Z M Transport (Pvt) Ltd v Simon Willie and Charles Nkomo and The Sheriff of the High Court N.O.

The 2nd respondent (Charles Nkomo) was employed by the applicant (Z M Transport) as a Logistic Manager from July 2005 to February 2017. After a dispute involving allegations of dishonesty and a criminal fraud conviction (later overturned on appeal), the 2nd respondent instituted a labour claim for non-payment of salaries totaling $39,892.00 for the period March 2015 to May 2018. The 1st respondent (Simon Willie) made a determination in favor of the 2nd respondent's claim, issuing a draft ruling that was confirmed and registered with the High Court as HC 2742/18. In August 2018, the applicant's then legal practitioners (Sengweni Legal Practitioners) advised that a default ruling had been made against the applicant. The applicant became aware of the judgment on 7 March 2019 and engaged new legal practitioners in early March 2019. A trailer (registration number ABS 1872) belonging to the applicant was attached for execution. The applicant filed an application for rescission of judgment (HC 823/19) and this urgent application for stay of execution on 12 April 2019, some 36 days after becoming aware of the judgment.

• Whether the application for stay of execution qualified as urgent under the court rules
• Whether the applicant provided a plausible explanation for the delay of 36 days between becoming aware of the judgment and filing the urgent application
• Whether blaming erstwhile legal practitioners for delay is sufficient justification for urgency

1. The matter is removed from the roll of urgent matters. 2. The applicant shall bear the costs of suit.

An application does not qualify as urgent where the applicant delays for 36 days after becoming aware of the judgment sought to be stayed, and where the applicant was aware of an adverse ruling months earlier. Blaming erstwhile legal practitioners for failure to act timeously does not constitute a plausible explanation for delay in urgent applications. Litigants have a personal duty to ensure their interests are protected and cannot rely solely on assertions that their legal practitioners failed to act. Urgency is not established merely because an application is filed in response to an attachment; rather, urgency is determined by whether the applicant acted when the need to act arose.

The court noted the principle of audi alteram partem (the right to be heard) as an elementary notion of justice and fairness, which is a fundamental principle allowing a party to litigation to give their side of the story. The court also observed that litigants very often lay blame on legal practitioners for failing to act timeously, suggesting this is a common but inadequate excuse. The court deliberately refrained from delving into the merits of the application for rescission of judgment (HC 823/19), which was not before it, choosing to deal precisely with the application for stay of execution only.

This case reinforces the strict application of the test for urgency in Zimbabwean civil procedure. It establishes that litigants cannot successfully claim urgency when they have delayed for a substantial period after becoming aware of the need to act, and that blaming former legal practitioners for inaction is insufficient justification for delay. The case emphasizes that litigants have a personal duty to monitor their cases and protect their interests, even when represented by legal practitioners. It serves as a warning against cavalier attitudes in litigation and reinforces that urgency is determined by when the need to act arose, not when a party finally decides to act.