Gombe Holdings and Kuchi Construction (Private) Limited v Josephy Chitombo and Clever Matigimu and Douglas Gwasira and The Sheriff of the High Court N.O.

The applicants were related entities, with the second applicant being a subsidiary of the first. The first three respondents were former employees whose employment contracts were terminated in September 2020. As part of their employment packages, the respondents had been issued with company vehicles. Following termination, they refused to surrender the vehicles. The applicants instituted separate rei vindicatio actions for the return of the vehicles (in March 2021 for the first and second respondents, and September 2021 for the third respondent). The respondents countered by filing declaratur applications challenging the termination of their employment contracts. These declaraturs were withdrawn on 14-15 September 2021. On 20 September 2021, the applicants approached the court on an urgent basis seeking a preservation order to have the vehicles placed in the custody of the Sheriff pending determination of the rei vindicatio proceedings.

• Whether the matter was urgent and properly brought on the urgent roll
• Whether the applicants had established a prima facie right of ownership in the motor vehicles
• Whether the applicants had demonstrated a cause of action for a preservation order
• When the need to act arose in relation to the urgency of the application

The application was struck off the roll of urgent matters. The applicants were ordered to pay the respondents' costs of suit.

Where an applicant institutes rei vindicatio proceedings to recover property from a former employee who refuses to surrender it after termination of employment, the need to act in relation to a preservation order arises at the time of instituting the rei vindicatio proceedings, not at some later date when unrelated employment dispute proceedings are withdrawn. A party seeking urgent relief must demonstrate that it acted promptly when the need to act arose. Urgency cannot be established by reference to events (such as withdrawal of declaratur proceedings challenging employment termination) that have no bearing on the subject matter of the urgent relief sought (preservation of company vehicles pending rei vindicatio). The test for urgency is objective and involves consideration of 'time' (the need to act promptly when harm is apprehended) and 'consequences' (whether failure to grant urgent relief would render any eventual remedy ineffective). A preservation order should ordinarily be sought simultaneously with rei vindicatio proceedings where the applicant apprehends deterioration or abuse of the property in question.

The court noted that it is highly irregular for a legal practitioner to certify a matter as urgent without addressing the fundamental question of when the need to act arose in the certificate of urgency itself, even though the certificate must be read together with the founding affidavit. The court observed that parties who bring urgent proceedings gain considerable advantage over ordinary litigants and such preferential treatment is only extended where good cause can be shown. The court noted (without deciding, as it was unnecessary given the finding on urgency) that the respondents had raised concerns about the applicants' failure to prove ownership of the vehicles through documentary evidence such as agreements of sale or vehicle registration documents. The court also observed that COVID-19 lockdown restrictions were not a valid excuse for delay, as the courts had made special arrangements for urgent matters during that period, and the applicants themselves had managed to institute rei vindicatio proceedings during the same period.

This case reinforces the strict approach Zimbabwean courts take to urgency in urgent applications. It establishes that parties seeking urgent relief must demonstrate that they acted promptly when the need to act arose, and cannot rely on subsequent unrelated events to justify urgency. The case illustrates that urgency is determined objectively by the court using the twin tests of 'time' and 'consequences'. It also confirms that a rei vindicatio action and related preservation order should ordinarily be brought simultaneously, and that delay in seeking preservation orders after instituting vindicatory proceedings undermines claims of urgency. The judgment serves as a reminder that parties who gain the considerable advantage of access to the urgent roll must show good cause for such preferential treatment.