Destiny of Africa Network v Rainbow Tourism Group Limited and Deputy Sheriff of Zimbabwe

The applicant was sued by the first respondent in HC 2593/13 for eviction from Office 23, 1 Pennefeather Avenue, White House Complex, Rainbow Towers Harare, based on non-payment of rentals. The parties entered into a deed of settlement reduced to a consent order on 9 April 2015, wherein the applicant agreed to pay USD$21,450.00 plus interest by way of monthly installments: USD$5,000 by 30 April 2015, USD$1,000 per month from May to July 2015, and USD$1,500 per month from August 2015 until fully paid by 31 March 2016. The parties agreed that the full amount would fall due upon default of a single installment and the respondent could execute without further notice. A Writ of Ejectment and Writ of Execution were issued on 22 May 2015. The applicant initially defaulted on the first USD$5,000 payment but paid it by 14 May 2015 by agreement. The parties subsequently modified the payment terms to USD$1,650 per month (USD$1,000 towards arrears and USD$650 towards current rent). The respondent claimed the applicant owed USD$7,129.41 (later reduced to approximately USD$12,000) and instructed the Sheriff to attach and remove property. The applicant denied being indebted, claiming it had paid in full but was in the process of locating proof of payment. The applicant's goods were due to be removed on 27 April 2017, prompting this urgent application filed on 24 April 2017.

• Whether the matter qualified as urgent warranting preferential treatment and suspension of ordinary court rules
• Whether special circumstances existed to justify granting a stay of execution
• Whether the applicant demonstrated it would suffer irreparable harm if execution proceeded
• Whether the court should exercise its inherent power to control its own processes to prevent injustice

1. Execution and removal of the applicant's property in HC 2593/13 be and is hereby stayed pending the determination of the application for a declaratur filed under HC 3692/17. 2. Ejectment of the applicant and all those claiming title through it from office 23, number 1 Pennefather Avenue, White House Complex, Rainbow Towers, Harare, be and is hereby stayed pending determination of the application for a declaratur filed under HC 3692/17. 3. Costs shall remain in the cause.

A matter qualifies as urgent if: (a) it cannot wait at the time when the need to act arises; (b) irreparable prejudice will result if not dealt with immediately; (c) there is prima facie evidence the applicant treated it as urgent; (d) there is a sensible, rational and realistic explanation for any delay in taking action; and (e) there is no satisfactory alternative remedy. The court has inherent power to control its own processes and procedures, including staying execution of judgments where special circumstances exist and real and substantial justice demands intervention. Special circumstances can readily be found where judgment is for ejectment or transfer of property, because carrying the judgment into operation could make restitution of the original position difficult. The onus rests on the party seeking a stay to satisfy the court that special circumstances exist and that irreparable harm or prejudice may be suffered.

The court expressed the view that this is a "seemingly elusive" concept of urgency that needs to be repeated in the hope it becomes clearer to litigants. The court also noted in passing that the applicant was allegedly in the habit of only paying rentals when "threatened" by legal action, though this did not affect the outcome. The court observed that parties had constantly revised their consent order through subsequent agreements, showing a pattern of flexible enforcement prior to the respondent's decision to strictly enforce the original terms. The court also made general observations about litigants jumping the queue and the need to balance preferential treatment for urgent matters against the interests of other waiting litigants.

This case provides comprehensive guidance on the test for urgency in Zimbabwean (and by extension South African) civil procedure, consolidating and synthesizing numerous precedents on urgent applications. It demonstrates the court's willingness to exercise its inherent power to stay execution where there are special circumstances and fluctuating amounts allegedly owed, preventing potential irreparable harm. The judgment reaffirms that courts will regulate their own processes to prevent palpable injustice, particularly in execution matters involving ejectment or property transfer where restitution would be difficult. The case is instructive on the balance between enforcing consent orders and preventing unjust enrichment or harm where disputes exist about amounts actually owed.