Kappjack Trading (Pvt) Ltd v Adeshu Mak Investments (Pvt) Ltd and Deputy Sheriff Harare

The applicant (Kappjack Trading) had a default judgment granted against it. After being barred from defending proceedings, the applicant failed to take timely steps to have the bar uplifted. When judgment was granted against it, the applicant did not seek to have execution stayed pending rescission of the judgment. The applicant only brought an urgent application when the respondent (Adeshu Mak Investments) began execution proceedings. There was also some confusion regarding legal representation, with the applicant appearing to believe that the respondent's counsel had acted for them, when in fact the counsel's brief was from the respondent. The matter first came before the court on 23 February 2012, and the applicant's legal practitioners wrote to the court on 24 February 2012 pleading for reconsideration of the court's view on urgency.

• Whether the matter constituted a genuine urgent application warranting treatment on an urgent basis
• Whether self-created urgency should be entertained by the court
• Whether the applicant's lack of sophistication justified its failure to act timeously

Application dismissed with costs

Self-created urgency does not warrant treatment of a matter on an urgent basis. A party that fails to act timeously to uplift a bar or to stay execution after judgment is granted against it cannot later claim urgency when faced with the natural consequences of that judgment (i.e., execution). Commercial entities with reasonable sophistication are expected to move with reasonable speed to deal with litigation matters and cannot rely on their own inaction as grounds for urgent relief.

The court observed that the applicant's own legal practitioners effectively confirmed the applicant's lackadaisical approach in their letter of 24 February 2012. The court also noted that the applicant appeared to have sufficient sophistication or enlightenment despite arguments to the contrary, and that accepting the lack of sophistication argument would be to miss the point. The court commented that everything in the matter pointed to the application being a prompt reaction to execution rather than a genuine urgent matter.

This case reinforces the principle that self-created urgency will not be entertained by courts in urgent applications. It demonstrates that parties cannot delay in taking necessary procedural steps and then seek urgent relief only when faced with execution. The judgment emphasizes the court's expectation that litigants, particularly those with commercial sophistication, must act promptly and responsibly in managing their litigation, and cannot use urgent application procedures to remedy their own procedural failures.