Parkham Enterprises (Pvt) Ltd v Roofcover Properties (Pvt) Limited and Others

Parkham Enterprises (the applicant) entered into a lease agreement with Roofcover Properties (1st respondent) on 5 July 2014 for premises at No. 1A Dunlop Road, Belmont, Bulawayo. The applicant faced financial difficulties and was unable to pay creditors, including the 1st and 2nd respondents. On 1 March 2016, the applicant was granted a provisional judicial management order which stayed all proceedings against it. The 1st respondent obtained leave to institute action for arrear rentals and ejectment, and obtained a default judgment in the Magistrates Court (CC 487/2019) in July 2020. The applicant was evicted in October 2020 pursuant to this judgment. The applicant then forced its way back into the premises in defiance of the court order. An application to stay execution and a subsequent application for rescission both failed. The rescission application was dismissed on 2 December 2020 on the basis that the applicant had restored itself to the premises unlawfully. On 9 December 2020, the 1st respondent advised the applicant that re-eviction would proceed. The applicant was eventually locked out on 31 August 2021 and filed this urgent application on 3 September 2021, seeking to be restored to the premises and to interdict execution pending determination of an appeal (HCA 58/2020).

• Whether the matter was urgent and properly brought as an urgent chamber application
• Whether the interim relief sought was competent or final in nature
• Whether the applicant approached the court with dirty hands
• Whether material non-disclosure of facts justified dismissal of the application
• Whether an appeal suspends execution of a judgment without leave of court being granted

The urgent chamber application was struck off the roll with costs on a legal practitioner-client scale against the applicant.

An urgent chamber application will be struck off the roll where: (1) the applicant fails to disclose material facts relevant to urgency, particularly where such non-disclosure appears calculated to gain the court's sympathy; (2) the urgency is self-created through deliberate abstention from timeous action; (3) the interim relief sought is final in nature and would resolve all issues on a prima facie basis, thereby defeating the purpose of confirmation proceedings; and (4) the applicant's conduct demonstrates contempt for existing court orders. Material non-disclosure in urgent applications justifies dismissal, particularly where a litigant cherry-picks facts to present only those favorable to its case. A provisional order must be temporary and provisional in nature, not final, and must be ancillary to final relief to be sought at confirmation.

The court made several important observations: (1) Courts should frown upon orders sought on incomplete information and discourage material non-disclosure, mala fides or dishonesty, and may make adverse or punitive costs orders as a seal of disapproval; (2) When a matter is urgent, the true facts speak for themselves without embellishment or withholding; (3) Courts should not sympathize with litigants whose conduct (such as defying valid court orders through self-help) is not deserving of sympathy; (4) The reference to 'perverse conduct' in the certificate of urgency showed that the legal practitioner did not apply his mind to what is envisaged by Rule 60(3)(c) as justifying non-service of a chamber application; (5) Only a litigant who submits to due process and genuinely seeks to protect a threatened right can have the moral ground to challenge the court for failing to act; (6) The applicant's conduct in this matter appeared to be a calculated tactical move meant to sanitize previous failed applications rather than a genuine response to urgent circumstances.

This case is significant in Zimbabwean civil procedure for reinforcing several important principles: (1) the requirement for full and frank disclosure of all material facts in urgent applications, particularly where an applicant seeks to jump the queue ahead of other litigants; (2) the distinction between interim/provisional relief and final relief, and the prohibition against seeking final orders on prima facie proof; (3) the court's intolerance of self-created urgency and tactical litigation conduct; (4) the principle that courts will not assist litigants who defy valid court orders through self-help; and (5) the appropriateness of punitive costs orders where applicants engage in material non-disclosure and abuse the urgent application process. The judgment provides comprehensive guidance on what constitutes genuine urgency and the consequences of attempting to mislead the court through selective disclosure of facts.