Khan & Mawadze Mining Syndicate v Antech Laboratories (Pvt) Ltd & 2 Ors

### Preamble
1
HB.198/20
HC 1140/20
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KHAN & MAWADZE MINING SYNDICATE

Versus

ANTECH LABORATORIES (PVT) LTD

And

KWEKWE CITY COUNCIL

And

THE SHERIFF OF THE HIGH COURT N.O.

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 4 AUGUST & 24 SEPTEMBER 2020

Urgent Chamber Application

A.  Madzima for the applicant

E. Sarimani for the 1st respondent

MOYO J:	The applicant in this matter seeks interim relief couched in the following manner:

“Pending the confirmation or discharge of the order, applicant is granted the following interim relief:

The execution of this court’s judgment under HC 2776/19 be and is hereby stayed.

The 3rd respondent shall not take any steps to execute in terms of the court order dated 14 May 2020.

In the event 3rd respondent would have executed by the time of the order, the 3rd respondent shall restore possession to the applicant.

The facts of this matter are that the 1st respondents obtained a provisional order against applicant on 14 May 2020.  Applicant avers that it became aware of the provisional order on 22 May 2020.  The applicant then instructed its lawyers to note an appeal to the Supreme Court and a first attempt to note the appeal was made on 29 May 2020.  The Registrar queried as to why there was no appearance from leave to appeal.  A written response was made to the Registrar on 5 June 2020 which response was not accepted by the Registrar.  The application for leave to appeal was then out of time so an application for condonation and that of leave to appeal was prepared but it was not signed on time leading to the application being filed late on 2 July 2020. On 21 July 2020 applicant received a notice of removal from the Sheriff with execution to be carried out on 24 July 2020.  That resulted in the current application which was filed on 28 July 2020.  1st respondent has opposed the application firstly by raising a point in limine relating to urgency and the certificate of urgency as well as that the application has been overtaken by events as the eviction sought to be stayed has already been effected.

1st respondent avers in relation to lack of urgency that 1st respondent became aware of the judgment on 22 May 2020 and did nothing.  That applicant, delayed to act and only chose to act upon receipt of the notice of execution.  That applicant, instead chose to sit back and await the day of reckoning.  That, applicant’s urgency is thus self created.  Applicant does not dispute the course of events but applicant’s counsel submitted at the hearing that without the notice of eviction or removal, there was no urgency that arose in applicant’s part.

This submission is flawed for it cuts through the very essence of urgency.  When the provisional order was granted, the eviction became inevitable, it was looming.  Applicant must have known that the Sheriff will be knocking on its door at any time to effect the provisional order.  Surely applicant did not expect 1st respondent to seek a provisional order for the eviction of applicant’s employees only to thereafter file it away and do nothing.  The applicant should thus have acted on an urgent basis 2 months before the 28th of July when it became necessary in its own view to undo the effects of the provisional order.  Applicant became aware of the provisional order and its detrimental effects way back in May, that is precisely when the urgency of the situation arose.  That is exactly the time that applicant should have been prompted to act on an urgent basis to forestall the impending eviction.  The need to act thus arose in May 2020, and surely it could not have taken the applicant 2 months to act.  In fact, clearly, from applicant’s own papers, they did not see any need to jump until when they were served with the notice of eviction.  This is not the urgency envisaged by the rules.  A matter cannot be urgent when the applicant sits back and does nothing to forestall the impending doom until such a time that the Sheriff knocks on its doors.  In such a situation the applicant will have failed to act prudently and diligently when an urgent situation requires such action from the applicant until the applicant jumps at the eleventh hour when the long expected outcome takes practical effect. This is not how a litigant exercises their right to urgency.  Such a litigant will have neglected the situation which is clearly unfolding before their eyes, only to act at the last minute when the day of reckoning has arrived.  Such a litigant cannot be accepted on the urgency platform for they themselves have not treated the matter as urgent.  Such litigant will have failed to act when the need to act arose only to be propelled into action by the day of reckoning.   Refer to the case of Kuvarega vs Registrar-General 1998 (1) ZLR 188 (H) on the meaning of urgency as provided for in the High Court rules.

I thus hold that the applicant has failed to make a case for urgency and I will not proceed to deal with the rest of the points in limine as this point on its own is sufficient to dispose of the matter.

I accordingly uphold the point in limine and order as follows:

The application is accordingly struck off the roll of urgent matters with applicant bearing the costs.

Farai & Associates, 1st respondent’s legal practitioners

Coghlan & Welsh, applicant’s legal practitioners