Hazel Ncube v Victor Mpofu N.O. and Kenneth T. Mubeti

The applicant and the 2nd respondent were customarily married until their union was dissolved on 1 July 2009. The magistrates court awarded house number 24 Nicholson Road, Romney Park, Bulawayo to the 2nd respondent. The applicant filed an appeal under case number HCA 23/09. In May 2011, the 2nd respondent obtained an order to execute judgment pending appeal. The applicant then sought a stay of execution pending the appeal and/or a review application. The magistrates court had also awarded the applicant a property in Tshabalala, which she failed to disclose in her founding affidavit. The applicant claimed urgency on the basis that she had no alternative accommodation and would suffer irreparable harm if evicted.

• Whether the application for stay of execution was urgent
• Whether the applicant's failure to disclose the Tshabalala property constituted material non-disclosure
• Whether an urgent application characterized by material non-disclosure should be entertained by the court

The application was dismissed with costs.

An applicant seeking urgent relief must make full disclosure of all material facts that might affect the granting or otherwise of an order. Where an applicant fails to disclose material facts, whether willfully and mala fide or negligently, which might have influenced the court's decision on whether to grant the order, the court has discretion to dismiss or set aside the application. Material non-disclosure that goes to the core of urgency, such as failing to disclose alternative accommodation when claiming desperate need for accommodation, justifies dismissal of an urgent application.

The court observed that courts should discourage urgent applications which are characterized by material non-disclosure, mala fides or dishonesty, citing Graspeak Investments P/L v Delta Corporation P/L & Anor. The court also noted the principle from Herbstein & Van Winsen's Civil Practice that the utmost good faith must be observed by litigants making ex parte applications in placing material facts before the court.

This case reinforces the principle that applicants seeking urgent relief must make full and frank disclosure of all material facts to the court. It demonstrates that courts will dismiss urgent applications where material non-disclosure is established, particularly where such non-disclosure is designed to create an artificial sense of urgency. The case emphasizes the duty of utmost good faith (uberrimae fidei) required in urgent and ex parte applications in Zimbabwean civil procedure.