Judith Tsamba and Olivia Chiguvare v Mr Reuben Mukavhi and Ministry of National Housing and Social Amenities and The Messenger of Court Harare

The second respondent (Ministry of National Housing and Social Amenities) instituted eviction proceedings against the applicants in the Magistrates' Court at Harare (Case No. MC7485/10) seeking their eviction from Flat 2, Merrival Flats, Belvedere, Harare. After hearing evidence, the magistrate (first respondent) postponed the matter to 20 March 2012 for judgment. On 16 March 2012, the applicants filed a review application (HC3075/12) seeking to set aside the proceedings and have them commenced de novo before a different judicial officer. However, the applicants did not seek an interdict to prevent the magistrate from delivering judgment. On 20 March 2012, the magistrate delivered judgment. The applicants became aware of the judgment but did not seek a stay of execution at that time. Close to five months later, after being served with a Warrant of Ejectment and Execution Against Property and Notice of Removal, the applicants brought this urgent chamber application seeking a stay of proceedings and an interdict against execution of the judgment.

• Whether the court should grant a stay of execution of an extant judgment that is not being challenged
• Whether the application was urgent given the delay of approximately five months after judgment was delivered
• Whether urgency was self-created by the applicants' failure to act timeously

The application was dismissed with costs

There is no basis for a court to stay execution of an extant judgment that is not being challenged. Where applicants are aware that judgment is to be delivered following the filing of a review application, they must seek an interdict to prevent delivery of judgment if they wish to preserve their position. Urgency that is self-created through an applicant's own delay and inaction will not entitle an applicant to urgent relief. Specifically, where an applicant becomes aware of a judgment, fails to seek a stay of execution, and only brings an application months later when faced with actual enforcement, such urgency is self-created and the application will be dismissed.

Zhou J made a notable observation regarding the relief sought in the review application (HC3075/12), describing as "somewhat startling" the request that proceedings be commenced de novo "before a neutral qualified person to be selected by the first applicant, the second applicant and the second respondent." This comment highlights the inappropriate nature of seeking to give litigants the power to appoint their own judicial officer to hear their case, which would undermine judicial independence and the proper allocation of cases.

This case illustrates important principles regarding urgent applications in Zimbabwean civil procedure, particularly: (1) the requirement that applicants must act promptly when seeking urgent relief; (2) that self-created urgency will not be countenanced by the courts; (3) that a stay of execution cannot be granted for an extant judgment that is not being challenged; and (4) the importance of seeking appropriate interim relief (such as an interdict against delivery of judgment) when filing review applications. The case demonstrates the courts' approach to penalizing dilatory conduct and ensuring that litigants cannot sleep on their rights and later claim urgency.