Z M Transport (Pvt) Ltd v Simon Willie and Others

The 2nd respondent was employed by the applicant as a Logistic Manager from 18 July 2005 to 13 February 2017. In October 2016, the 2nd respondent applied for 60 days leave but allegedly failed to report back to work on 4 February 2017. The applicant accused him of dishonesty and lodged a criminal complaint. He was convicted of fraud but the conviction and sentence were set aside on appeal. The 2nd respondent then instituted a labour claim against the applicant for non-payment of salaries for the period March 2015 to May 2018, totaling $39,892.00. The 1st respondent (labour officer) made a determination in favor of the 2nd respondent which was registered with the High Court as HC 2742/18. In August 2018, the applicant became aware through its erstwhile legal practitioners (Messrs Sengweni Legal Practitioners) that a draft ruling had been made against it by default. The applicant engaged new legal practitioners in early March 2019. On 7 March 2019, the applicant became aware of the attachment of its movable property, a trailer bearing registration number ABS 1872. The applicant filed an urgent chamber application on 12 April 2019 to stay execution and the sale of the trailer, some 36 days after becoming aware of the judgment.

• Whether the matter qualified to be heard as urgent
• Whether the applicant provided adequate explanation for the delay in filing the urgent application
• Whether failure to act immediately when the need to act arose defeats urgency
• Whether the applicant could blame its erstwhile legal practitioner for the delay without filing a supporting affidavit from that practitioner

The matter was removed from the roll of urgent matters. The applicant was ordered to bear the costs of suit.

An application will not be considered urgent where the applicant fails to act immediately when the need to act arose. A delay of 36 days between becoming aware of a judgment and filing an urgent application to stay execution is fatal to the urgency of the matter. It is insufficient for a litigant to blame erstwhile legal practitioners for failure to act timeously without providing adequate supporting evidence. A litigant has a personal duty to monitor their case and ensure that all possible steps are taken to protect their interests, even where legal practitioners are involved. Urgency is not established merely because execution is imminent if that situation arose from the applicant's own earlier failure to act. An application launched only in response to attachment of property, after unreasonable delay, does not constitute the type of urgency contemplated by the Rules of Court.

The court observed that very often litigants lay the blame on legal practitioners for failing to act timeously, but this is not adequate. The court noted the audi alteram partem principle raised by the applicant's counsel, acknowledging it as an elementary notion of justice and fairness and a fundamental principle allowing a party to be heard. However, the court did not need to engage with this principle substantively given its finding on urgency. The court also noted that it would not delve into the application for rescission of judgment under case number HC 823/19, which was not before it, and would deal precisely only with the application for stay of execution. The court mentioned the respondents' arguments regarding jurisdiction and the fatal defect arising from failure to file an affidavit from the erstwhile legal practitioner, but did not need to determine these issues given the finding on the preliminary point of urgency.

This case reinforces the principles governing urgent applications in Zimbabwean courts. It emphasizes that litigants cannot simply blame their legal practitioners for delays without taking personal responsibility for monitoring their cases and acting promptly when their interests are threatened. The case underscores that urgency is determined by whether a party acted immediately when the need to act arose, not by the imminent consequences that flow from earlier inaction. It serves as a warning that applications filed merely in response to execution processes, after significant unexplained delays, will not be treated as urgent. The case also highlights the requirement for proper explanation of delays and the inadequacy of blaming erstwhile legal practitioners without supporting evidence such as affidavits from those practitioners.