Sarah Khanye v Praxedes Sithembile Khumalo

On 19 May 2010, the applicant (Sarah Khanye) and the 1st respondent (Praxedes Sithembile Khumalo) entered into an agreement of sale for property at number 4 Gannet Close, Burnside, Bulawayo. The applicant made some payments towards the purchase price but subsequently encountered problems in paying the balance. The 1st respondent instituted proceedings under HC 2309/10, which resulted in an order on 27 January 2011 cancelling the agreement of sale due to the applicant's fundamental breach of clauses 1, 5, and 8. The order required the 1st respondent to refund monies paid by the applicant less expenses (rates, electricity, water, and legal costs), and ordered the applicant to vacate the property within 7 days failing which the Deputy Sheriff would evict her. After the order was granted, the parties reached an arrangement to sell the property and refund the applicant's US$31,000 deposit less expenses. However, when prospective buyers came to view the property, the applicant or those claiming through her told them the property was not for sale. Eight months after the judgment was granted (in September 2011), the 1st respondent resolved to execute the judgment. The applicant then brought this urgent application seeking an interdict against eviction.

• Whether the application met the requirements for urgent treatment under the court's urgent chamber application procedure
• Whether the applicant was entitled to stay of execution of the judgment granted under HC 2309/10
• Whether the applicant demonstrated she would suffer irreparable harm if the eviction proceeded
• Whether the applicant was abusing court process by seeking an urgent interdict after being aware of the judgment for eight months

The application was dismissed with costs on a legal practitioner and client scale (attorney-client scale).

An application for urgent relief seeking to stay execution of a judgment will be dismissed where: (1) the applicant has been aware of the judgment for a substantial period without taking action; (2) the applicant fails to demonstrate irreparable harm; (3) the applicant's conduct suggests abuse of court process by using urgent procedures to delay lawful execution while enjoying occupation of disputed property without meeting their obligations; and (4) there is no genuine urgency justifying departure from normal court procedures. A party cannot create urgency through their own inaction and delay.

The court made the observation that 'the day of reckoning has arrived,' suggesting judicial frustration with the applicant's dilatory tactics. The court also noted that the applicant was not pursuing other available remedies (application for rescission under HC 2107/10 and case HC 607/11) with any diligence, implying that the urgent application was a strategic delay tactic rather than a genuine attempt to vindicate legal rights. The court's comment that the applicant was 'clearly abusing court process' while not paying the agreed rental of US$250 per month suggests that courts will consider the overall conduct and good faith of parties when assessing urgent applications.

This case illustrates the Zimbabwean High Court's approach to applications brought under certificates of urgency, particularly where a party seeks to stay execution of a final judgment. It demonstrates that courts will not entertain urgent applications where the applicant has been aware of the judgment for a substantial period without taking action, and where the applicant cannot demonstrate irreparable harm. The case also addresses abuse of court process where a party uses urgent applications to delay execution of lawful judgments while remaining in occupation of disputed property without meeting their obligations. The punitive costs order on an attorney-client scale reflects the court's view of the conduct as an abuse of process.