Mathias Madzivanzira and Others v Dexprint Investment (Private) Limited and Another

On 10 January 2002, the applicants entered into agreements of sale with the first respondent to purchase certain pieces of land being proposed sub-divisions of the remainder of Lot H of Borrowdale Estate (Herons Gill Farm), measuring 89.2623 hectares. The applicants paid a purchase price of $10,500,000 which was held in the second respondent's trust account. The purchase price was financed through an overdraft facility granted by First Banking Corporation, approved on 20 May 2002. In February 2002, the applicants became aware that the property was actually under title of a company known as Carey Farm (Private) Limited, not the first respondent. The applicants filed an aborted urgent application on 14 August 2002, which they withdrew on 15 August 2002. They then launched the current urgent application on 19 August 2002, seeking release of the funds from the second respondent's trust account, either to the applicants or to an independent law firm or the Law Society of Zimbabwe, pending litigation in case HC 6572/02.

• Whether the application was properly certified and constituted an urgent matter warranting departure from the normal court procedures
• Whether applicants had demonstrated that the matter could not wait for determination through the ordinary court process
• Whether applicants had adequately explained their delay in taking action from February 2002 to August 2002
• Whether the second and third applicants were properly before the court in the absence of supporting affidavits

The application was dismissed as not urgent. No order as to costs was made.

For a matter to be dealt with on an urgent basis, the court must be satisfied that: (1) by its nature and circumstances, the matter cannot wait in the sense that if not dealt with immediately, irreparable prejudice will result; (2) the applicant has on his own part treated the matter as urgent and has not delayed unreasonably in taking action; and (3) where there has been delay, a reasonable explanation for that delay must be provided. Urgency which stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the court rules. The element of potential harm or prejudice should not be confused with urgency - a matter is urgent if, at the time the need to act arises, the matter cannot wait. The certificate of urgency or supporting affidavit must establish urgency as a matter of fact, not opinion, and must contain an explanation for any delay in bringing the application.

The court observed that there was a preliminary issue regarding whether the second and third applicants were properly before the court, given the absence of affidavits from them supporting or agreeing with what the first applicant averred in his founding affidavit. The court noted that it would only return to this matter if it found that the matter was urgent, which it did not. The court also made an obiter observation that the claims in the aborted application were not legally sustainable because the cause of action was based on an agreement for the change of ownership of an unsubdivided portion of a stand without a permit to subdivide, contrary to sections 39 and 40 of the Regional, Town and Country Planning Act [Chapter 29:12], citing X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 and Merjury Kanduru v Charles Masimba Chihumbiri HH 53/2002. The court also commented that it appeared generous legal advice from the legal practitioner representing Carey Farm (Private) Limited in the aborted application prompted the launching of this urgent application, but that this did not necessarily make the application urgent.

This case reinforces the strict requirements for urgent applications in Zimbabwean courts. It emphasizes that urgency is not established merely by showing potential prejudice, but requires demonstrating that the matter cannot wait for determination through ordinary court processes. The judgment serves as a reminder to legal practitioners that they must carefully consider whether a matter truly warrants urgent treatment before certifying it as such. The case also illustrates the court's approach to penalizing applicants who delay unreasonably in bringing applications and then seek to characterize them as urgent when the consequences of their delay become apparent. This promotes efficient case management and prevents parties from unfairly jumping the queue of matters awaiting hearing.