Loveness Acxillia Ganda v Claudius Masuku and Others

The applicant purchased a property (7 Doves Crescent, Vainona, Harare) from the third respondent in May 2014 and took occupation in November 2014. Unbeknown to her, the same property had been sold to the first respondent in 2003. The property had initially been sold to the third respondent in 1997, but that agreement was cancelled in 2000 by consent. However, through court process, the third respondent had taken title of the property and then sold it to the applicant, transferring title within 2 months. In case HC 3716/16, the first respondent successfully challenged the agreement of sale between the applicant and third respondent, leading to judgment on 3 April 2018 that gave ownership rights to the first respondent. Although the court found the applicant to be an innocent purchaser, she was ordered to vacate the property. On 8 May 2018, the applicant was served with a notice of eviction. On that same day, she filed an application for condonation with the Supreme Court and later filed the present urgent application on 10 May 2018 seeking a stay of eviction.

• Whether the application met the requirements for urgency under Zimbabwean civil procedure rules
• Whether the applicant had acted timeously in seeking urgent relief
• Whether the applicant would suffer irreparable harm warranting urgent intervention
• Whether a stay of eviction should be granted pending determination of a Supreme Court application for condonation and a yet-to-be-filed improvement lien matter

The matter was declared not urgent and struck off the roll of urgent matters with costs on the ordinary side. The matter remained on the roll for ordinary applications.

The binding legal principle is that urgency for purposes of urgent chamber applications is determined by when the need to act arose, not when the consequences of inaction materialize. Urgency which stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. A litigant cannot create urgency by failing to take timeous steps after an adverse judgment and then seeking urgent relief when faced with enforcement. Irreparable harm alone does not constitute a measure of urgency. The onus is on the applicant to prove urgency, and failure to act timeously after becoming aware of the need to act is fatal to a claim of urgency.

The court noted with approval the remarks in Kuvarega v Registrar General & Anor regarding the problem of practitioners certifying matters as urgent when they are not, and the requirement that certificates of urgency or supporting affidavits must always contain an explanation of non-timeous action if there has been a delay. While the court acknowledged the respondents' request for costs on a higher scale, it declined to make such a punitive order as it did not find the circumstances warranted it, opting instead for costs on the ordinary scale.

This case illustrates the strict approach Zimbabwean courts take to applications for urgent relief, emphasizing that urgency must be assessed from when the need to act arose, not when the day of reckoning arrives. It reinforces that litigants cannot create their own urgency by delaying action after an adverse judgment. The case demonstrates that even sympathetic circumstances (the applicant being found to be an innocent purchaser who was defrauded) do not lower the threshold for proving urgency. It also clarifies that irreparable harm alone is insufficient to establish urgency for purposes of urgent chamber applications.