Bernard Makie & 124 Others v Caledonia Enterprises (Pvt) Ltd and Others

The applicants were settlers on Caledonia Farm owned by the first respondent. In 2013, the farm was gazetted for acquisition by the Government of Zimbabwe and parcelled out to various organizations for residential stands. The applicants were allocated pieces of land by different organizations and did not receive individual offer letters. In 2014, the Government withdrew the acquisition and returned the farm to its original owner. Disputes arose between the farm owner and the applicants. On 13 May 2015, the High Court issued a provisional order in Case No. HC 4187/15 in favor of the farm owners, which was confirmed on 29 July 2015. This order restored possession of the property to the owners and ordered eviction of unauthorized occupiers. The Sheriff began evicting the applicants on 14 September 2015. On 13 October 2015, some five months after the provisional order was granted, the applicants filed an urgent chamber application seeking to stop execution of the confirmed court order.

• Whether the application met the requirements for treatment as an urgent matter under the rules of court
• Whether delay of five months (or at least one month from when evictions commenced) disqualified the matter from being treated as urgent
• Whether the applicants' failure to act timeously defeated their claim to urgency

The matter was struck off the roll of urgent matters as directed on 15 October 2015.

A matter is not urgent within the meaning of the rules if the applicants were aware of the circumstances giving rise to their application for months but only sought urgent relief when enforcement became imminent. Urgency which stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. A matter is urgent only if, at the time the need to act arises, the matter cannot wait to be resolved through ordinary court application procedures. Delay in instituting proceedings, particularly where applicants fail to explain their inaction, defeats a claim to urgency.

The court made an observation about the startling nature of counsel's submission that the court should find the matter urgent in respect of some applicants but not others, when all applicants had instituted a single application through one law firm. The court also noted that even the applicants' own averments in their founding affidavit contradicted their submissions about when they became aware of the enforcement and whether evictions had stopped and resumed.

This case reinforces important principles regarding urgent applications in Zimbabwean civil procedure. It emphasizes that urgency is assessed not merely by the imminence of harm, but by whether the applicant acted promptly when the need to act arose. The judgment serves as a warning that litigants cannot delay taking action and then seek to invoke the court's urgent procedures when enforcement becomes imminent. The case is illustrative of the courts' strict approach to policing abuse of urgent application procedures, which are designed to provide preferential treatment only to genuinely urgent matters that cannot wait for ordinary court processes.