Jim Kunaka v Minister of Health and Child Care & Ors

The applicant, Jim Kunaka, was detained in custody at Harare Remand Prison in respect of certain criminal charges since 24 December 2020. This urgent chamber application was brought approximately one month later against the background of a spike in COVID-19 infections and fatalities, which had prompted the Zimbabwean Government to order a return to high-level lockdown on 2 January 2021. The applicant sought various orders compelling the respondents to implement COVID-19 prevention measures at Harare Remand Prison and criminal courts, including: providing COVID-19 testing kits for staff and inmates; separating COVID-19 positive prisoners from negative ones; ensuring social distancing, sanitization and temperature checks; and preventing infected staff from reporting for duty. The applicant claimed that he was detained in overcrowded conditions where the respondents did not observe COVID-19 prevention measures such as wearing masks, sanitization, social distancing, and temperature checks, thus exposing him to the deadly virus. The applicant had limited access to his legal practitioner and stated he hoped to get bail in early January 2021 to prosecute the application from home in the public interest.

• Whether the urgent chamber application complied with the formal requirements of Order 32 Rule 241 of the High Court Rules
• Whether the certificate of urgency complied with Rule 242(2) and properly established grounds for urgency
• Whether urgency had been properly established given the delay between the applicant's detention (24 December 2020) and the application (approximately one month later)
• Whether the founding documents (founding application, founding affidavit, and draft order) complied with the procedural requirements for urgent applications
• Whether final relief could be sought in an interim order on the basis of prima facie proof

The application was removed from the roll of urgent matters. No order as to costs was made as none was sought against the applicant.

An urgent chamber application must comply with the formal procedural requirements prescribed by the court rules. A certificate of urgency must properly establish grounds for urgency by explaining why the matter should receive preferential treatment and jump the queue, not merely recite facts and arguments. Urgency requires explanation of when the need to act arose and why immediate action is necessary. A founding affidavit must be based on facts within the deponent's personal knowledge and must not be argumentative or rely on hearsay and conjecture. A draft order for interim relief cannot seek final relief with costs, as final relief requires more than the prima facie proof sufficient for interim relief. Non-compliance with these essential procedural requirements renders an urgent application incurably defective and prevents consideration on the merits, regardless of the substantive importance of the underlying issues.

The court noted that the founding document for urgent chamber applications should typically be between three to five pages, though no absolute rule of thumb can be laid down as every case depends on its own facts. The court observed that it would have condoned the defective founding document mero motu had that been the only defect, as none of the respondents took the point. The court also commented that it may be assumed that detention in conditions lacking COVID-19 preventive measures calls for urgent consideration due to risk to life, but superficial averments vigorously refuted by respondents are insufficient. The court acknowledged that the COVID-19 pandemic created difficult circumstances requiring courts to adapt their procedures, including determining urgent matters on papers without oral argument pursuant to Practice Directions.

This Zimbabwe High Court judgment is significant for South African legal practitioners as it provides comprehensive guidance on the formal requirements for urgent chamber applications, which have similar procedural requirements in South African law. The judgment emphasizes the importance of: (1) proper compliance with prescribed forms and rules for urgent applications; (2) certificates of urgency that actually address urgency rather than merely reciting facts and arguments; (3) establishing when the need to act arose and why the matter cannot wait; (4) proper affidavits based on personal knowledge rather than hearsay and conjecture; and (5) the distinction between interim and final relief. The case illustrates how procedural non-compliance, even in cases involving fundamental rights and urgent circumstances like COVID-19, can be fatal to an application. It serves as a practical reminder that form and procedure matter, and that urgent applications require disciplined drafting focused on the specific requirements of urgency, regardless of the substantive merits of the underlying claim.