On 26 September 2012, summons was properly served on the defendant (now applicant). The defendant entered appearance to defend on 12 October 2012, two days after the expiration of the dies induciae (deadline). Instead of seeking condonation for the late appearance, the defendant wrote a letter to the plaintiff arguing that the matter was being defended and that the summons did not comply with court rules as there was no proper address of service within 5km radius of the court house. The plaintiff proceeded with an application for default judgment which was granted on 12 December 2012. The Deputy Sheriff executed the judgment by attaching the defendant's property on 20 December 2012. The defendant did not seek rescission. On 4 January 2013, the defendant's legal practitioners wrote to the Registrar seeking rescission by letter. The parties appeared before a Judge on 22 February 2013 who advised that a proper application for rescission should be filed. The defendant only acted on 9 March 2013 after seeing an advert in the Herald Newspaper dated 7 March 2013 showing that the attached property would be auctioned on 9 March 2013. The applicant then simultaneously filed an urgent application to stay the sale and an application for rescission of the default judgment.
The urgent application was dismissed for want of urgency.
A matter does not become urgent merely because the inevitable consequence of a party's own delay is imminent. Where an applicant has been aware of circumstances requiring action for a considerable period but fails to act timeously, and only seeks urgent relief when the consequences of inaction are about to materialize, the application will be dismissed for want of urgency unless a satisfactory explanation is provided for the delay. Self-created urgency arising from a party's own inaction does not constitute true urgency warranting departure from ordinary court processes.
The court noted that the defendant's initial approach of attempting to seek rescission of judgment by letter to the Registrar (on 4 January 2013) was not the proper way to seek rescission of a judgment which the defendant believed had been erroneously granted. The proper procedure required filing a formal application for rescission. The court also observed that the defendant should have sought condonation for entering appearance to defend out of time rather than merely writing a letter arguing that the matter was being defended and raising technical objections about non-compliance with court rules.
This case is significant in Zimbabwean civil procedure as it reinforces the principle that urgency in legal proceedings is not created by a party's own delay or inaction. It emphasizes that applicants must provide satisfactory explanations for delays in seeking relief and cannot claim urgency merely because the inevitable consequences of their inaction have become imminent. The case serves as a reminder that proper procedures (such as filing for rescission through proper court applications rather than letters) must be followed timeously, and that courts will not allow parties to jump the queue based on self-created urgency.