Chitungwiza Municipality v Met Bank

The applicant (Chitungwiza Municipality) and first respondent (Met Bank) were engaged in a dispute in case HC 6800/15. On 3 February 2016, the parties entered into a Deed of Settlement which was recorded as a court order. In terms of the settlement, the applicant was required to hand over 79 vacant residential stands to the first respondent within 6 months (by 3 September 2016), or alternatively provide 63,200 square metres of land within the same period. The Deed provided that failure to comply would entitle the first respondent to apply for quantification of damages. By 3 September 2016, the applicant had neither handed over the stands nor the land. On 3 November 2016, the court granted an order for damages in the sum of US$1,027,000.00 plus interest and costs. When no payment was made, the first respondent obtained a writ of execution on 11 January 2017. The writ was served on 19 January 2017, with property attached for removal on 25 January 2017. The applicant then approached the court on an urgent chamber application seeking a stay of execution.

• Whether the application was urgent and met the requirements for urgent chamber applications
• When the need to act arose for purposes of determining urgency
• Whether the applicant acted timeously when the need to act arose
• Whether costs on a higher scale were justified

The application was struck off the roll as not being urgent, with the applicant ordered to pay costs on the ordinary scale.

For purposes of determining urgency in chamber applications, the need to act arises when a party becomes aware of circumstances that trigger potential adverse consequences, not when those consequences become imminent due to the party's own failure to act timeously. 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 of court. Where parties have entered into a Deed of Settlement recorded as a court order and one party fails to comply, knowing the consequences of such failure, that party cannot claim urgency when seeking to stay execution of the order obtained as a consequence of their non-compliance.

The court made sympathetic observations about the applicant's position that it stood to lose valuable assets which may affect its ability to provide services to residents of Chitungwiza. However, the court noted that this was a consequence well within the contemplation of the parties when they entered into the Deed of Settlement. The court also observed that what would have been prudent was for the applicant to raise the money and settle its debt with the first respondent, and that the manner in which the applicant handled its debt gave the impression of not prioritising such debt. The court noted that the loss of assets was not irreparable as these could always be replaced.

This case illustrates the Zimbabwean courts' approach to determining urgency in chamber applications, particularly in the context of execution of judgments arising from settlement agreements. It reinforces the principle that parties cannot create artificial urgency by delaying action until the last moment when they were aware of potential consequences from an earlier date. The case emphasizes that the 'need to act' test is central to determining urgency, and that this need arises when a party becomes aware of circumstances that may lead to adverse consequences, not when those consequences become imminent due to the party's own inaction. It also demonstrates the courts' reluctance to interfere with execution processes where parties have freely entered into settlement agreements and failed to comply with their terms.