Timothy James Searson and Others v Samalyn Investments (Pvt) Ltd and Others

The first respondent obtained a default judgment against the applicants on 3 January 2018 under HC 9866/17. The default judgment arose because the applicants filed their opposition out of time and were barred. The applicants did not seek to uplift the bar but argued they were not properly served, despite valid certificates of service being before the court. The applicants then filed an application for rescission of the default judgment under HC 993/18. They also approached the court under HC 1052/18 seeking an urgent stay of execution of the default judgment, which was struck off the urgent roll by Matanda-Moyo J on the basis that applicants were aware of the respondent's intention to seek default judgment as far back as 22 November 2017 but did nothing to protect their rights. On 5 February 2018, the applicants again sought to stay execution, which was dismissed on 7 March 2018. The applicants then brought the current application ostensibly seeking registration of a caveat on certain immovable property (Remainder of Lot 40 of Reitfontein) and urgent set down of the rescission application. However, at the time of hearing on 14 March 2018, the applicants had not filed an answering affidavit, heads of argument, or notice of set down in the rescission application HC 933/18.

• Whether the application for registration of a caveat and urgent set down of a rescission application was truly urgent
• Whether the application was an abuse of court process, being a disguised application for stay of execution after previous such applications had failed
• Whether urgency exists when a party has failed to treat the matter urgently and has adopted a dilatory stance
• Whether a party can obtain urgent relief when they have failed to comply with the rules of court

The application was dismissed with costs on a legal practitioner and client scale (attorney and client scale).

A matter is not urgent merely because a party labels it as such or seeks urgent relief. Urgency must be assessed objectively based on whether the applicant has treated the matter urgently throughout. Self-created urgency arising from a party's own dilatory conduct, failure to take timely action, or deliberate abstention from action until the deadline arrives does not constitute the urgency contemplated by court rules. An application that seeks the same substantive relief previously denied by the court, merely disguised under a different procedural guise, constitutes an abuse of court process and will be dismissed. A party cannot approach the court on an urgent basis when they have failed to comply with the rules of court in preparing the underlying matter for hearing.

The court observed that it is absurd to seek urgent set down of an opposed application when the applicant has not filed answering papers or heads of argument, as this would require the court to issue an incompetent order. The court also remarked that an interim interdict is not a remedy available for prohibiting lawful conduct, such as compliance with a court order. The court noted that seeking to interdict a court decision when the proper remedy was to apply for upliftment of bar and prosecute the rescission application properly amounted to taking a gamble with the court. The court expressed its disapproval of the "smuggling in" of applications for stay of execution instead of proper compliance with court rules, indicating such conduct warranted costs on a higher scale.

This case is significant in Zimbabwean jurisprudence as it reinforces the strict approach courts take to urgent applications and abuse of court process. It demonstrates that courts will not tolerate attempts to circumvent previous adverse rulings by disguising the same relief under different procedural applications. The case emphasizes that urgency is assessed not only by the nature of the relief sought but by the conduct of the applicant throughout the matter. It reinforces the principle that parties cannot create their own urgency through dilatory conduct and failure to comply with court rules. The award of costs on an attorney-client scale signals the court's disapproval of such conduct and serves as a deterrent against similar abuse of process.