On 29 November 2004, the applicant sold three pieces of land to the 1st respondent. In January 2005, one of the applicant's directors, Louis Viera, signed a document appointing the 2nd and 3rd respondents as directors of the applicant company. On 9 January 2007, the applicant issued summons in HC 109/07 seeking eviction of the 1st respondent from the three properties. The claim was defended, and the matter was referred to trial on 15 June 2007, set down for 16 July 2007, but did not proceed at the applicant's request. Subsequently, the respondents applied for and obtained replacement deeds of transfer for the three properties. Two properties were transferred to third parties using the replacement deeds. The applicant brought an urgent application seeking an interdict to restrain the respondents from using the replacement Deed of Transfer No. 6884/92 for the remaining property, alleging fraudulent conduct.
The application was dismissed with costs.
A certificate of urgency must adequately establish the basis upon which a matter is certified as urgent and cannot be taken lightly. An applicant in an urgent application must clearly specify in the founding affidavit when it became aware of the circumstances giving rise to the alleged urgency. Urgency which stems from deliberate or careless abstention from action until a deadline draws near is not the type of urgency contemplated by the rules of court. An applicant who sits on its rights and fails to diligently prosecute its claim when aware of the circumstances affecting those rights cannot later claim urgency when adverse consequences flow from that delay.
The court observed that the matter could have been disposed of by determining the first point in limine (urgency) and therefore did not need to address the second point regarding whether Mr Paul Christopher Paul had authority to institute proceedings on behalf of the applicant company. The court noted that the applicant did not have to wait for a fraudulent act to bring an action to challenge the authority of the 2nd and 3rd respondents as directors, given that this issue was already raised in the earlier HC 109/07 proceedings. The court commented that had the applicant diligently prosecuted its action in HC 109/07, the present application would not have been necessary.
This case is significant in Zimbabwean law (which shares substantial common law principles with South African law) for establishing strict requirements for urgent applications. It emphasizes that courts will scrutinize both the certificate of urgency and the founding affidavit to determine whether urgency is properly established. The case reinforces the principle that parties cannot create their own urgency through delay or failure to act diligently when they become aware of circumstances affecting their rights. It demonstrates the court's unwillingness to condone strategic delay in litigation and underscores the duty on applicants in urgent applications to clearly establish when they became aware of the circumstances giving rise to urgency and why they could not use ordinary processes.