Simar Continental (Private) Limited v Specialised Transport and Mr Tewe N.O.

### Preamble
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HB 137/21
HC 998/21
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SIMAR CONTINENTAL (PRIVATE) LIMITED

Versus

SPECIALISED TRANSPORT

And

MR TEWE N.O.

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 14 JULY 2021 & 22 JULY 2021

Urgent Chamber Application

Z. Ncube, for the applicant

Ms Philips, for the 1st respondent

DUBE-BANDA J: 	This is an urgent chamber application in which the applicant seeks a provisional order staying execution against its property under warrant of execution issued by this court on the 22nd June 2021.  The warrant of execution is in the sum of USD $29 700. The warrant of execution is in pursuance of default judgment in HC 457/19, in favour of the 1st respondent.  The application is opposed by the 1st respondent. The 2nd respondent is cited in his official capacity because the implementation of the order sought by the applicant, if granted may require him to act in a particular way.

Other than resisting the relief sought on the merits, 1st respondent took two preliminary points which were also a subject of argument in this matter. These are: that this application is not urgent, and that an incorrect Form was used, rendering this application fatally defective.  1st respondent urged this court to dismiss this application on the preliminary points without a consideration of the merits. At the commencement of this hearing I informed counsel that in this case I shall adopt a holistic approach. This approach avoids a piece-meal treatment of the matter, and the preliminary points are argued together with the merits, but when the court retires to consider the matter it may dispose of the matter solely on preliminary points despite that they were argued together with the merits. I now consider the preliminary points.

When this application was placed before me, and after perusing it what exercised my mind was whether the certificate of urgency itself was valid. I then directed that the matter be set down to hear the applicant on the validity of the certificate of urgency. The jurisprudence in this jurisdiction is that in considering whether a matter is urgent this court looks at the certificate of urgency to establish whether the application is indeed urgent. In Chidawu & Others v Sha & Others SC 12/13 the Supreme Court held that the certificate of urgency is the sine qua non for the placement of an urgent chamber application before a judge. In making a decision as to the urgency of the application a judge is guided by the averments in the certificate of urgency. I take the view that a certificate of urgency is the proverbial key to the gate that allows an application to cross and jump the queue and be heard on an urgent basis. Without it a matter has to just join the queue of other matters awaiting set-date on the ordinary roll. For a certificate to perform such a task it must be valid. See: Chidawu & Others v Sha & Others SC 12/13. BHUNU J (as he then was) in Condurago Investments (Private) Limited T/A Mbada Diamonds Versus Mutual Finance (Private) Limited HH 630/15 noted that the need for the certificate of urgency is therefore meant for the benefit of the generality of the hapless litigants who are about to be jumped in the queue but cannot speak for themselves because they are never consulted or given an opportunity to object. For that reason there is need for a judge to proceed with caution and due diligence so that justice may be done and be seen to be done. I take the view that without a valid certificate of urgency, the gate will remain closed, and the court will not have access to the application. No matter how detailed and well-crafted the founding affidavit is done, without a valid certificate to open the gate, the court will neither see nor consider it.

My view is that for a certificate of urgency to pass the test of validity it must set out the factual basis for the urgency. It must be factual, i.e. inform the court of the factual basis of the urgency. The factual circumstances that render the matter urgent must be explicitly and succinctly set out in the certificate. The certificate must set forth explicitly the factual circumstances which it is avers renders the matter urgent and the reasons why it should be heard as an urgent matter and not in the normal course of events. The certificate must show the factual basis upon which this court must come to the assistance of a litigant to jump the queue and have its matter heard ahead of other pending matters. Such a valid certificate is the key which opens the gate for the court to see and start to consider the application.

I take the view that a certificate of urgency which does not explicitly and succinctly set out the factual basis for the urgency is invalid. It serves no useful purpose. In this application the certificate states thus:

Certificate of urgency

I, Jubulani Ndubiwa, a duly registered legal practitioner of this honourable court, practising with Messrs Mashayamombe and Company Legal Practitioners, having read the founding affidavit of Sumit Wadhwa, hereby certify this matter to be urgent in my professional opinion for the following reasons:-

The applicant shall file a court application for rescission of judgment wherein it seeks to rescind an order of this Honourable Court granted in default which order adversely affects its interests. This application is prepared in terms of rule 63 of the High Court Rules, 1971.

I am of the view that no proper service was effected upon the applicant. I am informed in that opinion by the decisions in the following cases:

Edmund Pfupa v Herbert Mhuriro HH 408/20.

CBZ Bank Limited v Ziyambi and Ors HH 74/17.

Rodrick Ruyaywa v Anchor Yeast HH 647/15.

Christmas Gift (Pvt) Ltd v Mafohla and Ors HB 118/10.

The order was made without affording the applicant an opportunity to be heard. The applicant has a right to be heard, i.e. the audi lateram parten rule. The applicant’s contention that it is not liable to pay demurrage must be fully ventilated.

The 1st respondent through its legal practitioners have declined to give an undertaking that they will suspend execution pending finalisation of the matter. Since removal is scheduled for the 12th July 2021, the application cannot wait in the queue to be decided as an ordinary court application.

The relief sought is procedural, an interdict pendente lite and no prejudice will be occasioned to the respondents if further execution is suspended. The balance of convenience is in applicant’s favour as the removal has not yet taken place.

The matter is one of economic importance not only to the applicant but the nation as well. The applicant contributes to fiscus and supports livelihoods of many people in Zvishavane, who are employed at its mining activities.

The applicant did not sit on its laurels and wait the 11th hour to act. The conduct of the applicant meets the test as laid down in Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (H) at 193F.

It is only paragraphs 4 and part of 6 and 7 of the certificate of urgency that somehow, and remotely relate to the facts.  In paragraph 4 it is averred that “the 1st respondent through its legal practitioners have declined to give an undertaking that they will suspend execution pending finalisation of the matter. Since removal is scheduled for the 12th July 2021, the application cannot wait in the queue to be decided as an ordinary court application.” In paragraph 6 it is averred that “the matter is one of economic importance not only to the applicant but the nation as well. The applicant contributes to fiscus and supports livelihoods of many people in Zvishavane, who are employed at its mining activities.” What is factual in paragraph 7 is the averment that “the applicant did not sit on its laurels and wait the 11th hour to act.”

In general the factual circumstances that render this application urgent have not been explicitly and succinctly set out in the certificate. The certificate is well stocked with legal submissions, and very thin on the facts.  It is akin to heads of argument. My view is that the certificate must present the facts, not legal argument. However, on the facts of this case it is these paragraphs 4, 6 and 7 that have saved this certificate from being held invalid.

For the 1st respondent it is argued that this application is not urgent. It is contended in the opposing affidavit that:

The applicant filed an urgent application for stay of execution. The applicant has also indicated that it was not aware of service of summons or the consequent court order. This is a blatant lie and exposes the mala fide nature of the applicant.

There is nothing urgent about the application and the relief sought.

The applicant was aware court order since the 11th November 2020. The 1st respondent’s legal practitioners sent the court order via email to the applicant’s directors as a courtesy in case they might not be aware of the court order. This was on the 11th and 12th November 2020. The emails were tracked and they show that Neeraj Bansal and Sumit Wadhwa read the emails. The two emails are attached hereto as annexures B and C.

The deponent to the applicant’s founding affidavit, Sumit Wadhwa, is being untruthful as he alleges that he was not aware of the court order. Annexure C shows that he had sight of the email with the court order on the 5th December 2020.

The applicant was made aware of the court order as far back as the 11th November 2020, and it did nothing to effectuate its desire to rescind the default judgment or stay execution which was imminent and which the 1st respondent’s legal practitioners communicated.

The applicant’s delay since November 2020, to date is not reasonably explained and can only be characterised as a deliberate delay and deceitfulness. There is nothing urgent about this matter because the applicant was aware of what was taking place and chose to ignore the 1st respondent.

A party which seeks to be heard urgently will be seeking for preferential treatment from other litigants. Good cause should be shown for treating one litigant differently from the most. The applicant has not shown good cause considering the present circumstances. The urgency in the rules did not contemplate urgency which stems from a deliberate careless absenteeism from action until the deadline draws near.

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; Triple C Pigs and Another v Commissioner-General 2007ZLR (1) 27.

The supporting affidavit of Gwinyai Sadza in the notice of opposition shows that on the 12 November 2020, four e-mails were sent to applicant’s directors and officers. The court order in HC 457/19 was attached to the emails. The emails were delivered, and there is proof that such e-mails were seen and read by the recipients. Mr Ncube argued that the e-mails were not read by the intended recipients. There was an attempt to use computer jargon to hoodwink this court.  What is conspicuous with the certificate of urgency, and in particular paragraph 7 is that it does not indicate the date applicant became aware of the order in HC 457/19. On the facts of this case, it is clear that applicant became aware of the order in HC 457/19 on the 12 November 2020.  It is clear that what has prompted the filing of this application is what is averred in paragraph 4 of the certificate of urgency that “the 1st respondent through its legal practitioners have declined to give an undertaking that it will suspend execution pending finalisation of the matter. Since removal is scheduled for the 12th July 2021, the application cannot wait in the queue to be decided as an ordinary court application.” The arrival of the date of reckoning cannot be a trigger of urgency. Running to this court approximately eight months after the cause to act had arisen, and start pleading urgency is unattainable.  This not the type of urgency anticipated by the rules of court. See: Kuvarega v Registrar General and Another 1998 (1) ZLR 188; Triple C Pigs and Another v Commissioner-General 2007ZLR (1) 27. New Nation Movement NPC and Others v President of the Republic of South Africa and Others [2019] ZACC 27;  General Transport & Engineering (Pvt) Ltd & Ors v Zimbank 1998 (2) ZLR 301; Document support Centre (Pvt) Ltd v Mapuvire 2006 (1) ZLR 240 (H); Dextiprint Investments (Pvt) Ltd v Ace Property Investment company HH 120/2002; Madzivanzira & Ors v Dexprint Investments (Pvt) Ltd & Anor 2002 (2) ZLR 316 (H).

Again, the fact that applicant has filed an application for recession of judgment; that removal of the attached goods is imminent; and that the matter is one of economic importance not only to the applicant but the nation as well; and that the applicant contributes to fiscus and supports livelihoods of many people in Zvishavane, who are employed at its mining activities does not make this matter urgent. This what other litigants who have had defaults judgments granted against them and applied for recession of judgments have to contend with. It cannot be a circumstance warranting an emergency hearing.

In conclusion, I find that this matter lost its urgency when the applicant failed to treat it as urgent. This court cannot hear this application on the roll of urgent matters. It simply has to join the queue of other matters awaiting set-down on the ordinary roll. It is high time that litigants understand and internalise the fact that enrolling a matter on the roll of urgent matters is not there for the taking. This abuse of filing unmerited urgent applications must come to a stop. Legal Practitioners are signing certificates of urgency for flimsy and inadequate reasons. This practice needs to be discouraged. In the circumstances, I come to the conclusion that the matter is not urgent and it cannot be afforded a hearing in the roll of urgent matters. It falls to be removed from the roll with an appropriate order of costs.  Having found that the matter is not urgent, it is not necessary for me to consider the preliminary point in respect of the alleged defective Form used in this application.

What remains to be considered is the question of costs. The general rule is that in the ordinary course, costs follow the result. I am unable to find any circumstances which persuade me to depart from this rule. Accordingly, the applicant must bear the 1st respondent’s costs.

Disposition

In the result, I make the following order:

The point in limine on urgency is upheld.

This application is not urgent and is removed from the roll of urgent matters with costs of suit.

Ncube and Partners, applicant’s legal practitioners

Phillips Law, 1st respondent’s legal practitioners