Avim Investments (Private) Limited v Livetouch Investments (Private) Limited and Sheriff of the High Court of Zimbabwe, Gweru

On 12 February 2026, the High Court granted judgment in favour of the applicant against the first respondent for payment of US$380,000.00. The first respondent noted an appeal on 13 February 2026 (Case No. SCB 33/26 in Bulawayo). The applicant filed an urgent chamber application for leave to execute pending appeal on 26 February 2026 (HCH 921/26). On the same day, the first respondent withdrew its appeal and refiled it in Harare (SC 209/26). The applicant withdrew its application and filed another on 2 March 2026 (HCH 962/26), which was withdrawn on 5 March 2026. A further application (HCH 1074/26) was filed on 6 March 2026, set down for hearing on 10 March 2026, but struck off for non-appearance by both parties. The current application was filed on 13 March 2026. The applicant argued urgency based on: the first respondent's admitted indebtedness; the appeal being meritless; abuse of process through withdrawal and refiling; and degradation of coal fines (security for the debt) due to the rainy season. The first respondent raised two preliminary points: lack of urgency and invalidity of the founding affidavit.

• Whether the court should first determine the question of urgency before other preliminary points when both are raised in an urgent chamber application
• Whether the application met the requirements of urgency to warrant hearing on the urgent roll
• What constitutes urgency in the context of an application for leave to execute pending appeal
• Whether withdrawal and refiling of an appeal creates urgency for execution pending appeal

1. The point in limine of lack of urgency raised by the first respondent is upheld. 2. The application be and is hereby struck off the roll. 3. Each party shall bear its own costs.

When an urgent chamber application is opposed on grounds including lack of urgency together with other preliminary points, the court must first determine whether the matter meets the requirements of urgency before proceeding to determine any other points in limine. A matter is only urgent if it cannot wait in the sense that if not dealt with immediately, irreparable prejudice will result. Urgency is not established merely by the noting of an appeal or the grant of a judgment for payment of money. An applicant seeking urgent relief must act promptly when the need to act arises and provide satisfactory explanations for any delay, including supporting affidavits from legal practitioners where the delay is attributed to them. The withdrawal and refiling of an appeal within the prescribed period does not per se constitute an abuse of court process or create grounds for urgency. The merits or prospects of success of an appeal are not relevant considerations when determining whether an application for leave to execute pending appeal is urgent.

The court observed that in determining urgency, it is entitled to refer to its own records and take notice of their contents to understand the context of the whole dispute, though this does not mean the court determines the matter on the basis of circumstances prevailing in those previous cases. The court noted that where an applicant has previously raised the same arguments regarding degradation of assets (coal fines) over multiple rainy seasons, it should provide current evidence of the condition of those assets to establish why urgent intervention is now necessary. The court also commented that it would depart from the general rule that costs follow the cause, given that both parties had incurred considerable litigation costs in ongoing legal battles, and ordered that each party bear its own costs despite the first respondent succeeding on the preliminary point.

This case reinforces important principles in Zimbabwean civil procedure regarding urgent applications. It confirms that when urgency is challenged alongside other preliminary points, courts must determine urgency first before considering other points in limine. The judgment provides guidance on what constitutes urgency in applications for leave to execute pending appeal, clarifying that the mere noting of an appeal or obtaining a money judgment does not automatically establish urgency. The case emphasizes that applicants must act promptly when the need to act arises and provide satisfactory explanations for delays, including affidavits from legal practitioners when blaming them for defaults. It also establishes that withdrawal and refiling of appeals within prescribed time limits does not per se constitute abuse of process or create grounds for urgency, and that the merits of an appeal are not relevant to determining urgency.