Divvyland Investments (Pvt) Ltd v David Chiweza and The Sheriff of Zimbabwe

Divvyland Investments (Pvt) Ltd (applicant) filed an urgent chamber application seeking leave to execute a High Court judgment (HC 214/22) pending an appeal noted by David Chiweza (first respondent) against that judgment. The High Court judgment in HC 214/22 had dismissed the first respondent's application for a stay of execution of a Supreme Court judgment (SC 138/21) which granted the applicant the right to eject the first respondent from premises at Number 12 Le Roux Drive, Hillside, Harare. The applicant argued that the first respondent's appeal had no prospects of success and was merely filed to frustrate the applicant's efforts to recover its property. The first respondent raised a preliminary objection that the matter was not urgent.

• Whether the application for leave to execute pending appeal qualified as urgent within the meaning of Rule 60 of the High Court Rules 2021
• Whether an application for leave to execute pending appeal should be pursued as an urgent chamber application or an urgent court application
• What constitutes urgency sufficient to justify an urgent chamber application

The application was struck from the roll of Urgent Chamber Applications in terms of Rule 60(18) of the High Court Rules 2021. The applicant was granted liberty to proceed in terms of Rule 60(19) of the High Court Rules 2021.

An application for leave to execute pending appeal does not automatically qualify as urgent for purposes of an urgent chamber application merely because the successful party wishes to execute speedily or fears the judgment debtor may be unable to satisfy the judgment. Urgency must be established by showing that the matter cannot wait and that irreparable damage or loss will result from delay. The test for urgency is objective, not subjective, and requires tangible bases demonstrating the risk of irreparable harm. Applications for leave to execute pending appeal should generally be pursued as urgent court applications under Rule 60(12) rather than urgent chamber applications, as they often require consideration of a complete record and may not be dealt with by the judge whose judgment is subject to appeal.

Foroma J made important practical observations about filing procedures in urgent matters. The judge reminded legal practitioners that when filing documents in matters already allocated to a duty judge, they should ensure that after having documents stamped by the registrar, they deliver copies directly to the duty judge's chambers rather than leaving them in the civil registry. If registry clerks object to parting with the registry copy, an additional copy should be served on the allocated judge's clerk immediately. This ensures the duty judge has a complete file when preparing for the hearing and prevents postponements that defeat the purpose of urgent chamber application procedures. The judge also noted that while the High Court Rules 2021 do not define "urgent" or "urgency," this is advisable as courts and legal practitioners must be guided by precedent in determining the purview of these terms, which must be objectively tested and established rather than subjectively assessed.

This case provides important guidance on what constitutes urgency for purposes of urgent chamber applications under the High Court Rules 2021. It clarifies that applications for leave to execute pending appeal are generally more appropriately pursued as urgent court applications rather than urgent chamber applications. The case reinforces the objective test for urgency established in Kuvarega, emphasizing that the risk of irreparable damage or loss is the critical factor, not merely the desirability of speedy execution or the risk of a party being unable to satisfy a judgment. The judgment also provides practical guidance to legal practitioners on proper filing procedures for urgent matters to ensure duty judges have complete files before hearings.