Patricia Vengesayi v Zimbabwe Leaf Tobacco Company and Sheriff for Zimbabwe

The applicant and first respondent had reached a settlement in HC 9809/15 for US$103,515.12 payable in instalments. A default judgment was granted on 17 September 2018 for US$98,515.12 with costs on a higher scale. A writ of execution was issued on 26 February 2019, followed by notices of attachment on 28 February 2019 and seizure on 29 May 2019. The applicant claimed to have paid US$60,000 between September 2018 and February 2019, and made a final payment of RTGS$80,118.09 in June 2019. The first respondent advised on 17 June 2019 and again on 30 July 2019 that the judgment debt had not been satisfied. The applicant argued that by virtue of Statutory Instrument 33/2019 (which came into operation on 22 February 2019), all financial obligations incurred prior to that date should be settled at a rate of one to one with the US dollar, meaning her debt was fully paid. On 27 August 2019, the first respondent instructed the Sheriff to proceed with the sale of attached property. The applicant filed this urgent application on 30 August 2019 seeking a stay of execution and an interdict against the sale in execution.

• Whether the urgent application was in the correct prescribed form as required by Rule 230 of the High Court Rules
• Whether the matter was properly brought on an urgent basis
• Whether the applicant demonstrated irreparable harm warranting urgent relief
• Whether the applicant acted with due diligence in prosecuting the urgent application

The matter was removed from the roll of urgent matters. The applicant was ordered to pay the first respondent's costs on a legal practitioner and client scale.

1. An urgent application that is not in the prescribed form (Form 29 or Form 29B as required by Rule 230 of the High Court Rules) is fatally flawed and will be dismissed, particularly where no explanation is provided for non-compliance despite seeking condonation. 2. A matter lacks urgency where the applicant delays for thirty days or more after becoming aware of facts giving rise to the cause of action before instituting proceedings, and where the applicant engages in correspondence rather than immediately approaching the court. 3. To succeed in an urgent application, an applicant must demonstrate irreparable harm, not merely prejudice or risk of losing property. The mere attachment of movable assets does not constitute irreparable harm sufficient to justify urgent relief.

Musakwa J observed in passing that the format of application used by the applicant (which was neither Form 29 nor Form 29B) seems popular among legal practitioners in the jurisdiction, but noted that the court did not know where this format comes from. The judge remarked that all that is required of litigants is simply to copy and paste either Form 29B or Form 29 with appropriate modifications. The court also commented critically on the increasing tendency of legal practitioners to flout the rules and then seek refuge in condonation without providing proper explanations for non-compliance.

This case reinforces important procedural requirements in Zimbabwean civil procedure regarding urgent applications. It emphasizes strict compliance with the High Court Rules regarding the proper form for court applications (Form 29 or 29B), and demonstrates the courts' intolerance for non-compliance without proper explanation, even when condonation is sought. The judgment also clarifies the requirements for establishing urgency, particularly the need for immediate action when the cause of action arises and the necessity of demonstrating irreparable harm beyond mere prejudice or risk of property loss. The case serves as a warning to legal practitioners about the increasing tendency to flout procedural rules and improperly seek condonation without adequate justification.