Africom Holdings (Pvt) Ltd v Telecontract (Private) Limited and The Deputy Sheriff

Telecontract (first respondent) sued Africom Holdings (applicant) for payment of $12,085.00 for internet services rendered from August 2013 to April 2014, specifically relating to duct space rental. The summons was served on the applicant on 7 March 2015. Despite acknowledging receipt, the applicant did not enter appearance to defend. A default judgment was entered on 8 April 2015. On 29 April 2015, the applicant filed an application for rescission of judgment in HC 3902/15, claiming it needed to verify ownership of the duct with the City of Harare before responding. The applicant contended that it owned the duct in question and had previously informed the first respondent it would not pay for use of its own duct. On 5 May 2015, exactly two months after receiving the summons, the applicant filed an urgent application seeking a stay of execution to enable it to prosecute the rescission application.

• Whether the applicant's urgent application should be heard on an urgent basis
• Whether the urgency was self-created by the applicant's own inaction
• Whether the court should entertain an application filed two months after service of summons claiming urgency

1. The hearing of the matter as urgent is hereby refused. 2. The applicant shall bear the costs of this application.

Self-created urgency, which stems from deliberate inaction until the day of reckoning is nigh, is not the urgency contemplated by the rules of court. A party that refrains from taking action when the need to do so arises, only to rush to court at the eleventh hour as if the subject matter has just arisen, will not be entertained because the court will not allow a litigant to benefit from a calamity of their own making. A litigant who knows they are being sued, knows the consequences of inaction, but wilfully refrains from doing anything to curtail the danger, cannot be allowed to come at their own time and demand urgent audience from the court.

The court noted that it stands ready at all times to entertain litigants that approach it as a matter of urgency when the need to act arises, as this is indeed the function of the court. However, the court will be very slow, and indeed will refuse, to be abused by litigants who create urgency by their own free will and then choose to come to court when they please and at their own good time, expecting the court to drop everything. The court also observed that there was nothing new presented in the urgent application that the applicant did not already know when it received the summons - it had always contested the ownership of the duct and had previously raised this issue with the first respondent.

This case reinforces the principle in Zimbabwean civil procedure that courts will not entertain applications for urgent relief where the urgency has been created by the applicant's own deliberate inaction. It serves as an important reminder that litigants must act promptly when they become aware of legal proceedings against them and cannot manufacture urgency by delaying action and then seeking urgent relief. The case emphasizes the court's role in preventing abuse of urgent chamber applications and maintaining the integrity of procedural rules regarding timeous action.