Apostolic Faith Mission in Zimbabwe v Apostolic Faith Mission of Zimbabwe and Others

The applicant sought a mandament van spolie alleging that the respondents unlawfully dispossessed it of property known as Stand Number 164D, Northway, Prospect, Waterfalls, Harare. The second to fifth respondents were former members of the applicant who, after leaving following disputes, became members of the first respondent. On 8 April 2022, the applicant instituted an urgent application (HC 2405/22) to interdict the respondents from using the property to conduct a conference scheduled for 8-10 April 2022. That application was struck off the roll for want of urgency on 9 April 2022. On 10 April 2022, just after 1300 hours, the applicant instituted the current application for a mandament van spolie relating to the same property and based on the same facts. The original certificate of urgency contained incorrect dates (stating October 2021 instead of April 2022), which was later amended. The conference the respondents held was scheduled to end at 1300 hours on 10 April 2022, and the respondents vacated the property by that time, before the application was filed.

• Whether the application should be heard on an urgent basis
• Whether the amendments to the certificate of urgency and draft order should be allowed
• Whether spoliation proceedings are automatically urgent
• Whether the applicant acted expeditiously having regard to when the need to act arose
• Whether urgency was lost when the respondents vacated the property before the application was filed

The matter was struck off the roll of urgent matters with costs against the applicant.

The binding legal principles established are: (1) Spoliation proceedings, while generally urgent, do not automatically qualify for urgent hearing - the applicant must still satisfy the general requirements for urgency including acting expeditiously; (2) Urgency is not determined by a mathematical exercise of counting days but by considering all circumstances of the case holistically; (3) Where the basis for urgency (in this case, occupation of property) has ceased to exist before the application is filed, the matter loses its urgency; (4) What is not denied in affidavits must be taken to be admitted, and counsel cannot dispute facts in argument without supporting affidavits; (5) Urgency stemming from deliberate inaction or self-created urgency will not be indulged by courts; (6) Applicants seeking preferential treatment through urgent procedures must explain any delay from when the need to act arose.

The court observed that the instant application appeared to have been instituted only as a consequence of the striking off of the previous application (HC 2405/22), as evidenced by the hurried and untidy preparation of papers. The court also noted that even the provisional order initially filed was misconceived, seeking a prohibitory interdict rather than restoration of possession despite the application being presented as a mandament van spolie. The court cited with approval the obiter dictum from Kuvarega v Registrar General that "a matter is urgent if, at the time the need to act arises, the matter cannot wait," which has been widely quoted in subsequent cases.

This case reinforces important principles regarding urgent applications in Zimbabwean civil procedure. It establishes that even in spoliation proceedings, which are generally considered urgent, applicants must still satisfy the general requirements for urgency, particularly the duty to act expeditiously. The case demonstrates that urgency is assessed holistically based on all circumstances of the case, not merely by counting days between the complained act and filing. It also confirms that self-created or self-inflicted urgency arising from deliberate inaction will not be indulged by the courts. The judgment emphasizes that what is not denied in affidavits must be taken as admitted, and that counsel cannot contradict evidence merely through oral argument without supporting affidavits.