Gharib Nawaz Investments (Pvt) Ltd and Walknolt Investments (Pvt) Ltd v Veanarcy (Pvt) Ltd and The Sheriff of Zimbabwe N.O

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1
HH 661-25
HCH 4361/25
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GHARIB NAWAZ INVESTMENTS (PVT) LTD

and

WALKNOLT INVESTMENTS (PVT) LTD

versus

VEANARCY (PVT) LTD

and

THE SHERIFF OF ZIMBABWE N.O

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 24 October 2025

Urgent Chamber Application: Ruling on point in limine

P E Chivinge, for the applicant

H Mutasa, for the respondent

CHITAPI J:   This ruling pertains to the legal practitioners all too familiar objection to an urgent application as not being urgent.  It has become fashionable for respondents to raise the point hoping to avoid the merits in which they have no plausible defence.  The way I have expressed myself is rather a sweeping statement as it is not every case that the objection has no substance.  In most cases however, the objection has no merit.  The merits of each individual case must be considered and it shall be so in this case.

The first and second applicants namely Gharib Nawaz Investments (Pvt) Ltd and Walknott Investments (Pvt)(Ltd) are companies registered in terms of the laws of Zimbabwe and so is the first respondent Veanarcy (Pvt)Ltd.  The second respondent the Sheriff of Zimbabwe is cited as the official who executes writs of execution to enforce court orders.  The two applicants were respondents and the first respondent the applicant in case No HH 6995/21 (the main case).

In the main case No HCH 6995/21 the first respondent sued the applicants for eviction from the first respondents’ premises called stand No. 3899RE Salisbury Township.  The litigation was ended by the parties executing a deed of settlement on terms given therein.  The deed of settlement is an annexure to the founding affidavit.  It is undated though it is signed.

The court in the main case also issued a consent order.  In terms of the order the applicants were ordered evicted from the premises and ordered to vacate the premises by “no later than 30 June 2025 failing which the Sheriff of Zimbabwe” was authorised to evict them.  The applicants were to pay holdings over damages of US$3000 per month from February 2025 to the date of vacation or eviction.  Other ancillary matters like damage repairs and payment of utility bills were made part of the order.  The consent order is dated 22 October 2024.

On 15 July 2025 the first respondent caused the issue of a writ of eviction against the applicants.  The writ was served on 21 August 2025.  The applicants filed application case No HCH 4323/25 on 27 August 2025 for an order to set aside the consent order in the main case.  That application was followed up by the filing of this application to stay execution so that case No HCH 4323/25 is not rendered a brulmen fulmen.  Execution was due to take place on 27 August 2025 but was arrested presumably because of the service of this application on second respondent.

The facts show that after the consent judgment was settled by the court, there was engagement between the applicants and first respondent on an extension of occupancy of the premises by the applicants.  The first respondent averred that the matter is not urgent because the need to act arose on 24 October 2024 when the court issued the consent order that required the applicants should vacate the premises by 30 June 2025.  It averred that ten (10) months had since lapsed since the date of judgment and that the delay had not been explained.  It was averred that the applicants wainted for the day of reckoning and created their own urgency in so wanting.  For this reason, the first respondent averred that the matter should be struck off the roll of urgent matters.

The first respondent also averred that the applicants had been paying holding over damages from February 2025 to date in compliance with the terms of the deed of settlement.  It was averred further that as at 30 July 2025 applicants had committed themselves to clear utility bills.  The 30th July was a date post 30 June 2025.  It was averred that no urgency arose in the matter because the applicants complied with the deed of settlement which they now wanted to impugn.  I am in doubt about the veracity of this conclusion which touches more on the merits.  There was in existence a court order and it is in fact to the credit of the applicants that for as long as it was extant they followed it.  Their position would have been untenable had they not been in compliant with the court order.  They ran the risk that the court would not hear them if they were non compliant with the court order, under the dirty hands principle which the courts take seriously and will not grant audience to or be available to a party who has not complied with an existing court order.

The applicants averred that the need to act arose upon service of the writ of ejectment on 21 August 2025 because the first respondent acted without warning in executing the writ, yet the parties were in engagement on the issue of continued occupancy and were further debating the amount of repairs costs to the roof.  In this regard the first respondent produced correspondence between the parties thus evidencing the engagement.  The letters and Whats App communications produced show that the parties were agreed that roof repair costs remained a sticky issue.  The first respondent pointed out in the letter that the indulgencies given did not constitute a waiver of the rights to enforce the court order.  It is however, a fact that execution was enforced without notice and without calling off negotiations which were ongoing.  In such a scenario it is not expected that a party who is in negotiation is at the same and without warning loading his ammunition and shooting the other party from the back.  I am in the circumstances inclined to accept that the need to act arose on 21 August 2025 when the writ of ejectment writ was served on the applicants without prior notice.  The applicants therefore acted timeously in filing this application post the service of the writ.

The first respondent did not place any other basis for non urgency other than that the need to act arose when the court order was issued.  This submission is not merited in the circumstances of this case.  It would have been a good argument had the parties not been in engagement.  The first respondent did not in objecting to urgency advert to its issuing of the writ without notice.

Urgency was defined in the celebrated case of Kwarega v Registrar General and Anor 1998(1) ZLR 188(HC).  The court stated “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 writ.  Urgency which stems from a deliberate or careless abstention from action is until the deadline draws near is not the type of urgency contemplated by the rules.”

Thus, given my finding that the need to act arose on 21 August 2025, the applicants did not abstain from acting until the deadline drew near.

In terms of consequences if the court does deal with the matter urgently, the applicant averred that the consequences of enforcement of the writ of ejection was the process of the dismantling of the flour milling plant which it operates, weighs six(6) tonnes and is twenty(20) metres high.  It needs delicate handling by engineers to avoid its damage or distruction.  It was also contended that the applicants employed forty (40) employees who would wake up in the streets.  Thus, the applicants contended that the whole idea of negotiating continued occupancy was to ensure a smooth movement of the applicant’s equipment to an alternative place.  In this regard, the first respondent did not deny these averments when it raised the urgency objection.  It is my finding therefore that applying both the time and consequences criteria the applicants have justified urgency of the matter.  I determine the point in limine as follows:

IT IS ORDERED THAT

The first respondent’s objection to the urgency of the application is dismissed.

The hearing shall continue on the merits.

The parties must indicate within forty eight (48) hours of the uploading of this order whether they require to be heard or that the matter may be decided on the papers.

The Registrar to set down the matter for hearing if parties, both or one of them requires a formal hearing.

Chitapi J:……………………………….

Rubaya and Chatambudza, applicants’ legal practitioners

Gill Godlonton and Gerrans first respondent’s legal practitioners