URGENCY
1. The Court in discussing the question of urgency in the case of Mathias
Madzivanzira and 2 Ors v Dexprint Investments (Private) Limited and
Anor HH 145-2002 at pp2-3 also referred to the remarks by PARADZA J in
the case of Dexprint Investments (Pvt) Ltd v Ace Property and
Investment Company HH 120-2002 which remarks are captured as
follows:-
“For a court to deal with a matter on an urgent basis it must be
satisfied of a number of important aspects. The court has laid down the
guidelines to be followed. If by its nature the circumstances are such
that the matter cannot wait in the sense that if not dealt with
immediately irreparable prejudice will result, the court can be inclined
to deal with that on an urgent basis. Further, it must also be clear that
the applicant did on his own part treat the matter as urgent. In other
words if the applicant does not act immediately and awaits for
doomsday to arrive and does not give a reasonable explanation for that
delay in taking action, he cannot expect to convince the court that the
matter is indeed on that warrants to be dealt with on an urgent basis.”
2. In the case of Kuvarega vs Registrar-General and Anor 1998 (1) ZLR
188(H)) at 193 F-G the following principle with regards to urgency was set
out:
“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 by the rules.”
See Bhebhe And 18 Others v SMM Holdings (Private) Limited t/a
SMMH Properties HH3 /21)
3. In Gwarada v Johnson & Ors, HH 91/09 it was stated
“Urgency arises when an event occurs which requires
contemporaneous resolution, the absence of which would cause
extreme prejudice to the applicant. The existence of circumstances
which may, in their very nature, be prejudicial to the applicant is
not the only factor that a court has to take into account, time being
of the essence in the sense that the applicant must exhibit urgency
in the manner in which he has reacted to the event or the threats,
whatever it may be.”
4. In Documents Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 240 (H)
the court held:
“… urgent applications are those where if the courts fail to act, the
applicants may well be within their rights to dismissively suggest to
the court that it should not bother to act subsequently as the
position would have become irreversible and irreversibly so to the
prejudice of the applicant.”
5. In Mushore v Mbanga & 2 Ors HH 381/16 the Court held that there are
two paramount considerations in considering the issue of urgency, that of
time and consequences. These are considered objectively. The court stated;
“By ‘time’ was meant the need to act promptly where there has been
an apprehension of harm. One cannot wait for the day of reckoning
to arrive before one takes action… By ‘consequences’ was meant the
effect of a failure to act promptly when harm is apprehended. It was
also meant the effect of, or the consequences that would be suffered
if a court declined to hear the matter on an urgent basis.”
See also Nyakudya v Vibranium Resources (Pvt) LTD HH409/21
6. In the case of Ndangariro v Mpofu And Anor HB 145 /2021, the Court
held that
“For a litigant to successfully motivate the court to hear its matter
on an urgent basis, it must show that its matter is out of the
ordinary. This court must be on the guard of litigants who may try
to take advantage and abuse the urgency procedure in order to get a
procedural advantage over other litigants that have to wait in the
queue for their matters to he heard. There must be an emergency.
The need to act arose in 2013. A litigant cannot relax, and when it
is convenient to it, create a false emergency by screaming urgency.
A dispute that arose in 2013, cannot be urgent in 2021. This is not
the type of urgency anticipated by the rules of court. This typical
text-book case of an abuse of the urgency procedure.”
PARALLEL JURISDICTION
7. In addition, the Court is functus officio as the Court has already made a
determination. In the case of ZESA Holdings (Pvt) v Utah SC32/18 the
Court held that
“A court is defined to mean all its judges sitting alone or with other
judges. This is because they have the same powers and exercise
parallel jurisdiction. Arbitrators are no different in this respect.
Accordingly, the res judicata and functus officio legal principles will
apply should the matter be brought before the same or a different
judge, or in this case, arbitrator.
The learned authors Herbstein & Van Winsen “The Civil Practice of
the High Courts and the Supreme Court of Appeal of South Africa”
5th Ed state that:
“The general principle, now well established in our law, is that once
a court has duly pronounced a final judgment or order, it has itself
no authority to correct, alter or supplement it. The reason is that
the court thereupon becomes functus officio: its jurisdiction in the
case having been fully and finally exercised, its authority over the
subject matter ceases. The other equally important consideration is
the public interest in bringing litigation to finality. The parties must
be assured that once an order of court has been made, it is final and
they can
In the case of Kassim v Kassim 1989 (3) ZLR 234 (H) at p 242 C-D
the court held that:-
“In general, the court will not recall, vary or add to its own
judgment once it has made a final adjudication on the merits. The
principle is stated in Firestone South Africa (Pvt) Ltd v Genticuro Ag
1977 (4) SA 298 (A) at 306, where TROLLIP JA stated:
‘The general principle, now well established in our law, is that, once
a court has duly pronounced a final judgment or order, it has itself
no authority to correct, alter, or supplement it. The reason is that it
thereupon becomes functus officio: its jurisdiction in the case
having been fully and finally exercised, its authority over the
subject matter has ceased.’”
Furthermore, in Unitrack (Pvt) Ltd v Telone (Pvt) Ltd SC 10/18
MAVANGIRA AJA (as she then was) held as follows:
“It is a general principle of our law that once a court or judicial
officer renders a decision regarding issues that have been submitted
to it or him, it or he lacks any power or legal authority to re-
examine or revisit that decision. Once a decision is made, the term
“functus officio” applies to the court or judicial officer concerned.”
(my emphasis)
INTERDICT
8. In the case of Rushwaya v Bvungo & Anor HMA 19/2017 in relation to
requirements for an application of stay of execution the Court held that
“In Golden Reef Mining [Pvt] Ltd & Anor v Mnjiya Consulting
Engineers [Pty] Ltd & Anor HH 631/15 I said an application for a
stay of execution was a species of an interdict. In my view, there is
some difference between an ordinary, typical or orthodox interdict
with a stay. With an ordinary interdict, the applicant must show a
clear right in his favour, or, in the case of an interim interdict, a
prima facie right having been infringed, or about to be infringed; an
apprehension of an irreparable harm if the interdict was not
granted; a balance of convenience favouring the granting of the
interdict, and the absence of any other satisfactory remedy: see
Setlogelo v Setlogelo1914 AD 221; Tribac [Pvt] Ltd v Tobacco
Marketing Board1996 [1] ZLR 289 [SC]; Hix Networking
Technologies v System Publishers [Pty Ltd & Anor1997 [1] SA 391
[A]; Flame Lily Investment Company [Pvt] Ltd v Zimbabwe Salvage
[Pvt] Ltd and Anor 1980 ZLR 378 and Universal Merchant Bank
Zimbabwe Ltd v The Zimbabwe Independent & Anor 2000 [1] ZLR
234 [H].
On the other hand, in a stay of execution the requirement is simply
real and substantial justice: see Cohen v Cohen 1979 [3] SA 420 [R];
Chibanda v King 1983 [1] ZLR 116 [SC]; Mupini v Makoni 1993 [1]
ZLR 80 [S] and Muchapondwa v Madake & Ors 2006 [1] ZLR 196 [H].
The premise on which a court may grant a stay of execution pending
the determination of the main matter or of an appeal is the inherent
power reposed in it to control its own process. In Cohen’s case
above GOLDIN J said at p 423B –C :
“Execution is a process of the Court and the Court has an inherent
power to control its own process subject to the Rules of Court.
Circumstances can arise where a stay of execution as sought here
should be granted on the basis of real and substantial justice. Thus,
where injustice would otherwise be caused, the Court has the power
and would, generally speaking, grant relief.”
9. In Mupeni v Makoni 1993(1) ZLR 80(S) at 83 B-D this court stated the
position of the law clearly:
“In the exercise of a wide discretion the court may, therefore, set
aside or suspend a writ of execution, or, for that matter, cancel the
grant of a provisional stay. It will act where real and substantial
justice so demands. The onus rests on party seeking a stay to
satisfy the court that special circumstances exist. The general rule
is that a party who has obtained an order against another is entitled
to execute upon it. Such reasons against execution issuing can be
more readily found where, as in casu, the judgment is for ejectment
or transfer of property for in such instances the carrying of it into
operation could render the restitution of the original position
difficult. See Cohen v Cohen (1) 1979 ZLR 184(a) 187C, Santam
Investment Company Ltd v Preget (2) 1981 ZLR 132 (G) at 134G-
135B; Chibanda v King 1983 (1) ZLR 116 (H) at 119 C-H; Strime v
Strime 1983 (4) SA 850(C) at 852 A”.
EXTANT COURT ORDERS
10. In Mauritius and Another v Versapak Holdings (Private) Limited and
Another SC 2 / 2022 the court said:
“It is trite that once a court has made an order it binds all and sundry
concerned. Everyone bound by the court order has a duty to obey the
order as it is until it has been lawfully altered or discharged by a court
of competent jurisdiction or statute.”
11. In the case of Mpofu v Mlilo HB11/2002, the Court held with regards to
Court orders that
“A court order remains in force until it is complied with or set aside on
appeal. In as much as it primarily must be complied with, as is what
the applicant would have prayed successfully for, this court has equally
an interest in its compliance for the insurance of the protection,
upholding of the dignity and its respect.
Our courts take a serious view of anybody who disobeys a court order.
The English courts hold the same view as stated in the English case of
Hadkinson v Hadkinson [1952] 2 All ER 567 (CA) at 569C where
ROMER LJ remarked:
“It is the plain and unqualified obligation of every person against, or
in respect of, whom an order is made by a competent jurisdiction to
obey it, unless and until that order is discharged. The compromising
nature of this obligation is shown by the fact it extends even to
cases where the person affected by an order believes it to be
irregular or even void.”
There are two consequences that flow from that obligation. The first is
that anyone who disobeys an order of court is in contempt even if he
believes it to be irregular. The second is that no application to court by
such a person will be entertained unless he has purged himself of his
contempt. Therefore the disregard of an order of court is a matter of
sufficient gravity and as long as it has not been discharged it remains
in
force whatever the order may be.
…..
It is plainly clear that the courts will not take kindly to litigants who
disobey its orders willy nilly.”
12. There is clearly no rule that states that a Party must wait for the party
aggrieved by a Court order to Appeal before it can be actioned and in fact an
extant Court order which has not been set aside on Appeal should be
compiled with. In the case of Chiwenga v Chiwenga SC 2/14, it was stated
that: The law is clear that an extant order of this Court must be
obeyed or given effect to unless it has been varied or set aside by this
Court and not even by consent can parties vary or depart therefrom.
