Nonos Investments (Private) Limited t/a Sub Sahara African Buses v Zimbabwe United Passenger Company

The applicant and respondent entered into a lease agreement on 14 March 2012 whereby the applicant would occupy Lot 22 S/D A & B of Locknivar, Salisbury Township (Willowvale Depot) for 3 years from 1 April 2012 at a monthly rental of $3,500. On 4 December 2012, the respondent sued for cancellation of the lease, ejectment, arrear rentals of $22,900, and holding over damages. During a Pre-Trial Conference on 19 November 2013, the parties' legal practitioners signed a handwritten Deed of Settlement which the conference judge also signed. The applicant's legal practitioners later refused to sign a typed version of the Deed and subsequently renounced agency on 10 March 2014. On 28 March 2014, the Pre-Trial Conference judge clarified that the handwritten Deed remained valid until varied or nullified by court application. The respondent filed a chamber application on 10 April 2014 (HC 3015/14) for an order in terms of the Deed, which it later withdrew on 2 June 2014, and obtained a consent order dated 28 March 2014. On 9 July 2014, the applicant received a notice of ejectment for execution on 14 July 2014, prompting this urgent application filed on 12 July 2014.

• Whether the application satisfied the requirements for urgency under the court rules
• Whether the Deed of Settlement signed by legal practitioners without express client authorization was valid and enforceable
• Whether execution of the consent order should be stayed pending determination of the validity of the Deed of Settlement
• Whether the applicant's delay of three months from becoming aware of the Deed (28 March 2014) to filing the urgent application (12 July 2014) constituted self-created urgency
• Whether the respondent's failure to serve the notice of withdrawal of HC 3015/14 on the applicant constituted procedural irregularity

The court ordered: (a) the applicant granted leave to remain at the premises from 15 July 2014 to 15 October 2014; (b) execution of the consent order dated 28 March 2014 suspended until 15 October 2014; (c) the applicant to pay monthly rentals of $3,500 during the suspension period; (d) the respondent granted leave to enforce all rights under the consent order if the applicant defaults on rental payments; (e) the applicant to wind up operations and hand over vacant possession by close of business on 15 October 2014; (f) the respondent granted leave to recover arrear rentals in terms of the consent order; and (g) the applicant to pay costs of the application.

The binding principle established is that urgency in chamber applications requires immediate action when a party becomes aware of a threat to their interests. A party that waits three months after becoming aware of an allegedly invalid court order before seeking urgent relief has created self-created urgency which does not qualify for urgent treatment under the court rules. Urgency connotes a desperate situation requiring the court to set aside other matters to prevent catastrophic consequences that are too ghastly to contemplate. A matter that can wait three months can continue to wait its turn in the queue. Additionally, while parties have a duty to exchange procedural information timeously and transparently, where both parties have engaged in procedurally irregular conduct, the court may exercise discretion to fashion an equitable remedy balancing the competing interests.

The court observed that legal practitioners owe a primary duty to the court that takes precedence over other professional obligations, and clandestine conduct in court business should be shunned by all litigants, particularly legal practitioners. The court also noted that courts encourage parties to exchange notes regarding procedural progress in the interests of fairness and that ambushing opposing parties with information only at hearings is contrary to this principle. The court commented that the applicant appeared to have no tangible defense to the respondent's claim and merely sought time to wind down operations, as evidenced by its request for an extension when appearing before the Pre-Trial Conference judge on 28 March 2014.

This case is significant in Zimbabwean civil procedure law for its treatment of urgency in urgent chamber applications. It reinforces the principle that urgency cannot be self-created and that parties who delay in asserting their rights cannot later claim urgent relief when consequences of their inaction materialize. The case also addresses the authority of legal practitioners to bind clients through settlement agreements and emphasizes the duty of candor and transparency in dealings with the court, particularly regarding procedural steps like withdrawals. The judgment demonstrates the court's willingness to craft equitable solutions where both parties have engaged in procedurally questionable conduct, balancing competing interests rather than rigidly applying procedural rules.