G & G Preserves (Pvt) Ltd v Themba Sibanda and Others

The applicant, G & G Preserves (Pvt) Ltd, owned a property known as the remaining extent of Lot B Lower Rangemore. Sometime before January 2017, the applicant discovered that the 1st and 2nd respondents had been issued what appeared to be a mining claim by the 3rd, 4th, 5th and 6th respondents, and had set up a quarry mine on the applicant's property without permission. On 2 January 2017, applicant wrote to the 5th respondent (Umguza Rural District Council) to notify them of the illegal occupation. Another identical letter was sent on 15 February 2017 to the 6th respondent. The applicant received verbal assurances from Mrs Maphosa of the 5th respondent that rangers would remove the miners. On 13 March 2017, applicant conducted a site visit and discovered that the miners were still on site and had begun mining operations. The applicant then approached the court on 14 March 2017 seeking urgent interim relief to interdict the respondents from mining activities and to evict them from the property.

• Whether the matter constituted a genuine urgent application warranting departure from ordinary court procedure
• Whether the applicant's delay of over two months between discovering the illegal occupation and approaching the court vitiated the urgency of the application
• Whether urgency stemming from deliberate or careless abstention from timeous action falls within the contemplation of the rules governing urgent applications

The application was dismissed with costs.

A matter cannot be treated as urgent where the applicant has delayed for over two months between becoming aware of the cause of action and approaching the court. Urgency stemming from deliberate or careless abstention from timeous action is not the type of urgency contemplated by the rules governing urgent applications. An urgent matter is one that cannot wait at the time the need to act arises - if a matter could wait for two and a half months before being prosecuted, it cannot be brought to court on the basis of urgency. A matter that was not urgent when the cause of action arose cannot become urgent merely because time has passed.

The court observed that if urgent applications based on self-created urgency were allowed, the whole meaning and purpose of urgency would be distorted and courts would be inundated with matters clothed with false and self-created urgency. The court also noted that applicant should have realized that if respondents had set up a mine in January 2017, mining operations would naturally follow, yet still chose not to act timeously. The court indicated that it would not consider the other points in limine raised by respondents as it found it unnecessary to do so given the decisive nature of the lack of urgency point.

This Zimbabwean case is significant for South African legal practitioners as it reinforces the strict approach courts take to applications brought on an urgent basis. While this is a Zimbabwean judgment, the principles are highly persuasive in South African law given the similar legal systems and rules of court. The case emphasizes that urgency cannot be self-created through delay or inaction, and that applicants must act promptly when a cause of action arises. The judgment serves as a warning that the urgent court will not entertain matters where parties have sat on their rights for extended periods, as this would defeat the purpose of the urgent application procedure and allow parties to jump the queue inappropriately. The case is particularly instructive on what does not constitute urgency and the importance of providing proper explanations for any delay in urgent application certificates.