The applicant was a tenant of the second respondent from 4 December 2012 at No. 29 Herbert Chitepo Street, Rusape. The lease agreement was meant to expire on 30 September 2017, but was cancelled on 10 April 2014 due to the applicant's failure to pay rentals amounting to US$36,000.00. The applicant did not challenge the cancellation but remained in occupation. On 14 April 2014, the second respondent concluded a new lease agreement with the first respondent. In May 2014, the first respondent took occupation of most of the premises, save for one small office still occupied by the applicant. This resulted in a continuing dispute between the applicant and first respondent, with mutual accusations of harassment and interference. On 30 June 2014, the applicant filed an application for an interdict at Rusape Magistrate's Court which declined monetary jurisdiction and referred the parties to the High Court on 28 July 2014. The first respondent also filed a spoliation application and subsequently an eviction application. On 24 October 2014, the applicant approached the High Court on an urgent basis seeking a provisional order barring the respondents from interfering with its operations at the entire premises.
The application was ruled not urgent and was struck off the urgent roll. The applicant was ordered to pay the first and second respondents' costs on the ordinary scale. The court declined to deal with the merits of the application.
An application is not urgent if the applicant failed to act when the need to act first arose and the applicant could wait before approaching the court. The test for urgency is whether at the time the need to act arises, the matter cannot wait. Where a court has previously ruled that an urgent application on the same dispute between the same parties was not urgent, a party should not bring the same dispute to court on an urgent basis for a second time in the absence of new exceptional circumstances. Delays in filing urgent applications must be explained, and failure to do so is fatal to the urgency of the application.
The court observed that there were three pending cases between the parties: an eviction case filed by the first respondent, an eviction and arrear rentals case filed by the second respondent, and an interdict application filed by the first respondent. The court noted that the applicant did not dispute owing US$36,000.00 in arrear rentals and had signed an acknowledgment of debt. The court also noted that justice dictates that unless there are special or exceptional circumstances, courts must deal with cases on a first come first served basis, citing Mushonga & Ors v Minister of Local Government, Public Works and National Housing HH 129/04. The court declined to address whether a punitive costs order was justified, ordering costs on the ordinary scale instead.
This case reinforces the strict requirements for urgent applications in Zimbabwean courts and emphasizes that parties cannot repeatedly attempt to bring the same dispute on an urgent basis without exceptional circumstances. It demonstrates the principle that litigants must act promptly when the need to act arises, and must provide explanations for any delays. The case also affirms the 'first come first served' principle in court processes and discourages forum shopping through repeated urgent applications on the same underlying dispute.