Chitungwiza Municipality v Nyatsime Beneficiaries Trust and Others

The applicant, Chitungwiza Municipality, approached the court on an urgent basis on 12 March 2015 seeking to prohibit the respondents (Nyatsime Beneficiaries Trust, a pressure group led by the second and third respondents, Mavhuto Matambo and Alice Matambo) from building, erecting, developing, and piling building material on what the applicant alleged was a designated cemetery area in Nyatsime. The applicant claimed the respondents were interfering with their administrative role by preventing them from erecting boom gates to control access to the cemetery area. The alleged violations occurred on 7 March 2015 and 9 March 2015. The applicant claimed efforts to obtain assistance from the Zimbabwe Republic Police (ZRP) did not yield positive results. The respondents opposed the application, arguing that the area in question was a residential area where the respondents and their members had purchased land and built houses, not a cemetery.

• Whether the matter constituted a genuine urgency warranting preferential treatment through the urgent court roll
• Whether the applicant satisfied the requirements for urgent relief as contemplated by the court rules
• Whether the applicant would suffer irreparable harm if the interim relief was not granted
• Whether the applicant had other adequate alternative remedies available

1. The matter is not urgent and it is removed from the urgent roll. 2. The applicant shall pay costs of his application.

Urgency stemming from deliberate or careless abstention from action is not the type of urgency contemplated by court rules. The test for urgency is objective and cumulative, requiring that the matter ought to be one which cannot wait, for waiting would render future intervention hollow. When an applicant has other adequate remedies available through normal court processes (legislative, contractual, or delictual remedies through normal set down) and there is no indication of irreparable harm, the matter does not qualify for preferential treatment on the urgent roll. The certificate of urgency and founding affidavit must demonstrate genuine urgency based on the circumstances of the case, the nature of relief sought, and the cause of action.

Although counsel addressed the court on both urgency and merits, the court indicated it was not necessary to go beyond the issue of urgency given that the matter was not viewed as urgent. This suggests that where urgency is not established, the court will not proceed to consider the merits of the application, regardless of whether parties have presented arguments on the substantive issues. The court also observed that there appeared to be a factual dispute about whether the land in question was designated as a cemetery (as claimed by the applicant) or residential area (as claimed by the respondents), but this dispute was not resolved as the matter was struck from the urgent roll on procedural grounds.

This case reinforces the strict approach Zimbabwean courts take to applications for urgent relief. It illustrates that municipal authorities, like any other litigants, must satisfy the objective test for urgency and cannot use the urgent roll as a means to bypass normal court procedures when they have failed to act timeously. The case serves as a reminder that self-created urgency or urgency arising from deliberate abstention from action will not be countenanced by the courts. The judgment emphasizes that the availability of alternative remedies and the absence of irreparable harm are important factors in determining whether a matter warrants urgent treatment.