Leonard Bwanali and Precious Katuruza v Togarepi Zivai Mhetu and Tendayi Pauline Mhetu and The Director of Housing and Community Services and City of Harare and Beanlope Properties (Private) Limited and The Sheriff of Zimbabwe

The first applicant purchased property number 7410 Glen View Township through Lightvale Properties. The first and second respondents had earlier purchased the same property through the fifth respondent for $29,000.00. The first and second respondents moved onto the property in January 2013. In March 2013, the first applicant moved onto the property and dispossessed the first and second respondents. The first and second respondents successfully obtained an eviction order through HH 853/15 on 4 November 2015. A writ of ejectment was issued on 8 January 2016 and served on 21 January 2016. The applicants then approached the court on an urgent basis seeking a stay of execution pending their appeal, which they had failed to timeously note and were seeking an extension of time to appeal in case SC 723/15.

• Whether the matter was urgent and warranted being heard on an urgent basis
• Whether the urgency was self-created by the applicants' delay in acting
• Whether the applicants had provided reasonable explanation for their failure to act timeously after the court order of 4 November 2015

The matter was removed from the roll of urgent matters with costs on a higher scale against the applicants.

An applicant instituting an urgent application must justify the necessity to circumvent ordinary time periods set out in the rules of court. Urgency that is self-created through deliberate or careless abstention from action until a deadline draws near is not the type of urgency contemplated by the rules. The trigger for determining urgency is the date when the need to act arose, not a later event caused by the applicant's own delay. Courts will not accommodate parties who fail to treat their own matters urgently and then seek to rely on urgency of their own making.

The court noted that respondents' counsel urged an award of costs de bonis propriis against the applicants' legal practitioners on a higher scale, but declined to make such an order without first hearing from the legal practitioners concerned. However, the court did agree that the matter warranted costs on a higher scale as it was apparent the matter was not urgent.

This case reinforces the important principle in Zimbabwean civil procedure that parties cannot rely on self-created urgency to circumvent ordinary procedural rules. It demonstrates the courts' strict approach to urgent applications where applicants have failed to act timeously when the need to act first arose. The case serves as a warning to litigants and their legal practitioners that dilatory conduct will not be rewarded with urgent treatment, and may result in costs on a higher scale.