The appellant brought an urgent application in the High Court which was dismissed with costs on the scale of legal practitioner and client. The dismissal was based on the matter not being urgent and the appellant's failure to disclose material facts. The dispute related to property in Chegutu that had been ongoing since 2003. At the time the appellant purportedly acquired the property, he was the deputy mayor of the second respondent (Chegutu Municipality). A massive investigation had been conducted into the manner in which the appellant acquired a number of properties in Chegutu, including the property in question. Some reports suggested impropriety on the appellant's part regarding the manner of acquisition and whether he had paid for the property. The second respondent did not recognise his purported purchase of the property.
The appeal was dismissed with costs. However, the order of the court a quo was altered to read: "The application is removed from roll with costs on the scale of legal practitioner and client."
When a court finds that an application brought as urgent is not urgent, the correct order is to remove the matter from the roll rather than dismiss it, as such a dismissal is not on the merits and does not give rise to res judicata. A finding of material non-disclosure in an urgent application justifies an award of costs on the higher scale (legal practitioner and client), and such an award will not be set aside on appeal unless there was an improper exercise of the court's discretion.
The Court noted that while some findings of fact made by the court a quo could not properly be made without an enquiry into the merits of the matter, this did not necessarily invalidate all findings where certain facts were common cause or undisputed on the papers. The Court emphasized that the long history of the dispute (since 2003), the appellant's position as deputy mayor at the time of the transaction, the investigations that had been conducted, and the municipality's non-recognition of the purchase were all relevant factors that could properly be considered even without a full merits enquiry.
This case clarifies an important procedural point in Zimbabwean (and by extension South African) civil procedure: when a court finds that an urgent application is not urgent, the proper order is to remove the matter from the roll rather than dismiss it. This ensures that the determination is purely procedural and does not create res judicata effects that would prevent the applicant from pursuing the matter through normal channels. The case also affirms that punitive costs (on the legal practitioner and client scale) are appropriate where there has been material non-disclosure in urgent applications, and that a court's discretion in awarding such costs will not be interfered with on appeal unless improperly exercised.