Applebird Investments (Pvt) Ltd v Tensan Investments (Pvt) Ltd and Others

The applicant subleased immovable property at 5 Jason Moyo Ave from the second respondent under a verbal agreement. The second respondent was the original lessee who had leased the property from the first respondent (the owner) under a written lease agreement. The applicant occupied the premises from September 2013. In September 2015, the first respondent filed an application for eviction against both respondents. The applicant opposed this application. On 25 February 2016, the first respondent obtained a default judgment. On 29 February 2016, the applicant filed an application for rescission of the default judgment. On 5 April 2016, several weeks after the default judgment and shortly before imminent eviction by the Deputy Sheriff, the applicant filed an urgent application for a stay of execution.

• Whether the application for stay of execution constituted an urgent matter warranting urgent chamber application procedure
• Whether the applicant's delay in filing for a stay of execution after becoming aware of the default judgment defeated the urgency of the matter
• Whether urgency stemming from deliberate or negligent abstention from action until the deadline approaches qualifies as urgency contemplated by court rules
• Whether the applicant had prospects of success in light of the potentially unlawful sub-tenancy

The point in limine raised by the first respondent that the matter was not urgent was upheld. The matter was removed from the roll. Costs were not specifically mentioned in the judgment.

Urgency in the context of urgent chamber applications is determined not by the imminent arrival of the day of reckoning, but by whether, at the time the need to act arises, the matter cannot wait. Urgency that stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the court rules. When a party becomes aware of circumstances that will necessitate urgent relief (such as a default judgment that will be executed), the party must act immediately to seek interim relief; delay in doing so defeats the urgency of a subsequent application. Certificates of urgency and supporting affidavits must contain an explanation for any delay in bringing the application.

The court cautioned counsel against inferring that procedural actions taken by a court (such as setting down a matter for urgent hearing) necessarily indicate the court's view on the merits or urgency of the matter. The court noted that it is standard practice to enroll urgent matters efficaciously for hearing, and such enrollment does not constitute a determination that the matter is indeed urgent. The court also made observations on the applicant's prospects of success, noting that the case was founded on a potentially unlawful sub-tenancy given the prohibition on sub-letting in the head lease without written permission, and that the sub-tenancy agreement was merely verbal with no written connection to the premises. The court observed that legal practitioners who certify matters as urgent when they are not should take heed of the warnings issued in cases such as Kuvarega v Registrar-General.

This case reinforces important principles in Zimbabwean civil procedure regarding urgent applications. It serves as a cautionary reminder to legal practitioners about the proper characterization of urgency and the dangers of self-created urgency through delay. The judgment emphasizes that urgency must exist at the time the need to act arises, not merely because a deadline is approaching. It also warns practitioners against making assumptions about how courts will view procedural matters and highlights the requirement that certificates of urgency and supporting affidavits must explain any delay in bringing the application. The case demonstrates the court's willingness to strike down urgent applications where urgency is manufactured by the applicant's own inaction.