The first respondent obtained judgment against the applicant in case HC 5114/11 on 12 March 2014. The applicant filed an appeal to the Supreme Court on 13 July 2017 (case SC 458/17). On 24 September 2018, the Registrar of the Supreme Court advised the applicant that his appeal had lapsed and was deemed abandoned due to non-compliance with court rules. On 22 October 2018, the first respondent issued a writ of execution to enforce the judgment. The applicant was allegedly served with the writ on 3 December 2018, with property removal scheduled for 6 December 2018. On 6 December 2018, the applicant brought an urgent chamber application seeking to stay execution pending determination of the appeal. The first respondent opposed the application and raised three points in limine: (1) failure to comply with Rule 241 by not using Form 29; (2) incompetent relief as no appeal was pending; and (3) lack of urgency.
The application was struck off the roll of urgent chamber applications. The applicant was ordered to pay the costs.
1. An application that is required to be served on interested parties must be in Form 29 as required by the proviso to Rule 241(1). Non-compliance with this requirement renders the application a nullity. 2. A court cannot grant relief to suspend execution pending an appeal when no appeal is actually pending before the appellate court - such relief is incompetent. 3. For an application to be urgent, the applicant must act when the need to act arises. Urgency that stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the Rules. The need to act arises when the applicant becomes aware of the circumstances requiring action, not when enforcement consequences become imminent.
The court emphasized that Form 29 is not merely a technical requirement but serves the important purpose of alerting respondents to their procedural rights, including the right to oppose and consequences of failure to file opposing papers timeously. The court noted that litigants need only "copy and paste" the appropriate form, suggesting that compliance is straightforward and non-compliance demonstrates a lack of diligence. The court also observed that an application for condonation under Rule 4C must be made timeously and the applicant must show the departure from rules is in the interests of justice - waiting until the opposing party addresses the court before seeking condonation does not demonstrate alertness to comply with the rules.
This case reinforces strict compliance with procedural rules in Zimbabwean courts, particularly: (1) the mandatory requirement to use the correct prescribed forms (Form 29 or 29B) for chamber applications under Rule 241; (2) the principle that non-compliance with form requirements results in a nullity that cannot be easily condoned; (3) the test for urgency requires acting when the need arises, not when consequences become imminent; and (4) urgency arising from deliberate or careless delay is not the type contemplated by the Rules. The case demonstrates that procedural non-compliance on multiple grounds will result in applications being struck off the roll.