Clifford Manungo and Tanaka Manungo v Paul Sibusiso Mtazu and Others

The first applicant claimed to have purchased stand 206 Matsheumhlophe Township, Bulawayo from Gamuchirai Lilosa Madondo in March 2018. Madondo had allegedly purchased the property from Stuart Grimshaw in March 2010, but Grimshaw died on 2 May 2018 before transferring the property to Madondo. In March 2021, the property was advertised for sale by estate agents, and the first respondent purchased it from the second respondent (who held Letters of Administration). The second applicant was present when the first respondent's representative viewed the property on 26 March 2021. Transfer was effected to the first respondent on 31 August 2021. The second respondent failed to give vacant possession, leading to eviction proceedings under case HC 4751/21. An eviction order was granted on 5 November 2021, and applicants were evicted on 18 November 2021. The applicants then filed an urgent application on 19 November 2021 seeking restoration of occupation.

• Whether the application met the requirements for urgency under the High Court Rules
• Whether the order sought was competent given that eviction had already been effected
• Whether applicants had a right to approach the court for restoration of occupation
• Whether applicants failed to disclose material facts
• Whether applicants could regain possession after losing it through a court-ordered eviction

The application was dismissed with costs against the applicants.

A party who has lost possession of property through eviction pursuant to a court order cannot regain possession through an urgent application seeking restoration of occupation. An urgent application must demonstrate genuine urgency at the time the need to act arises, not merely that the day of reckoning has arrived. Where an applicant is aware of circumstances affecting their rights but delays in taking action without proper explanation, the matter is not urgent. An application seeking to interdict or reverse that which has already occurred (a completed eviction) is incompetent. Material non-disclosure of facts, particularly regarding the completion of eviction proceedings, is fatal to an application.

The court observed that applicants had no real rights with respect to the property and whatever issues they had were between them and Madondo. The court noted that the proper remedy for applicants would be an action against Gamuchirai Lilosa Madondo with whom they had an agreement. The court commented that litigants who bring urgent proceedings gain considerable advantage over other litigants and must demonstrate good cause for jumping the queue. The court noted that the provisional order was not competent because it sought via the back door to use the court to disregard the court order and writ under HC 4751/21.

This case reinforces important principles in Zimbabwean civil procedure regarding urgent applications, particularly: (1) the strict requirements for establishing urgency and the need to explain delays; (2) the principle that a party evicted pursuant to a court order cannot regain possession through an urgent application, even if the original order was wrong; (3) the requirement for full and frank disclosure of material facts in urgent applications; (4) the distinction between real rights and personal rights in property disputes, and the proper remedies available to parties with only personal rights arising from agreements of sale.