Grace Maenzanise v Denial Murambiwa Chimuti

The parties were divorced by court order on 21 May 2020 in case HC 10986/17. The divorce order awarded the applicant a 75% share and the respondent a 25% share in Stand 655 The Grange, Harare. The applicant was granted an option to buy out the respondent's share within 6 months of receiving the evaluation report, or within such longer time as the parties may agree. The applicant received the evaluation report on 29 April 2021, giving her until 29 October 2021 to exercise the option. She failed to raise the required US$75,000 to buy out the respondent's share. By August 2021, the applicant realized during the COVID-19 lockdown period she could not generate the necessary funds. On 14 October 2021, she wrote to the presiding judge asking for an extension. A day before the deadline expired (28 October 2021), she filed an urgent chamber application seeking to extend the period within which to buy out the respondent's share.

• Whether the application was urgent and properly brought on an urgent basis
• Whether the court was functus officio in relation to varying the divorce order
• Whether section 9 of the Matrimonial Causes Act applies to property distribution orders or is restricted to maintenance issues
• Whether the provisional order sought was defective

1. The matter is not urgent. 2. The application is struck off the roll with costs.

Urgency in court applications is not established where an applicant became aware of the need to act months in advance but only filed the application a day before the deadline. Self-created urgency arising from failure to act timeously when the need arose does not satisfy the requirements for an urgent application. An applicant must demonstrate that they treated the matter as urgent by acting contemporaneously when they became aware of circumstances that would prevent compliance with a court order. Where a court order provides for parties to agree on extensions, an applicant must demonstrate attempts to reach such consensual agreement before seeking urgent court intervention.

The court noted that nothing was shown to indicate that any effort was made to engage the other party seeking an extension by consent as provided for in the divorce order. The court also observed that the applicant gains considerable advantage over other litigants when granted urgent hearing, and therefore must justify such preferential treatment by setting out distinguishing facts in the founding affidavit. The court declined to address the other preliminary points raised (functus officio and whether section 9 of the Matrimonial Causes Act applies to property distribution) as the matter failed on urgency grounds.

This case reinforces important principles regarding urgent applications in Zimbabwean courts, particularly in the context of matrimonial matters. It demonstrates that courts will not allow litigants to create their own urgency by failing to act timeously when they become aware of potential difficulties in complying with court orders. The judgment emphasizes that applicants seeking preferential treatment through urgent applications must demonstrate that they acted promptly when the need to act arose, and that self-created urgency will not be countenanced. It also highlights the importance of exploring consensual solutions (such as agreed extensions) before resorting to urgent court applications.