Lucille Makwasha and Felix Makwasha v Innscor Appliance Manufacturing (Pvt) Ltd t/a Capri and Sheriff for Zimbabwe N.O

The applicants are husband and wife who co-own Stand 810 Mandara Township. In 2015, the husband's business encountered financial difficulties and five creditors, including the first respondent (owed $65,277.80), obtained judgments and attached the property. The applicants decided to sell the property by private treaty to realize more value than through forced sale. In July 2017, their legal practitioners engaged creditors' attorneys to agree on a distribution formula for 50% of the proceeds (the wife's 50% share being unaffected by the husband's debts). The applicants had found a purchaser offering $197,000 and submitted a distribution plan to all creditors. Four of five creditors accepted, but the first respondent allegedly refused initially and its acceptance was disputed. After another creditor (Leon Business Solutions) noted a caveat, a second distribution plan was drawn. The applicants sold the property on 12 July 2017 before securing consent from all creditors. All creditors except the first respondent uplifted their caveats. The first respondent refused to uplift its caveat, prompting this urgent application filed in February 2018.

• Whether the application met the requirements of urgency under Rule 244 of the High Court Rules, 1971
• Whether the first respondent had consented to the distribution plan and upliftment of the caveat
• Whether the applicants were entitled to an order compelling the first respondent to uplift the caveat
• Whether the delay in filing the application was justified

The application was dismissed with costs

An urgent application will be dismissed where: (1) the urgency is self-created through the applicant's own delay and failure to act timeously; (2) the applicant waited for more than six months after becoming aware of the issue before filing the urgent application without providing any reasonable explanation for the delay; (3) the applicant's version is materially incoherent, containing unexplained inconsistencies in critical facts and figures; (4) there is no credible evidence supporting the applicant's material allegations (such as alleged consent by the respondent). Such applications do not fall within the contemplation of Rule 244 of the High Court Rules, 1971 regarding urgent matters.

The court observed that the applicants made a complete mockery of the country's justice delivery system by presenting their story "in dribs and drabs." The court also noted that the applicants wasted considerable time writing letters to which the first respondent never responded, rather than taking timely legal action. The metaphor that the applicants "closed the stables when the horses had already bolted" emphasized the futility of seeking urgent relief after such extensive delay. The court expressed that the first respondent's concerns about the drastically reduced pro-rata share (from $36,087 to $9,148.25) in the distribution plans were understandable and that it could not be faulted for refusing to accept the plans.

This case reinforces important principles regarding urgent applications in Zimbabwean law: (1) applicants must not create their own urgency through delay and inaction; (2) parties who sell encumbered property before obtaining creditors' consent bear the consequences; (3) courts will scrutinize the coherence and consistency of applicants' evidence, particularly regarding financial figures and material facts; (4) unexplained delays of several months will defeat claims of urgency under Rule 244; (5) allegations of oral agreements must be properly substantiated and will be rejected where contradicted by documentary evidence. The judgment serves as a warning against attempting to use urgent applications to remedy problems of the applicants' own making.