Francis Tapera Buka Zvikaramba v Josiah Garamukanwa and Messenger of Court Harare

On 30 October 2013, the messenger of court served a notice of attachment following a judgment by Takuva J in HC 788/13. The applicant claimed he was unaware of the judgment until service of the writ of attachment. The applicant filed an application for rescission of judgment and stay of execution in HC 9084/13, which was opposed by the first respondent and remained pending. Despite the pending application, the first respondent instructed the messenger of court to sell the seized property by public auction on 26 November 2013. The applicant filed an urgent chamber application to prevent the sale. The underlying dispute originated from a magistrate's court default judgment in case C13/97 of 7 May 1997, which the applicant claimed was rescinded by Provincial Magistrate Manyangadze on 5 March 1999, though the first respondent disputed this rescission. The applicant had previously brought a similar urgent application in HC 13381/12 which was dismissed by Mwayera J on 19 November 2012 on the basis of lack of urgency.

• Whether the matter qualified as urgent for purposes of an urgent chamber application
• Whether the issue of urgency was res judicata in light of the previous decision by Mwayera J in HC 13381/12
• Whether the applicant was engaged in forum shopping by bringing the same arguments before a different judge
• Whether the disputed rescission of the 1997 magistrate's court judgment could be determined on the papers in an urgent application

The urgent chamber application was dismissed. The court found that the matter was not urgent and that the issue of urgency was res judicata. The applicant was directed to pursue his remedies through the ordinary rescission and stay of execution application (HC 9084/13) already filed.

Where a court has previously determined that a matter is not urgent and dismissed an urgent application on that basis, the issue of urgency becomes res judicata and a litigant cannot bring a subsequent urgent application on substantially the same grounds before another judge of the same court. Forum shopping by litigants attempting to present the same arguments to different judges must be discouraged by the courts. A matter that has been pending in various forms for many years (in this case since 1997) does not possess the characteristics of urgency required for an urgent chamber application, particularly where the applicant has failed to utilize available remedies such as appeal and review and has alternative remedies available through ordinary court processes.

The court expressed hope that the applicant was not engaging in forum shopping and emphasized that such practice should be discouraged. The court noted that the applicant should have utilized previous opportunities to be heard on appeal and review. The court also observed that the persisting dispute about the authenticity of the alleged 1999 rescission order demonstrated that the matter could not properly be disposed of as an urgent application on the papers filed, as it required further factual determination. The court specifically noted that the first respondent was within his rights to dispute the validity of the rescission in the absence of an authenticated signature of the Provincial Magistrate.

This case is significant in Zimbabwean civil procedure law for reinforcing the principle of res judicata in relation to urgent applications and for discouraging forum shopping. It establishes that where a court has previously determined that a matter is not urgent, a litigant cannot bring the same urgency arguments before another judge of the same court hoping for a different outcome. The case emphasizes the importance of finality in procedural determinations and the need for litigants to utilize proper channels of appeal and review rather than repeatedly filing urgent applications on the same grounds. It also demonstrates that long-running disputes originating many years prior generally do not qualify as urgent matters absent exceptional circumstances.