Newton E Dongo v Amos Edington Matengambiri and The Sheriff of Zimbabwe (N.O.)

The applicant filed an urgent chamber application seeking to suspend the operation of a writ of execution obtained by the first respondent in Case No. HC7734/12 and to retain peaceful possession of Stand No. 17 Culverwell Road, Arcadia, Harare. The matter had a long history of litigation dating back to HC 4076/10, where on 26 July 2011 the applicant had consented to judgment that the cancellation of the sale agreement to him was valid and that he should vacate the premises by 30 September 2011. The applicant subsequently obtained a default order on 28 October 2013 in HC 7734/12 restoring his rights to the property without disclosing the prior consent order. This default judgment was eventually rescinded in HC 5251/14. The first respondent then set down HC 7734/12 and obtained judgment on 1 June 2017. The applicant became aware of this judgment on 2 June 2017 and filed an application for rescission on 23 June 2017. After being served with a writ in August 2017, the applicant filed the present urgent application on 10 August 2017. In total, there had been ten applications on this matter, seven instituted by the applicant.

• Whether the matter was urgent and satisfied the requirements for being heard on an urgent basis
• Whether the application complied with Order 32 Rule 241(1) regarding the prescribed form for urgent applications
• Whether the applicant had abused the court process through a litany of litigation

The application was dismissed with costs.

A matter is urgent when, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. To succeed in an urgent application, an applicant must show: (a) the matter cannot wait at the time when the need to act arises; (b) irreparable prejudice will result if the matter is not dealt with straight away without delay; (c) there is prima facie evidence that the applicant treated the matter as urgent; (d) the applicant gives a sensible, rational and realistic explanation for any delay in taking action; and (e) there is no satisfactory alternative remedy. A litigant who fails to take timely action to protect their interests when the need to act arises, and who has alternative remedies available, cannot invoke the court's urgent jurisdiction.

The court observed that the applicant appeared to be abusing the court system through a plethora of litigation (ten applications in total, seven instituted by the applicant) to frustrate the first respondent and retain occupation of premises to which he was not entitled. The court noted that had the judge's attention been drawn to the existence of the order in HC 4076/10, the default order of 28 October 2013 would never have been granted. The court expressed the view that the applicant had no prospects of success whatsoever and may in fact be a proper candidate for an order of perpetual silence with regard to this matter. The court also noted that it would have given serious consideration to granting costs on the legal practitioner and client scale had these been asked for, in order to deter unnecessary litigation. The court observed that while it has discretion under Rule 4C to condone procedural irregularities, this was not necessary to determine given the finding on urgency.

This case provides a clear example of the application of the principles governing urgent applications in Zimbabwean civil procedure. It demonstrates that courts will not entertain applications for urgent relief where the applicant has delayed in taking action after the need to act arose, particularly where the applicant has alternative remedies available. The case also illustrates the courts' willingness to identify and comment on abuse of court process through repeated and vexatious litigation, and signals that perpetual silence orders may be appropriate in extreme cases of abuse. The judgment reinforces that litigants cannot create their own urgency through dilatory conduct and that self-acting litigants must assume the risks of failing to understand legal requirements.