Godknows Jonas v Rhona Shawlyn Mabwe (in her capacity as Executrix Dative in the Estate of the Late Rodney Tachiveyi Mabwe) and The City of Harare

On 24 August 2016, a default judgment was granted in Case No. HC 304/14 ordering the eviction of the applicant (Jonas) from Stand 5977 Glen View Township, Harare, after he defaulted at a pre-trial conference and his defence was struck out. The applicant's legal practitioner was present in court when the judgment was granted. The applicant filed two applications: one for reinstatement of his defence (HC 7251/16) which was dismissed on 12 October 2016, and one for setting aside the default judgment (HC 9705/16) filed on 23 September 2016. On 19 September 2016, the first respondent's legal practitioners wrote to the applicant reminding him of the judgment and that he must vacate by 24 November 2016. The applicant responded on 25 October 2016 seeking assurance that execution would not proceed. On 1 November 2016, the first respondent confirmed execution would proceed. On 15 November 2016, nine days before the eviction deadline, the applicant filed an urgent application seeking a stay of execution pending determination of his rescission application.

• Whether the application for stay of execution constituted an urgent matter justifying hearing on an urgent basis
• Whether urgency arising from deliberate inaction when the need to act arises qualifies as the type of urgency contemplated by court rules
• What constitutes urgency in terms of the rules of court

The matter was struck off the roll of urgent matters. The applicant was ordered to pay the costs.

A matter is urgent if it cannot wait to be dealt with as an ordinary court application. Urgency is not constituted by the imminent arrival of the date of reckoning. Urgency which arises from deliberate inaction when the need to act arises is not the type of urgency envisaged by the rules of court which provide for the extraordinary procedure of urgent applications. When the need to act arises, the party seeking protection must seek that protection immediately rather than waiting for the threatening event to be imminent. A litigant who waits for the day of reckoning to arrive before acting forfeits the right to have their matter determined on an urgent basis.

The court observed that the applicant's papers contained no explanation as to why it took him more than two and a half months to act after becoming aware of the default judgment. The court also noted that it appeared the application for rescission of judgment was filed only in response to the first respondent's letter of 19 September 2016 rather than on the applicant's own initiative.

This case reinforces the principle in Zimbabwean civil procedure that self-created urgency does not justify the extraordinary procedure of urgent applications. It emphasizes that litigants must act promptly when the need to protect their interests arises, rather than waiting until the consequences of a judgment are imminent. The case illustrates that mere proximity to a deadline does not constitute urgency if the applicant had ample opportunity to act earlier. This judgment serves as a reminder that urgent applications are meant for genuinely urgent matters that cannot wait for determination through ordinary court processes, not for situations where a party's own delay creates the urgency.