Kelvin Musimwa v Johnson Muchechesi and Altfin Insurance Company and The Sheriff High Court of Zimbabwe

The applicant and first respondent were involved in a road traffic accident on 27 June 2008. The first respondent issued summons under case HC 4750/11 claiming damages for bodily injury. The applicant defended and lodged a counterclaim. The matter proceeded to pre-trial conference stage where the applicant defaulted. His appearance to defend and plea were struck off and the matter was referred to the unopposed roll where first respondent was awarded the equivalent in RTGS of US$82,500.00 at the official bank rate as damages. A writ of execution was issued and the Sheriff attached the applicant's property on 28 January 2022. The applicant then filed an urgent chamber application for stay of execution pending finalization of his rescission application in HC 626/22. The applicant's legal practitioners had not filed a notice of change of address despite allegedly relocating from 4 Lanark Road, Belgravia to 42 Harveybrown, Milton Park as at 15 July 2021. Service of pre-trial conference notices was properly effected at the address of record. The applicant did not attend pre-trial conferences scheduled for 7 July 2021 and 15 July 2021, leading to the default judgment.

• Whether the application was defective for want of proper form in terms of Rule 60(1) of the High Court Rules, 2021
• Whether the certificate of urgency was defective and if so, the effect thereof
• Whether the matter constituted a genuine urgency warranting hearing as an urgent chamber application

The matter was struck off the roll of urgent matters, with costs following the cause.

Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. A legal practitioner who fails to file a notice of change of address as required by the rules, and who then defaults in attending properly served pre-trial conferences, cannot claim urgency when execution is levied pursuant to a default judgment. The requirement to file a notice of change of address in terms of Order 5 Rule 42C is mandatory, and failure to do so means service at the address of record remains valid service. Where an applicant has had ample opportunity to act but makes a conscious election to do nothing despite being aware of pending proceedings, any urgency arising from subsequent execution of judgment is self-created and does not warrant urgent relief.

The court observed that while Rule 60 prescribes the form to be used peremptorily, where there is some semblance of compliance and no prejudice is suffered by the respondent, the court may invoke its powers under Rule 7 to condone departure from the rules in the interests of justice. The court also commented that the duty of a legal practitioner in certifying urgency does not extend to deciding or assessing the merits of the matter - that is the function of the judge. A legal practitioner certifying urgency must apply his or her mind to the matter from an informed position, and it is unethical to mechanically certify matters as urgent without properly applying their minds, with such legal practitioners risking adverse cost orders against themselves personally.

This case reinforces important principles in Zimbabwean civil procedure regarding urgent applications. It confirms that urgency cannot be self-created through deliberate inaction or failure to comply with procedural requirements. The judgment emphasizes the importance of complying with rules regarding notice of change of address, and that legal practitioners cannot evade the consequences of default judgments by claiming improper service when they failed to update their address of record. The case also clarifies that while courts may condone minor procedural irregularities where no prejudice results, they will not entertain urgent applications where the urgency stems from the applicant's own neglect or deliberate abstention from action. The decision upholds the principle established in Kuvarega v Registrar General regarding what constitutes genuine urgency.