Zvikomborero Nyarumbe v Solomon Mashamba and Others

The applicant sought an urgent interdict to prevent the first respondent from evicting him from Stand 232 Eastville, Harare. The ejectment was pursuant to an order granted by the High Court in Case No. HC 4006/17 on 23 November 2017 (more than 18 months prior). The applicant had previously instituted an application for rescission of judgment under HC 11159/17, which was dismissed for want of prosecution on 5 February 2019. The applicant claimed he was unaware of the original ejectment order until he was served with a Notice of Seizure and Attachment on 21 May 2019. The first and second respondents opposed the application and raised two points in limine: (1) non-compliance with Rule 241 regarding the appropriate form of application, and (2) lack of urgency.

• Whether the matter qualified as urgent under the rules of court
• Whether a party who delays in acting after becoming aware of a judgment or order is entitled to have the matter heard on an urgent basis
• What constitutes urgency in applications for interdicting execution of judgments
• Whether urgency arises when a party is served with a writ of ejectment or when the judgment for ejectment was granted

1. The application is struck off the roll of urgent matters. 2. The applicant shall pay the costs.

A matter is urgent only if it cannot wait to be resolved through ordinary court application procedures. Urgency does not arise when a party is served with a writ for execution of a judgment; rather, the need to act arises when the judgment is granted or, at the latest, when the party becomes aware of the judgment. Urgency stemming from deliberate or careless abstention from action until a deadline approaches is not the type of urgency contemplated by the court rules. A party seeking urgent relief must demonstrate that they treated the matter as urgent by acting expeditiously once the need to act arose. A history of tardiness and failure to prosecute prior applications disentitles a party to the preferential treatment of being heard on an urgent basis.

The court noted there was no need to address the objection regarding non-compliance with Rule 241 concerning the form used for the application, given the finding on lack of urgency. The court made an observation about the applicant's misconception that urgency arises because he was due to be ejected from the property, clarifying that ejectment is merely an inevitable consequence of the order previously granted against him.

This case reinforces important principles regarding urgent applications in Zimbabwean civil procedure, particularly in the context of attempts to interdict execution of court orders. It emphasizes that parties cannot rely on self-created urgency arising from delay and inaction. The judgment contributes to the jurisprudence on what constitutes genuine urgency and when the duty to act arises in eviction matters. It serves as a warning that courts will not grant preferential treatment to parties who fail to act expeditiously when they become aware of adverse judgments, and that urgency does not arise merely because execution is imminent if the party had ample time to act earlier.