Jonathan M. Gapare and TLP Agencies (Pvt) Ltd t/a Alpha Properties Developers v Farai Mushipe and The Deputy Sheriff, Bulawayo

The 1st respondent instituted summons action against the applicants on 13 November 2009 (HC 1861/09) seeking construction of a 4-roomed house or payment of US$13,250.00. The applicants entered appearance but defaulted in filing a plea, were barred, and judgment was entered against them on 1 April 2010. On 7 July 2010, the Deputy Sheriff served a writ of execution against both movable and immovable property, specifically stand 2254 Bulawayo North (9 David Carnegie North End Bulawayo). On 23 December 2010, applicants were served with notice of sale to be held on 28 January 2011. On 27 January 2011, one day before the sale, applicants filed an urgent application seeking to interdict the sale of a different property - stand 14959 Impala Road, Selbourne Park, Bulawayo - which had never been attached or threatened with execution.

• Whether the matter was genuinely urgent warranting deviation from ordinary procedure
• Whether urgency stemming from deliberate or careless abstention from action until the last moment qualifies as urgency under the rules
• Whether the application disclosed a prima facie case for relief
• Whether there was material non-disclosure and misrepresentation to the court
• Whether the legal practitioners' conduct warranted a costs order de bonis propriis

1. The application was dismissed. 2. Costs were awarded against the 1st and 2nd Applicants and Mr Mlala of Messrs Cheda & Partners de bonis propriis jointly and severally on an attorney and client scale.

Urgency which stems from deliberate or careless abstention from action until the arrival of the day of reckoning is not the urgency contemplated by the rules. A legal practitioner certifying urgency must apply his own mind and judgment to the circumstances and reach a personal view he can honestly pass on to a judge, supported not only by argument but on his own honour and name. The court will only act urgently where a legal practitioner gives assurance that such treatment is required. Material non-disclosure and misrepresentation of facts in an urgent application will result in dismissal. A costs order de bonis propriis against a legal practitioner, though exceptional, should be made where, in addition to negligence and impropriety, the legal practitioner's conduct amounts to an abuse of process.

The court observed that not much industry was required of the certifying lawyer to expose the fallacy of the application - if he had taken a moment to peruse the papers it would have been apparent that the property in the notice of sale was not the property forming the subject of the application. The court noted that even assuming the legal practitioners initially overlooked the deficiencies, after receiving the opposing papers it should have been apparent the application was hopeless, and fighting it to the end was not only unreasonable but clearly an abuse. The court commented that there are limits to which a lawyer can escape his own negligence and lack of diligence. The 1st respondent was described as a man of moderate means unnecessarily put out of pocket.

This case is significant in South African (Zimbabwean) jurisprudence for reinforcing strict standards for urgent applications and holding legal practitioners personally accountable for abuse of court process. It demonstrates that: (1) self-created urgency from delay and inaction does not warrant urgent treatment; (2) certificates of urgency require personal honest belief by the certifying practitioner based on actual reading of papers; (3) material non-disclosure and misrepresentation will result in dismissal; and (4) costs de bonis propriis may be awarded where legal practitioners' conduct amounts to serious negligence and abuse of process, not merely ordinary negligence. The judgment emphasizes the court's willingness to "crack the whip" on legal practitioners who fail to properly prepare applications or persist with hopeless cases.