Rita Marque Mbatha v Messenger of Court

The applicant sought urgent relief for the return of property seized by the Messenger of Court on 7 August 2018, including a generator, refrigerator, televisions, camera equipment, and other items. The applicant had previously obtained a provisional order on 9 August 2018 under HC 7310/18 for the return of some items and a final order on 12 September 2018 interdicting interference with her property at 126 Edgemore Road. Between 8 August 2018 and 27 September 2018, the applicant filed five separate applications related to the attachment and recovery of her property, including contempt of court applications and applications to have matters heard urgently. The present application filed on 27 September 2018 sought a declaration that the seizure was wrongful and an order for return of the items within 48 hours.

• Whether the matter was urgent and suitable for determination as an urgent chamber application
• Whether final relief (a declaration) can be granted on an urgent basis
• Whether the court is obliged to grant audience to an applicant in an urgent chamber application under Rule 246(1)
• Whether multiple applications and follow-up letters create urgency

The urgent chamber application was removed from the urgent chamber application roll and dismissed as not urgent. The court declined to grant the applicant audience.

A matter is only urgent when its determination cannot wait for the ordinary court application roll. Final relief, including declaratory orders, cannot be granted on an urgent basis and must be sought by way of court application on notice to the other party. Under Rule 246(1)(a), a judge has discretion whether to grant audience to parties in urgent chamber applications—the use of "may, in his opinion" makes it clear this is not an obligation. The mere labeling of an application as "urgent" and filing of multiple follow-up letters does not create urgency where the substantive requirements for urgent relief are not met.

The court observed that the applicant had filed five applications between 8 August 2018 and 27 September 2018, all related to the same subject matter of recovering attached property, accompanied by numerous follow-up letters in what appeared to be an attempt to create an impression of urgency. The court noted that the case cited by the applicant (Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 346) did not support her position as it dealt with whether the court was functus officio after deciding to hear parties, not with the court's discretion to grant audience in the first instance, and did not consider the import of Rule 246. The court also noted that proceedings under Rule 449 for clarification or correction of orders are on notice and concern final relief.

This case is significant in Zimbabwean civil procedure for clarifying the requirements for urgent applications and the limits of urgent relief. It reinforces that: (1) final relief, particularly declaratory orders, cannot be granted on an urgent basis and must follow the ordinary court application procedure with proper notice; (2) the court has discretion whether to grant audience in urgent chamber applications under Rule 246(1); (3) multiple applications and correspondence do not create urgency where none exists; and (4) litigants cannot bypass ordinary procedure by labeling applications as urgent. The judgment serves as a caution against abuse of the urgent application procedure.