Milton Ncube v Messenger of Court, Bulawayo N.O and Honoured Ncube

In 2008, the second respondent obtained a magistrates' court order against the applicant for payment of R205,060.00 plus interest. The order provided that in the event of non-payment, two immovable properties (No. 13 Drayton Avenue, Woodville, Bulawayo and stand 6436 Luveve, Bulawayo) which had been given as security could be taken over or sold. The applicant failed to pay the debt. The second respondent instructed the first respondent (Messenger of Court) to attach the properties for sale in execution. On 8 February 2010, the properties were placed under attachment. The applicant was granted extensions to sell the properties by private treaty but failed to secure buyers. A sale date was set for 29 October 2010. The applicant only filed this urgent application on 3 November 2010, seeking to set aside the attachment and to be discharged from the debt on grounds that the principal debtor made a reasonable offer to pay by instalments which was unreasonably rejected.

• Whether the application met the test for urgency under the court rules
• Whether a debtor can prevent a judgment creditor from executing a judgment sounding in money
• Whether delay from February 2010 to November 2010 constituted self-created urgency

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

Urgency which stems from deliberate or careless abstention from action until a deadline draws near is not the type of urgency contemplated by the court rules. A matter is urgent if, at the time the need to act arises, the matter cannot wait - not merely because the day of reckoning has arrived due to the litigant's own delay. Furthermore, a debtor cannot prevent a holder of a judgment sounding in money from executing that judgment, nor can a debtor prescribe when and how a creditor must execute a valid judgment.

The court noted that while it did not have to decide the merits of the matter, it was obvious that the applicant would have extreme difficulties in preventing execution of the judgment. The court also made the general observation that no litigant is entitled as of right to have their matter heard urgently, and that the certificate of urgency or supporting affidavit must always contain an explanation for non-timeous action if there has been a delay.

This case reinforces important principles in Zimbabwean civil procedure regarding urgent applications and execution of judgments. It clarifies that urgency arising from a litigant's own delay or inaction is not the type of urgency that entitles a matter to jump the queue. It also affirms the principle that a judgment debtor cannot interfere with a creditor's right to execute a valid money judgment or dictate the manner and timing of execution. The case is instructive on when courts will award costs on an attorney and client scale in cases of hopeless applications.