George Pedzisai Fichani v Dully Huni and Others

The applicant and first respondent entered into a mine swap agreement on 4 July 2009 whereby the applicant agreed to transfer gold blocks known as Gazemba 105-108 to the first respondent. The parties confirmed this agreement in a joint letter to the Mining Commissioner dated 16 May 2012. The mining claims were registered in the first respondent's name. The applicant was lawfully evicted from the location by the Messenger of Court Gokwe on 19 December 2017 following a High Court Bulawayo Order dated 2 August 2017. Despite this, there had been several litigations between the parties in both the High Court (Harare and Bulawayo) and Magistrate's Court regarding the mine. In June 2018, the first and second respondents started removing gold pregnant sands from the Gazemba 105-108 mine. On 2 July 2018, the applicant filed an urgent application seeking to bar the first and second respondents from removing the sands pending finalization of Case No. HC 2666/18.

• Whether the application met the requirements for urgency under Zimbabwean civil procedure rules
• What constitutes urgency in applications seeking preferential treatment over other pending applications
• Whether delay in bringing an application when the applicant knew or should have known of the circumstances defeats urgency

The matter was dismissed as not urgent with costs against the applicant.

Urgency in applications arises when, at the time the need to act arrives, the matter cannot wait. Urgency which stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. Where an applicant is aware of circumstances giving rise to potential prejudice but delays in bringing an application until the inevitable consequences occur, the application will not be treated as urgent. The duty to act arises when the applicant becomes aware of the circumstances affecting their rights, not when those circumstances produce their natural consequences. Certificates of urgency and supporting affidavits must always contain an explanation for any delay in bringing the application.

The court made observations about the persistent litigation between the parties and noted that while previous decisions on urgency provide guidelines, each matter must be decided on its own merits. The court also referenced with approval the remarks of Chatikobo J in Kuvarega v Registrar General regarding the problem of practitioners certifying matters as urgent when they are not, emphasizing the professional duty of legal practitioners in this regard.

This case reinforces the strict approach Zimbabwean courts take to urgent applications and the requirements for urgency. It emphasizes that parties cannot delay taking action when they are aware of circumstances affecting their rights and then claim urgency when the inevitable consequences materialize. The case is significant in establishing that urgency must be genuine and not self-created through delay or inaction. It serves as a cautionary precedent regarding the abuse of urgent application procedures and the duty of legal practitioners in certifying urgency.