National Prosecuting Authority v Chipo Pirukayi and Others

The 1st respondent (Chipo Pirukayi) was arrested on 9 October 2017 on fraud allegations and granted bail. A warrant of search and seizure was granted on the day of arrest under case number W/A 91/17. On 18 October 2017, a magistrate cancelled the warrant of search and seizure. The police refused to release motor vehicles seized under the warrant. On 24 October 2017, the applicant (NPA) filed an urgent ex-parte application (HC 2799/17) seeking to interdict the 1st respondent from disposing of movable and immovable property. On 1 November 2017, Makonese J granted a consent order directing the applicant to facilitate immediate and unconditional release of four vehicles to the 1st respondent, while interdicting her from disposing of specified property pending finalisation of the fraud case. The police refused to comply with the consent order. The applicant then filed this urgent chamber application seeking rescission of the consent order, claiming the police had "discovered new information" that the vehicles were purchased with proceeds of crime. The respondents opposed on grounds of lack of urgency, incompetence, and misrepresentation of facts.

• Whether the application for rescission of a consent order was urgent
• Whether rescission of a consent order can be sought by way of urgent chamber application under rule 449
• Whether the applicant exhibited good faith and made full disclosure of material facts
• Whether the application falls within the exceptions specified in rule 226(2) of the High Court Rules, 1971
• Whether a party can seek rescission of a consent order it had itself applied for and consented to

1. The matter is not urgent. 2. The application be and is hereby struck off the roll with no order as to costs.

An application for rescission of a consent order cannot be brought by way of urgent chamber application under rule 449 of the High Court Rules, 1971. The proper procedure is an application under rule 56. For a matter to be treated as urgent under rule 226(2), the applicant must: (1) exhibit good faith and make full disclosure of all material facts; (2) demonstrate that the matter cannot wait for ordinary procedure; (3) show that urgency arises from contemporaneous events, not from deliberate abstention from timeous action; and (4) treat the matter as urgent in their own conduct. Material non-disclosure, misrepresentation, or concealment of facts known to the applicant will result in the application not being treated as urgent. A party cannot seek rescission of a consent order on grounds of facts that were known to it at the time of consenting to the order.

The court made strong observations about the conduct of both the applicant and the police, describing the applicant's strategy as "blatantly myopic" and criticizing the police conduct as "a typical case of the tail wagging the dog." The court noted that the applicant was acting in cahoots with the police in persisting with disobedience of an extant court order, which was contrary to the constitutional mandate of the National Prosecuting Authority. The court observed that legal practitioners should always bear in mind their duty of full and fair disclosure before certifying that a matter is urgent. The court also commented on the impropriety of police officers defying court orders and the NPA's role in perpetuating such defiance rather than insisting on compliance. The court questioned what legal foundation could exist for a party to seek an order and then seek to rescind it, suggesting an abuse of process.

This case is significant for establishing important principles regarding urgent chamber applications in Zimbabwean law, particularly: (1) the requirement for full and honest disclosure in urgent applications; (2) that urgency cannot be founded on misrepresentation or deliberate concealment of material facts; (3) the proper procedure for rescission of consent orders is rule 56, not urgent chamber applications under rule 449; (4) the principle that parties cannot abuse urgent procedures to circumvent orders they themselves consented to; (5) the importance of candour and bona fides in urgent applications; and (6) the courts' willingness to censure conduct that aids and abets disobedience of court orders. The judgment also addresses the constitutional mandate of the National Prosecuting Authority and its duty not to perpetuate disobedience of valid court orders.