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Legal Matters with Arthur Marara
When clients approach me for legal advice and assistance there is a word that they usually use: “urgent”.
Everything is usually “urgent”. A colleague of mine was once approached by a client who was seeking “urgent divorce”, others want “urgent maintenance”.
This is a word that is sometimes used in ignorance as to what it means in the context of legal proceedings. Clients often want their matters to be dealt with by the courts urgently. The question that we want to answer this week is on the issue of “urgency”.
Approaching the High Court
I am going to look at the concept of urgency in the High Court. When approaching the Court, you need to understand that there are two broad procedures:
Action Procedure, and
Application Procedure
In action procedure, proceedings commence by way of Summons. On the other hand, in application procedure, matters commence by way of affidavit.
What often determines whether or not a matter proceeds via application or action is the existence of material disputes which cannot be resolved on affidavit evidence. This is a story for another day.
Applications can be categorised into two: Court Application (which is an application made to the Court) and Chamber Application (which is an application made to the Judge in Chambers). The Judge will deal with the case in his or her Chambers or Office to make it simpler.
There is a further division when it comes to Chamber applications : There is an ordinary Chamber Application and there is an Urgent Chamber Application. At the heart of an Urgent Chamber, Application is a request and a prayer that the matter be dealt with “urgently” in other words, it cannot afford to wait on the normal roll. During most urgent chamber applications, the question that often arises is that of urgency.
What constitutes urgency?
There is ample precedent from the Courts on what constitutes urgency. The test as to what constitutes urgency was articulated in the case of Kuvarega v Registrar General 1998 (1) ZLR 188 as follows:
“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.
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 delay . . . ” (as per CHATIKOBO J, as he then was at p 188 G-H).
For a matter to be treated as urgent, the Applicant must establish imminent danger, to existing rights and possibility of irreparable harm. See case of Triple C P165 & Anor v Commissioner General ZRA 2007 27 where the Honourable GOWORA J (as she then was) remarked as follows:
“Naturally every litigant appearing before these courts wishes to have their matter heard on an urgent basis because the longer it takes to obtain relief, the more it seems that justice is being delayed and thus denied.
“Equally, the courts (in order to) ensure delivery of justice, would endeavour to hear the matter as soon as it is reasonably practicable. This is not always possible, however, and in order to give effect to the intention of the courts to dispense justice fairly, a distinction is necessarily made between those matters that ought to be heard urgently and those to which some delay would not cause harm which would not be compensated by the relief eventually granted to such litigant.
“As courts, we therefore have to consider, in the exercise of our discretion, whether or not a litigant wishing the matter to be treated as urgent has shown the infringement of such interest if not redressed immediately would not be the cause of harm to the litigant which any relief in the future would render brutum fumen”.
It is accepted law, as per Rule 60 (60) of the High Court Rules, S.I. 202 of 2021, that an urgent chamber application ought to be certified by a legal practitioner to the effect that the matter is urgent. In several cases the Court has stressed the need for legal practitioners who certify a matter as urgent to genuinely believe the matter to be urgent.
In the case of General Transport & Engineering (Pvt) Ltd & Ors v Zimbank Corp (Pvt) Ltd 1998 (2) ZLR 301 (per GILLEPSIE J) the court stated the following in relation to certificate of urgency:
“It is therefore an abuse for a lawyer to put to his name to a certificate of urgency where he does not genuinely believe the matter to be urgent. Moreover, as in any situation where the genuineness of a belief is postulated that good faith can be tested by the reasonableness or otherwise of the purported view.
“Thus, where a lawyer could not reasonably entertain the belief he professes in the urgency of the matter he runs the risk of a judge concluding that he acted wrongfully if not dishonestly in his certificate of urgency”.
There is also a general tendency by some parties to misrepresent, and mislead on facts. The Courts have taken a strong stance against that, and ordered punitive costs against the errant parties.
You may recall what is meant by punitive costs from the previous articles. In the case of Glaspeak Investments v Delta Corporation (Pvt) Ltd 2001 (2) ZLR 551 at p 555 C – D it was held that;
“The Courts, in my view, discourage urgent applications whether exparte or not, which are characterised by material non-disclosure mala fide or dishonesty. Depending on circumstances of the case, the court may make adverse or punitive orders as a seal of disapproval of mala fides or dishonesty on the part of litigants”
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the article/post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a Law lecturer, corporate law attorney practicing law in Harare, Zimbabwe with a reputable firm. He is also a notary public and conveyancer. He is passionate about promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
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