Moses Nhachi v Mosswood Investment (Private) Limited and Sheriff of the High Court

The first respondent obtained a default judgment against the applicant in HC 6085/21 for ejectment from No 17 Ridgeway North, Colne Valley, Harare. The applicant did not attend the hearing on 2 June 2022 before Mangota J because he was in South Africa seeking medical treatment, having left Zimbabwe on 22 May 2022 before the matter was set down. The notice of set down had been served on his gardener who failed to bring it to his attention upon his return. The applicant only became aware of the default judgment on 17 June 2022 when served with the court order. On 4 July 2022, the applicant filed an application for rescission of judgment. Despite this, the first respondent persisted with execution, prompting the applicant to file an urgent chamber application for stay of execution pending determination of the rescission application. The applicant also alleged that the second respondent (Sheriff) did not give proper notice of ejectment and that the default judgment breached section 74 of the Constitution.

• Whether the urgent chamber application was properly brought before the court
• Whether the application complied with Rule 60(11) of the High Court Rules regarding provisional orders
• Whether an urgent chamber application can seek final relief rather than only provisional orders
• Whether the applicant was entitled to a stay of execution pending determination of the rescission application
• Whether the default judgment offended constitutional provisions regarding ejectment

The application for stay of execution was granted. Execution of the court order in HC 6081/21 (likely meant to be HC 6085/21) was stayed pending determination of the application for rescission of default judgment in HC 4345/22. Each party was ordered to bear its own costs.

Rule 57(2) of the High Court Rules 2021 provides separate and alternative grounds for bringing urgent chamber applications: either (a) where the matter is so urgent it cannot wait, or (c) where a provisional order is sought. A party is not required to seek a provisional order in an urgent chamber application if it can demonstrate that the matter is so urgent it cannot wait to be resolved through an ordinary court application. The court is not precluded from granting final relief through an urgent chamber application as long as the party proves on a balance of probabilities that it is entitled to such relief and that the matter is urgent. Where an applicant files a timeous application for rescission of default judgment and demonstrates on the papers that the default was not wilful, the court should protect the applicant's possession by granting a stay of execution pending determination of the rescission application.

The court observed that when a party seeks a provisional order through an urgent chamber application, it is required to prove its case on a prima facie basis only and not on a balance of probabilities, whereas when seeking final relief through such an application, the balance of probabilities standard applies. The court gave the example of an urgent chamber application for mandamen van spolie as an instance where final relief can be sought through urgent chamber proceedings, citing Blue Rangers Estate (Pvt) Ltd v Muduvuri & Anor 2009(1) ZLR 368(S). The court noted that while the first respondent's argument that a personal right of first refusal is only available against the seller and not against a holder of real rights appeared forceful on its face, this issue was not properly before the court as it related to the rescission application itself rather than the stay of execution application.

This case is significant in Zimbabwean civil procedure for clarifying the proper interpretation of Rule 57(2) of the High Court Rules 2021 regarding urgent chamber applications. The judgment establishes that urgent chamber applications need not always seek provisional orders and can seek final relief where the matter is so urgent it cannot wait to be resolved through ordinary court applications. The case also demonstrates the court's approach to balancing execution rights against protecting possession pending rescission applications where default was not wilful, and touches on constitutional considerations regarding ejectment orders under section 74 of the Constitution.