Gardner Magandi v Felix Pambukani

The respondent held an Offer Letter for Subdivision 2, Wakefield Farm in Chegutu. The applicant claimed to have entered into a verbal lease agreement with the respondent for use of a portion of the farm at US$40,000, expiring in May 2022. The respondent denied the existence of any lease agreement and was challenging this in HC 5315/21. The applicant alleged he brought various farming equipment to the farm (including a 35 KVA diesel generator, flue pipes, tobacco clips, grading tables and lights, blower fans, thermostat, and a 20 tonne steam boiler). The applicant claimed he was kicked out of the farm on 2 August 2021, though the respondent disputed this, stating the applicant secretly left after the respondent instituted proceedings against him. On 23 January 2022, the applicant's workers allegedly attempted to collect the equipment but were denied entry by the respondent. The applicant filed an urgent application seeking to recover the equipment, claiming he needed it to cure tobacco at another farm and would suffer irrecoverable financial loss without it. The respondent claimed the items were permanent farm fixtures valued by the Ministry of Lands during processing of his ninety-nine year lease agreement, and that some equipment belonged to him.

• Whether the matter was urgent and properly enrolled on the urgent roll
• Whether the application complied with the proper form requirements (Form 23 vs Form 25)
• Whether there was material non-disclosure by the applicant regarding pending litigation
• Whether the opposing affidavit was properly deposed to by the respondent
• Whether hearsay evidence is admissible in the answering affidavit
• Whether technical objections regarding form should defeat an application in the absence of prejudice

The application was struck from the urgent roll with costs on an ordinary scale in favor of the respondent.

An urgent application will be struck from the urgent roll where the applicant has delayed for an inordinate period (in this case over five and a half months) after the event giving rise to the need to act, without providing sufficient explanation for the delay. The need to act arises at the time of the event creating urgency (here, when the applicant left the farm), not at a subsequent time when the applicant chooses to take action. Technical non-compliance with form requirements (using Form 25 instead of Form 23) does not constitute grounds for dismissal where no prejudice to the respondent is demonstrated, in accordance with Rule 58(13) of the High Court Rules, 2021. Hearsay evidence in affidavits is inadmissible absent justification for why direct evidence cannot be obtained, particularly where admitting such evidence would cause irremediable prejudice if later proven untrue.

The court emphasized that while raising irregularities is not objectionable, it is important to demonstrate prejudice occasioned by such irregularities, cautioning that this should not be taken as a license for lackadaisical approaches to pleadings by legal practitioners (citing Infralink (Pvt) Ltd v Sheriff of Zimbabwe). The court noted its general displeasure with unnecessary technical objections, aligning with the principle that technical objections to less than perfect procedural steps should not interfere with expeditious and inexpensive resolution of cases on their real merits. The court also observed that costs on a higher scale should not be routinely awarded as this would deter people from enjoying the fundamental right of access to justice. The court remarked that courts should discourage non-disclosure, mala fides, or dishonesty in urgent applications, and should frown upon orders sought on incomplete information.

This case reinforces important principles regarding urgent applications in Zimbabwean civil procedure, particularly: (1) the requirement that applicants demonstrate true urgency by acting promptly when the need arises, not after lengthy unexplained delays; (2) the courts' willingness to overlook technical irregularities in form where no prejudice is shown, in line with the principle that cases should be decided on their merits rather than technicalities; (3) the duty of full and fair disclosure in urgent applications, balanced against the need for respondents to substantiate their allegations of non-disclosure; and (4) the inadmissibility of hearsay evidence in affidavits absent proper justification. The judgment demonstrates the court's approach to discouraging abuse of the urgent roll while also preventing frivolous technical objections from defeating meritorious claims.