Whalsay Enterprises (Pvt) Ltd v Tendai Chinomona (In his capacity as Executor in the Estate of the Late Sam Chinomona) and The Sheriff of the High Court

The first respondent, as executor of the estate of the late Sam Chinomona, had sued the applicant in case HC721/08 for eviction from Stand 5475 Seke Township, Chitungwiza. On 19 March 2014, Bere J granted an eviction order requiring the applicant to vacate within 30 days. The applicant's counsel, Mr Mbidzo, was present when judgment was handed down. When the applicant failed to vacate, the first respondent's legal practitioners wrote on 16 July 2014 requiring compliance with the court order. On 24 July 2014, the applicant approached the Supreme Court seeking condonation for late noting of appeal. The applicant then brought this urgent application seeking to set aside Bere J's order, cancel the notice to vacate, and obtain an interim interdict against eviction. The applicant claimed through its representative, Whittington Rosen, that it only became aware of the judgment on 16 July 2014 when it received the eviction letter.

• Whether the application constituted a genuine urgent matter warranting departure from normal court procedures
• Whether the urgency was self-created by the applicant's deliberate inaction
• Whether an applicant who was represented by counsel at judgment can claim ignorance of a court order for four months

The court refused to deal with the matter as urgent. The application was dismissed on the basis that it did not constitute a genuine urgent matter.

Self-created urgency arising from deliberate inaction and failure to take timely steps against a court order does not constitute the kind of urgency contemplated by the rules of court that would entitle a party to jump the queue through urgent application procedures. A party represented by counsel at the delivery of judgment cannot credibly claim ignorance of that judgment for an extended period and then seek urgent relief when called upon to comply with the court order.

The court noted that it found it inconceivable that counsel's knowledge of the judgment would not have been shared with the applicant, and observed that it was untenable for an interested party in proceedings not to inquire about the outcome of litigation. The court also noted that whether counsel was present at the exact moment of judgment or arrived just after made no material difference to the outcome.

This case reinforces the principle in Zimbabwean civil procedure that litigants cannot create their own urgency through deliberate inaction and then seek to benefit from urgent court procedures. It emphasizes that parties represented by counsel are expected to stay informed about court proceedings and cannot claim ignorance of judgments delivered in their presence. The case serves as a warning against attempting to circumvent normal court processes through manufactured urgency when facing adverse court orders.