Takunda Mujimu & 2 Ors v SMM Holdings Private Limited & Anor

### Preamble
1
HH 689-18
HC 9476/18
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TAKUNDA MUJIMU

ICON ALLOYS PRIVATE LIMITED

TEID HARDWARE PRIVATE LIMITED

versus

SMM HOLDINGS PRIVATE LIMITED

and

THE SHERIFF OF ZIMBABWE

HIGH COURT OF ZIMBABWE

MANZUNZU  J

HARARE, 19 & 25 October 2018

Urgent Chamber Application

C Tafirei, for the applicants

Z. T. Zvobgo,for the 1st respondent

MANZUNZU J:  This application was filed on urgency seeking the following relief:

“INTERIM RELIEF GRANTED

The first applicant be and is hereby released from Wha Wha Prison, and the officer in charge of the prison be and is hereby directed to release first applicant from the said prison forthwith, and this shall be your warrant.

FINAL ORDER

That paragraph (b) of order of this honourable court dated 4 October 2017 in Case No. HC 5107/17 be and is hereby set aside on the grounds that first applicant has purged his contempt.”

When a matter is filed on urgency there is need for the applicant to justify the urgency. This is often achieved by a certificate of urgency which is filed by a legal practitioner being an officer of this court. Rule 244 which allows the filing of such certificate reads in part:

“244. Urgent applications

Where a chamber application is accompanied by a certificate from a legal practitioner in terms of paragraph (b) of subrule (2) of rule 242 to the effect that the matter is urgent, giving reasons for its urgency, (my emphasis) the registrar shall immediately submit it to a judge, who shall consider the papers forthwith.”

This rule imposes a duty upon a certifying legal practitioner to give reasons why he/she holds the view that the matter is urgent. It is an honourous duty on the legal practitioner, who must ensure that the requirements for urgency have been met.

What constitutes urgency depends on the circumstances of each case. This court has benefitted from the guidelines laid down in the case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 89 where Chatikobo J, as he then was stated, “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 deadline draws near is not the type of urgency contemplated by the rules.”

He further states that where there was a delay in taking action, the certificate of urgency or supporting affidavit must contain an explanation of non-timeous action. I will further add that the explanation must be a reasonable one otherwise it is not any explanation which will suffice. The reasonableness depends on the circumstances of each case.

The certificate of urgency before me reads in part;

“2. I certify that this matter is urgent on the following grounds:

2.1. The applicant is in prison at Wha Wha Prison. Deprivation of liberty 				makes the matter urgent as liberty is a constitutional right.

2.2. If applicant files an ordinary application, it will be merely academic 				because he has purged his contempt, therefore to continue with incarceration 	will 		be a traverse to justice.

3. The applicant’s constitution of rights are being infringed and there is need for an 		    urgency interference by the court before further infringements are made.”

Such a dry statement does not put us into any better picture to appreciate as to what led to the incarceration of the applicant and more importantly when. The question “when did the need to act arise” remains unanswered. No time has been attached to this certificate. The learned judge in the Kuvarega case (supra) also made the following observation about the certifying legal practitioners:

“There is an allied problem of practitioners who are in the habit of certifying that a case is urgent when it is not one of urgency.”

Where a certificate of urgency fails to assist the court on the issue of urgency, the court need to fall back on the applicant’s founding affidavit.

The applicant in his affidavit has been very brief about the circumstances of this case. But

what can be extracted from his brief story is that on 3 July 2009 a provisional order for both a mandatory and prohibiting interdict was granted against the applicants, then respondents.

The provisional order was confirmed on 23 September 2009. Due to the continued

defiance of the court order contempt of court proceedings were lodged against the applicant resulting in the granting of an order on 4 October 2017 in which the applicant was sentenced to one year imprisonment.

It is a result of this court order that applicant finds himself in prison. He chose to be silent as to when he was lodged in prison. This is only revealed in the respondent’s papers that he was lodged in prison on 12 September 2018.

In fact this day is the date of reckoning. The need to act arose on 4 October 2017 when the order for his imprisonment was pronounced. No explanation has been given why he did not act for the past one year. Now that he has been lodged in prison, the applicant requests this court to put everything aside and attend to his case. The urgency is self-created. He did not himself treat the matter as urgent. He must certainly fail on urgency.

However, I must also blow a whistle of warning to legal practitioners; that time will come when those who cursorily file certificates of urgency be called to court to explain. Legal practitioners are officers of this court and they owe a duty to the court to assist it in the proper administration of justice.

No urgency has been established in this case hence the application must find its way to the ordinary roll. Accordingly, there being no urgency:

IT IS ORDER THAT

The matter is struck off the roll of urgent matters.

Applicant to pay first respondent’s costs.

Tafirei & Company, applicant’s legal practitioners

Dube, Manikai & Hwacha, 1st respondent’s legal practitioners