Caroline Gwete v Andrew Hwititi and Shillah Hwititi and The Sheriff of Zimbabwe N.O.

### Preamble
1
HH 483-25
HCH 4044/25
---------


CAROLINE GWETE

versus

ANDREW HWITITI (1)

and

SHILLAH HWITITI (2)

and

THE SHERIFF OF ZIMBABWE N.O. (3)

HIGH COURT OF ZIMBABWE

DEMBURE J

HARARE: 14 & 22 August 2025

Urgent Chamber Application

DEMBURE J:  On 14 August 2025, after considering the papers placed before me, I struck this application off the roll with no order as to costs for lack of urgency. On the same date, I directed the Registrar to issue a letter giving the brief reasons for my decision. On 21 August 2025, the applicant’s legal counsel filed a letter requesting the reasons for my order. The full written reasons thereof are contained herein.

This is an urgent chamber application for a provisional order filed in terms of r 60(1) of the High Court Rules, 2021. In the notice of motion, the application was styled “URGENT CHAMBER APPLICATION FOR REINSTATEMENT OF APPLICANT PENDING THE FINALISATION OF THE COURT APPLICATION FOR RESCISSION OF THE DEFAULT COURT ORDER.” In terms of the draft provisional order annexed thereto, the following were stated as the terms of the final and interim order:

“TERMS OF FINAL ORDER SOUGHT

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

i. 	That the interim order be and is hereby confirmed.

ii. 	1st respondent to pay applicant’s costs at a legal practitioner and client scale.

INTERIM RELIEF GRANTED

Pending determination of this matter, the Applicant is granted the following relief –

The application for reinstatement be and is hereby granted.

The 3rd respondent is therefore ordered to assist applicant return to number 17777 of Lot 12, Ashdown Park, Harare in terms of the case in HCH5155/20 pending the determination of the court application for rescission in case no. HCH3977125 in this court.

Costs shall be in the cause.”

The factual background is as follows:

On 16 July 2025, the first and second respondents (as the applicants therein) obtained a default judgment in the motion court against the respondents therein, who included the applicant, the then sixth respondent in Case No. HCH 5155/20.  The terms of the said court order are as follows:

“1.	The agreement of sale entered into by and between the applicants and the 2nd and 3rd respondents in respect of a certain piece of land situate in the district of Salisbury called stand 17777 Tynwald Township of Lot I 2 of Tynwald measuring 465 square metres be and is hereby declared valid.

2. 	The agreement of sale entered into by and between the 6th and 7th respondents in respect of a certain piece of land situate in the district of Salisbury called stand 17777 Tynwald Township of Lot 12 of Tynwald measuring 465 square metres be and is hereby declared invalid.

3. 	The 6th respondent, her assignees, subtenants, invitees and all those claiming right of occupation through her, be and are hereby ordered to vacate a certain piece of land situate in the district of Salisbury called stand 177'17 Tynwald Township of Lot 12 of Tynwald measuring 465 square metres failing which the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorised to eject the 6th respondent, her assignees, subtenants, invitees and all those claiming right of occupation through her from the said property.

4. 	The Sheriff be and is hereby authorised to demolish or cause to be demolished and remove or cause to be removed any form of development of any structure or superstructure on a certain piece of land situate in the district of Salisbury called stand 17777 Tynwald Township of Lot 12 of Tynwald measuring 465 square metres.

5. 	The 6th respondent shall pay the costs of suit.”

The other respondents in the said matter in Case No. HCH 5155/20 were Nyasha Mutiti (first respondent), Hayes Zimbabwe (Private) Limited (second respondent), RM Africa Property Consultants (Private) Limited t/a Rawson Properties (third respondent), the Sheriff of the High Court of Zimbabwe (fourth respondent), the City of Harare (fifth respondent) and Afritage Investments (Private) Limited t/a Afritage Land Developers (seventh respondent).

As apparent from the default judgment, it was of the nature of a declaratur and consequential relief. The consequential relief was for an eviction order against the applicant (the sixth respondent therein) and all those claiming the right of occupation through her from stand 17777 Tynwald Township of Lot 12 of Tynwald measuring 462 square metres.

The applicant averred that she became aware of the court order on 30 July 2025 when the first and second respondent set in motion the eviction process through the third respondent. The date of ejectment was 1 August 2025. The applicant’s counsel, Mr Mufunda, in his supporting affidavit, averred that he also received the news of the execution on 30 July 2025 around midnight when he was returning from Mt Darwin. He further stated that on 31 July 2025, around midday, he tried to contact the first and second respondents’ legal counsel, Mr Masara, to seek a postponement of the execution, but he did not pick up his calls. As fate would have it, on 1 August 2025, the Sheriff executed the court order ejecting the applicant from the premises.

On 14 August 2025, the applicant launched this application. She averred that she had been rendered homeless from a property she had built over the years and has nowhere else to go. She further alleged that the first and second respondents had snatched the default judgment in a matter where they failed to serve their declaration on her. She argued that the declaration was not a subsequent pleading and after the conversion of the motion proceedings into an action matter, the first and second respondents ought to have served their declaration, but failed to do so. She referred the court to the provisions of SI 153 of 2023, which amended the High Court Rules, 2021. Accordingly, the judgment, it was argued, was erroneously sought or granted in her absence. She, therefore, sought her reinstatement into the premises pending the finalisation of the court application for rescission of the default judgment and that the writ of execution against her be set aside.

The law is settled that a matter is urgent if it cannot wait in the sense that if not dealt with immediately, irreparable harm or prejudice will result to the applicant. Urgent matters are concerned with self-created urgency. The law on urgency was enunciated in Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188H at 193 F-G, where CHATIKOBO J (as he then was) stated that:

“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 dead-line draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay.”

chatikobo J further held that:

“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 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 it on an urgent basis. Further, it must 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 waits 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 one that warrants to be dealt with on an urgent basis...”

makarau JP (as she then was) in Documents Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 240 (H), further stated as follows:

“I understand chatikobo J in the above remarks to be saying that a matter is urgent if when the cause of action arises giving rise to the need to act, the harm suffered or threatened must be redressed or arrested there and then for in waiting for the wheels of justice to grind at their ordinary pace, the aggrieved party would have irretrievably lost the right or legal interest that it seeks to protect and any approaches to court thereafter on that cause of action will be academic and of no direct benefit to the applicant.”

In casu, the reasons why I declined to hear the matter on an urgent basis are as follows. The applicant failed to seek an urgent stay of execution pending the determination of her application for rescission of judgment. From her own admission, this matter is one of self-created urgency. She conceded that she was informed of the execution of the court order on 30 July 2025 and that the date for her ejectment would be 1 August 2025. Her counsel also confirmed that he was informed of the execution on the same day, though at midnight. The following day, 31 July 2025, the applicant’s counsel chose to only act at midday by calling the first and second respondents’ legal practitioners. Even upon realising that the phone calls were not being answered, he never did anything despite the clear pending eviction on 1 August 2025.

The reason why the applicant could not seek an urgent stay of execution if she was about to be left homeless is not even satisfactorily explained. It is difficult to fathom the non-action at that critical juncture when clearly the need to act arose upon service of the writ of ejectment on 30 July 2025. It is trite that this court has inherent power to control its own processes. Surely, the court could have intervened if it was called upon to do so at that juncture. After failing to act to seek stay execution, the applicant waited for the day of reckoning to arrive. The Sheriff, as required by the court order, proceeded and lawfully evicted her from the premises on 1 August 2025. The eviction was sanctioned by para 3 of an extant court order. It was, therefore, a lawful process. In other words, the eviction of the applicant was a lawful process carried out in execution of an extant court order. No urgency can arise at this stage at the call of the applicant seeking her reinstatement to the premises she was lawfully evicted from.

In the face of the extant court order, the relief of reinstatement is no longer one for the court to deal with on an urgent basis, as it is now dependent on the rescission of the default judgment. Unless the said order is set aside, there is no lawful basis for a reinstatement order sought. Paragraph 4 of the court order authorised the ejectment effected by the Sheriff.  Having failed to seek an urgent stay of execution before the ejectment order was lawfully executed, the urgency became self-created. It is not the urgency contemplated by the court rules. This is the position confirmed in the Kuvarega case that urgency which stems from deliberate or careless failure to act when the need to act arose, is not the kind of urgency contemplated by law. The applicant should have acted when she was served with the writ of execution on 30 July 2025 and could not wait until 14 August 2025, well after the court order had been executed, to seek to overturn a lawful process.

I also considered that the ‘interim’ relief sought had the effect of a final relief. The law is clear that the relief sought in an urgent chamber application, except in minimal instances such as when a spoliation order is sought, must not be a final order or have the effect of a final order. The provisional order granted must be such that on the return day, there is still something to determine. It would also be a gross irregularity for a judge to grant a provisional order which is, in effect, a final order. In Jamal Ahmed & 3 Ors v Russel Goreraza & 2 Ors HH 402-17, the following principles regarding provisional orders were established:

First, once an order is deemed final, the court granting it becomes functus officio and the remedy of any aggrieved party lies in an appeal to the Supreme Court;

Second, once a court on the return date of a “provisional order” with final effect realises that another judge had granted a provisional order, that court, if properly informed, is compelled to mero motu rescind the provisional order erroneously granted. The party aggrieved in that situation, in addition to the right to appeal, may also make an application for rescission of judgment in terms of r 29(1) of the court rules;

Third, if an order is deemed to be provisional or interlocutory, it remains subject to confirmation or discharge by the same court; and

Fourth, where an order is in the form of a provisional order, that in itself does not mean that the order per se is necessarily provisional. If the order has the effect of finally determining “the issue or cause of action between the parties”, it is a final order, regardless of the misleading form in which it is cast, and may not be subject to confirmation or discharge.

The principles applicable to an urgent chamber application and that a provisional order should not be a final order or have the effect of a final order were fully outlined in Nhende v Zigora & Anor SC 102/22. From p 11, mathonsi JA remarkably outlined the law in the following words:

“The High Court Rules, 2021 set out a procedure for the filing and determination of urgent applications. They also provide a form for a provisional order which litigants approaching the court under that procedure are required to adhere to as well as to attach to the urgent chamber application.

In terms of r [5]9 (9):

“(9) Where in an application for a provision order the Judge is satisfied that the papers establish a prima facie case he or she shall grant a provisional order either in terms of the draft filed or as varied.” (The underlining is for my emphasis)

There is a reason why the Rule is couched that way. Firstly, in an urgent application, the applicant is usually granted interim relief on the basis of a prima facie case as the applicant would not have proved his or her case. The procedure allows a litigant which can show a prima facie right to be accorded interim relief that usually protects the status quo ante until the return date of the provisional order. See Kuvarega v Registrar General & Anor 1998 (1) ZLR 188.

After the grant of interim relief in the form of a provisional order, the matter does not end there. The procedure is that the respondent is allowed to file a full dossier of opposition to the confirmation of the provisional order, which confirmation takes the form of granting the terms of the final order sought in the prescribed form of the provisional order. After the provisional order is granted, the full procedure of a court application, including the filing of a notice of opposition, answering affidavit and heads of argument, kicks in. It is a procedure which allows the applicant to fully prove his or her case and the respondent to disprove it without the pressure of urgency.

On the return date of the provisional order, a fully-fledged opposed application is set down and heard on the opposed roll. Following that hearing the court may either confirm or discharge the provisional order. It confirms it by granting the terms of the final order sought.

Having said that, I must reiterate what this Court stated in Nzara & Ors v Kashumba N.O & Ors 2018 (1) ZLR 194 (S) at 200G of the cyclostyled judgement, that the court cannot grant an order that has not been sought by a party. The point is also made in Chiwenga, supra, that the purpose of provisional relief is to preserve the status quo pending the return day. At p 13 of the cyclostyled judgment the court stated:

“The purpose of a final order is different from that of a provisional order in that a final order is conclusive and definitive of the dispute. It finally settles the issues and has no return date. Once a final order is given the court issuing the order becomes functus officio and it cannot revisit the same issues at a later date.”

I have had to give a detailed account of the procedure for provisional relief because there appears to be a signal failure or lack of appreciation at the moment at the High Court that when approached on an urgent basis, except where spoliatory relief is sought in which case the court grants final relief, the court is required to issue interim or provisional relief in the form of a provisional order.

Given that, by its very nature, an urgent application requires the applicant to establish a prima facie case for the grant of interim relief, the jurisdiction of the court to grant final relief is not triggered.” (emphasis added)

It is also settled that where the applicant seeks an interim order which has the effect of a final order or is similar to a final order, the court is justifiably entitled to consider the matter as not urgent. This position was confirmed in Equity Properties (Pvt) Ltd v Alshams Global BVI Ltd SC 101/21, where it was stated that:

“The treatment of whether an application is urgent is a matter in the discretion of the court a quo. … The law on what constitutes urgency is settled. Urgency is manifested by either a time or consequence dimension. See Kuvarega v Registrar-General & Anor 1998 (1) 188 (H) at 193E; Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 240 (H); Gwarada v Johnson & Ors 2009 (2) ZLR 159 (H) and Sitwell Gumbo v Porticullis (Pvt) Ltd t/a Financial Clearing Bureau SC 28/14 at p 3. In addition, in Econet Wireless (Pvt) Ltd v Trust Co Mobile (Pty) Ltd & Anor, supra, at p 16 GARWE JA, as he then was, further suggested that an urgent chamber application in which the interim relief is similar to or has the same effect as the final relief prayed for may justifiably be found to be not urgent. While he generally approved the position articulated in Kuvarega, supra, at 193A-C he underscored that such an application could not be regarded as a nullity and stated that:

“Whilst no hard and fast rule can be laid down, there may well be cases where a court would be justified in holding, in such a situation, that the application is not therefore urgent and that it should be dealt with as an ordinary court application. There may also be cases where the court as it is empowered to do….may amend the relief sought in order to grant…interim protection (and) obviate a situation where final relief is granted by way of a provisional order.” (emphasis added)

In this case, the applicant sought what she termed an “interim order” couched as follows:

“i. 	The application for reinstatement be and is hereby granted.

ii.	The 3rd respondent is therefore ordered to assist applicant return to number 17777 of Lot 12, Ashdown Park, Harare in terms of the case in HCH5155/20 pending the determination of the court application for rescission in case no. HCH3977125 in this court.

iii.	Costs shall be in the cause.”

A reading of the above clearly shows that the applicant sought ‘interim’ relief which had the effect of a final order under the guise of a provisional order. In terms of the draft interim order, she seeks to be restored to the premises pending the determination of the court application for rescission of judgment. That is an order which should be sought on the return date, as it is a final relief. Such an order cannot be granted as a provisional order in an urgent chamber application. Granting the order sought would mean that there would be nothing to determine on the return day. In other words, the relief sought once granted has the effect of finally determining the issue or cause of action between the parties in this application. As held in Jamal Ahmed supra, the granting of that order would make the court functus officio as the court would have fully and finally exercised its jurisdiction on the matter.

As confirmed in Equity Properties supra, the court has a discretion in an urgent chamber application where a final order is sought or the interim relief has the same effect as a final order, to treat the matter as not urgent and order that it proceed on the ordinary roll or consider an amendment of the draft order and grant an appropriate interim relief. In this case, the eviction having been lawfully carried out, given the extant court order, the relief of reinstatement can only be sought properly once the court order has been rescinded. It would, therefore, be appropriate that the matter proceed as an ordinary application. There is no reason for the matter to jump the queue, as there still exists an extant court order that militates against the reinstatement sought. Since the Sheriff had lawfully executed the extant court order, the lawful basis for the order sought only arises upon the rescission of the said court order.

It is for the above reasons that I declined to hear this application on an urgent basis and struck it off the roll with no order as to costs.

DEMBURE J:   ………………………………………

Mufunda & Partners, applicant’s legal practitioners