Felix Farai Kamusasa and Mildred Kamusasa v Wilson Muganda and Minister of Lands, Agriculture, Water and Rural Resettlement

Applicants (Felix Farai Kamusasa and Mildred Kamusasa) held Plot 4 Helensvale Estate under an offer letter from the Second Respondent (Minister of Lands). First Respondent (Wilson Muganda) occupied Plot 5. A previous dispute arose when the first applicant removed a fence erected by the First Respondent as a boundary between Plots 4 and 5. This dispute was resolved by consent order on 27 November 2020 at the High Court Mutare, which provided that the allocating authority would resolve the ownership dispute of Plots 4 and 5. On 7 January 2021, the First Respondent allegedly brought cattle to graze on land claimed by the applicants. Applicants filed an urgent application seeking an interdict to restrain the First Respondent from allowing livestock to graze on Plot 4. The First Respondent raised several points in limine, including non-compliance with prescribed forms, defective commissioning of affidavits, incorrect citation of Second Respondent, defective certificate of urgency, and critically, that the matter was not urgent.

• Whether the application was urgent and qualified for urgent chamber application treatment
• Whether procedural defects (non-compliance with Form 29, defective commissioning, incorrect citation) rendered the application fatally defective
• Whether the boundary dispute between Plots 4 and 5 had been resolved by the allocating authority as contemplated in the consent order of 27 November 2020
• Whether points in limine, particularly urgency, should be determined before considering the merits of an urgent application

The matter was found not to be urgent and was removed from the roll of urgent applications. The court did not make any order as to costs.

Where parties have resolved a dispute by consent order that specifically provides for resolution of a boundary dispute by an allocating authority, an urgent application seeking relief on the same subject matter cannot be considered urgent until the agreed-upon resolution mechanism has been exhausted. A party cannot claim urgency in circumstances where they have agreed to a particular dispute resolution process that has not yet been completed. The court must determine the issue of urgency as a threshold matter before considering the merits of an urgent application, and if the matter is found not to be urgent, it must be removed from the roll of urgent applications without considering other points in limine or the merits.

The court observed that applicants failed to file an answering affidavit to the First Respondent's opposing affidavit despite the latter being filed on 22 January 2021. The court noted that if applicants required time to file an answering affidavit, they should have sought the respondent's consent or, failing that, sought leave of the Judge. The court also noted (obiter) that the land in dispute could only be owned by the State, not by the disputants who could only lease it, putting the word "ownership" in parenthesis when referring to the dispute. The court further observed that applicants did not seek condonation for the alleged failure to use the correct form, and did not address the issue of urgency in their heads of argument.

This case illustrates important principles regarding urgent applications in Zimbabwean law, particularly: (1) the requirement that urgency must be determined as a threshold issue before considering merits; (2) that parties cannot circumvent consent orders by bringing urgent applications on the same subject matter before the conditions in the consent order are fulfilled; (3) that where parties have agreed to a particular mechanism for dispute resolution (in this case, resolution by the allocating authority), they cannot bypass that mechanism through urgent court applications; and (4) the principle that a party cannot take contradictory positions ("blowing hot and cold") regarding whether a dispute has been resolved. The case reinforces procedural discipline in urgent applications and respect for consent orders.