Kalayi Sikhaphakhapha Njini and Berthilde Juliet Njini v Solwayo Ngwenya and Bulawayo City Council

The applicants, an elderly couple residing at 54 Cecil Avenue, Hillside, Bulawayo, sought to suspend construction and development of a maternity and gynaecological clinic by the first respondent (a consultant obstetrician and gynaecologist) on adjacent stand number 18 Hillside. In May 2011, first respondent notified applicants of his intention to construct the clinic after being advised by the second respondent (Bulawayo City Council) to notify immediate neighbours. Applicants objected on grounds that the clinic would affect the peace and quiet atmosphere of the suburb, introduce communicable diseases, and encourage undesirable elements such as thieves. Second respondent overruled their objection and granted permission to construct. Applicants filed a review application (HCR 132/11) which was still pending, and then filed this urgent chamber application to stop further development.

• Whether the matter was properly brought as an urgent application
• Whether the applicants had shown irreparable harm to justify urgent treatment
• Whether the review application was validly filed within the prescribed time limits under Order 33 Rule 259 of the High Court Rules
• Whether condonation for late filing of the review application should have been sought and granted before proceeding with the urgent application
• Whether costs de bonis propriis should be awarded against the applicants' legal practitioner

The application was dismissed with costs awarded to the respondents on an attorney-client scale.

Where a review application is filed out of time in terms of Order 33 Rule 259 of the High Court Rules, an application for condonation must not only be filed but must be determined and granted first before the review application can proceed. Any urgent application or other proceeding that is predicated on a defective or invalid review application is itself a nullity and cannot stand, as one cannot put something on nothing and expect it to stay there. An application filed on a fundamentally defective foundation is incurably bad and collapses.

The court made observations on the exercise of discretion in awarding costs de bonis propriis against legal practitioners. Cheda J observed that in determining whether to award such costs, factors to consider include: (1) the lawyer's age; (2) qualifications; (3) experience; and (4) general character and attitude towards work. The court noted that less experienced lawyers should receive more sympathy from courts than experienced lawyers whose improper actions may be viewed as deliberate. Where a young, inexperienced lawyer acts with innocent motive but muddled thinking, this may warrant leniency in the exercise of discretion regarding punitive costs against the practitioner personally, though such lawyer should be warned to be more prudent in future.

This case is significant in Zimbabwean civil procedure for reinforcing the strict procedural requirements for review applications and urgent applications. It emphasizes that: (1) urgent applications must demonstrate irreparable harm beyond ordinary prejudice; (2) compliance with time limits in Order 33 Rule 259 for review applications is mandatory; (3) condonation applications for late filing must be filed, heard and granted before the substantive review can proceed; (4) applications founded on defective proceedings are nullities that cannot stand; and (5) courts will exercise discretion sympathetically towards inexperienced legal practitioners when considering costs de bonis propriis, focusing on motive rather than mere error.