCOB INVESTMENTS (PVT) LTD
Ruled By: CHIKOWERO J

I have no doubt at all that this application is not urgent.Upon receipt of the application, on 3 July 2018, I perused same and instructed that it be set down for hearing on 5 July 2018 at 9:00am.The second respondent was not cited. It was not a party to the ...

HH477-16 : RICHARD SEAGER vs ALESTER ZIYANGA
Ruled By: DUBE J

A litigant wishing to have his matter dealt with on an urgent basis should be able to show that the matter is urgent in the sense that if it is not dealt with on an urgent basis he is likely to suffer irreparable harm. He is also required to show ...

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

An urgent application is one which is certified as urgent by a legal practitioner.

HH600-14 : DELTA BEVERAGES (PVT) LTD vs FREEDOM CHIMURIWO and CLERK OF THE MAGISTRATES COURT FOR THE PROVINCE OF MASHONALAND IN HARARE N.O. and MESSENGER OF COURT
Ruled By: CHIGUMBA J

This is a matter in which I was called upon to decide whether section 89(6), as read with section 89(1)(d1) of the Labour Act [Chapter 28:01] ousts the review jurisdiction of the High Court over matters that the Labour Court has exclusive jurisdiction over.

The question for determination is whether the High Court has jurisdiction to entertain an application for review of a labour matter at first instance.

It appears to me, that, by its very nature, the Labour Court is frequently seized with matters whose conduct evokes the biblical David and Goliath pathos. David, being the employee litigants that appear before it, and, Goliath, being represented by the more powerful employer. It is important that labour practitioners pay heed to the need to protect and promote the powers and remedies provided by the Labour Act. This involves becoming intimately acquainted with these provisions, and utilizing them as frequently as possible, in order to streamline them and to provide room for their improvement.

Labour practitioners should not lose sight of the fact that the cost of litigation is cheaper in the Labour Court. Surely, this assists our biblical David in his puny attempts to make Goliath pay what is due and owing to him on termination of employment.

This court should be loathe to collude with and to assist Goliath to bully David into submission, into giving up the enforcement of his rights, simply because Goliath has the financial wherewithal, a bottomless pit, that enables him to go forum shopping, to hop from one court to the next, looking for a suitable remedy with which to hit David on the head with, knock him out, and delay, or avoid, paying what is due at any cost.

Time has come for labour practitioners to recognize that, as officers of the court, they must show respect to the Labour Court and not run to the High Court at the drop of a hat because it is perceived as being more expeditious in disposing of these matters, or because they are more familiar with its rules and procedures.

This matter came to me via the Urgent Chamber Book.

After perusing the application and the opposing papers filed of record, I formed the preliminary view that the applicant had not exhausted domestic remedies, and that the High Court should decline jurisdiction.

I invited the parties to attend on me in Chambers, and to address me solely on that point.

I was not persuaded to change my preliminary view.

I dismissed the application with costs for lack of jurisdiction....,.

In his opposing affidavit, the first respondent raised three points in limine;

(i) Jurisdiction;

(ii) The question of who could competently prepare a certificate of urgency; and

(iii) Whether or not this matter was indeed urgent....,.

The court did not consider any of the other preliminary points raised by the first respondent in reaching its conclusion to dismiss the application before it with costs....,.

Even the question of urgency was not considered; my view being that urgency ought to be considered only after jurisdiction has been founded.

View Appeal
HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O.
Ruled By: KUDYA J

The meaning of urgency has been spelt out in numerous cases. Some of the pertinent cases are Dexprint Investments (Pvt) Ltd v Property and Investments Company (Pvt) Ltd HH120-02 at p2 of the cyclostyled judgment quoted in full in Madzivanzira Ors v Dexprint Investments (Pvt) Ltd ...

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE
Ruled By: GOWORA J

This matter came before me as an urgent application.After having sight of the opposing papers filed by the respondents, I concluded that the matter was not urgent, and, by agreement of the parties, it was enrolled on my roll of opposed matters as all parties had filed all the necessary ...

HH54-10 : ANDREW BRUFORD vs ATTORNEY GENERAL and MAGISTRATE JARABINI
Ruled By: BHUNU J

The adage that 'justice delayed is justice denied' is apt in this case. I have deliberately chosen to ignore the question of urgency electing to determine the application on the merits for the sake of finality.

HH214-14 : TETRAD INVESTMENT BANK LIMITED vs BINDURA UNIVERSITY OF SCIENCE EDUCATION and THE SHERIFF OF ZIMBABWE
Ruled By: TAGU J

On 17 April 2014, I received a file for an urgent chamber application for a stay of execution pending the determination of an application for rescission of judgment. The applicant sought a provisional order in the following terms:“TERMS OF FINAL ORDER SOUGHTThat you show cause to the Honourable Court why ...

“TERMS OF FINAL ORDER SOUGHT

That you show cause to the Honourable Court why a final order should not be made in the following terms -

1. That the Writ of Execution issued under case number HC2106/14 be and is hereby set aside.

2. That execution of the order granted under case number HC2106/14 be and is hereby stayed pending the determination of Applicant's motion for the setting aside of such order.

3. That the 1^st Respondent shall pay the costs of this application on the legal practitioner client scale.

INTERIM RELIEF GRANTED

Pending determination of this matter, the Applicant is granted the following relief -

1. That the Writ of Execution issued under case number HC2106/14 be and is hereby suspended.

2. That execution of the judgment granted by the Court in case number HC2106/14 be and is hereby stayed.

3. That if execution had already taken place, the Sheriff restores the property to the Applicant within twenty four (24) hours of the granting of this order.

4. That Applicant shall file its application for setting aside of the order in case number HC2106/14 within three (3) days of the granting of this order.

SERVICE OF PROVISIONAL ORDER

This provisional order shall be served on the Respondents by the Applicant's legal practitioners or by the Deputy Sheriff.”

Whereupon, after reading documents filed of record and without hearing counsels, I declined to hear the application as I felt that the matter was not urgent and I made the following order:

“IT IS ORDERED THAT:

Matter does not meet requirements of urgency as contemplated by the Rules. Stay of execution cannot be granted pending nothing.”

Upon receipt of my order, counsel for the applicant wrote to the Registrar by letter dated 22 April 2014 seeking leave to present oral arguments on the issue of urgency. The letter was couched in the following manner:-

“…,.

We note that pursuant to the urgent chamber application in this matter, His Lordship is of the view that no urgency was disclosed and that His Lordship has endorsed the papers accordingly. We advise that the Applicant seeks leave to present oral argument before His Lordship on the point as we are of the view that His Lordship may be persuaded to revisit his view on the matter. As held in the case of Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 346 (H), the endorsement that the matter is not urgent reflects the prima facie view of the court on the papers without the benefit of oral argument from the parties. Until the matter has been fully argued orally and a determination made thereafter, His Lordship is not functus officio and can hear oral argument on the issue of urgency….,.”

On 28 April 2014, both the applicant's counsel and the first respondent's counsel made submissions. The first respondent's counsel then filed his notice of opposition in which he raised some points in limine as well as a counter urgent chamber application. I directed the parties to address me not only on the issue of urgency, but also on the points in limine, on the merits, as well as on the counter urgent chamber application.

Counsel for the first respondent raised points in limine on the following -

1. Lack of urgency;

2. Non-disclosure of material facts;

3. Res judicata; and

4. Functus officio….,.

The second respondent, who is the Sheriff of Zimbabwe, did not appear, meaning that he is prepared to be bound by the outcome of this case.

HB190-11 : KALAYI NJINI vs BERTHILDE JULIET NJINI and SOLWAYO NGWENYA and BULAWAYO CITY COUNCIL
Ruled By: CHEDA J

Under the ordinary course of events, all matters coming before the courts are as a result of one dispute or the other which dispute has an inherent prejudice to the other party. Therefore, in an urgent application, in order to succeed, the applicant must show that, in addition to either ...

HH192-10 : AEPROMM RESOURCES (PVT) LTD vs SAMUEL MAZOWE and PATTERSON TIMBA and STEVENSON TIMBA and MAGGIE DITIMA and TONDESAI KAPONDO
Ruled By: MTSHIYA J

On 20 August 2010, I dismissed this application with costs. The applicant has now placed before me a written request for the full reasons behind my dismissal of its application. The applicant says it needs the reasons because it intends to file an appeal in the Supreme Court urgently.

I give here below the reasons for my ruling.

On 12 August 2010, the applicant filed an urgent application in this court seeking the following interim relief:-

“Pending the finalization of the applicant is granted the following relief:

1. The 'Notice of Extraordinary General Meeting, issued by the first respondent, for a meeting to be held on 21 August 2010, is hereby declared null and void.

2. The respondents are hereby interdicted from purporting to act as Directors of the applicant and interfering with and/disrupting the applicant's management.

3. The respondents shall pay costs of this application.

4. That leave is granted to the applicant's legal practitioners to serve this order upon the respondents.”

The application was heard and dismissed for lack of urgency by HLATSHWAYO J on 19 August 2010. The result slip in the record confirms as follows:-

“Matter dismissed as not urgent.”

On 19 August 2010, the day HLATSHWAYO J made his ruling, the applicant noted an appeal in the Supreme Court. The Notice of Appeal states that the appeal is against the whole of the judgment of HLATSHWAYO J and grounds of appeal are then given as follows:-

“1. The learned Judge erred in finding that the applicant's application, HC5500/10, was not urgent on the basis that there was an inordinate delay between the time the issue of applicant's contested Directorship came to the attention of the applicant's deponent in HC5500/10 and the time of filing of HC5500/10.

In so doing, the learned Judge failed to appreciate the fact that the issue that has instigated urgency in HC5500/10 is the serving of notices of an Extraordinary General Meeting of the applicant, proposed by the respondents purportedly in their capacity as applicant's Directors.

The fact of speculative knowledge about the improper claim to Directorship by the respondents could not ground urgency in that that would essentially amount to creating urgency where none exists.

Prior to the issuance of the notice to attend an Extraordinary General Meeting therefore, the dispute as to Directorship could be resolved by way of an ordinary court application.

Upon the service of the notice to attend the Extraordinary General Meeting however, scheduled for 21 August 2010, the need arose to interdict the respondents from acting in a manner inconsistent with the position that their status as directors is disputed. Such an interdiction could not be dealt with by way of an ordinary court application. It could only be resolved by way of an urgent chamber application; as such, the learned Judge erred in finding that the matter was not urgent.

2. The learned Judge also erred in finding that the averment contained in the Supporting Affidavit of Ann Rushwaya, was evidence of the fact that as far back as the 22 August of June the applicant was aware of its purported change of Directorship. This is so because a speculative suspicion that party has done something unlawful does not ground urgency but the very act of actuating that illegal action, eg. by calling for an Extraordinary General Meeting, does ground such urgency; thus, despite the existence of that speculative suspicion in June 2010, the basis of urgency has only arisen upon the serving of the notices to attend an Extraordinary General Meeting.”

The judgment appealed against does not form part of the papers before me.

On 20 August 2010, the applicant filed this application seeking the following interim relief:-

“Pending the finalization of the applicant's appeal in the Supreme Court (SC197/10), the applicant is granted the following relief:

1. The respondents be and are hereby interdicted from holding the purported Extraordinary General Meeting of the applicant, scheduled for the 21st of August 2010.

2. The respondents shall pay the costs of this application.”

Clearly, the above is the same relief that was prayed for on 12 August 2010.

I heard the application on the same day it was filed, and, indeed, after hearing argument from both counsel I dismissed the application with costs.

The certificate of urgency in support of the application indicated that since the dismissal of the earlier application the issue of an interdict remained alive because the Extraordinary General Meeting proposed by the respondents was likely to be held on 21 August 2010. Furthermore, the certificate went on, the dismissed matter (HC5500/10) remained res litigiosa on account of the appeal noted in the Supreme Court. Accordingly, it was stated, if an interdict was not granted, the holding of the meeting on 21 August 2010, by the respondents, would stand to ignore the fact that there was pending litigation on the issue. The applicant therefore believed there was need for the matter to be dealt with through an urgent application.

I must hasten to mention that a few hours before the hearing of the application I had asked for heads of argument on whether or not leave to appeal was required in respect of the appeal filed in the Supreme Court on 19 August 2010.

I am indebted to counsel for the applicant who quickly filed heads of argument which I found useful.

In his heads of argument, counsel for the applicant drew my attention to section 43(2)(d)(ii) of the High Court Act [Chapter 7:06] which provides as follows:

“(2) No appeal shall lie -

(a)…,.

(b)…,.

(c)…,.

(i)…,.

(ii)…,.

(d) From an interlocutory order or interlocutory judgment made or given by a judge of the High Court, without the leave of that judge, or, if that has been refused, without the leave of a judge of the Supreme Court, except in the following cases -

(i) Where the liberty of the subject or the custody of minors is concerned;

(ii) Where an interdict is granted or refused;

(iii) In the case of an order on a special case stated under any law relating to arbitration.”…,.

Clearly, the relief sought is that of an interdict referred to in exception (ii) above.

Counsel for the applicant also advised, that, upon dismissing the application, the judge had intimated that his decision was final and definitive and did not therefore require leave of the judge for purposes of appeal.

I concur: see Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1 (H).

Counsel for the respondents, although intimating that leave should have been formally sought, was, however, of the view that since the appeal was already before the Supreme Court, the applicant should have applied to that court for an urgent hearing. He said the applicant could have done so in terms of Rule 58 of the Supreme Court Rules which provides as follows:-

“In any matter not dealt with in these Rules the practice and procedure of the Supreme Court shall, subject to any direction to the contrary by the Court or a Judge, follow, as near as may be, the practice and procedure of the High Court.”

He said the above Rule opened a window for urgent applications to be brought before the Supreme Court and that many cases had been handled through that window.

Without denying the fact that indeed many cases had reached the Supreme Court through that window, counsel for the applicant, relying on Lloyd Guwa (2) Hazel Claris Kumire v Willoughby Investments (Pvt) Ltd SC31-09, said, unlike the High Court, the Supreme Court had no inherent jurisdiction. He said it was a creature of statute whose powers are clearly defined in the Supreme Court Act [Chapter 7:13]. That being the case, there was no opening for urgent applications.

Counsel for the respondents was of the view that the route taken by the applicant was simply a way of bringing back the same refused application to the same court. This was so because, if granted, the effect of the relief sought meant a reversal of the earlier decision of this court.

I agree.

Indeed, if the interdict is granted, the effect is to reverse the earlier ruling of this court. As can be seen, the relief sought is the same as the one earlier prayed for.

However, counsel for the applicant's argument was that the court's duty was merely to determine whether or not, given the fact that an appeal now lies in a superior court, it could be proper for the respondents to proceed with their proposed meeting on 21 August 2010. In support of that stance, the applicant, in its founding affidavit, and in line with the certificate of urgency, states, in part:

“6. Pending the determination of that appeal, therefore, the issue of the application for the interdiction of the respondents from holding the proposed meeting of the 21st August 2010 remains a matter that is subject of pending litigation.

7. The applicant has a clear right to have that issue determined before any action as to holding the proposed meeting can take place. This is in line with protecting its right to proper recourse before the law.

8. To allow the meeting to proceed, therefore, would amount to the sanctioning of the dealing in and with issues that are res litigiosa. Such a situation would inevitably cause the applicant irreparable harm as the proposed meeting seeks to make various resolutions in respect of the applicant, which resolutions are intended, thereafter, to be put into effect. Such a situation must be stopped by this honourable court.

9. The risk of this irreparable harm is very imminent as the proposed meeting is scheduled for the 21st of August 2010 (the day after tomorrow). It is on this basis that the applicant prays for an order interdicting the respondents from holding the proposed Extraordinary General Meeting on the 21st of August 2010, pending finalization of the applicant's appeal in HC5500/10.”

The details relating to the business of the meeting to be held on 21 August 2010 were not given.

Whilst I am of the view that it is possible for the Supreme Court to be moved to grant an urgent hearing to an appeal already before it, my assessment in this application is that I am being asked to review the earlier decision of my brother HLATSHWAYO J.

That cannot be and is not permissible.

That being the case, there would therefore, in the main, be no compelling reason for me to have the earlier judgment placed before me. I simply do not have the power to review that judgment.

To the extent that the parties were heard on the merits of the case, relating to the sole issue of urgency, I hold the view that this matter is now res judicata.

I come to this conclusion on the basis that the relief being sought is the same one that was before my brother HLATSHWAYO J. As argued by counsel for the respondents, I believe I am being asked to grant the same relief under the excuse of an appeal now pending in the Supreme Court.

In addition to the above, I also want to recognise that generally, in civil matters, an appeal to the Supreme Court suspends the operation of the decision appealed against: see Founders Building Society v Mazuka 2000 (1) ZLR 52P (HC). However, given the fact that no operational order was ever granted by this court, I do not think the general rule applies.

The Judge, after having heard the parties, merely refused to hear the matter on the basis of urgency and there was never any consideration of the merits of the case. There was no executable order issued by the judge.

That is why it was not necessary for the respondents to make an application for execution pending appeal.

In line with its acceptance of that fact, the applicant, in its appeal, prays for the matter to be “remitted to the High Court to be heard and determined on an urgent basis.”

All in all, and for the reasons I have given above, I find myself totally disabled from granting the relief sought. The above conclusions preclude me from going any further because the appeal in the Supreme Court is indeed intended to direct this court to go into the merits of the matter.

The prayer in the appeal specifically reads as follows:

“That the ruling by the High Court in HC5500/10 be and is hereby set aside, and the matter is remitted to the High Court to be heard and determined on an urgent basis.”

It would therefore be improper for me to do what the Supreme Court has not yet directed this court to do.

In light of the foregoing, I dismissed the application with costs.

HH198-10 : BIRCH WILLIAMS vs MARIA KATSANDE and DELITTE PRODUCTS (PRIVATE) LIMITED
Ruled By: MAWADZE J

The question of what constitutes urgency was aptly dealt within the case of Kuvarega v Registrar General Anor 1998 (1) ZLR 188…, wherein the learned judge has this to say:-“There is an allied problem of practitioners who are in the habit of certifying that a case is urgent ...

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SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

In Edward Tawanda Madza Others v (1) The Reformed Church in Zimbabwe Daisyfield Trust (2) The Reformed Church of Zimbabwe (3) Naison Tirivavi (4) The Dutch Reformed Church SC71-14, this Court remarked as follows:"It is a contradiction in terms to dismiss a matter on the twin bases that ...

SC83-21 : DOMBO CHIBANDA and PINGO KANDORORO and JOHN KANDWE vs CITY OF HARARE
Ruled By: HLATSHWAYO JA

When a party brings an unsavoury situation upon himself, by taking a lackadaisical approach to litigation in which he is involved, and showing utter disinterest for a long time, the arrival of the day of reckoning does not create a calamity in respect of which the court should drop everything ...

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS
Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

The treatment of whether an application is urgent is a matter in the discretion of the court a quo.

This Court has very limited grounds upon which it can interfere with the exercise of that discretion. It can do so where the lower court makes a mistake on the law or the facts; acts upon a wrong principle; allows extraneous considerations to influence its decision; fails to take into account relevant facts; or, more generally, makes a decision that is irrational: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,; Barros & Anor v Chimpondah 1999 (1) ZLR 58 (S)…,; and Econet Wireless (Pvt) Ltd v Trust Co Mobile (Pty) Ltd & Anor SC43-13.

The law on what constitutes urgency is settled.

Urgency is manifested by either a time or consequence dimension: see Kuvarega v Registrar-General & Anor 1998 (1) 188 (H)…,; Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 240 (H); Gwarada v Johnson & Ors 2009 (2) ZLR 159 (H); and Sitwell Gumbo v Porticullis (Pvt) Ltd t/a Financial Clearing Bureau SC28-14…,.

In addition, in Econet Wireless (Pvt) Ltd v Trust Co. Mobile (Pty) Ltd & Anor SC43-13…, GARWE JA,…, further suggested that an urgent chamber application in which the interim relief is similar to or has the same effect as the final relief prayed for may justifiably be found to be not urgent.

While he generally approved the position articulated in Kuvarega v Registrar General & Anor 1998 (1) 188 (H), at 193A-C, he underscored that such an application could not be regarded as a nullity and stated that:

“Whilst no hard and fast rule can be laid down, there may well be cases where a court would be justified in holding, in such a situation, that the application is not therefore urgent and that it should be dealt with as an ordinary court application. There may also be cases where the court, as it is empowered to do…, may amend the relief sought in order to grant…, interim protection (and) obviate a situation where final relief is granted by way of a provisional order.”

It is apparent, that, the consequence dimension pre-supposes that the harm sought to be protected in an impending matter would be amorphously irremediable without the interim indulgence.

In Chiwenga v Mubaiwa SC86-20…, this Court further highlighted the incongruence of noting an appeal against a finding of urgency for the basic reason that the finding of urgency is a mere procedural device used by an applicant to jump the queue of other pending matters for a consideration of the merits. This Court reasoned that:

“Looked at differently, an order granting the urgent hearing of a matter is generally not appealable. This is for the simple reason that the order has no bearing on the merits of the application or judgment. This is akin to a bank customer who is, rightly or wrongly, allowed to jump the queue. His or her transaction cannot be impugned or rendered unlawful solely on the basis that he or she has jumped the queue. By the same token, a correct judgment cannot be impugned or rendered incorrect by the mere fact that the matter was improperly heard as an urgent application.”

In Nyakutombwa Mugabe Legal Counsel v Mutasa & Ors SC28-18…, this Court held that a finding of urgency by a court, on its own, cannot constitute a substantive ground of appeal.

HH02-21 : ERNEST MHAMBARE vs ALFRED MWAZHA and OTHERS
Ruled By: MUREMBA J

Following a leadership dispute in the African Apostolic Church (VaApostora VeAfrica) which is the tenth respondent in this matter, the applicant approached this court, by way of a court application in case number HC2402/20 for a relief.

He petitioned the court, in his capacity as an interested party, reverend and church member, for a declaratur to set aside the purported appointment of the first respondent, Alfred Kushamisa Mwazha as the successor to the founder and Archbishop of the church, Paul Ernest Mamvuru Mwazha (Paul Mwazha) now a centurion at 102 years.

The first respondent (Alfred Mwazha) together with the second, third and fourth respondents (Ngoni Mwazha, Masimba Mwazha and James Mwazha) are sons of Paul Mwazha.

Whilst the first (Alfred Mwazha) and fourth (James Mwazha) respondents are bishops in the church, the second respondent (Ngoni Mwazha) is a former member and bishop of the church.

The third respondent (Masimba Mwazha) is a Seventh Day Adventist.

The rest of the respondents, from the fifth to the ninth respondents (Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe), hold high ranking positions in the church, the tenth respondent (African Apostolic Church (VaApostora VeAfrica)).

I must particularly mention that the fifth respondent (Richard Juru) is the General Secretary of the church....,.

In HC2402/20, it was the applicant's contention, that, the first respondent (Alfred Mwazha) usurped power by seeking to ascend to the position of Archbishop and leader of the tenth respondent (African Apostolic Church (VaApostora VeAfrica)) unconstitutionally, contrary to the provisions of the tenth respondent's Constitution.

He contended, that, the first respondent acted in connivance with the second to ninth respondents (Ngoni Mwazha, Masimba Mwazha, James Mwazha, Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe) in usurping power.

The applicant contended, that, the first respondent was purporting to have been appointed by the Archbishop as his successor.

Although the respondents opposed the application, CHITAPI J made a finding, that, the note the respondents were relying upon did not support their claim that the Archbishop nominated or appointed the first respondent as successor. He granted the following order on 3 December 2020:

“1 The purported nomination and/or appointment of the first respondent, as the Archbishop or successor to the Archbishop of the tenth respondent, presently Ernest Paul Mamvura Mwazha, is unconstitutional vis–a-vis the 10th respondent's Constitution, and, resultantly, is null and void.

2. Any appointments and re-assignments of personnel made by the 1st respondent, and other actions which changed the administration of the church made by the 1st respondent, in the purported position of Archbishop, are null and void.

3. The respondents are each and all of them ordered to comply with the provisions of clause 9.2.2 of the 10th respondent's Constitution in regard to the succession dispute bedeviling the 10th respondent. The respondents must comply with this order within seven (7) days of the date of this order.

4. The 1st to 9th respondents, jointly and severally, the one paying the other to be absolved, shall pay costs of this application on a party and party scale.”

Dissatisfied or aggrieved by the judgment of this court, the respondents noted an appeal, under SC552/2020, on 11 December 2020.

In turn, the applicant, on 17 December 2020, filed the present urgent chamber application for leave to execute pending appeal.

It is the applicant's contention, that, since noting the appeal, the first to ninth respondents (Alfred Mwazha, Ngoni Mwazha, Masimba Mwazha, James Mwazha, Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe) have been harassing him and other members of the church. They have been violently disrupting church services together with their followers. They have taken over the church structures and have been influencing their followers to disrupt church gatherings and places of worship.

He then referred to some specific incidents which I will refer to later on in the judgment.

The applicant averred, that, he wants peace and tranquillity.

In response to the application, the respondents raised two (2) points in limine....,.

I now revert to the points in limine raised by the respondents. As I have already stated elsewhere above, the respondents raised two (2) points in limine:

(i) Firstly, that the matter is not urgent.

(ii) Secondly, that the relief sought is not the remedy for the injury alleged. In addition to that, the interim relief and the final relief that are being sought are identical.

Urgency

The respondents averred that the matter should not be treated as urgent because the applicant is seeking leave to execute an order that was granted in an ordinary application on an urgent basis.

They averred, that, although the face of the judgment speaks of an urgent application, the matter was brought as an ordinary court application which shows that the applicant himself accepted that the matter was not urgent at the time that he filed it.

The applicant did not dispute that the matter was brought as an ordinary application and not as an urgent application.

The respondents averred, that, the certificate of urgency does not demonstrate the urgency of the matter save to make bald allegations of urgency. They averred, that, the applicant did not, in the founding affidavit, demonstrate how and when the urgency arose. The respondents averred, that, more importantly, no evidence was placed before the court to show that there was violence and what the form of violence was. They contended that it seems that the applicant is bent on having an application for leave to execute on an urgent basis when there is no such urgency.

In the certificate of urgency, it is stated, that, the respondents filed the appeal with the aim of abusing, victimising, and harassing members of the church.

The applicant, and over a hundred thousand members of the church, have been suffering the brunt of the respondents continuous violence and illegal actions and there is nowhere to run.

It was further averred, that, the applicant acted with urgency.

The notice of appeal was filed on 11 December 2020 and the said infractions had happened during the course of the previous week. There is imminent danger to the applicant's rights, most importantly the right to gather, freedom of assembly, and freedom of conscience. If the respondents are allowed to persist with their unlawful conduct it will lead to further violence, injury, and destruction of property.

In the founding affidavit, the applicant averred, that, the first to ninth respondents have been waging a war against church members.

They have been using groups of supporters to ferment violent habits, disrupt church services, and alienate church property. The places of worship have been turned into places of conflict. Vulnerable members, such as orphans, widows, the aged, and children are now unable to attend church services because of the violence. Their rights to freedom of assembly, association, and conscience as enshrined in sections 58 and 60 of the Constitution of Zimbabwe Act 2013 need to be protected and preserved pending appeal.

The applicant contended, that, there is danger of irreparable prejudice to him and hundreds of thousands of other church members in several countries and the ill Archbishop.

The applicant averred that he acted at the earliest opportunity in bringing this application.

Counsel for the applicant submitted, that, the applicant did not waste time in protecting his rights because the disruption of churches happened from 4 December 2020 up to 10 December 2020. The notice of appeal was filed on 11 December 2020 and the violence continued up to 14 December 2020. The application was then filed on 17 December 2020.

She further submitted, that, by noting the appeal, the respondents wanted to disobey the court order as it is frivolous and vexatious.

I find merit in the objection by the respondents.

The certificate of urgency, and the founding affidavit, do not inform why the application for leave to execute has to be heard on an urgent basis given that the main matter giving rise to this application was brought and heard as an ordinary application.

The judgment thereof by CHITAPI J shows that the hearing started on 31 July 2020 and the judgment was handed down on 3 December 2020. In between the two dates, the matter was heard on 5 August and 14 August 2020.

The question that comes to mind is how then can execution thereof become urgent all of a sudden?

A matter is urgent, if, at the time the need to act arises, the matter cannot wait: see Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H).

In other words, time being of the essence in urgent matters, the applicant should act when the need to act arises.

The certificate of urgency, and the founding affidavit, must therefore exhibit urgency in the manner that the applicant reacted to the events or situation complained of.

If the situation complained of has been existing for a significant time before the application is made, the matter is not urgent: see Gwarada v Johnson & Ors 2009 (2) ZLR 159 (H).

In casu, the anarchy in the church is what necessitated the filing of the present application.

The applicant is basically complaining about physical violence in the church, disruption of church services, and alienation of church property.

Despite his founding affidavit being 16 pages long, he only referred to three (3) specific incidents.

The rest are generalised averments about people fighting in the church over public address systems and other property of the church.

There are also averments about people having resorted to leaving children, wives, and the sick at home fearing violence at church.

It is not stated where and when this happened. The specific perpetrators thereof are not mentioned.

The following are the specific incidents that the applicant referred to:

On 5 December 2020, there was violence at Hopely Circuit, Zone 6, Harare. One Chikono came with a group of people to disrupt church service. They claimed to be acting for and on behalf of the first respondent. A case of assault was opened under RRB4620501 by the victim.

In Mutare, the weekend after the judgment was delivered, all church services were disrupted. People appointed into leadership positions by the first respondent tried to forcefully take control of church proceedings, resulting in resistance from the congregation. This led to violence erupting. Police had to be called to maintain peace and order during services.

The applicant also referred to an assault incident that allegedly happened on 27 October 2020 at Caledonia Farm African Apostolic Church, Eastview Circuit. One Onias Sibanda assaulted one Hatidani Maphosa and a police report was made at Mabvuku Police station under RRB4539885.

These incidents show, that, the anarchy in the church has been ongoing since October 2020 - well before the judgment was delivered on 3 December 2020. It continued even after the judgment had been passed and before the appeal was noted on 11 December 2020.

The incident of 5 December 2020 is pertinent.

Even after the appeal was noted, the anarchy is said to have continued. This has been a continuing state of affairs, with the bulk of the incidents complained of having happened before the appeal was noted on 11 December 2020.

The matter cannot therefore be urgent.

The applicant did not act when the need to act arose, as far back as October 2020, right up to the time the appeal was noted on 11 December 2020.

His application does not exhibit urgency in the manner that he reacted to the events or situation complained of.

The events or situations complained of were in existence for a significant time before the application was made. The matter cannot therefore suddenly become urgent because the respondents have filed an appeal.

To make matters worse, other than generalised averments, the applicant refers to no specific incident that happened after the 11th of December 2020 - after the appeal was filed.

Therefore, the applicant has not laid any foundation for his contention, that, since noting the appeal, the first to ninth respondents, together with their followers, have been harassing him and other members of the church by violently disrupting church services and taking over the church structures.

The matter cannot therefore be urgent.

Repetitive and unsubstantiated generalized averments, that the applicant's and other church members constitutional rights have been violated, do not help the applicant's case.

The relief sought is not the remedy for the injury alleged: what is alleged is wrongful conduct of violence, disruption of church services, and alienation of church properties.

On this basis, the applicant is seeking leave to execute pending appeal.

It is the respondents contention, that, the relief being sought by the applicant is not the remedy for the injury or wrongful conduct alleged. Their argument is that the injury complained of does not arise from the inability to execute the judgment that was granted by CHITAPI J on 3 December 2020.

Counsel for the respondents submission was, that, if these allegations are proven, they would entitle the applicant to some other remedy, like an interdict, but, certainly not leave to execute pending appeal.

His argument was that the judgment that the applicant is seeking to execute pending appeal is centred on a succession dispute between the parties which emanated from the interpretation of a note the respondents are relying upon as the basis of the first respondent's appointment. He further submitted, that, the judgment had nothing to do with the anarchy that the applicant is now complaining of in the present application. He argued that the two disputes are different. As such, the applicant cannot seek to execute a judgment that was granted on a different cause of action on the basis of a different cause of action.

I am in agreement.

A judgment granted on a different cause cannot be executed on the basis of a different dispute.

In my discussion of the first point in limine, on urgency, I have already demonstrated, that, the wrongful conducts that necessitated the filing of the present application started as way back as October 2020 and continued after the judgment was delivered, before the appeal was noted.

The delivery of the judgment did not stop the anarchy.

The applicant did not, in his founding affidavit, explain how its execution pending appeal will stop the anarchy.

The judgment simply declared unconstitutional the purported appointment of the first respondent as the successor to the Archbishop. It nullified his appointment. It also nullified all appointments of personnel that he made in his purported position as Archbishop. The judgment further ordered the respondents to comply with the provisions of clause 9.2.2 of the tenth respondent's Constitution, for the Priesthood Council (a council of Bishops) to preside as the head of the church on behalf of the Archbishop.

If the judgment is executed, it will change the leadership of the church into a further dimension which is totally different from what is prevailing now and what was prevailing before the purported appointment of the first respondent. It is going to remove the first respondent from the position of Archbishop. At the same time, it is not going to restore Paul Mwazha as the Archbishop.

The question is: how is all of this going to resolve or stop the anarchy that has been ongoing since October 2020 - well before the judgment was delivered?

The applicant did not explain the link between the execution of the judgment pending appeal and the wrongful conduct complained of.

I am in agreement with the respondents that the two are divorced from each other. I will thus uphold the point in limine.

Disposition

The two points in limine are interwoven as the second point in limine also determines whether or not the matter is urgent.

The applicant is seeking leave to execute judgment pending appeal, on an urgent basis, on the basis of a dispute that is different from the dispute that gave rise to the judgment. Clearly, the relief that he is seeking is not the remedy for the injury alleged.

In the circumstances, the matter cannot be urgent, even if it was timeously filed a few days after the appeal was noted. The relief sought is also an important consideration in determining whether or not the matter is urgent. If there is no link, whatsoever, between the injury complained of and the relief sought, as is the situation in casu, the matter cannot be urgent.

In the result, I make the determination, that, the matter is not urgent. It be and is hereby struck off the roll with costs.

Appealed
SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

This is an appeal against the whole judgment of the High Court, delivered on 5 March 2021, interdicting the appellant, in the interim, from administering the estate of the late Genius Kadungure among other relief.After hearing submissions from counsel, we dismissed the appeal with costs and stated that the reasons ...

This is an appeal against the whole judgment of the High Court, delivered on 5 March 2021, interdicting the appellant, in the interim, from administering the estate of the late Genius Kadungure among other relief.

After hearing submissions from counsel, we dismissed the appeal with costs and stated that the reasons for doing so would follow. What follows hereunder are those reasons.

THE FACTS

During his lifetime, Genius Kadungure was a colourful and prominent businessman with business interests in Zimbabwe, Botswana, and South Africa. He died tragically in a motor vehicle accident on 8 November 2020 at the age of 36.

At his funeral, the appellant, who is an administrator of deceased estates at Regional Executors & Trust (Pvt) Ltd, approached the first, second, and third respondents brandishing an unsigned “Will” allegedly prepared by herself on the instructions of the deceased a few weeks before he died.

The first and third respondents are the sisters of the deceased while the second respondent is his father. They shall be referred to either as the deceased's relatives or as the respondents.

The appellant persuaded the relatives of the deceased to accept the unsigned document as the last will and testament of the deceased. She also persuaded them to accept her appointment as the executrix of the deceased estate.

In due course, and following a meeting convened by the Master of the High Court, who is the fourth respondent herein, the appellant was appointed as the executrix. She was issued with Letters of Administration on 1 December 2020.

Meanwhile, the unsigned “will” was also accepted and registered by the fourth respondent.

The deceased estate of the late Genius Kadungure was then to be administered and wound up in terms of that document.

The appellant hit the ground running as she immediately entertained a claim of a Lamborghini Aventador Roadster Motor Vehicle, registration number ZM03, belonging to the estate, from one Nomatter Zinyengere.

I mention, in passing, that, that name does not appear anywhere in the unsigned will. In fact, that motor vehicle, which for some unclear reason is the only property specifically mentioned in that document, was bequeathed to one “Kit Kat”.

Without reference to the Master of the High Court, and without submitting any liquidation and distribution account for approval by the Master, the appellant sent what she called the “first interim liquidation and distribution account” to Nomatter Zinyengere's lawyers in which she demanded a payment of $48,230 from him in return for the release of the Lamborghini motor vehicle.

That interim account only contained the Lamborghini motor vehicle and no other property of the deceased. It also did not take into account any liabilities of the estate.

Nomatter Zinyengere must have paid the appellant what she demanded, because, by letter dated 27 January 2021, addressed to one Michael Mubaiwa at the deceased's mansion in Domboshava, the appellant directed that the motor vehicle be handed over to his lawyer.

It is then that the deceased's relatives sought legal advice.

As up to then, they had not been furnished with a copy of the Will, they unsuccessfully requested one from the appellant, including the minutes of the meeting held on 25 November 2020 at the Master's Office. They only got copies from the fourth respondent.

PROCEEDINGS IN THE COURT A QUO

The respondents brought an urgent application before the court a quo for interim relief interdicting the appellant from dealing with or administering the estate. On the return date, they seek a review of the fourth respondent's decision to accept the unsigned document as the Will of the deceased. They also seek the reversal of the appellant's appointment as the executrix testamentary of the estate.

The respondents case was that the appellant used undue influence to persuade them to accept the unsigned document as the deceased's will and to accept her appointment as the executrix. She had dissuaded them from seeking legal counsel regarding the will. She had claimed to be their lawyer who would handle the estate when she is not even a lawyer.

According to the respondents, they reluctantly worked with the appellant even though they had questions about the Will.

Their fears were confirmed when the appellant had, with indecent haste, proceeded to attempt to dispose of the Lamborghini motor vehicle during the lockdown period without following due process. The whole exercise was suspicious given that there was no detailed inventory of the estate property and no distribution account was submitted and approved by the Master of the High Court.

The respondents also complained about the manner in which the appellant was handling the estate in Botswana.

To them, the matter was urgent as the appellant had to be stopped in her tracks before causing more damage, especially as there are trucks in South Africa belonging to the estate which were in danger of disappearing if the issue of executorship remained unresolved.

In opposing the application, the appellant's case was that the matter was not urgent because the facts complained of occurred four months earlier. Her contention was that the respondents voluntarily consented to the Master's decision to accept the unsigned document as the deceased's will knowing it did not meet the requirements of the Will's Act [Chapter 6:06]. The appellant insisted that the respondents also consented to her appointment as the executrix of the estate.

In her view, the requirements of an interim interdict were not met.

Regarding the issue of the Lamborghini motor vehicle, while admitting that she had initially approved its release, the appellant contended, that, she later realized that she had not advertised the interim distribution account. For that reason, she had rescinded her decision to release the motor vehicle. The appellant admitted, further, that, her decision to do so was also informed by the reprimand she got from the fourth respondent.

It was the appellant's contention that the application was without merit. She sought its dismissal with costs.

The court a quo acknowledged, that, the respondents should have filed a separate application for review. It however took the view that the matter was so urgent that the court had to dispense with most of the formalities provided for in the Rules. This was so because of the then prevailing Covid 19 lockdown and Practice Direction Number 4 of 2021 which proscribed the filing of new cases and only permitted the filing of urgent cases.

The court a quo's view was that urgency stemmed from the appellant's rush to conclude part of the administration of the estate. In addition, she had advertised the estate in newspapers which action amounted to legal processes with legal consequences in the event of failure to act upon them.

Given the nature of the document being used to administer the estate, its emergence at the funeral, and the circumstances of its acceptance raised a red flag; the court a quo found that the respondents had a cause of action against the appellant. It found that, by her own admission, the appellant had tried to jump the gun in allowing the release of the Lamborghini motor vehicle.

Accordingly, the risk of irreparable harm was palpable and the balance of convenience favoured the beneficiaries. The court a quo then granted interim relief aforesaid.

PROCEEDINGS ON APPEAL

The appellant was riled by the judgment of the court a quo. She noted this appeal on the following grounds:

1. The court a quo erred in determining that the first to third respondents cause was deserving of an urgent hearing when the facts actuating the first to third respondents complaint had subsisted for well over 4 months.

2. The court a quo also erred in granting the first to third respondents an interdict in circumstances where such respondents had other satisfactory remedies available to them in terms of section 8 of the Wills Act and section 30 of the Administration of Estates Act.

3. The court a quo further erred in granting audience to a party which had, by express words and direct acts, accepted the appointment of the appellant and decision of the fourth respondent. In consequence, the court a quo erred in exercising jurisdiction in a matter redolent with material disputes of fact not resoluble on the papers.

4. The court a quo grossly misdirected itself in holding, that, it had the jurisdiction to bar the appellant from the administration of the estate of the late Genius Kadungure in South Africa when the court a quo has no jurisdiction over the South African assets of the deceased.

5. The court a quo erred in finding that the appellant used undue influence to compel the first to third respondents to accept the deceased's null absent any evidence disputed by the appellant. (sic)

6. On a point of law, the court a quo erred in its formulation of the order it handed down on the 5th of March 2021. In the court a quo's reasoning, it postulates the granting of interim relief. However, the order handed down is final in nature.

On the foregoing grounds, the appellant moved for the success of the appeal with costs and dismissal of the application a quo with costs....,.

ISSUES FOR DETERMINATION

Although there are six grounds of appeal, only two (2) issues commend themselves for determination in this appeal. They are:

1. Whether the court a quo erred in finding that the application was urgent....,.

The question of urgency cannot possibly be a live issue on appeal. This is so because the judge a quo was imbued with judicial discretion whether to hear the matter as urgent or not. Having exercised her discretion in favour of the respondents, given the appellant's conduct of disposing of the property of the estate without following the proper liquidation process, that became water under the bridge.

Without satisfying the requirements for interference, on appeal, with the exercise of discretion, the appellant cannot pursue the question of urgency before this Court.

Happily, counsel for the appellant did not motivate that issue at all before this Court.

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

This matter was placed before me as an urgent chamber application having been filed on the 23rd of February 2021. Upon receipt, I gave directions for the filing of notices of opposition and opposing affidavits as well as heads of argument....,.The test for what constitutes urgency has been set out ...

HH586-15 : TEMBA MLISWA vs THE CHAIRPERSON (ZEC) and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: UCHENA J

Rule 244 of the High Court Rules reads;“244. Where a chamber application is accompanied by a certificate from a legal practitioner in terms of paragraph (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 ...

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

Case authorities..., indicate that any delay in approaching the court urgently should be explained since an applicant in an urgent application should..., treat the matter urgently.

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO
Ruled By: GOWORA J

The leading case within this jurisdiction, in relation to urgency, is Kuvarega v Registrar General Anor 1998 (1) ZLR 188 (H), a judgment by CHATIKOBO J. The learned judge had the following to state…,:“What constitutes urgency is not only the imminent arrival of the day of reckoning, a ...

HH170-22 : DIVVYLAND INVESTMENTS (PVT) LTD vs DAVID CHIWEZA and THE SHERIFF OF ZIMBABWE
Ruled By: FOROMA J

The 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 the 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....,.

I proceed to consider the point in limine raised by the 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…, which judgement has been appealed against by the first respondent.

The 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 the 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 gainsaid.

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) of the High Court Rules 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 v The Registrar-General & Anor 1998 (1) ZLR 188 (H) 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, the applicant seeks leave to execute a judgement appealed against pending the determination of the appeal noted against the said judgment. The judgment appealed against is that of the High Court which judgement dismissed an application for a stay of execution of the Supreme Court judgment granting the applicant the right to eject the 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 the first respondent, not being meritorious and having no prospects of success, will cause irreparable loss to the 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 (paragraph 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 judgment 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.

The 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.

The applicant is at liberty to proceed in terms of Rule 60(19) of the High Court Rules 2021.

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: CHITAPI J

Whether or not a matter is urgent is a value judgment which a judge reaches upon a consideration of all the objective facts and circumstances surrounding the matter to be determined.

The celebrated judgment of CHATIKOBO J of Kuvarega v Registrar General & Anor 1998 (1) ZLR 189, has become the bible or leading case followed in this jurisdiction in so far as it sets out the factors which determine whether or not a matter qualifies for urgent hearing.

The learned judge stated as follows…,:

“What constitutes urgency is not only the imminent 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 acting until the deadline draws near is not the type of urgency contemplated by the Rules.”

The upshot of the remarks of CHATIKOBO J, as above quoted, boil down to the need for an applicant, whose rights have been infringed or are about to be infringed, to assert such rights immediately and not wait for harm to draw near or eventuate before acting.

The remarks of GOWORA J…, in Triple C Pigs & Anor v Commissioner General, Zimbabwe Revenue Authority 2007 (1) ZLR 27…, put the icing on the cake by further ventilating CHATIKOBO J's remarks in Kuvarega v Registrar-General & Anor 1998 (1) ZLR 189. The learned judge stated:

“Naturally, every litigant appearing before these courts wishes to have their matter heard on an urgent basis, because, the longer it takes to obtain relief, the more it seems that justice is being delayed and thus denied. Equally, the courts, in order to ensure delivery of justice, would endeavour to hear a matter as soon as is reasonably practicable. This is not always possible, however, and, in order to give effect to the intention of the courts to dispense justice fairly, a distinction is necessarily made between those matters that ought to be heard urgently and those to which some delay would not cause harm which would not be compensated by the relief eventually granted to such litigant.

As courts, we therefore have to consider, in the exercise of our discretion, whether or not a litigant wishing the matter to be treated as urgent has shown the infringement or violation of some legitimate interest, and whether or not the infringement of such interest, if not redressed immediately, would not be the cause of harm to the litigant which any relief in the future would render brutum fulmen.”...,.

A party should act immediately when the need to act arises, and, in addition, must demonstrate irreparable harm, actual or potential, arising from the infringement of the party's legitimate rights or interests. The infringement must be such that failing immediate redress, there would be nothing left to redress and/or any other future redress would not provide adequate remedy to correct the wrong.

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE
Ruled By: MOYO J

In the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (HC) the position regarding the undesirability of delaying to launch urgent applications was cogently stated…,. This is what the learned judge had to say:“What constitutes urgency is not the only imminent arrival of the day of reckoning; a ...

HMA47-19 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) and OTHERS
Ruled By: WAMAMBO J

In a long line of cases, the issue of urgency has been defined and traversed. Among other cases, see: Kuvarega v Registrar General and Another 1988 (1) ZLR 188 (HC); Shandong Taishon Sunlight Investments Limited v Yunnan Linkun Investments Group Company Limited Others HH06-16…,.; Triple C Pigs (Partnership ...

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Urgency re: Approach, the Principle of Equality of Treatment & Discretion of the Court to Hear Oral Arguments on Urgency

View Appeal HB102-17 : TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS vs SIPHIWE DUBE and OTHERS Ruled By: TAKUVA J

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION Ruled By: MAFUSIRE J

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O. Ruled By: MAFUSIRE J

HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE Ruled By: CHIGUMBA J

HH201-15 : GORDON DUNCAN vs KIRSTY LOUISE LOUW Ruled By: MATANDA-MOYO J

HH208-15 : GOOD LIVING REAL ESTATE PL vs ADAM AND COMPANY PL and SGI PROPERTIES PL and HONOURABLE JUSTICE SMITH Ruled By: MUREMBA J

HH213-15 : BERNARD DUMBURA vs CHIEF LANDS OFFICER (MASH CENTRAL) (NO) and GEORGE MANYAME Ruled By: NDEWERE J

HMT09-18 : MUBUSO CHINGUNO vs MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT and PROVINCIAL LANDS OFFICER MANICALAND and DISTRICT LANDS OFFICER CHIPINGE and COLONEL MAKUYANA Ruled By: MWAYERA J

HH230-15 : CHITUNGWIZA CENTRAL HOSPITAL vs MOTOR FIX (PVT) LIMITED and THE REGISTRAR OF THE HIGH COURT and SHERIFF OF THE HIGH COURT Ruled By: MAWADZE J

HH231-15 : TAPFUMANEYI MUDZENGERERE and OTHERS vs CIVIL AVIATION AUTHORITY OF ZIMBABWE Ruled By: MUREMBA J

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati) Ruled By: PATEL JA, BHUNU JA and BERE JA

HB81-18 : FRANK MUTEZO and OTHERS vs ZIMBABWE SCHOOL EXAMINATIONS COUNCIL and THE MINISTER OF PRIMARY AND SECONDARY EDUCATION Ruled By: MOYO J

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O. Ruled By: HUNGWE J

HH509-14 : INNSCOR AFRICA LTD vs COMPETITION AND TARIFF COMMISSION and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE Ruled By: UCHENA J

Appealed SC28-18 : NYAKUTOMBWA MUGABE LEGAL COUNSEL vs GETRUDE MUTASA and DIDYMUS MUTASA and SHERIFF OF ZIMBABWE Ruled By: GARWE JA, MAKARAU JA and GUVAVA JA

HH29-17 : JOSHUA NYAMHUKA and CHURCH OF GOD OF PROPHECY vs ABIGAIL MAPINGURE and OTHERS Ruled By: FOROMA J

HH240-18 : KENNETH SCHOFIELD vs FBC BANK LIMITED and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. Ruled By: CHIKOWERO J

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O. Ruled By: MAFUSIRE J

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O. Ruled By: MAFUSIRE J

HH318-15 : DAVID JACK and OTHERS vs LLOYD MUSHIPE (in his capacity as joint executor of Estate Late Keresia Jack) and OTHERS Ruled By: CHITAKUNYE J

HH417-18 : STUTTAFORDS REMOVALS (PVT) LTD vs ZIMBABWE ASSET MANAGEMENT CORPORATION (PVT) LTD and YCOB INVESTMENTS (PVT) LTD Ruled By: CHIKOWERO J

HH477-16 : RICHARD SEAGER vs ALESTER ZIYANGA Ruled By: DUBE J

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian) Ruled By: CHITAPI J

HH600-14 : DELTA BEVERAGES (PVT) LTD vs FREEDOM CHIMURIWO and CLERK OF THE MAGISTRATES COURT FOR THE PROVINCE OF MASHONALAND IN HARARE N.O. and MESSENGER OF COURT Ruled By: CHIGUMBA J

View Appeal HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O. Ruled By: KUDYA J

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE Ruled By: GOWORA J

HH54-10 : ANDREW BRUFORD vs ATTORNEY GENERAL and MAGISTRATE JARABINI Ruled By: BHUNU J

HH214-14 : TETRAD INVESTMENT BANK LIMITED vs BINDURA UNIVERSITY OF SCIENCE EDUCATION and THE SHERIFF OF ZIMBABWE Ruled By: TAGU J

HB190-11 : KALAYI NJINI vs BERTHILDE JULIET NJINI and SOLWAYO NGWENYA and BULAWAYO CITY COUNCIL Ruled By: CHEDA J

HH192-10 : AEPROMM RESOURCES (PVT) LTD vs SAMUEL MAZOWE and PATTERSON TIMBA and STEVENSON TIMBA and MAGGIE DITIMA and TONDESAI KAPONDO Ruled By: MTSHIYA J

HH198-10 : BIRCH WILLIAMS vs MARIA KATSANDE and DELITTE PRODUCTS (PRIVATE) LIMITED Ruled By: MAWADZE J

View Appeal SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

SC83-21 : DOMBO CHIBANDA and PINGO KANDORORO and JOHN KANDWE vs CITY OF HARARE Ruled By: HLATSHWAYO JA

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

HH02-21 : ERNEST MHAMBARE vs ALFRED MWAZHA and OTHERS Ruled By: MUREMBA J

Appealed SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

View Appeal HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.) Ruled By: CHIRAWU-MUGOMBA J

HH586-15 : TEMBA MLISWA vs THE CHAIRPERSON (ZEC) and ZIMBABWE ELECTORAL COMMISSION and OTHERS Ruled By: UCHENA J

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT Ruled By: NDEWERE J

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO Ruled By: GOWORA J

HH170-22 : DIVVYLAND INVESTMENTS (PVT) LTD vs DAVID CHIWEZA and THE SHERIFF OF ZIMBABWE Ruled By: FOROMA J

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O. Ruled By: CHITAPI J

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE Ruled By: MOYO J

HMA47-19 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) and OTHERS Ruled By: WAMAMBO J

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Zimbabwe

View Appeal
HB102-17 : TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS vs SIPHIWE DUBE and OTHERS
Ruled By: TAKUVA J

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O.
Ruled By: MAFUSIRE J

HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE
Ruled By: CHIGUMBA J

HH201-15 : GORDON DUNCAN vs KIRSTY LOUISE LOUW
Ruled By: MATANDA-MOYO J

HH208-15 : GOOD LIVING REAL ESTATE PL vs ADAM AND COMPANY PL and SGI PROPERTIES PL and HONOURABLE JUSTICE SMITH
Ruled By: MUREMBA J

HH213-15 : BERNARD DUMBURA vs CHIEF LANDS OFFICER (MASH CENTRAL) (NO) and GEORGE MANYAME
Ruled By: NDEWERE J

HMT09-18 : MUBUSO CHINGUNO vs MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT and PROVINCIAL LANDS OFFICER MANICALAND and DISTRICT LANDS OFFICER CHIPINGE and COLONEL MAKUYANA
Ruled By: MWAYERA J

HH230-15 : CHITUNGWIZA CENTRAL HOSPITAL vs MOTOR FIX (PVT) LIMITED and THE REGISTRAR OF THE HIGH COURT and SHERIFF OF THE HIGH COURT
Ruled By: MAWADZE J

HH231-15 : TAPFUMANEYI MUDZENGERERE and OTHERS vs CIVIL AVIATION AUTHORITY OF ZIMBABWE
Ruled By: MUREMBA J

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

HB81-18 : FRANK MUTEZO and OTHERS vs ZIMBABWE SCHOOL EXAMINATIONS COUNCIL and THE MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MOYO J

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O.
Ruled By: HUNGWE J

HH509-14 : INNSCOR AFRICA LTD vs COMPETITION AND TARIFF COMMISSION and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE
Ruled By: UCHENA J

Appealed
SC28-18 : NYAKUTOMBWA MUGABE LEGAL COUNSEL vs GETRUDE MUTASA and DIDYMUS MUTASA and SHERIFF OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and GUVAVA JA

HH29-17 : JOSHUA NYAMHUKA and CHURCH OF GOD OF PROPHECY vs ABIGAIL MAPINGURE and OTHERS
Ruled By: FOROMA J

HH240-18 : KENNETH SCHOFIELD vs FBC BANK LIMITED and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O.
Ruled By: CHIKOWERO J

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

HH318-15 : DAVID JACK and OTHERS vs LLOYD MUSHIPE (in his capacity as joint executor of Estate Late Keresia Jack) and OTHERS
Ruled By: CHITAKUNYE J

HH417-18 : STUTTAFORDS REMOVALS (PVT) LTD vs ZIMBABWE ASSET MANAGEMENT CORPORATION (PVT) LTD and YCOB INVESTMENTS (PVT) LTD
Ruled By: CHIKOWERO J

HH477-16 : RICHARD SEAGER vs ALESTER ZIYANGA
Ruled By: DUBE J

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

HH600-14 : DELTA BEVERAGES (PVT) LTD vs FREEDOM CHIMURIWO and CLERK OF THE MAGISTRATES COURT FOR THE PROVINCE OF MASHONALAND IN HARARE N.O. and MESSENGER OF COURT
Ruled By: CHIGUMBA J

View Appeal
HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O.
Ruled By: KUDYA J

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE
Ruled By: GOWORA J

HH54-10 : ANDREW BRUFORD vs ATTORNEY GENERAL and MAGISTRATE JARABINI
Ruled By: BHUNU J

HH214-14 : TETRAD INVESTMENT BANK LIMITED vs BINDURA UNIVERSITY OF SCIENCE EDUCATION and THE SHERIFF OF ZIMBABWE
Ruled By: TAGU J

HB190-11 : KALAYI NJINI vs BERTHILDE JULIET NJINI and SOLWAYO NGWENYA and BULAWAYO CITY COUNCIL
Ruled By: CHEDA J

HH192-10 : AEPROMM RESOURCES (PVT) LTD vs SAMUEL MAZOWE and PATTERSON TIMBA and STEVENSON TIMBA and MAGGIE DITIMA and TONDESAI KAPONDO
Ruled By: MTSHIYA J

HH198-10 : BIRCH WILLIAMS vs MARIA KATSANDE and DELITTE PRODUCTS (PRIVATE) LIMITED
Ruled By: MAWADZE J

View Appeal
SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

SC83-21 : DOMBO CHIBANDA and PINGO KANDORORO and JOHN KANDWE vs CITY OF HARARE
Ruled By: HLATSHWAYO JA

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS
Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

HH02-21 : ERNEST MHAMBARE vs ALFRED MWAZHA and OTHERS
Ruled By: MUREMBA J

Appealed
SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

HH586-15 : TEMBA MLISWA vs THE CHAIRPERSON (ZEC) and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: UCHENA J

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO
Ruled By: GOWORA J

HH170-22 : DIVVYLAND INVESTMENTS (PVT) LTD vs DAVID CHIWEZA and THE SHERIFF OF ZIMBABWE
Ruled By: FOROMA J

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: CHITAPI J

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE
Ruled By: MOYO J

HMA47-19 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) and OTHERS
Ruled By: WAMAMBO J