Siwela Tarugarira and Tanaka Tarugarira v Lafarge Cement Zimbabwe Limited and Sheriff of the High Court N.O.

A default judgment was granted against the applicants on 29 March 2022 at a Pre-Trial Conference under case number HC 6801/20. The applicants filed an application for rescission of that default judgment on 26 April 2022 under case number HC 2770/22. Despite the pending rescission application, the first respondent proceeded with execution: the Sheriff attached the first applicant's property on 27 April 2022 and gave notice of intention to remove the attached property on 2 May 2022. The removal eventually took place on 10 May 2022. Only on 11 May 2022 did the applicants file an Urgent Chamber Application seeking a stay of execution of the default judgment pending determination of their rescission application. The default judgment had been granted after the court found that the applicants were in willful default and struck out their defense at the Pre-Trial Conference, which occurred in the presence of applicants' counsel.

• Whether the application for a stay of execution pending rescission of judgment was urgent
• When the need to act arose in the circumstances of this case
• Whether the urgency was self-created by the applicants' own conduct and delays
• Whether a court should grant a stay of execution where applicants have been dilatory in protecting their interests

The application was removed from the roll of Urgent Applications on the basis that the matter was not urgent and any urgency was self-created.

An application is not urgent where the urgency is self-created by the applicant's own delays and failure to act timeously. The need to act in an application for stay of execution pending rescission of judgment arises when the default judgment is granted, not when execution processes subsequently occur. An applicant who is aware of impending execution (such as a notice of removal) but fails to take timeous steps to prevent it, and only acts after the execution has already occurred, cannot claim urgency. The onus is on the applicant to prove urgency by demonstrating: (i) when the need to act arose; (ii) the irreparable loss to be suffered; and (iii) that the applicant treated the matter as urgent and did not delay.

The court noted the applicants' counsel's argument that executing a default judgment that is the subject of a pending rescission application negates the essence of the rescission application, but did not make any definitive pronouncement on this point. The court also noted counsel's suggestion that security could be provided to protect the respondent's interests, but did not address this as the matter had already been removed from the urgent roll. The court observed that the applicants had failed to disclose material facts regarding their reprehensible conduct that led to the default judgment, including their defaults both prior to and at the pre-trial conference, and that the court at the pre-trial conference had found their explanation for absence unreasonable and that they were in willful default.

This case reinforces important principles in Zimbabwean civil procedure regarding urgent applications and the requirement that applicants must act promptly to preserve their rights. It demonstrates that courts will not entertain urgent applications where the applicant has been dilatory and the urgency is self-created through the applicant's own delays and inaction. The case emphasizes that filing a rescission application does not automatically stay execution, and parties must take prompt steps to protect their interests when threatened with execution. It also illustrates that courts will scrutinize the conduct of applicants to determine whether they genuinely treated the matter as urgent.