Nkosana Moyo v Princess Moyo

The applicant and respondent are married under the Marriages Act but their marriage has encountered difficulties, with the applicant having filed for divorce. The respondent issued summons in the Maintenance Court seeking maintenance for herself and two minor children totaling RTGS300,000. After a drawn-out hearing, the Maintenance Court ordered on 26 September 2021 that the applicant pay RTGS180,000 per month for the two minor children (Hanganani Moyo and Tahanha Moyo) with effect from 30 September 2021. On 4 October 2021, the applicant filed a notice of appeal against the judgment (HCA 49/21). On 27 October 2021, approximately 30 days after the Maintenance Court judgment, the applicant filed an urgent chamber application seeking to suspend the Maintenance Court judgment and to vary the amount to US$100 equivalent per child per month plus school fees and expenses. The respondent opposed the application on several preliminary points.

• Whether the matter was urgent and deserving of being heard on an urgent basis
• Whether the relief sought in the interim application was the same as the final relief, rendering it incompetent
• Whether the applicant should have utilized section 27(3) of the Maintenance Act to apply to the Maintenance Court for suspension of the order rather than approaching the High Court
• Whether the delay of approximately 30 days in bringing the urgent application was adequately explained
• Whether urgency was self-created by the applicant's failure to act timeously

1. The application was struck off the roll of urgent chamber applications. 2. The applicant was ordered to pay the costs of the application at the ordinary scale.

1. An urgent application cannot succeed where the applicant has failed to exhibit urgency in their conduct by waiting approximately 30 days to file the application when the need to act arose immediately upon becoming aware of the judgment. 2. Where specific statutory provisions exist for obtaining relief (such as section 27(3) of the Maintenance Act which allows application to the Maintenance Court for suspension of a maintenance order pending appeal), a litigant must first utilize those statutory remedies rather than approaching the High Court on an urgent basis. Failure to do so constitutes self-created urgency. 3. Interim relief that is identical in substance and effect to the final relief sought is incompetent because it defeats the purpose of interim protection and effectively grants final relief on proof of merely a prima facie case. 4. Urgency is determined not only by time considerations but by the particular circumstances of the case, including whether the applicant exhibited urgency in reacting to the event or threat and whether the applicant has pursued available remedies.

The court expressed disquiet at the manner in which the respondent's opposing affidavit was drafted, noting that it was replete with expositions of the law rather than stating the facts upon which the respondent relied in opposition, which is improper. The court also commented that the applicant's interpretation that "with effect from 30 September 2021" meant payment one month from that date (30 October 2021) was "totally at variance with the clear and unambiguous wording of the order" and that the ordinary grammatical meaning allowed for no other interpretation than that the first payment was due by 30 September 2021. The court observed that the rationale for the legislature's decision that appeals should not automatically suspend maintenance orders is to prevent litigants from routinely appealing as a way of defeating orders, which would be to the detriment of dependents. The court noted that while the amount of RTGS180,000 "on the face of it, appears huge," this did not warrant punitive costs against the applicant, as his conduct in rushing to the High Court was understandable albeit misguided.

This case reinforces important principles regarding urgent applications in Zimbabwean law, particularly in the context of maintenance matters. It emphasizes that: (1) litigants must act with contemporaneous urgency when an event requiring immediate resolution occurs; (2) where specific statutory remedies exist (such as section 27(3) of the Maintenance Act), litigants should utilize those provisions rather than seeking alternative remedies in the High Court; (3) interim relief that is substantively identical to final relief is incompetent as it defeats the purpose of interim protection; (4) urgency stemming from a deliberate or careless failure to utilize available statutory remedies constitutes self-created urgency which does not warrant jumping the queue; and (5) the legislative policy that appeals against maintenance orders do not automatically suspend payment (to protect dependents) should be respected and circumvented only through proper statutory channels. The case provides guidance on how courts assess urgency in the context of maintenance appeals and the relationship between statutory remedies and general High Court jurisdiction.