Dereck Nyekete and Others v Lion Finance Limited and Another

The applicants acquired loans from Lion Finance Limited in 2018. After failing to service their loan accounts, they were sued under case HC 11433/18. On 13 May 2019, the parties entered into a deed of settlement and consent order was filed under case HC 3092/19 for USD$54,910.13. At the time the consent order was entered into, Statutory Instrument 33/2019 had already been gazetted and all parties were aware of it. The Sheriff of the High Court attached the third applicant's property pursuant to the consent order to enforce the debt in US dollars. The applicants paid RTGS$54,910.13 and claimed this satisfied the judgment debt based on SI 33/2019. When the Sheriff proceeded with execution in October 2021, the applicants filed an urgent chamber application seeking a stay of execution, claiming the debt had been fully satisfied and that SI 33/2019 converted the US dollar debt to RTGS at 1:1.

• Whether the application was urgent and properly before the court on an urgent basis
• Whether there was a reasonable explanation for the delay between the consent order (May 2019) and the urgent application (October 2021)
• Whether the certificate of urgency met the requirements of Rule 60(6) of the High Court Rules
• Whether payment in RTGS satisfied a consent order denominated in US dollars

1. The application is not urgent. 2. The matter is struck off the roll of urgent matters with costs.

An application is not urgent where the need to act arose over two years before the application was filed, and no reasonable explanation is provided for the delay. Urgency is determined objectively, not subjectively, and requires both a time element and potential harm. A certificate of urgency that merely regurgitates allegations from the founding affidavit without properly articulating why the matter is urgent fails to meet the requirements of Rule 60(6) of the High Court Rules. Self-created urgency, where an applicant remains passive despite knowing of grounds to challenge an order and only acts when execution becomes imminent, does not constitute the type of urgency contemplated by the rules. The need to act arises when the applicant becomes aware of the grounds for relief, not when enforcement of an adverse order becomes imminent.

The court observed that legal practitioners certifying urgency carry a heavy responsibility as officers of the court to guide and assist the presiding judge, and this duty must be discharged conscientiously with due diligence. The court also noted that the applicants had previously utilized legal recourse to challenge other aspects of the debt (such as the induplum rule regarding interest) denominated in US dollars, but failed to challenge the capital sum's currency denomination, suggesting they accepted the US dollar denomination until enforcement became imminent. While not deciding the merits, the court noted that even accepting the applicants' belief that payment could be made in RTGS at 1:1, by 20 May 2021 when the Sheriff issued the first notice of seizure clearly specifying the debt as US$54,910.13, it should have been apparent that the first respondent did not share this interpretation.

This case is significant in Zimbabwean civil procedure for reinforcing the strict requirements for urgent applications under Rule 60 of the High Court Rules. It emphasizes that: (1) urgency must be objectively established, not subjectively claimed; (2) certificates of urgency must properly articulate reasons for urgency and cannot simply regurgitate allegations from founding papers; (3) delays in bringing applications must be explained, and self-created urgency arising from inaction will not be tolerated; (4) legal practitioners carry a heavy responsibility in certifying urgency and must discharge this duty conscientiously; (5) the mere presence of potential irreparable harm is insufficient to establish urgency - there must be both time urgency and potential harm. The case also touches on important issues regarding enforcement of consent orders denominated in foreign currency in the context of Zimbabwe's currency reforms under SI 33/2019.