Isabel Nyoka v Nyasha Mudonhi and The Sheriff for Zimbabwe

On 25 February 2022, the High Court issued a provisional sentence order in favour of the first respondent against the applicant for payment of US$295,102.00. On 31 March 2022, the first respondent issued a writ of execution against the applicant's movable property. On the same date, applicant requested written judgment to note an appeal. On 5 April 2022, the Sheriff filed a nulla bona return. On 18 August 2022, the Sheriff attached applicant's immovable property, and on 25 August 2022 advised the applicant that the property would be sold in execution on 30 September 2022. The applicant's application for condonation of late filing of appeal was unsuccessful. On 7 September 2022, applicant filed an application for declaratory and interdictory relief challenging the registrar's practice. On 13 September 2022, applicant filed the current urgent application seeking to stay execution of the order pending the determination of HC6003/22 or pending availability of the full written reasons for judgment.

• Whether the certificate of urgency was valid when it predated the founding affidavit
• Whether the matter was genuinely urgent
• Whether the applicant was entitled to preferential treatment through an urgent chamber application

The application was struck off the roll of urgent matters. The applicant was ordered to pay the first respondent's costs on a legal practitioner and client scale.

A certificate of urgency that predates the founding affidavit is fatally defective and renders the urgent chamber application unsustainable, as the certifying lawyer could not have properly applied his mind to the contents of a non-existent founding affidavit. Self-created urgency arising from a party's failure to act timeously when the need to act arose does not entitle that party to the extraordinary remedy of an urgent chamber application allowing them to jump the queue over other litigants.

The court noted that the applicant had alternative remedies available under Rule 14 sub-rules (10) and (11), which would have allowed her to enter appearance to defend and file a plea so the matter could proceed as an ordinary action. The court emphasized that in the ordinary run of things, court cases must be heard strictly on a first come first served basis, and only in exceptional circumstances should a party be allowed to jump the queue. The court also observed that the certificate of urgency is the sine qua non for placement of an urgent chamber application before a judge, citing the Supreme Court decision in Oliver Mandishona Chidawu v Jayesh Shah SC 12/2013.

This case reinforces important principles in Zimbabwean civil procedure regarding urgent applications. It emphasizes that a certificate of urgency is the sine qua non for urgent chamber applications and must be based on an existing founding affidavit. The judgment also reiterates that urgency is determined objectively and self-created urgency due to a party's failure to act timeously will not entitle that party to preferential treatment. The case serves as a cautionary tale about the strict procedural requirements for urgent applications and the consequences of delayed action when legal rights are at stake.