Johanne Masowe Yechishanu and Others v City of Harare and Another

The first respondent (City of Harare) obtained a default judgment against the applicants for their ejectment from Stand No. 10428, Sebakwe Road, Glen Norah, Harare on 31 October 2017 in HC 8396/16. The applicants applied for rescission of the default judgment in HC 10554/17 on 10 November 2017, but this application was dismissed for want of prosecution on 30 January 2019. The applicants appealed this decision under SC 54/19, but the appeal was dismissed on 11 April 2019 when they failed to pay costs for preparation of the record. The applicants' legal practitioners were notified of the appeal's dismissal on 23 April 2019. On 7 May 2019, the City of Harare instructed the Sheriff to execute the eviction based on a warrant issued on 3 May 2019. On 29 May 2019, the Sheriff served the applicants with a notice of eviction. On 31 May 2019, the applicants filed an urgent application seeking an interdict to prevent their eviction, pending determination of a chamber application for reinstatement of the appeal. The second and third applicants claimed they had been on a pilgrimage to Israel and only returned on 30 May 2019.

• What constitutes urgency for purposes of urgent court applications?
• When does the need to act arise for purposes of determining urgency?
• Whether an applicant's delay in bringing an urgent application is adequately explained?
• Whether self-created urgency should be entertained by the court?

The application was struck off the roll of urgent matters with costs against the applicants.

The binding principle is that urgency for purposes of urgent court applications must be determined with reference to when the need to act arose, not when the consequences of earlier inaction materialize. Where an applicant is aware or ought to be aware through their legal practitioners that proceedings protective of their interests have been dismissed or terminated, the need to act arises at that point, not when enforcement action is subsequently served. Urgency that is self-created through deliberate or careless abstention from timely action is not the type of urgency contemplated by the court rules. An inadequate or unreasonable explanation for delay in bringing an urgent application will result in the matter being struck off the roll of urgent matters.

The court expressed concern about the continuing problem of legal practitioners certifying matters as urgent when they are not, suggesting that certifying practitioners do not always properly apply their minds to the requirements. The court noted that a certificate of urgency must lay out events and time frames against which urgency can be tested, and that inaccurate certificates do not assist the court as they ought to. The court also observed that the applicants had demonstrated a pattern of non-compliance with court rules throughout the litigation, including failure to defend the initial claim (resulting in default judgment), failure to prosecute their rescission application (dismissed for want of prosecution), and failure to pay for the appeal record (resulting in the appeal being deemed abandoned). The court commented that such conduct is not how diligent litigants conduct their cases.

This case reinforces the strict approach taken by Zimbabwean courts to urgent applications, particularly regarding self-created urgency and the requirement for adequate explanation of delays. It demonstrates that courts will look beyond the immediate trigger event (such as service of an eviction notice) to determine when the applicant ought reasonably to have acted. The case also emphasizes the importance of proper compliance with procedural rules throughout litigation and the consequences of a pattern of non-compliance. It serves as a warning to legal practitioners about the duty to properly certify urgency with accurate facts and proper application of mind.