Tetrad Holdings (Pvt) Ltd and 10 Others v National Social Security Authority and 12 Others

On 28 May 2014, the first respondent (National Social Security Authority) obtained default judgment against the 11 applicants for US$4,988,564.29 with interest and costs. The judgment declared certain immovable properties specially executable. Following this judgment, the second respondent (Sheriff) sold the properties in execution at public auctions in March 2015. Various respondents were declared highest bidders for the respective properties. The applicants challenged confirmation of the sales, which challenges were dismissed by the Sheriff on 11 May 2015. Despite having full knowledge of these dismissals, the applicants only approached the court on 5 June 2015 (more than 20 days later) seeking an urgent interdict against transfer of the properties pending a challenge to the sales in execution under Rule 359, arguing the properties were sold for unreasonably low prices.

• Whether the matter was urgent given the admitted 20-day delay in bringing the application
• Whether an interdict against transfer of properties sold in execution should be granted
• Whether the applicants could distance themselves from their erstwhile legal practitioner's conduct
• Whether the court should delay enforcement of a lawful judgment

The application was dismissed for lack of urgency. The court refused to grant the urgent interdict against transfer of the properties to the highest bidders.

A party seeking urgent relief who has delayed in bringing the application with full knowledge of the relevant facts bears the onus of justifying that delay. Where a party attempts to blame their legal practitioner for delay, they cannot distance themselves from their agent's conduct without proving why they should not be bound by it, as the principle applies that he who does a thing through another does it himself. In the absence of justifiable excuse for delay, courts will not countenance interference with the urgent and timely enforcement of lawful judgments. Self-created delays destroy the urgency of an application.

The court made a colorful observation comparing the applicants' strategy of changing lawyers to explain delay to "two village pranks in our area who used to start a fight between themselves whenever food and drink were running low only to regroup, sit down and enjoy the left overs after everyone else had fled in panic." The court also observed that the applicants' omission to address their prospects of success in the rescission application and their reason for default had a bearing on the urgency of the matter, as respondents already had a lawful judgment in their favor.

This case reinforces important principles regarding urgent applications in Zimbabwean law, particularly: (1) the strict approach courts take to self-created urgency and unexplained delays; (2) the principle that courts favor timely enforcement of lawful judgments over attempts to delay execution; (3) the application of agency law principles whereby a principal cannot easily disavow responsibility for an agent's conduct without proving why the normal rules should not apply; and (4) that mercy should be sought before judgment is given, not afterwards when seeking to delay enforcement.