Tessa Gaye Felicity Covell v Daniel Kuzozvirava Shumba and Preston Goredema and The Messenger of Court and Sergent Makiwa and Mr. Serima N.O. and The Registrar of Vehicles

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TESSA GAYE FELICITY COVELL
versus
DANIEL KUZOZVIRAVA SHUMBA
and
PRESTON GOREDEMA
and
THE MESSENGER OF COURT
and
SERGENT MAKIWA
and
MR. SERIMA N.O.
and
THE REGISTRAR OF VEHICLES



HIGH COURT OF ZIMBABWE
HUNGWE J
HARARE, 22 February 2012


Urgent Chamber Application


Advocate JB Wood, for the applicant
M Kamdefwere, for the 1st respondent


       HUNGWE J: This is an urgent chamber application in which a certificate of urgency was
issued by a legal practitioner certifying it as urgent. The matter was placed before me through the
Chamber Book on 14 February 2012. On the same day I directed that applicant serve all the
respondents with a copy of the application in compliance with r 242 (1) of the High Court Rules,
1971. Proof of such service was to be filed to indicate that this directive has been complied with,
unless one of the things specified in that rule is shown to exist and the practitioner concerned
certifies that there are grounds upon which he believes that service should be dispensed with.
       The matter was set down for hearing on Thursday 16 February 2012. On that day counsel
for the first respondent sought leave to study, prepare and file opposing papers. Applicant’s
counsel agreed on the need for the indulgence sought and the matter was postponed to 21
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February 2012 by mutual agreement of both parties. On the hearing date I asked that parties
address me on the question of urgency.
       Mr Kamdefwere, for the first respondent, took two points against the finding of urgency
in favour of the applicant. He pointed out first that the motor vehicle subject of the dispute was
attached and removed in terms of an order of court of competent jurisdiction on 27 January 2012.
Without an explanation for the delay of 18 days the matter of urgency cannot arise as the
applicant was content to sit on her perceived rights before approaching this court on an urgent
basis. Applicant only obtained registration of the motor vehicle on 6 February 2012 some 10
days after the removal of the said vehicle from her possession. In any event, to her knowledge
the motor vehicle was owned and registered in the name of one Sean Thomas Doran, sixth
respondent in the magistrates’ court application, yet she conveniently omitted to cite him in these
proceedings. The reason is plain to see. She hoped to avoid disclosure of her mala fide
possession of the motor vehicle.
       Second, Mr Kamdefwere argued that this is not the type of urgency contemplated in the
Rules of Court. He relied on CHATIKOBO J’s wise words in Kuvarega v Registrar-General &
Anor 1998 (1) ZLR 188 (HC) @ p 193 where the following appears:
       “No explanation was given about the delay. 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.”

       Mrs Wood, for the applicant, argued that the matter was urgent. She explained that the
reason for the delay was that the applicant approached legal practitioners who had to prepare
papers. She too was trying to secure the registration book of the motor vehicle to establish prima
facie proof of her ownership of the motor vehicle. She asked the court to find that the order upon
which the attachment and removal was based was a nullity since the applicant, the registered
owner, was party to those proceedings which resulted in the order for removal. As such there was
no need for the setting aside of the order. She relied on the decision in Mugwebie v Seed Co and
Anor 2000 (1) ZLR 97 where SANDURA JA held that where an act is void, at law it is a nullity.
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There is no need for an order of court to set it aside although it is convenient to have the court
declare it to be so. Her argument was directed more at showing that there was a procedural
irregularity which went to the root of the order issued by the fifth respondent and therefore all
subsequent actions premised on it were null and void.
       The above argument does not address the issue of urgency. To my mind the applicant has
failed to show that when the need to act arose she had acted with despatch. Applicant professes
to be in need of the motor vehicle on a daily basis due to a debilitating back ailment. She
however waits for 18 days before launching this application claiming that there is urgency in the
matter. This is self-created urgency which reflects a serious misconception of the nature of the
urgency for which the Rules are designed. She did not need the vehicle registration book in order
to establish a prima facie case for ownership as she has an agreement of sale. She only needed to
show that she had been unlawfully dispossessed of the said vehicle. She did not act when the
need to act arose.
       The attachment and removal was carried out under a court warrant. There was nothing
irregular about the process ex facie the record of proceedings leading to the notice of attachment
and removal. Alternatively, and in any event, if she was aggrieved by the due process there was
legal redress open to her.
       There is one matter I wish to draw counsel’s attention to. Where a chamber application is
made, the High Court Rules require that the application be served on the other party or parties,
subject to certain exceptions and to the certificate of the applicant's legal practitioner that there
are grounds for dispensing with service. There is no proof that r 242(1) was complied with in
these proceedings despite my clear directive. Only first respondent appeared. The reasons for this
can only be a matter of conjecture in the circumstances. Failure to comply with this requirement
will bring the risk of being non-suited for non-compliance with the Rules.
       In light of the above, I was satisfied that the matter was not urgent and did not merit any
consideration of this court on an urgent basis. It is dismissed with costs.



Matizanadzo and Warhurst, applicant’s legal practitioners
Muringi Kamdefwere, 1st respondent’s legal practitioners
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