Bainview Investments (Private) Limited and Noel Chinyuku v Beta Bricks and The Sheriff of Zimbabwe and Registrar of Deeds

The first respondent (Beta Bricks) obtained a default judgment against the applicants. Following the default judgment, a judicial attachment of the second applicant's property was effected on 5 January 2012. The applicants filed an application for rescission of judgment in December 2011 but did not prosecute it. On or about 27 March 2012, the applicants approached the court on an urgent basis seeking a stay of execution pending finalization of their rescission application. The respondent served opposing papers on the day of the hearing (29 March 2012). The property had been attached on 5 January 2012 following the applicants' failure to enter appearance to defend in provisional sentence proceedings.

• Whether the matter was urgent and could be properly brought by way of urgent chamber application
• Whether the applicants had created their own urgency through delay
• Whether a stay of execution should be granted pending the rescission application

The application was dismissed for want of urgency. The court made no determination on the merits as it had indicated it would only proceed to merits if it found the matter to be urgent.

For a chamber application to be properly regarded as urgent: (1) it must be a matter that cannot wait to be resolved through normal application or action procedures; (2) the applicant must demonstrate that if not heard urgently, they will suffer substantial injustice or irreparable harm; (3) the court must exercise its discretion by considering cumulatively: the cause of action, nature of relief sought, probable delays with normal procedures, consequences of refusal, and other good reasons; (4) self-created urgency through inordinate and unexplained delay does not warrant urgent treatment; (5) applicants must act promptly upon becoming aware of circumstances requiring urgent relief; and (6) failure to explain delay in the certificate of urgency and founding affidavit is fatal to an urgent application.

The court observed that even assuming it was procedurally proper to enter an application for rescission of judgment, the applicants failed to prosecute that application after filing it in December 2011. The court also noted that following judicial attachment, the obvious next step would be sale of the attached property. The court remarked that the applicants appeared to have chosen to wait for "the day of reckoning" rather than taking timely action to protect their rights.

This judgment is significant in Zimbabwean civil procedure for clarifying the test for urgency in chamber applications. It emphasizes that courts will not condone self-created urgency and that applicants must act promptly when seeking urgent relief. The case reinforces the principle that all relevant factors must be considered cumulatively when assessing urgency, and that unexplained delay will be fatal to an urgent application. It serves as a warning that litigants cannot delay in protecting their rights and then later claim urgency to bypass normal procedures.