Tawanda Tichivangani v Lovemore Buleya and Nehanda Housing Co-operative and Sheriff of the High Court

On 1 December 2021, Justice Mafusire granted a default judgment against the applicant in HC 5154/21. The applicant was served with a notice of removal on 3 June 2022, with eviction scheduled for 11 June 2022. On 8 June 2022, the applicant (acting as a self-actor) filed a court application for rescission of the default judgment under Order 27(1) of the High Court Rules 2021. On 10 June 2022, he filed an urgent chamber application for stay of execution. The applicant claimed he was unaware of the original court application and order until 6 June 2022 when the Sheriff served him with the notice of removal. He alleged improper service, claiming the court application was served on Andrew Marauka, Chairperson of the second respondent housing cooperative, not on him personally. The eviction was carried out on 14 June 2022 according to the Sheriff's Return of Service.

• Whether an urgent chamber application filed by a self-actor requires a certificate of urgency from a legal practitioner under Rule 60(6) and Rule 60(4)(b) of the High Court Rules 2021
• Whether the urgent chamber application for stay of execution had been overtaken by events due to the execution of the eviction order
• Whether material non-disclosure and untruths in the founding affidavit warranted dismissal of the application
• Whether the matter was urgent

The urgent chamber application was dismissed. The applicant was ordered to pay costs on an ordinary scale.

1. Under Rule 60(4)(b) of the High Court Rules 2021, a certificate of urgency from a legal practitioner is not required when an urgent chamber application is filed by a self-actor (unrepresented litigant). 2. An application for stay of execution becomes academic and is overtaken by events once the execution has already been carried out, rendering the court functus officio in that regard. 3. Material non-disclosure and deliberate falsehoods in a founding affidavit, particularly regarding prior court orders and service, constitute grounds for dismissal of an application. 4. A Sheriff's Return of Service, as an official document from an officer of the court, carries evidential weight and cannot be doubted without substantial proof beyond mere allegations.

The court expressed its displeasure with the applicant's lack of candor and made an unwarranted attack on Justice Mafusire, suggesting the judge had granted a default judgment without proof of service, when in fact proper substituted service had been effected. The court noted that such an applicant "cannot expect sympathy from the court as he did not put the court into his confidence." The court also observed that while strictly speaking a certificate of urgency from a legal practitioner was not required for a self-actor, the applicant could have simply stated the basis for urgency in his founding affidavit rather than listing them separately under a subheading.

This case clarifies the interpretation of Rule 60 of the High Court Rules 2021 (Zimbabwe) regarding certificate of urgency requirements for self-actors. It reinforces the principle that litigants must be candid with the court and disclose all material facts, particularly regarding prior court orders and service. The case also demonstrates the court's reliance on and respect for returns of service filed by Sheriffs as officers of the court. It illustrates the doctrine of functus officio - once an order has been executed, an application to stay that execution becomes academic and overtaken by events.