Bulawayo Upcoming Traders Association v The City of Bulawayo and The Minister of Local Government Public Works and National Housing, N.O

In January 2020, the City of Bulawayo allocated temporary vending bays to the applicant's members along 5th Avenue in the Central Business District. On 23 March 2020, the President of Zimbabwe declared a state of disaster due to the COVID-19 pandemic. In compliance with government directives titled "Guidelines for the Resilient Food Supply Chain System During and After the Lockdown", the City of Bulawayo adopted measures on 26 April 2020 to decongest the Central Business District. The City advertised on 26 and 30 April 2020 its intention to reopen 5th Avenue to vehicular and pedestrian traffic and relocate vendors to sites outside the CBD. On 3 May 2020, the vending bays were removed and 5th Avenue was reopened for traffic. The applicant association held a resolution on 26 May 2020 to take legal action but only filed an urgent application on 17 June 2020. On 15 June 2020, some members attempted to return to the site and were arrested and paid admission of guilt fines for blocking a pavement in contravention of section 23(34) of the Bulawayo City By-Laws.

• Whether the application met the requirements for urgency under the rules of court
• Whether the applicant demonstrated it would suffer irreparable harm if the matter was not dealt with urgently
• Whether the urgency was self-created
• Whether the interim relief sought was incompetent as it was final in nature
• Whether it was competent to seek unhindered access to vending bays that no longer existed
• Whether the application constituted an abuse of court process

The application was dismissed with costs against the applicant.

The binding legal principles established are: (1) An urgent application must establish that irreparable harm will be suffered if the matter is not dealt with urgently - a bald averment without supporting facts is insufficient. (2) Urgency is self-created where an applicant has knowledge of the impugned decision or action well in advance but delays in approaching the court. (3) It is incompetent to seek interim relief that is final in nature, as this allows an applicant to obtain final relief without proving its case on the merits. (4) An application seeking restoration of or access to something that the applicant knows no longer exists is incompetent and constitutes an abuse of court process. (5) The Certificate of Urgency must contain useful information and proper certification regarding irreparable harm - without this, the court cannot exercise its discretion to grant urgent audience.

The court made obiter observations about the COVID-19 pandemic context, noting that all arms of government were enjoined to take extraordinary measures to curb the spread of the coronavirus, and that the City of Bulawayo's objective was to protect citizens and ensure public health and safety. The court also noted that minutes of a meeting between the applicant association and the City held on 4 May 2020 showed that displaced vendors would be given preference in vending sites closer to their residences, and those willing to remain in the CBD would be accommodated at Highlanders Football Club premises - suggesting alternative accommodation was offered. The court observed it would not be necessary to deal with other preliminary issues raised by the respondent or the merits of the case given the fatal defects in urgency and competence.

This case is significant in Zimbabwean administrative and procedural law (with persuasive value in South African law given similar legal traditions) for reinforcing strict requirements for urgent applications. It establishes that: (1) applicants must demonstrate genuine urgency and not self-created urgency; (2) Certificates of Urgency must properly establish irreparable harm with supporting facts; (3) interim relief cannot be final in nature as this allows applicants to succeed without proving their case on the merits; (4) it is an abuse of process to seek court orders for relief that is factually impossible or based on known falsehoods; and (5) delays between knowledge of the impugned decision and launching of proceedings undermine claims of urgency. The case also illustrates courts' approach to balancing public health emergency measures (COVID-19 regulations) against vendors' economic interests, showing deference to local authorities' COVID-19 response measures.