Paradise Investments Pvt Ltd v Solomon Matsa and Others

The applicant (Paradise Investments Pvt Ltd) had a lease agreement with the 1st and 2nd respondents (Solomon Matsa and Inductoserve Pvt Ltd) in respect of property at Plot 20, Sebanga Road, Shurugwi. A dispute arose over non-payment of rent and arrears. The respondents evicted the applicant without following due process, leading to a Magistrates Court interdict on 27 May 2021 prohibiting eviction without a court order. On 1 June 2021, the lease agreement was terminated and the applicant vacated the property. However, the respondents prohibited the applicant from removing a brick moulding machine, two generators and a steel shade from the property. Both parties claimed ownership of these items. The applicant filed an urgent application on 18 June 2021 seeking an order for the restoration of possession and ownership of the disputed items, styled as an "urgent application for rei vindicatio action."

• Whether the application was urgent and should be heard on an urgent basis
• Whether the certificate of urgency was valid
• Whether the applicant had explained the delay in approaching the court
• Whether threats of violence and bloodshed could constitute grounds for urgency
• Whether the legal practitioner who certified the matter as urgent had applied his or her mind to the facts

The point in limine on urgency was upheld. The application was removed from the roll of urgent matters with costs of suit (on the ordinary scale).

An urgent application will only be granted where the applicant demonstrates that the matter cannot wait and that there is imminent danger to existing rights with the possibility of irreparable harm. Urgency that stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. A certificate of urgency must demonstrate ex facie that the legal practitioner who signed it actually applied his or her mind to the facts and circumstances surrounding the dispute. Unexplained delay in bringing an urgent application, particularly over several months from when the cause of action arose, will result in the application being struck from the urgent roll. Threats of violence or bloodshed constitute improper pressure on the court and will not be factored into determining urgency. Alleged ownership of property or loss of business, without more, does not constitute the type of urgency that justifies departure from ordinary court procedures.

The court made important observations about the rule of law and threats of violence: "The Constitution of Zimbabwe Amendment (No. 20) Act, 2013 recognises the supremacy of the rule of law as one of the core values upon which the State is founded. The threat of bloodshed and violence is anathema to the rule of law. It is unacceptable. It has no place in a civilised society. It cannot come from the mouth of a legal practitioner of this court. It cannot come from a litigant who is seeking relief from this court. It cannot be in a certificate of urgency signed by a legal practitioner of this court. It cannot be in papers filed with this court. It cannot be anywhere near this court." The court also observed that counsel's submission requesting judicial notice that Shurugwi is a centre of violence, with the implication that the applicant would resort to self-help if unsuccessful, was an attempt to employ improper pressure that would undermine the rule of law if permitted. Regarding costs, the court noted that while the threats were reprehensible, this was not sufficient grounds for awarding costs on a legal practitioner and client scale without proper motivation.

This case reinforces important principles regarding urgent applications in Zimbabwean civil procedure. It emphasizes that: (1) Urgency must be genuine and not self-created through delay or inaction; (2) Applicants must explain any delay between the cause of action arising and filing the urgent application; (3) Certificates of urgency must demonstrate that the legal practitioner actually applied their mind to the facts and requirements of urgency; (4) Alleged ownership or business losses alone do not constitute urgency; (5) Threats of violence or bloodshed are unacceptable attempts to pressure the court and are antithetical to the rule of law; (6) The court will protect the integrity of the urgent roll and not permit parties to jump the queue without proper justification. The judgment also clarifies that punitive costs require proper motivation and are not automatically awarded even where conduct is reprehensible.