Polybrands Irrigation and Industrial Supplies v ZESA Holdings (Private) Limited and Sheriff of High Court

The applicant leased commercial property (Stand 3325 Salisbury Township, Old Central Stores, Harare) from the first respondent pursuant to a lease agreement signed on 22 October 2015, at a monthly rental of $905 plus operating costs of $282. The applicant defaulted on rent and operating costs totaling $8,782. On 17 March 2016, the first respondent sued for arrear rentals ($6,244), arrear operating costs ($2,538), interest, holding over damages, ejectment, and costs. The applicant did not defend the suit but entered into a payment plan, paying $9,000 ($3,000 on 19 April 2016 and $6,000 on 22 June 2016). Default judgment was granted in favor of the first respondent on 3 May 2016 under HC 2839/16. On 9 June 2016, the first respondent's lawyers sent an email to the applicant warning of eviction and attachment if arrears were not cleared by 30 June 2016. On 3 August 2018, the second respondent attached the applicant's movable goods pursuant to a warrant of execution for $15,067. The applicant then filed this urgent chamber application for stay of execution, claiming it was unaware of the default judgment until 4 August 2018, that it had paid the debt in full, and that it had made improvements to the property worth $42,581.13.

• Whether the application was properly brought on an urgent basis
• Whether self-created urgency can constitute proper urgency for purposes of an urgent chamber application
• Whether the applicant was aware of the default judgment prior to the execution
• Whether the applicant had paid the debt in full
• Whether the claim of improvements to the property raised a genuine defence or counter-claim

The urgent chamber application was dismissed with costs.

An application cannot be heard on an urgent basis where the applicant was aware of the judgment against which relief is sought for over two years prior to the execution, and the urgency is self-created by the applicant's own delay and inaction. An applicant in an urgent chamber application has a duty to place all material facts before the court, including those that may be adverse to the claim of urgency; failure to disclose such facts when they are known to the applicant will result in adverse inferences being drawn and the application being dismissed for lack of urgency. Self-created urgency arising from a litigant's failure to act timeously upon knowledge of a court order is not the type of urgency contemplated by the rules of court governing urgent applications.

The court observed that where a litigant chooses to lay before the court only circumstances which will persuade it to hear the matter urgently while deliberately omitting matters that would disqualify urgency, and the truth surfaces from the respondent's opposition, the court will have no difficulty drawing adverse inferences. The court also noted that the applicant's conduct in not raising the improvements issue when originally sued, and only raising it in the urgent application (without proper supporting documentation), was inconsistent with a litigant who has a genuine counter-claim. The court further observed that the applicant could have sought clarification of the email of 9 June 2016 from either the first respondent or its own legal practitioners if there was any ambiguity, but the fact that it did not demonstrated that its mind was clear on what was communicated.

This case reinforces important principles regarding urgent applications in Zimbabwean civil procedure, particularly: (1) An application is not urgent merely because the applicant labels it as such; (2) Urgency must be objectively established and cannot be self-created through delay or inaction; (3) Litigants have a duty of full and frank disclosure in urgent applications, and failure to disclose material facts (particularly those that would defeat urgency) will result in adverse inferences and dismissal; (4) Knowledge of a judgment obtained over two years prior negates urgency when execution is eventually carried out; (5) The court will scrutinize the conduct and correspondence of parties to determine actual awareness of court orders. The case also illustrates the operation of holding over damages in landlord-tenant disputes and the obligation to account for ongoing damages when assessing whether a debt has been settled.