Naldline (Private) Limited t/a Exodus Engineering & Equipment v Harare Residents Trust and Others

The applicant (Naldline Private Limited) entered into a Memorandum of Agreement with the City of Harare (second respondent) on 18 August 2015 for allocation of stand 2166 Tynwald South to develop housing flats. This agreement was amended on 4 October 2017 to increase the number of flats to 120, and further amended on 9 June 2018 when the land was sold to the applicant for US$414,000.00 (fully paid). The applicant was to construct 120 residential flats and two classroom blocks at Yemurai Primary School. On 25 April 2022, the first respondent's representatives disrupted the applicant's construction work based on a court order in HC 5420/20 (which dealt with stands 2164 and 2165, not 2166). The applicant later discovered another order in HC 4285/21 granted by consent that covered stand 2166, ordering cessation of development. The applicant was not a party to either proceeding. After issuing and withdrawing summons (HC 3003/22), meeting with the second respondent on 14 June 2022, and issuing further summons (HC 3637/22), the applicant filed this urgent application on 17 June 2022 seeking declarations that the consent order could not be enforced against it.

• Whether the matter qualified as urgent in terms of Rule 60 of the High Court Rules, 2021
• Whether the certificate of urgency was properly constituted and sufficient
• Whether the applicant acted promptly when the need to act arose
• Whether the urgency was self-created
• Whether a court order obtained by consent in proceedings where the applicant was not cited could be enforced against the applicant

The matter was struck off the roll of urgent matters with costs in terms of Rule 60(18) of the High Court Rules, 2021. The court did not address the other points in limine or the merits of the application.

A certificate of urgency must contain sufficient facts explaining: (1) the specific prejudice that will be suffered if the matter is not heard urgently; (2) why the applicant could not act sooner; and (3) an explanation for any delay between when the need to act arose and when the application was filed. Urgency that stems from deliberate or careless abstention from action until a deadline approaches is not the type of urgency contemplated by the rules. Where an applicant has already instituted ordinary proceedings (summons) for the same relief, this undermines the claim of urgency in a subsequent urgent application. The certificate of urgency must enable the court to make an informed decision as to whether to leave its other business to deal with the matter urgently.

The court noted that the order in HC 4285/21 which the applicant sought to challenge only required the applicant to vacate and stay all developments pending determination of HC 5420/20 - it was not a permanent prohibition. The court also observed that the applicant's substantive complaint (that a consent order was entered affecting its property rights without it being cited as a party) may have had merit, but this did not cure the defects in the urgent application. The court cited with approval the role of a legal practitioner in certifying urgency as requiring the application of analytical skills to distill the urgency and communicate the core message to the court (from Kambarami v Kambarami HH 419/15).

This case reinforces the strict approach Zimbabwean courts take to certificates of urgency and urgent applications. It emphasizes that practitioners must adequately explain both the prejudice that will result from delay and any delay in bringing the application itself. The case serves as a warning against using urgent applications as an afterthought or alternative to ordinary proceedings, particularly where the applicant has already instituted summons proceedings for the same relief. It demonstrates that courts will not entertain urgent applications where urgency is self-created through delay or failure to act timeously, even where substantive rights may be affected.