Sitwell Gumbo v Portcullis (Pvt) Ltd T/A The Financial Clearing Bureau

The applicant, Sitwell Gumbo, approached the court on a certificate of urgency on 25 June 2013 seeking relief against the respondent, Portcullis (Pvt) Ltd. The dispute between the parties originated in 2003 and continued through 2007 and 2009. The applicant had initiated corrective legal action against the respondent in 2010. The applicant claimed urgency based on upcoming job interviews scheduled for July 2013, alleging that he needed to clear his name with the respondent. Despite being aware of the respondent's conduct towards him for several years and having opportunities to take initiative to clear his name, the applicant only rushed to court on an urgent basis on 24 June 2013.

• Whether the matter warranted treatment as urgent
• Whether deliberate or careless abstention from timely action until a deadline approaches constitutes urgency warranting the matter to jump the queue
• The proper test for determining urgency in chamber applications

The application to have the matter heard on an urgent basis was declined. The court refused to allow the matter to be treated as urgent and jump the queue.

The binding principle established is that urgency which stems from deliberate or careless abstention from action until a deadline draws near is not the type of urgency contemplated by the court rules. A matter is only urgent if, at the time the need to act arises, it genuinely cannot wait. An applicant who has been aware of circumstances for years and had ample opportunity to act but failed to do so cannot claim urgency merely because of a self-imposed or foreseeable deadline. The court will not allow such matters to jump the queue and receive preferential treatment over other pending matters.

The court made obiter observations criticizing the applicant for raising concerns about the judge's prior involvement with the matter only in the notice of appeal after an unfavorable decision. Bere J commented that it is unfair for a party to insinuate improper motives after the fact, and that any party feeling uncomfortable with a particular judge should seek recusal before the matter is dealt with, not raise such issues only after receiving an adverse ruling. The judge noted he could not even remember having dealt with the same matter at a pre-trial stage, emphasizing the unfairness of the criticism.

This case reinforces the established principles governing urgent applications in Zimbabwe. It emphasizes that courts will not entertain urgent applications where the applicant has delayed unnecessarily and only seeks urgency when a self-imposed deadline approaches. The judgment serves as a reminder that urgency is determined objectively based on whether the matter truly cannot wait, not based on the consequences of an applicant's own dilatory conduct. It also addresses procedural propriety regarding concerns about judicial bias, emphasizing that recusal applications should be made timeously, not raised for the first time in appeal papers after an unfavorable decision.