Innocent Hlambelo v Thandiwe Thebe and Others

Hlambelo (applicant) purchased Stand No. 1356 Cowdray Park, Bulawayo from Gonye (2nd respondent) on 14 January 2002. Hlambelo subsequently sold the property to Thebe's (1st respondent) late husband on 4 February 2003. It was agreed that the property would be transferred directly from Gonye to Thebe's late husband. The property was transferred to the late husband's name under Deed of Transfer number 1131/2020 dated 31 December 2020. However, in case HC 325/21, the court per Makonese J confirmed the agreement of sale between Hlambelo and Gonye and ordered transfer of the property to Hlambelo within 5 days. Thebe is a widow who has been in occupation of the property since 2003. Hlambelo launched an urgent application seeking an interim interdict restraining Thebe from selling or dealing with the property pending finalisation of proceedings. The trigger for urgency was allegedly events in the Magistrates' Court where Thebe obtained a rule nisi staying eviction scheduled for 31 March 2021.

• Whether the non-joinder of the estate of the late Mlamleli Somfula Thebe was fatal to the application
• Whether the application met the requirements for urgency under Zimbabwean law
• Whether the certificate of urgency contained sufficient factual averments to support the claim of urgency
• Whether there was a factual basis showing imminent threat of disposal of the property

a. The point in limine on urgency is upheld. b. This application is not urgent and is struck off the roll of urgent matters with costs of suit.

A certificate of urgency is the sine qua non for urgent chamber applications and must accurately contain the factual averments that anchor the application. A litigant cannot rely on factual averments not included in the certificate of urgency. Urgency must be established on a proper factual basis, not mere speculation or allegation. The mere existence of a dispute over property does not constitute urgency sufficient to justify jumping the queue ahead of other litigants. Urgent applications are extraordinary remedies granted only where failure to act would result in irreversible prejudice to the applicant. Non-joinder of a party is not automatically fatal where the court can determine the issues affecting the parties before it; the remedy for non-joinder is an application under rule 32(12) of the High Court Rules.

The court observed that there were serious material disputes of fact in the matter which could not be resolved on the papers, which applicant's counsel conceded. The court noted there appeared to be connivance between Gonye and Hlambelo alleged by Thebe. The court also noted there was an issue about the correctness of the date on the Deed of Transfer but stated "that would be a dispute for another day." The court cited the principle from Documents Support Centre P/L v Mapuvire that "urgent applications are those where if the courts fail to act, the applicants may well be within their rights to dismissively suggest to the court that it should not bother to act subsequently as the position would have become irreversible to the prejudice of the applicant."

This case reinforces important procedural principles in Zimbabwean law regarding urgent applications. It emphasizes that: (1) a certificate of urgency must accurately contain all factual averments supporting urgency and parties cannot rely on facts not included in the certificate; (2) urgent applications are extraordinary remedies that allow parties to jump the queue and must be justified by genuine emergency circumstances; (3) mere speculation or allegations without factual foundation are insufficient to establish urgency; (4) the existence of a dispute over property, standing alone, does not constitute grounds for urgency; and (5) non-joinder is not automatically fatal and the remedy lies in applying for joinder under the rules. The judgment demonstrates the court's gatekeeping function to prevent abuse of urgent applications.