Grace Khumalo v Paris Mpofu and The Deputy Sheriff

The first respondent obtained a judgment against the applicant on 19 February 2009 under case No. HC 2337/08. The applicant was personally served with the application on 14 January 2008 but did not respond timeously and did not act at all until after the order was granted. On 26 February 2009, the applicant filed an application for rescission of the judgment (case No. HC 323/09) but failed to prosecute it timeously and it was dismissed for want of prosecution on 3 May 2010. Meanwhile, the first respondent began executing the judgment by attaching money in the applicant's foreign currency account at Barclays Bank. The applicant had previously filed another urgent application (case No. HC 335/09) seeking a stay of execution which remained pending. On 31 May 2010, the Deputy Sheriff attached and removed the applicant's property to realize the balance of the judgment debt (R18,000). On 24 June 2010 (almost a month later), the applicant filed the current urgent application seeking a stay of execution and interdicting the Deputy Sheriff from auctioning the attached property, also claiming damages of R64,810 for damage allegedly caused to her property.

• Whether the application met the requirements of urgency under Zimbabwean civil procedure rules
• Whether urgency could be established where the applicant had delayed taking action despite being aware of the judgment for over a year
• Whether the applicant had demonstrated a prima facie case entitling her to interim relief
• Whether a stay of execution could be granted in circumstances where no rescission application was pending and where another similar application remained pending (lis pendens)
• Whether a claim for damages could properly be brought by way of urgent application

The application was dismissed with costs.

A matter is urgent only if, at the time the need to act arises, 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 has been aware of a judgment for over a year, failed to prosecute a rescission application, and delays for almost a month after attachment of property before seeking urgent relief, urgency is not established. For an applicant in an urgent application to obtain interim relief, they must show that there is a prima facie case for such relief. A mere allegation of a possible counterclaim does not constitute a prima facie case entitling interim relief. There must be finality to litigation, and a party cannot repeatedly seek to stay execution of a valid judgment without prosecuting proper remedies.

The court commented critically on the practice of legal practitioners certifying applications as urgent as a matter of course without proper consideration of the facts. The court noted that no litigant is entitled to be heard on an urgent basis as of right. The court also observed that any claim for damages could be prosecuted independently, suggesting an alternative proper remedy for the applicant's allegations. The court remarked on the disconnection between the interim and final relief sought, indicating poor drafting and confusion as to the true nature of the relief being sought.

This case reinforces important principles of Zimbabwean civil procedure regarding urgent applications, particularly: (1) the requirements for establishing urgency, emphasizing that self-created urgency through delay does not warrant urgent treatment; (2) the duty of legal practitioners not to certify applications as urgent as a matter of course without proper consideration; (3) the requirement to demonstrate a prima facie case for interim relief; (4) the principle of finality in litigation; and (5) the impropriety of using urgent applications to bring claims for damages. The case serves as a warning against attempts to use urgent procedures to circumvent the consequences of failing to timeously prosecute remedies such as rescission applications.