Teurai Ropa Mujuru 2 Housing Co-Operative Society Limited v FBC Building Society and City of Harare

The applicant, a cooperative society, identified a vacant piece of land (Stand 21510 Kuwadzana Township of Fountainbleu) in May 2017 and applied to the second respondent (City of Harare) to subdivide it into residential stands for its members. In August 2017, the applicant formally applied for allocation. However, in October 2017, the second respondent advertised a proposed partnership with the first respondent (FBC Building Society) for development of the same property. The applicant objected on 30 October 2017. In November 2017, the second respondent informed the applicant that it had partnered with the first respondent for infrastructure development and no longer used the Housing Cooperative Model. The applicant's members would be considered individually for stand allocation. Despite being told not to occupy the property until infrastructure was in place, some members occupied and constructed temporary structures. In September 2019, the second respondent instructed the applicant to stop illegal construction and advised that the first respondent would commence work soon. The applicant acknowledged this. When the first respondent commenced road construction, the applicant brought this urgent application to interdict the construction works.

• Whether the matter qualified as urgent for purposes of an urgent chamber application
• Whether the applicant established a prima facie right to the relief sought
• Whether waiting for actual commencement of construction constitutes waiting for the 'day of reckoning' and negates urgency

The application was struck off the roll of urgent matters with costs awarded to the respondents to be paid by the applicant.

A matter is not urgent if the applicant had prior knowledge of the threatened action and deliberately waited for its actual commencement before seeking relief. Urgency is negated where the need to act arose much earlier and the applicant waited for the arrival of the day of reckoning. A party who is informed of intended developments or actions and fails to challenge them timeously cannot later claim urgency when those developments actually commence. The classic case of waiting for the arrival of the day of reckoning does not constitute urgency justifying treatment as an urgent chamber application.

The court observed that the question of whether a prima facie right has been established pertains to the merits of an application for an interdict, being one of the requirements for granting such relief. It cannot properly be raised as an objection in limine to the application. The court also noted, without deciding, that the applicant appeared to have occupied property and provided security without any clear authority to do so, despite having been expressly told that occupation should only occur after infrastructure was in place.

This case reinforces the principle in Zimbabwean law regarding what constitutes urgency in urgent chamber applications. It serves as authority for the proposition that a party cannot claim urgency when it has waited for the actual implementation of a decision or action of which it had prior notice and ample time to challenge. The case is significant in distinguishing between matters requiring urgent relief and situations where a party has simply waited for the 'day of reckoning' - the actual execution of rights or actions of which the party had long been aware. It also clarifies that establishing a prima facie right is a substantive requirement for an interdict and not a preliminary objection that can be raised in limine.