Alexious Moyo v Tsoile Moyo and The Assistant Master, N.O

### Preamble
1
HB 59/21
HC 197/21
---------


ALEXIOUS MOYO

Versus

TSOILE MOYO

And

THE ASSISTANT MASTER, N.O

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 26 MARCH 2021 & 1 APRIL 2021

Urgent Chamber application

M. Moyo, for the applicant

U. Nare, for the 1strespondent

DUBE-BANDA J: 	This is an urgent application. This application was lodged in this court on 23 March 2021. The application was placed before me and I directed that a copy of the application and a notice of set down be served on the respondents. The matter was set-down for 26 March 2021.

In this urgent chamber application, the applicant seeks a provisional order drawn in the following terms:-

Terms of the final order sought

That you show cause to this Honourable Court why a final order should not be made in the following terms:

That the 1st respondent be and hereby permanently interdicted from unlawfully depriving applicant care and control of the minor child pending the finalisation of case number HC 42/21 between applicant and respondent.

The 1st respondent pay costs of costs of suit on attorney and client scale.

Interim relief granted

Pending the finalisation of this matter, the applicant be and is hereby granted the following relief:

That the 1st respondent and anyone having custody of Winnet Heather Moyo be and is hereby ordered to return the minor child to the applicant for the purpose that she may attend school, within 48 hours of service of this order upon them.

In the event that the 1st respondent fails to comply with paragraph 1 above, then the Sheriff be and is hereby directed to assist the applicant to get the minor child from 1st respondent.

That the Zimbabwe Republic Police are empowered to assist the Sheriff of the High Court to enforce this order should they be resistance or non-compliance by the 1st respondent.

Service of the provisional order

That this provisional order and the urgent application shall be served upon the respondents by the applicant’s legal practitioners / Sheriff of the High Court of Zimbabwe.

The brief facts of this matter are these. Applicant alleges that he was customarily married to one Dorcas Moyo, who is now deceased. There is one minor child of the said marriage. Applicant stays in Binga, and the child is said to have been attending Binga Primary School, until such time that she was taken by the 1st respondent. 1st respondent is the maternal grandmother of the minor child. Sometime in December 2020, a memorial service of the late Dorcas Moyo was held at the residence of the 1st respondent in Gwanda. After the memorial service, when applicant and the minor child were leaving to return to Binga, 1st respondent is alleged to have blocked the exit and took custody of the minor child. The child is still in the custody of the 1st respondent. Applicant seeks to regain custody of the child.

Other than resisting the application on the merits, the 1st respondent in her opposing papers also raised a preliminary objection, being; that this matter is not urgent. At the commencement of the hearing, I informed the parties that the court will adopt a holistic approach. What this approach entails is that for the sake of making savings on the time of the court by avoiding piece-meal treatment of the matter, the issue of urgency had to be argued together with the merits, but when the court retires to consider the matter it may dispose of the matter solely on urgency despite that it was argued together with the merits. But if the court considers the matter was indeed urgent, it then proceeds to deal with the merits.

Urgency

I now deal with urgency. This Court enjoys a discretion in urgent applications to authorise a departure from the ordinary procedures that are prescribed by its Rules. It is usually hesitant to dispense with its ordinary procedures, and when it does, the matter must be so urgent that ordinary procedures would not suffice.

In the ordinary run of things, court cases must be heard strictly on a first come first serve basis. It is only in exceptional circumstances that a party should be allowed to jump the queue on the roll and have its matter heard on an urgent basis. The onus of showing that the matter is indeed urgent rests with the applicant. An urgent application amounts to an extraordinary remedy where a party seeks to gain an advantage over other litigants by jumping the queue. And have its matter given preference over other pending matters. This indulgence can only be granted by a judge after considering all the relevant factors and concluding that the matter is urgent and cannot wait. See: Kuvarega v Registrar General and Another1998 (1) ZLR 188; Bonface Denenga & Anor v Ecobank Zimbabwe Pvt Ltd, HH 177-14.

The leading case within this jurisdiction in relation to urgency is Kuvarega v Registrar General & Anor (supra), a judgment by CHATIKOBO J. The learned judge had the following to state at p 193F-G.

“What constitutes urgency is not only the imminent arrival of the day of reckoning, a matter is urgent if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated rules. It necessarily follows that the certificate of urgency or supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay.”

In assessing whether an application is urgent, this Court has in the past considered various factors, including, among others: being whether the urgency was self-created; the consequence of the relief not being granted and whether the relief would become irrelevant if it is not immediately granted. To pass the urgency test, applicant must show that there is an imminent danger to existing rights and the possibility of irreparable harm. See General Transport & Engineering (Pvt) Ltd & Ors v Zimbank 1998 (2) ZLR 301.To pass the test, good cause must be shown for the applicant to dislodge other litigants who are in the queue.

This application is accompanied by a certificate of urgency signed by a legal practitioner. It says:

The applicant is the only surviving parent of the minor child, namely Winnet Heather Moyo.

The applicant after the demise of the minor child’s mother in December 2019, remained in custody of the minor child.

Sometime in December 2020, respondent who is the maternal grandmother of the minor child forcibly denied applicant from leaving with the said child after a memorial service of Dorcas Moyo, the late mother of the minor child.

The said minor child is already enrolled in Grade 3 at Binga Primary School and schools for non-examination writing classes have opened and respondent is depriving the minor child her right to education by not returning the minor child to the applicant for the purpose of taking her to school.

The respondent has refused to release the minor child from Gwanda to applicant’s care in Binga and in the process the minor child will be deprived of her right to education. There is no basis at all for respondent’s conduct in that she is a third party who has no right whatsoever to deny applicant, the only surviving parent care and control of the minor child.

It is therefore my considered professional view that only an urgent order of this Honourable Court will protect the minor child’s best interests by ensuring that she is returned to applicant and taken to school, in an environment to which she is accustomed to.

I am of the considered view that there is no conceivable prejudice that the respondent can suffer as a result of the granting of the urgent relief sought by the applicant and the best interests of the minor child require the status quo ante to be restored.

Mr Nare, counsel for the 1st respondent, contends that this matter is not urgent. It is submitted that applicant should have known that schools in respect for non-examination classes will open on the 22ndof March 2002. It is said that such an announcement was made well before the 22nd of March, applicant did not act to get custody of the child. It is contended that applicant bases his claim of urgency on the fact that the child has to attend school, however the child is already at school in Gwanda. In the opposing affidavit, it is averred that the child is now enrolled at Bethel Primary School, Gwanda. Respondent placed before court a letter from Bethel School, addressed to Binga Primary School. The letter says the child has been offered a place to learn at Bethel School, the offer is on condition the child brings a transfer letter from Binga Primary School. 1st respondent contends that this is self-created urgency not anticipated by the rules of court.

Mr Moyo, counsel for the applicant contends that the matter is urgent. It appears this child has been enrolled at Binga Primary School, until she was taken by the 1st respondent. It is said the urgency is anchored on the fact that the schools have opened, and the child must go back to school. It is contended that the need to act arose on 22 March 2021, when schools opened for non-examination classes. It is said the child has a right to education, and the best interests of the child require that she goes back to school. It is contended that the letter from Bethel Primary School, is an offer letter, and the child will be enrolled at this school, upon production of a transfer letter from Binga Primary School. A transfer letter will not be given unless applicant gives his consent, and he intends to withhold such consent. It is said then, that the child will not be enrolled at Bethel Primary School. It is argued that this matter is urgent and it deserves the urgent attention of this court.

Applicant does not say when exactly 1st respondent took custody of the child. All he says is that this happened sometime in December 2020. He does not provide this court with the exact date the child was taken by the 1st respondent. This application was filed on 23 March 2021, what it means is that the child has been in the custody of the first respondent for a period approximating four months. Applicant must have always known that the restrictions imposed as a result of Covid 19 induced lockdown would be relaxed and schools would open. He must have known this fact in December when the 1st respondent took custody of the child. He must have known as early as December 2020, that 1st respondent will not voluntary surrender the custody of the child to him. I say so because he avers in his founding affidavit that as he was leaving with the child, 1st respondent blocked the exit and forcibly took custody of the child. Applicant avers that despite his protestations against the removal of the child from his custody, and that the schools were re-opening, and preparations were underway, 1st respondent refused to budge. Applicant contends that after the taking of the child, he contacted 1st respondent to release her to him, but she refused. Therefore, it must have been clear to applicant that 1st respondent was not going to voluntarily surrender such custody. Again, he does not allege in his papers that 1st respondent, in the interim, indicated or exhibited an inclination to voluntarily surrender to him such custody. Armed with this information, he waited for a period of approximately four months to file this application. To wait for a period approximating four months, to file this application, cannot be the kind of urgency anticipated by the rules of court. In my view, the applicant has failed to motivate a case for urgency. He did not act when the need to act arose. This is a text-book case of self-created urgency. This is not the kind of urgency anticipated by the rules of court.

This application does not meet the requirements of urgency. It should not have been filed as an urgent application. The applicant neither treated the matter as urgent, nor did he give good or sufficient reasons for such a delay. The applicant has failed to obtain the relief it sought from this court. There are no special reasons warranting a departure from the general rule that costs should follow the result. The 1st respondent is therefore entitled to her costs of suit.

Disposition

In the result, I order as follows: this application is not urgent and accordingly removed from the roll of urgent matters with costs on a party and party scale.

Mathonsi Ncube Law Chambers, applicant’s legal practitioners

Legal Aid Directorate, 1st respondent’s legal practitioners