Ishmael Phiri v FBC Bank Limited and Deputy Sheriff of Zimbabwe

The applicant and first respondent entered into a consent order on 16 February 2010 in which the applicant agreed to pay US$7,122.96 together with interest and collection commission. A writ of execution was issued on 23 March 2010, and another writ for taxed costs of US$2,161.32 was issued on 26 May 2010. The applicant claims he paid US$2,500 on 1 February 2010 and that the parties agreed to settle the debt in installments. On 24 June 2010, the Deputy Sheriff attached the applicant's property. The applicant then brought an urgent application for stay of execution, contending that the capital sum in the writ was erroneous as it did not take into account the US$2,500 payment, and that interest was compounded monthly rather than annualized. The applicant also contended that the attached goods (including a vehicle, generator, and speed boat) were used in his farming and transport operations.

• Whether the matter constituted a genuine urgent application
• Whether a supplementary affidavit could be filed without leave of the court
• Whether section 52 of the High Court Act required stay of proceedings pending payment of costs
• Whether a stay of execution should be granted where the applicant disputed the quantum of the debt in the writ of execution

The application was dismissed with costs on an attorney and client scale as prayed for by the first respondent.

A matter is not urgent merely because property has been attached where that is self-created urgency born out of the dilatory manner in which a party conducts its affairs. Urgency which stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. Where a party has been adequately forewarned of the possibility of attachment and does nothing about it for an extended period, urgency cannot be established when attachment eventually occurs. A certificate of urgency or supporting affidavit must always contain an explanation of any non-timeous action if there has been delay.

The court made observations regarding supplementary affidavits, noting that while Rule 235 of the High Court Rules requires leave of court for further affidavits after an answering affidavit, in chamber applications matters can be heard without an opposing affidavit, so one cannot strictly confine the applicant to the founding affidavit alone. The court also noted that the US$2,500 payment made on 1 February 2010 (before the consent order) could properly go towards offsetting the first respondent's costs, though this was not determinative of the application.

This case reinforces the principles governing urgent applications in Zimbabwean law, particularly that self-created urgency arising from a party's own delay or failure to act timeously will not be recognized by the courts. It emphasizes that where a party has been forewarned of consequences (such as attachment of property) and fails to act, they cannot later claim urgency when those consequences materialize. The case also clarifies the proper application of section 52 of the High Court Act regarding security for costs.