Ngoni Mudekunye and Others v Aaron Evans Mudekunye and Others

The applicants filed an urgent chamber application seeking to stay execution of a writ of ejectment pending determination of an application for rescission of judgment in case HC 271/10. This was the second such application - the first (HC 5120/10) had been withdrawn before Patel J on 29 July 2010 after counsel misrepresented that an application for rescission had been filed when it had not. The notable difference in the second application was that a rescission application had now been filed. The writ of ejectment was executed by the Deputy Sheriff on 27 July 2010 at 11:25 hrs, two days before the urgent application was filed on 29 July 2010. The certificate of urgency was signed by Mr Itai Ndudzo, a legal practitioner from the same law firm (Mutamangira & Associates) representing the applicants.

• Whether it is competent for a legal practitioner from the same law firm representing an applicant to sign a certificate of urgency
• Whether the decision in Chafanza v Edgars Stores Ltd 2005 (1) ZLR 301 (H) was a binding majority decision
• Whether execution that has already been effected can be stayed
• Whether the matter was urgent given that execution had already been carried out

The application was dismissed with costs on the ordinary scale.

1. The decision in Chafanza v Edgars Stores Ltd 2005 (1) ZLR 301 (H) is not a binding majority decision because the concurring judge did not sit in the hearing of that matter. Urgent chamber applications are typically heard by single judges pursuant to Rule 244 of the High Court Rules. 2. Rule 242(2) does not prohibit a legal practitioner from the same law firm representing the applicant from signing a certificate of urgency. Such a practitioner is better positioned to assess urgency having received direct instructions and being familiar with the case. 3. The presiding judge retains discretion under Rule 244 to determine whether a matter is urgent, regardless of the existence of a certificate of urgency. 4. Once execution has been properly effected through due process, it cannot be stayed by subsequent application - the status quo ante cannot be restored and the applicant must pursue other remedies such as appeal or review.

The court made important observations about the professional conduct expected of legal practitioners, noting that they are officers of the court with a duty to assist the court honestly and diligently, not to mislead it. The court expressed concern about the conduct of the applicants' legal practitioners who misrepresented facts before two different judges on separate occasions. While the court acknowledged that punitive costs orders can be appropriate for misconduct by legal counsel, it exercised discretion not to impose such an order in this case given that the matter involved a deceased estate where emotions run high among family members who believe in their entitlement to estate assets. The court also observed that legal practitioners must be treated as professionals fully aware of their duties to both the court and their clients, and the legal system has sufficient safeguards to deal with errant practitioners.

This case is significant in Zimbabwean civil procedure for clarifying that the decision in Chafanza v Edgars Stores Ltd is not a binding majority decision and therefore does not prevent legal practitioners from the same law firm representing an applicant from signing certificates of urgency. The judgment provides important guidance on the interpretation of Rule 242(2) of the High Court Rules regarding certificates of urgency and reaffirms the principle that execution that has already been properly effected cannot be stayed. It also addresses the doctrine of stare decisis in the context of decisions by single judges versus panels of judges in urgent applications.