Woodrew W. Payne v Manica Freight and Tonderai Sithole

The applicant was a returning resident from the United Kingdom who contracted CMA CGM (UK) Shipping Limited to ship his container to Beira, Mozambique, with a final destination of Bulawayo, Zimbabwe. CMA CGM Zimbabwe Limited transported the container from Beira to Bulawayo. On 25 June 2021, the first respondent (which operates a receiving and storage depot in Bulawayo) received the applicant's container from CMA CGM Zimbabwe Limited for storage. When the container was not collected for two months, the first respondent enquired about the delay and discovered there was a dispute between the applicant and CMA CGM Zimbabwe Limited about alleged unpaid invoices. When the applicant approached the first respondent to collect his container, the release was declined due to storage charges of USD$6,000.00 that had accrued over three months. The applicant contended that the container had been cleared by ZIMRA, that he had no contractual relationship with the respondents, and that the container was diverted to the first respondent's depot without his approval. He therefore claimed he was not obliged to pay storage fees. On 17 September 2021, approximately three months after the container was placed in storage, the applicant launched an urgent application seeking release of the container.

• Whether the application met the test for urgency to justify deviation from ordinary court procedures
• Whether the matter could not wait and required immediate hearing
• Whether the urgency was self-created due to delay in bringing the application
• Whether the applicant was entitled to costs on a legal practitioner and client scale

1. The point in limine on urgency was upheld. 2. The application was struck off the roll of urgent matters as not urgent. 3. The applicant was ordered to pay costs on a party and party scale.

An application is not urgent where the applicant knew or ought to have known of the circumstances giving rise to the claim approximately three months before launching the application, and where the delay in bringing the application was due to the applicant's own actions or inactions. Urgency that is self-created through deliberate or careless abstention from timeous action does not justify deviation from ordinary court procedures. The onus rests on the applicant to demonstrate that the matter is indeed urgent and cannot wait, showing imminent danger to existing rights and the possibility of irreparable harm. A litigant cannot be permitted to gain an advantage over other persons whose disputes are being dealt with in the normal course of events merely because continued delay may cause them prejudice or expense.

The court made several non-binding observations: (1) It noted its preference for a holistic approach to hearing matters, where preliminary points are argued together with the merits, though the court may dispose of the matter solely on preliminary points despite them being argued together with the merits; (2) The court observed that self-represented litigants must be treated equally with represented litigants in matters of costs and procedure, as differential treatment would amount to negative discrimination and violate the principle of equality before the law; (3) The court commented that it is "high time that litigants understand and internalise the fact that enrolling a matter on the roll of urgent matters is not there for the taking" and that "this abuse of filing unmerited urgent applications must come to a stop"; (4) The court noted that punitive costs (attorney and client scale) are meant to be penal in character and should only be ordered to deter wholly unacceptable behavior and instill respect for the court and its processes, not to punish a litigant for exercising their right to access to justice.

This case reinforces the principles governing urgent applications in Zimbabwean courts and serves as a clear example of self-created urgency. It emphasizes that urgent applications are extraordinary remedies that allow parties to jump the queue, and courts will not permit litigants to create emergencies through their own delay or inaction. The judgment also addresses the important principle of equality before the law in the context of costs, holding that self-represented litigants should be treated equally with represented litigants and should not be subjected to different standards. The case provides guidance on when punitive costs (attorney and client scale) are appropriate, confirming that such costs should only be awarded for wholly unacceptable behavior, not merely for exercising one's right to access to justice.