Thabani Moyo and Another v Hassbro Properties (Pvt) Ltd and Another

The first Respondent (Hassbro Properties) obtained summary judgment for eviction against the two Applicants from office premises at Main Court, Bulawayo in the Magistrates Court on 4 March 2010. The Applicants filed a notice of appeal two months later on 5 May 2010, well out of time. On 11 May 2010, they filed a defective application for condonation which was placed before Ndou J on 21 May 2010 who raised queries but did not grant the order. The Applicants abandoned this application without attending to the queries. On 27 June 2010, the Messenger of Court served notice of eviction for 5 July 2010. The Applicants were duly evicted on that date. Two days after eviction (7 July 2010), the first Applicant deposed to an affidavit seeking urgent stay of execution, without disclosing that eviction had already occurred. The application was certified urgent by legal practitioner Yvonne Mbayiwa and filed on 9 July 2010 seeking to interdict eviction or restoration pending the abandoned condonation application.

• Whether the matter was properly certified as urgent
• Whether the application was brought in good faith and without material non-disclosure
• Whether legal practitioners properly applied their minds to the urgency certificate
• Whether the application had merit given that eviction had already occurred and the condonation application had been abandoned
• Whether the conduct of legal practitioners warranted punitive costs orders

The application was dismissed with costs on an attorney and client scale against the Applicants.

Legal practitioners must personally apply their minds to the facts and circumstances before certifying a matter as urgent, and failure to do so constitutes a dereliction of duty as officers of the court. In ex parte applications, utmost good faith must be observed, and material non-disclosure or mala fides will result in dismissal of the application. Applications brought after the relief sought has become impossible (seeking to stay an eviction after it has occurred) and without disclosure of material facts constitute an abuse of process warranting punitive costs orders.

The court warned that in future cases involving dishonest applications and improper urgency certificates, courts will not only impose costs de bonis propriis against offending legal practitioners but will also direct that they should not recover any fees from their clients. The court noted it exercised discretion in favour of the practitioners in this case only because they were very junior professional assistants. The court also made observations about the defective nature of the initial condonation application which was "neither a chamber application nor a court application" despite bearing the heading of a court application.

This case is significant in Zimbabwean law (applicable to understanding South African jurisprudence given similar legal traditions) for: (1) Reinforcing the duties of legal practitioners when certifying matters as urgent, requiring personal application of mind and honest assessment; (2) Emphasizing the requirement of utmost good faith in ex parte applications and the consequences of material non-disclosure; (3) Clarifying the court's power to impose punitive costs orders, including costs de bonis propriis and denial of fee recovery, against legal practitioners who abuse court processes; (4) Demonstrating the court's intolerance of attempts to mislead or hoodwink the court through dishonest applications; (5) Serving as a warning to practitioners about their duties as officers of the court.