Nqobile Khumalo and Francisca Mufambi v Maoni Trading (Pvt) Ltd and Others

The applicants were former directors of the second respondent (Trianic Investments (Pvt) Ltd) who were dismissed by a High Court order under case number HC 3986/12. The dispute centered on mining operations relating to Tengold Reef claims named Eric 21, registered in the first respondent's name. Multiple applications and counter-applications had been filed between the parties over the years (six in total). On 21 April 2016, a default judgment was granted against the applicants under case number HC 2986/15. The applicants filed an urgent chamber application on 27 April 2016 seeking to stay execution of that judgment pending finalisation of their rescission application. The applicants alleged that the first respondent fraudulently obtained the order by misrepresenting to the court that the matter was unopposed, and claimed the court had previously postponed the matter sine die. A provisional order had been served on the applicants on 3 December 2015 requiring them to file opposing papers within 10 days, but they failed to do so, resulting in them being barred.

• Whether the certificate of urgency was fatally defective due to containing false and misleading information
• Whether the applicants were entitled to a stay of execution of the default judgment
• Whether the applicants provided a reasonable explanation for their default and being barred
• Whether the applicants had locus standi to bring the application given they were no longer directors or shareholders
• Whether costs on an attorney-client scale were warranted

The application was dismissed with costs on an attorney-client scale against the applicants.

A certificate of urgency containing false and misleading information is fatally defective and will result in dismissal of the urgent application. Parties approaching the court for equitable relief must do so with utmost probity and honesty - any attempt to mislead the court will result in adverse inferences being drawn and dismissal of the application. An application stands or falls on its founding affidavit, and where the founding affidavit perpetuates falsehoods, the application cannot succeed. For a court to grant relief from a default judgment or stay of execution, the applicant must provide a reasonable explanation for the default. Where no explanation is provided for either the default judgment or for being barred (by failing to file opposing papers within the time specified), the applicant is not entitled to relief. The phrase 'good and sufficient cause' in the rules gives the court wide discretion but does not eliminate the need for an explanation of default.

The court made several obiter observations: (1) Courts will not condone the use of invective, acidic and combative language, and allegations of fraudulent or criminal conduct must be supported by proper averments in the papers. (2) Legal practitioners who depose to certificates of urgency containing false and misleading information discredit themselves in the process. (3) Where a litigant gives false evidence or lies about a particular incident, the court may infer there is something they wish to hide and may draw the same adverse inferences as if they had not given evidence at all. (4) Courts should not be clogged with multiple applications arising from the same dispute - the judge expressed concern that six applications had been filed relating to the same mining dispute. (5) In urgent matters there is particular need for probity as the court is being asked to grant relief on an expedited basis and must be satisfied that all facts are accurate and truthful.

This case is significant in Zimbabwean civil procedure (applicable to South African law by analogy given similar procedural rules) for reinforcing several important principles: (1) the strict requirement for accuracy and honesty in certificates of urgency and founding affidavits, particularly that parties seeking equitable relief must approach courts with utmost probity; (2) that false or misleading information in urgent applications can be fatal to the application; (3) the principle that applications stand or fall on founding affidavits and material defects cannot be cured in replying affidavits; (4) that parties must provide adequate explanations for defaults and failure to comply with court orders and time limits; (5) that courts will impose attorney-client costs where parties deliberately mislead the court or use intemperate language without justification. The judgment serves as a warning against abuse of urgent court processes and emphasizes the need for strict compliance with procedural rules.