The first respondent obtained a default judgment against the applicant on 27 February 2014 in case HC 7394/13. The applicant's legal practitioner, Mr Makwanya, was present in court when judgment was granted after a bar became operational due to his failure to file heads of argument timeously. Mr Makwanya left the courtroom and judgment was pronounced in favor of the first respondent. On 18 March 2014, the first respondent obtained a writ of execution, and on 11 April 2014, the applicant's property (machinery and tools essential for company operations) was attached, with removal scheduled for 17 April 2014. On 15 April 2014, the applicant filed an urgent application seeking to stay removal and execution of its property pending an appeal against the judgment. No appeal had actually been filed at the time of this application, nor had any application for rescission of judgment been lodged.
The application was dismissed with costs.
An application for stay of execution cannot be granted when no appeal or application for rescission has been filed - such an application is premature and bad at law as it seeks to stay execution "pending nothing." Urgency that stems from deliberate or careless abstention from action until a deadline approaches is self-created and is not the type of urgency contemplated by court rules. Applications characterized by material non-disclosure, dishonesty, or concealment of information (such as claiming ignorance of a judgment when the applicant's legal practitioner was present when it was granted) will be dismissed.
The court noted that even if the application had been properly brought, the applicant would have needed to apply for condonation for late noting of appeal and late filing of rescission application, and there appeared to be no prospects of success as the applicant did not dispute the debt owed. The court indicated it would not consider arguments based on equity, fairness and justice (such as the impact on other employees and retrenched workers) given the fundamental defects in the application. The judge also observed that explanations regarding liquidity crunch and potential company closure were mere excuses rather than legal arguments.
This case reinforces important principles in Zimbabwean civil procedure regarding urgent applications. It emphasizes that: (1) courts will not grant stay of execution pending non-existent appeals or applications; (2) material non-disclosure and dishonesty in urgent applications will result in dismissal; (3) self-created urgency arising from failure to act timeously is not recognized as genuine urgency; and (4) applicants and their legal practitioners have a duty of candor to the court, particularly in urgent applications. The case serves as a warning to litigants that attempting to mislead the court or conceal material facts will result in adverse consequences.