On 4 October 2012, the applicant (Rera Trading) and first respondent (Innscor Distribution) were granted an order by consent requiring the applicant to: (i) deliver to the respondent goods purchased from it that had not reached their expiry date, and (ii) pay the value of goods that had expired or been disposed of, to settle a judgment debt of US$3,961.05 plus interest. The applicant failed to comply with the consent order. On 28 January 2013, the Deputy Sheriff issued a notice of seizure and attachment. On 5 February 2013, when the first respondent's employees attended the applicant's premises to collect goods, they found that most goods had reached their expiry dates or were so close to expiry that they could not be resold. The first respondent declined to uplift the goods and instructed the Deputy Sheriff to proceed with execution. On 31 January 2013, the applicant was served with a notice of removal but only filed an urgent application to stop execution on 13 May 2013, approximately three and a half months later.
The application was dismissed. The applicant was ordered to pay the respondent's costs on an ordinary scale.
An application is not urgent where the applicant delays filing for three and a half months after being served with a notice of removal without providing any explanation for the non-timeous action. Urgency which stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. A party seeking to prevent execution must demonstrate that it will suffer irreparable harm and must establish a prima facie right requiring protection. A party who has deliberately failed to comply with the terms of a consent order cannot obtain relief from execution of that order where the attached property comprises the subject matter of the original dispute and no other property has been attached.
The court observed that the tone of the applicant's letters to the respondent showed that it deliberately avoided the substance of the matter, namely that it should have complied with the order by supplying sufficient information relating to the nature and value of goods covered by the order. The court noted that it made no difference to the applicant whether the goods were uplifted by the first respondent or sold by the Deputy Sheriff by public auction, since the goods belonged to the first respondent and comprised the subject matter of the original dispute.
This case demonstrates the strict approach Zimbabwean courts take to urgent applications, particularly where applicants delay filing proceedings without justification. It reinforces that self-created urgency or urgency arising from deliberate inaction will not be condoned. The case also illustrates that parties seeking to prevent execution must show genuine prejudice and must have clean hands in terms of complying with court orders. It serves as a warning that failure to comply with consent orders will not be rewarded with relief from execution proceedings.