Alecs Hwekwete and Judy Hwekwete v Renaissance Merchant Bank Ltd

On 5 November 2009, the 1st respondent (Renaissance Merchant Bank Ltd) lent US$60,000 to CMS Leather (Pvt) Ltd trading as Footwear and Rubber Industries, secured by a special hypothecation over immovable property Lot 8 of Lot 37A Lochview, Bulawayo. The applicants (Alecs and Judy Hwekwete) signed unlimited guarantees for the loan and consented to a bond registered over Lot 8, which provided for foreclosure proceedings in case of default. When Footwear and Rubber Industries defaulted, the 1st respondent issued summons in January 2011 claiming US$73,447.69 with interest at 42.5% compounded daily and an order declaring Lot 8 executable. The applicants filed an appearance to defend on 10 February 2011, but did not oppose a summary judgment application on 28 March 2011. Judgment was granted on 21 April 2011. On 18 July 2011, Lot 8 was attached by the Deputy Sheriff. The applicants did nothing from July to December 2011. Only on 15 December 2011, when the property was advertised for sale for 16 December 2011, did they file an application to suspend the sale, which was withdrawn on 3 January 2012. The property was re-advertised for sale on 5 January 2012 for 27 February 2012. The applicants filed a condonation application on 20 January 2012 and the present urgent chamber application on 24 January 2012 seeking to stay the sale in execution pending determination of other proceedings.

• Whether the application satisfied the requirements of urgency for purposes of an urgent chamber application
• Whether applicants had treated the matter urgently from the time they became aware of the execution proceedings
• Whether the applicant provided acceptable explanation for delay in bringing the application

The application was dismissed with costs.

For a matter to be treated as urgent for purposes of an urgent chamber application, the applicant must demonstrate: (1) that irreparable harm may be suffered if the matter is not dealt with urgently; and (2) that the applicant has treated the matter urgently from the time they became aware of the circumstances giving rise to the application. The urgency of a matter is not determined by the arrival of a date of reckoning (such as a sale in execution date), but by whether the applicant acted expeditiously throughout the period from when they became aware of the threat to their rights. In the absence of an acceptable explanation for delay or non-timeous action, a matter cannot be treated as urgent regardless of the prospects of success on the merits.

The court observed that attempts to blame legal practitioners for delays are not helpful when such dilatoriness persists even after changing legal practitioners. The court also indicated (obiter) that it dismissed the application on the urgency point alone without going into the merits, suggesting that even if there were merits to the substantive application, the failure to establish urgency was fatal to the application.

This case is significant in Zimbabwean jurisprudence for reiterating the strict requirements for urgent applications. It emphasizes that urgency is not determined by the arrival of the date of reckoning, but by whether the applicant has treated the matter urgently from the moment they became aware of the threat to their rights. The case demonstrates that courts will not condone dilatory conduct and that applicants must act timeously and provide acceptable explanations for any delays, regardless of the merits of their substantive case. It confirms that the urgency of a matter is destroyed by the applicant's own failure to act expeditiously.