The Trustees of the September Family Trust v Godwills Masimirembwa and Others

The applicants (trustees of the September Family Trust) and the 1st respondent entered into a written sale of shares agreement on 18 February 2017, whereby the 1st respondent sold his entire shareholding (22.4%) in the 6th respondent (New Century Productions (Pvt) Ltd) to the applicants for US$11,298,039.14. The 6th respondent's sole asset was Boronia Farm. On 19 February 2018, the 1st respondent resiled from the unperformed part of the agreement, alleging material misrepresentation. Despite extensive correspondence between the parties from September 2018 onwards, and the 1st respondent informing the applicants that he had disposed of his shareholding to third parties, the applicants only issued summons on 10 February 2020 under HC 967/20 seeking declaratory relief. The applicants also made a police report in February 2020 regarding the 1st respondent's alleged illegal sale of stands on Boronia Farm. On 18 August 2021, the applicants came across an electronic advertisement by the 7th respondent offering residential stands for sale on Boronia Farm. On 31 August 2021, the applicants filed an urgent application seeking an anti-dissipation interdict to prevent the respondents from selling any part of Boronia Farm pending determination of HC 967/20.

• Whether the matter constituted a proper urgent application
• Whether the applicants acted timeously when the need to act arose
• Whether the applicants manufactured their own urgency
• Whether the matter should be dealt with through the urgent chamber application procedure or ordinary application procedure

1. The application is removed from the roll of urgent matters. 2. The applicants shall pay the 1st, 2nd, 4th, 6th, 7th and 10th respondents' costs on the legal practitioner and client scale. 3. As between the applicants and the 3rd respondent each party shall bear its own costs. 4. As between the applicants and the 5th, 8th and 9th respondents there is no order as to costs.

A matter is urgent if, at the time the need to act arises, the matter cannot wait. Urgency which stems from deliberate or careless abstention from action until a deadline draws near is not the type of urgency contemplated by the rules. Where an applicant fails to act timeously when multiple opportunities to launch an urgent application arise, and then relies on a subsequent incident to manufacture urgency, the application will be removed from the roll of urgent matters. The certificate of urgency or supporting affidavit must always contain an explanation of non-timeous action if there has been any delay. An applicant cannot manufacture urgency by contriving to rely on a recent incident while ignoring the real underlying dispute that has been pending for years.

The court observed that this was a case of "fraudulent diligence in ignorance" where the applicants deliberately failed to verify the 7th respondent's actual mandate to sell land in order to justify citing multiple respondents and masking the real reason for approaching the court. The court noted that the applicants engaged in dishonest conduct of litigation by sending an employee under the guise of a prospective purchaser instead of making straightforward inquiries. The court remarked that it was strange that applicants' correspondence during 2018 bore "URGENT" stickers but no urgent application was filed at that time. The judgment also noted the irony that the applicants pursued a criminal complaint through the police system in 2020 but then sought to have "another bite of the cherry" through urgent civil proceedings when the criminal route did not yield the desired result.

This judgment reinforces the established principles governing urgent applications in Zimbabwean law, particularly the principles articulated in Kuvarega v Registrar-General 1998 (1) ZLR 188 (H) and Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 232 (H). It emphasizes that urgency is not merely the imminent arrival of a deadline, but requires that the matter cannot wait when the need to act arises. The judgment serves as a strong warning against the abuse of urgent chamber application procedures and the manufacture of urgency by selective reliance on recent incidents while ignoring a long history of inaction. It demonstrates the court's willingness to impose costs on the higher (attorney and client) scale where dishonest conduct of litigation is established. The case highlights that litigants who are aware of circumstances requiring urgent relief but deliberately delay in approaching the court cannot later rely on a subsequent incident to justify urgent treatment of their application.