Croco Motors (Pvt) Ltd v Masengere and Others

The applicant obtained judgment against the second respondent on 12 June 2017 for $191,279.68 with costs. When the debt remained unpaid, a writ of execution was issued and property was attached. During negotiations, the first respondent signed a deed of suretyship on 7 March 2018, agreeing to place a caveat on her immovable property (Stand 836 Greystone Township) as security for the debt and undertaking not to sell or encumber the property until the debt was extinguished. The applicant filed a court application on 24 April 2018 for registration of a caveat, which was served on respondents and opposed by the first respondent on 9 May 2018. The applicant then neither filed answering affidavits nor set the matter down for hearing. Meanwhile, applicant and first respondent continued negotiating the sale of the property to the applicant. On 4 December 2018, the applicant discovered the property was being transferred to a third party, and by 7 December 2018, transfer had been completed. The applicant then filed this urgent application to stay the transfer pending finalization of the caveat application.

• Whether the matter was urgent and could be heard on an urgent basis
• Whether the applicant's delay in prosecuting the caveat application negated urgency
• Whether the relief sought was competent
• Whether seeking interim relief identical to final relief is competent
• Whether there was improper non-joinder of the new property owner
• Whether costs should follow the result given the respondents' conduct

1. The two points in limine are upheld. 2. The application is struck off the roll of urgent matters. 3. No order as to costs.

A matter is not urgent where the applicant has failed to diligently prosecute existing court proceedings that would provide the sought relief, and then seeks urgent interim relief pending finalization of those neglected proceedings. Urgency which stems from deliberate or careless abstention from action does not constitute the type of urgency contemplated by the rules. An application seeking interim relief that is identical to the final relief sought is incompetent. Failure to join a party whose legal rights (such as property ownership) would be directly affected by the order sought constitutes improper non-joinder and violates that party's constitutional right to be heard.

The court made important observations about the conduct of legal practitioners, noting that they are officers of the court and must at all times be professional in the conduct of their clients' affairs. They must guard against associating themselves with conduct which prima facie shows mala fides. In this case, the court expressed concern that the respondents and their legal practitioners continued to negotiate the sale of property to the applicant when they knew the property had already been sold to a third party. While this conduct warranted denying costs to the successful respondents, it was a departure from the general rule that costs follow the successful party.

This case reinforces important principles in Zimbabwean urgent application practice: (1) urgency cannot be claimed where an applicant has failed to diligently prosecute existing proceedings that would provide the relief sought; (2) self-created urgency through lack of diligence is not the type of urgency contemplated by the rules; (3) interim relief that is identical to final relief sought is incompetent; (4) failure to join parties whose rights may be affected (such as new property owners) violates constitutional rights to be heard; and (5) courts may decline to award costs even to successful parties where their conduct displays mala fides. The case also serves as a reminder to legal practitioners of their professional obligations as officers of the court to avoid associating with conduct that appears to be in bad faith.