On 21 September 2018, applicant (Hunyani Forests) and respondent (Buywest Investments) signed an agreement for the sale of movable equipment (a treatment plant) for US$60,000. Respondent paid the full purchase price but failed to remove the equipment within the agreed timeframe. When respondent attempted removal, applicant blocked it. Respondent obtained a mandament van spolie order on 14 August 2020 (HC 4051/20) granting unhindered access to remove the equipment. Applicant appealed (SC 371/20) but the appeal was defective and withdrawn. Respondent executed the order on 22 October 2020 and removed the equipment. Applicant filed a fresh appeal on 6 November 2020 (SC 484/20) and sought assurances that respondent would not dispose of the equipment pending appeal. Receiving no response, applicant filed an anti-dissipation application on 30 November 2020 (HC 7094/20). Respondent opposed, revealing it had sold the equipment to a third party in Botswana on 24 October 2020, with collection scheduled for March 2021. On 23 February 2021, applicant filed this urgent chamber application seeking to prevent removal of the equipment pending determination of the anti-dissipation application.
1. The application is not urgent and it is hereby struck off the roll of urgent matters. 2. Applicant shall bear respondent's costs.
A matter is urgent only if the applicant acts when the need to act arises, not when the day of reckoning becomes imminent. The test is whether, at the time the need to act arose, the matter could not wait for determination in the ordinary course. An applicant seeking urgent relief must demonstrate in both the certificate of urgency and founding affidavit when the conduct triggering urgent action arose and why immediate action was necessary. Where a purchaser has paid the full purchase price and risk and profit have passed, the purchaser may exercise ownership rights including the right to sell, in the absence of valid appeals or proceedings asserting superior ownership rights or court orders restraining disposal. COVID-19 lockdown restrictions do not excuse delay in filing urgent applications where court practice directions make provision for the filing and hearing of urgent matters.
The court observed that the applicant could not perform a "somersault" and deny that respondent enjoyed ownership rights after having previously negotiated to re-purchase the equipment from respondent (thereby implicitly acknowledging respondent's ownership). The court noted that applicant's lawyers had initially suggested withdrawing the anti-dissipation application if respondent provided information about the sale, suggesting the ultimate urgent application might have been avoided had respondent engaged constructively. While the court found the matter non-urgent, it declined to award costs on the attorney-client scale despite respondent's argument that applicant was a serial abuser of court process, noting that respondent's failure to respond to legitimate requests for information partly contributed to the institution of proceedings.
This case reinforces the strict approach Zimbabwean courts take to urgency requirements in urgent chamber applications. It establishes that a litigant must act promptly when the need to act arises, not when the consequences of inaction become imminent. The judgment also clarifies that where a party has purchased property and paid the full purchase price, the purchaser may exercise ownership rights (including the right to sell) in the absence of court orders specifically restraining such conduct or proceedings challenging ownership. The case illustrates the limits of using interlocutory applications to prevent the disposal of property where the underlying legal proceedings (spoliation) did not address ownership. It also demonstrates that national emergency measures (like COVID-19 lockdowns) will not excuse delay where provisions exist for filing urgent matters.