The applicant showed interest in leasing property from the respondent in August 2006, with the lease to commence at the end of that month when the current lease was due to expire. The applicant made a payment for rent on 30 August 2006 by direct deposit into the respondent's account, though the parties disputed whether negotiations had occurred. The applicant did not take occupation on 1 September 2006. When it attempted to do so on 15 September 2006, it found the property under renovations. In anticipation of taking occupation on 1 October 2006, the applicant gave notice to its landlord terminating its existing lease effective end of September 2006. When the applicant sought to take occupation on 1 October 2006, it found the premises occupied by another family. The applicant filed an urgent chamber application on 5 October 2006 seeking to enforce the alleged lease agreement and obtain vacant possession. A judge initially found the matter not urgent. By the time the applicant sought audience to argue urgency, the matter could not be heard by that judge. The matter was eventually heard by Makarau J 21 days after filing.
The application was dismissed with costs awarded to the respondent.
A matter is urgent for purposes of urgent chamber applications only if, at the time the need to act arises, the matter cannot wait because failure to act immediately would result in the applicant irretrievably losing the right or legal interest sought to be protected. The test for urgency is objective, not subjective. Urgency is determined by whether subsequent court action would be academic and of no direct benefit to the applicant if the court fails to act immediately. Not every legal interest is capable of protection by way of urgent application, regardless of how compelling the circumstances. The nature of the cause of action and the relief sought are important considerations. Commercial inconvenience and non-crippling financial loss do not constitute urgency. Parties who will be directly affected by eviction orders must be cited and given an opportunity to be heard. Final relief cannot be granted as interim relief in urgent applications.
The court made several non-binding observations: (1) Some actions by their nature demand urgent attention and the law recognizes this - actions to protect life, liberty, or the interests of minor children warrant courts acting swiftly because failure to act results in irreversible harm. (2) In some cases, even purely commercial interests can be protected urgently in appropriate cases, such as where bankruptcy and loss of employment would result (referencing Silvers' Trucks (Pvt) Ltd v Director of Customs & Excise 1999 (1) ZLR 490 (H)). (3) Urgent applications are those where if courts fail to act, applicants would be entitled to dismissively suggest the court should not bother to act subsequently because the position would have become irreversible. (4) Most litigants would like their disputes resolved immediately, but this subjective desire does not create urgency. (5) The court noted that certain causes of action, such as divorce or damages claims, are inherently incapable of urgent relief despite potentially compelling circumstances. (6) The court observed that had the property not been leased to a third party and the applicant sought a restraining order preventing further leasing pending determination of validity, interim protection might have been warranted.
This case is significant in Zimbabwean (and by extension South African) civil procedure jurisprudence for its comprehensive exposition of the test for urgency in urgent applications. The judgment provides important guidance on: (1) the objective test to be applied in determining urgency; (2) the principle that not every legal interest can be protected by way of urgent application regardless of how compelling the circumstances; (3) the distinction between matters involving fundamental rights (life, liberty, children's interests) and commercial interests; (4) the requirement that delay attributable to the court system should not prejudice an applicant; (5) the principle that final relief cannot be disguised as interim relief in urgent applications; and (6) the importance of citing all affected parties in eviction proceedings. The case establishes clear parameters for practitioners and courts in assessing whether matters qualify for the urgent roll.