Memory Gahadzikwa v Everson Zhou and Others

This case involved a triple sale of Stand No. 7895 Belvedere West, Harare by Saltana Enterprises (Pvt) Ltd (third respondent), a land developer, to three different buyers: the applicant (2015), the first respondent Everson Zhou (2006), and the second respondent Godfrey Magwaza (2002). In November 2015, the first respondent successfully obtained a provisional order interdicting the other buyers from interfering with the property, followed by a final order in November 2016 declaring him the owner. Both the applicant and second respondent appealed to the Supreme Court (SC 697/16), which remained pending. The applicant filed an urgent application on 26 May 2017 after allegedly seeing a WhatsApp notice on 24 May 2017 instructing beneficiaries, including the first respondent, to sign contracts with the City of Harare (seventh respondent). She sought to stay any transaction between the first and seventh respondents pending the appeal, and to interdict the Association (fourth respondent) and City of Harare from mobilizing beneficiaries and contracting pending finalization of HC 1701/17 (a separate dispute between Saltana Enterprises and the City of Harare).

• Whether the matter was urgent and qualified to be heard as an urgent chamber application
• Whether the applicant had locus standi to seek relief on behalf of all beneficiaries of the Belvedere West/Warren Park Housing Project
• Whether the matter was res judicata
• Whether the application complied with Rule 241 of the High Court Rules

The matter was struck off the roll. The applicant was ordered to pay the costs of suit.

An urgent application will fail where: (1) the foundational evidence (in this case, a WhatsApp notice) is not attached to the application and placed before the court; (2) the applicant fails to establish the authorship and authenticity of the document giving rise to the alleged urgency; (3) the applicant fails to adduce evidence showing that the respondents took actual steps toward the threatened action; and (4) a general notice to multiple parties cannot establish urgency for relief against specific parties without evidence of imminent specific action. Furthermore, an applicant lacks locus standi to seek relief on behalf of other parties when she has no legal mandate to represent their interests and is not a party to the underlying dispute between other respondents.

The court observed that the applicant was "unnecessarily hasty" in filing the application. The court noted with approval that the first respondent had demonstrated awareness that he should not take any action regarding the stand until the Supreme Court determined the pending appeal. The court distinguished the present application from the earlier 2015 interdict application, noting they sought different relief and were not res judicata, though this distinction ultimately did not affect the outcome given the finding on urgency.

This case reinforces important principles regarding urgent applications in Zimbabwean civil procedure: (1) The requirement that foundational documentary evidence must be properly before the court; (2) That applicants must demonstrate on a balance of probabilities the actual urgency and imminence of threatened harm, not merely speculative fears; (3) The principle of locus standi requiring parties to demonstrate legal standing to seek relief, particularly when attempting to represent collective interests; (4) That general notices to a group of people cannot form the basis of urgency when seeking to prevent specific transactions without further evidence of imminent action. The case also illustrates judicial scrutiny of attempts to circumvent pending appeals or relitigate matters through urgent applications.