Metallion Gold Zimbabwe v Eurotech Plant & Equipment (Pvt) Ltd

The 1st respondent supplied the applicant with mining equipment from 17 June 2007 onwards at the applicant's request. Invoices were submitted in Zimbabwe dollars but no payment was made. After multiple reminders over the years and the introduction of foreign currency in February 2009, the applicant requested revised invoices in US dollars, which amounted to an admission of liability. The 1st respondent submitted revised accounts totaling $169,755.87 but still received no payment. On 15 June 2010, the 1st respondent issued summons which were served on 26 June 2010. The applicant failed to enter appearance to defend, and default judgment was granted on 22 July 2010. The applicant took no action until its property was attached in execution on 2 August 2010. The applicant then filed an urgent application on 5 August 2010 for a stay of execution pending rescission of judgment. The rescission application was only filed on 12 August 2010. The initial urgent application was filed with an incomplete draft order lacking the reverse page of Form 29C.

• Whether the matter qualified as urgent under the High Court Rules
• Whether the applicant's delay constituted self-created urgency
• Whether the application complied with Rule 247(1)(a) of the High Court Rules regarding Form 29C
• Whether the application for stay of execution was premature when filed before the rescission application
• Whether the applicant had an alternative remedy

The application was dismissed with costs on an attorney and client scale against the applicant.

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. A litigant who takes no action upon being served with summons, allows default judgment to be entered, and only seeks urgent relief after property is attached in execution, has created self-created urgency and is not entitled to be heard on an urgent basis. No litigant is entitled to be heard on an urgent basis as of right.

The court observed that the applicant's request for revised invoices in foreign currency constituted an admission of liability which interrupted any prescriptive period that might have been running, rendering any argument over prescription meritless. The court also commented that the applicant appeared to be attempting to unilaterally dictate the price it would pay despite having received and used the equipment for over 2 years, which amounted to a deliberate attempt to frustrate the 1st respondent's legitimate debt recovery efforts.

This case reinforces the important principle in Zimbabwean civil procedure that self-created urgency arising from deliberate inaction does not qualify for urgent treatment under the court rules. It demonstrates that courts will not allow litigants to benefit from their own dilatory conduct by treating matters as urgent when the urgency results from their failure to act timeously. The case also illustrates that failure to respond to legal process at any stage (from initial demands through to service of summons) will be viewed negatively when a party later seeks urgent relief. The award of costs on an attorney and client scale reflects the court's disapproval of the attempt to frustrate legitimate debt recovery through procedural delay tactics.