William Wachenuka v John Strong (Private) Limited and Others

The parties had been engaged in ongoing litigation with multiple appearances before the court involving allegations and counter-allegations. The matter originated from HC 1916/09 heard before Gowora J on 16 July 2009, which concerned the fate of tobacco barns, grading shades, storage sheds, workshop, office and irrigation pump station on part of land allegedly allocated to the applicant. While that matter was awaiting judgment, the applicant brought an urgent application relating to the same dispute, including allegations of contempt of court. The applicant sought to have the court make a determination on the same issues pending in the main matter.

• Whether the matter qualified for hearing on an urgent basis
• Whether an urgent application can be brought on the same subject matter while a related case is awaiting judgment
• Whether bringing such an application constitutes abuse of court process
• The proper procedure for dealing with allegations of contempt of court

The application was dismissed with costs.

Once a matter is awaiting judgment, the same dispute cannot be brought under the banner of urgency in an effort to bring finality to that same litigation. To bring the same case on an urgent basis amounts to an abuse of the court process and such an approach cannot be countenanced by the court. The court will not make a determination in an urgent application that would render nugatory a pending ruling in the main matter on the same subject.

The court observed that allegations of contempt of court must be investigated first and the party alleged to be in contempt must be given an opportunity to explain their conduct. This is necessary because of the serious implications of being found in contempt, including the drastic penalty of deprivation of liberty, and such recourse must only be had when all the rules of natural justice have been fully adhered to and followed to the letter. The court also noted that there are various options available which a party desiring judgment to be pronounced soon must initiate, implying alternative procedural mechanisms exist for expediting pending judgments.

This case provides important guidance on the proper use of urgent applications in Zimbabwean (and by extension South African) civil procedure. It establishes that urgent applications cannot be used as a vehicle to circumvent pending judgments or to seek determination of issues already before the court. The judgment reinforces the principle that urgent applications must not be abused and that parties cannot use urgency as a means to obtain multiple bites at the same cherry while a related matter is sub judice.