Desire Nkomo v Michelle Gona and Others

The applicant and 1st respondent were disputing the right to occupy Subdivision 1 of Lot 15 Lower Nondwane, State land in Umguza District. The applicant claimed occupation rights based on a Certificate of Occupancy issued by Umguza Rural District Council in terms of section 9(1) of the Communal Land Act 20 of 1982, alleging he had occupied the land since 2001, cleared fields, built structures, and paid rates. The 1st respondent claimed occupation rights based on an Offer Letter dated 3 October 2019. On 3 February 2021, the applicant filed an urgent application (HC 16/21) seeking to interdict the 1st respondent from constructing on the disputed land. On 18 March 2021, Mabhikwa J dismissed that application as not urgent, finding disputes of fact, failure to exhaust remedies, and misjoinder (HB 38/21). On 31 March 2021, the applicant filed a review application (HC 260/21) seeking to set aside the 1st respondent's Offer Letter. On 1 April 2021, approximately two weeks after HC 16/21 was dismissed, the applicant filed this urgent application seeking substantially identical relief—an interdict to prevent the 1st respondent from constructing on the disputed land.

• Whether the application was urgent and entitled to be heard on an urgent basis
• Whether the application constituted an abuse of court process by duplicating a previously dismissed urgent application
• Whether a judge has jurisdiction to effectively review or set aside the judgment of a judge of parallel jurisdiction
• What is the appropriate costs order where a litigant has abused the court process

The application was removed from the roll of urgent matters with costs on a legal practitioner and client scale against the applicant.

The binding legal principles established are: (1) A judge of the High Court has no jurisdiction or competence to review, alter, or change a judgment or order of another judge of parallel jurisdiction—such relief is the prerogative of the appellate court. To grant relief that would effectively set aside the judgment of a judge of parallel jurisdiction would constitute an appeal through the back door. (2) An application that is substantially identical to a previously dismissed urgent application, involving the same parties, the same cause of action, and seeking the same relief, constitutes an abuse of court process and is not entitled to be heard on an urgent basis, regardless of cosmetic changes made to distinguish it. (3) Where an urgent application has been removed from the roll but remains pending, a subsequent application between the same parties on the same cause of action cannot be treated as urgent. (4) Where conduct amounts to an extraordinary abuse of court process, punitive costs on an attorney and client scale are justified to mark the court's disapproval and deter wholly unacceptable behavior. (5) Urgency in court applications is determined by whether the matter cannot wait for ordinary procedures, there is no alternative remedy, the applicant acted timeously, and the relief sought is proper at law.

The court made several obiter observations: (1) The court expressed strong disapproval of counsel (Mr Nxumalo) appearing without proper preparation or familiarity with the case, noting this conduct fell below the threshold of competent and effective legal representation to which litigants are entitled. The court stood the matter down to enable counsel to either have the instructing attorney argue the matter or to familiarize himself with the files. (2) The court noted that when counsel resumed, he claimed to be ready but still displayed incoherencies "typical of counsel who was not prepared for a hearing." (3) The court observed that the differences in wording between the two applications appeared to be "a deliberate and calculated ploy to mislead and create a façade that these two applications are different." (4) The court commented that this was "a border-line case between costs de bonis propriis and costs on a legal practitioner and client scale," indicating it considered ordering the legal practitioner personally to pay costs, but ultimately spared counsel "with a warning that litigants are entitled to effective and competent legal representation." (5) The court characterized the case as epitomizing "an unacceptable abuse of the process of this court" and stated the conduct was "extraordinary and worthy of a court's rebuke."

This case is significant in South African and Zimbabwean jurisprudence for several reasons: (1) it reinforces the principle that urgent applications are an extraordinary remedy requiring strict proof of urgency, and litigants cannot jump the queue without proper justification; (2) it confirms that a judge of the High Court has no jurisdiction to review, alter, or set aside the judgment of another judge of parallel jurisdiction—such matters must go to the appellate court; (3) it demonstrates that attempting to re-litigate substantially identical matters after an unfavorable ruling, by making cosmetic changes to the application, constitutes an abuse of court process; (4) it illustrates the court's willingness to impose punitive costs (attorney and client scale) to mark its disapproval of conduct that amounts to an extreme abuse of court process; and (5) it highlights the duty of legal practitioners to provide competent and effective representation, with the court noting that appearing without proper preparation and familiarity with the matter falls below the required standard. The case serves as a warning against forum shopping and attempting to circumvent adverse judgments through procedural manipulation.