Reverend Tony Tshuma and Others v Clement Nyathi and Others

This was an urgent chamber application arising from a church dispute within the Apostolic Faith Mission of Africa. The applicants sought to suspend the operation of an order dated 11 June 2015 in case HC 2700/14 pending final determination of case HC 1552/15. The background showed that the applicants had been served with the application in case HC 2700/14 in November 2014, filed a notice of opposition but failed to file an opposing affidavit despite being legally represented. They were barred in November 2014 for non-compliance with court rules. Without applying for upliftment of the bar or condonation, they slipped an opposing affidavit into the record. When the matter was heard on 25 March 2015, they still did not apply for upliftment of the bar. On 28 May 2015, Takuva J advised them to apply for condonation. They only filed the condonation application on 11 June 2015, the same day the judgment they were complaining about was granted. The legal practitioner Zibusiso Charles Ncube who certified urgency also commissioned the founding and supporting affidavits despite being allegedly an interested party in the dispute.

• Whether the urgent application was validly constituted where the legal practitioner who certified urgency was an interested party and also commissioned the founding affidavits
• Whether the matter was urgent deserving to jump the queue given the delay from November 2014 to June 2015
• Whether the urgency was self-created due to the applicants' own failure to comply with court rules timeously
• Whether punitive costs should be awarded for perfunctory handling of the matter

The urgent application was dismissed with costs on an attorney and client scale (punitive costs).

An urgent application is fatally defective and invalid where the legal practitioner who certifies urgency is not impartial but is an interested party in the dispute, and where such practitioner also commissioners the founding affidavits upon which the application is based. Furthermore, a matter is not urgent where the need to act arose months earlier but the applicant delayed action through non-compliance with court rules and only sought relief when the day of reckoning arrived. Self-created urgency arising from an applicant's own failure to timeously comply with court procedures will not warrant the matter jumping the queue as an urgent application.

The court noted that when blaming erstwhile legal practitioners for tardiness and lack of diligence, it is not sufficient to merely allege this without obtaining affidavits from the said legal practitioners accepting liability for the perfunctory handling of the matter. The court also observed that the applicants' conduct in slipping an opposing affidavit into the record without applying for upliftment of the bar or condonation had been described in a previous judgment (HB-105-15) as 'trickery, dishonest and craft'. The court expressed the view that this was a proper case for punitive costs due to the perfunctory manner in which the applicants and their legal practitioners handled the matter, causing respondents to incur unnecessary legal costs.

This case is significant in Zimbabwean civil procedure for establishing strict standards regarding urgent applications. It reinforces that: (1) legal practitioners certifying urgency must be impartial and not interested parties in the dispute, and such interested practitioners should not commission affidavits in matters where they have certified urgency; (2) urgency is assessed objectively based on when the need to act arose, not when consequences materialize; (3) self-created urgency through failure to comply with court rules and procedures will not be indulged; (4) litigants cannot blame legal practitioners for delay without corroborating affidavits from those practitioners; and (5) perfunctory conduct of litigation that causes unnecessary costs to the opposing party warrants punitive costs on an attorney and client scale. The case serves as a cautionary tale about the consequences of flouting court rules and attempting to remedy the situation only when judgment is imminent.