The ManicaPost
Trust Maanda
Post Correspondent
COURT applications are filed when the matter is not fraught with material disputes of fact and the court can take a robust view of the facts and decide without oral evidence or going to trial.
When the matter is so urgent that relief must be immediately granted by the court, a party may file the application as a chamber application.
An urgent chamber application is the same as a court application.
The difference is that with a chamber application, the matter will not be heard in an open court, but in the office of the presiding officer, called chambers.
Ordinary court applications are not urgent and take time before they are heard as they wait in a queue of other cases for their turn to be provided with a date of court hearing.
With an urgent chamber application, the applicant will be alleging that the matter is so urgent that the application cannot wait to be heard on the ordinary roll of cases.
It is where if the relief being craved is not granted immediately, the harm being suffered or threatened would have happened by the time the court will finally intervene to grant a remedy.
A party in an urgent chamber application should prove that his or her case is urgent.
He or she should approach the court as soon as the need to act arises.
One cannot approach the court a long time after the issue complained of and against which protection is sought has arisen.
The other party may argue that the matter is not urgent because the applicant sat on his or her laurels.
In that case, the court may dismiss the application or remove it from the roll of urgent cases.
If there is delay in approaching the court, an applicant must give reasons for such delay.
There must be a reasonable explanation for the delay and again, reasons must be given why the matter should jump the queue of other matters.
A matter is urgent if, when the cause of action giving rise to the need to act, the harm suffered or threatened must be redressed or arrested there and then to avoid the aggrieved party from irretrievably or irreparably losing the right or legal interest that it seeks to protect.
Any relief from the court thereafter on that cause of action will be academic and akin to closing the stable door after the horse has bolted.
The nature of the cause of action and the relief sought are important considerations in hearing or refusing to hear urgent applications.
Even purely commercial interests can be protected urgently in appropriate cases where the court is satisfied that the relief sought is such that it cannot wait without irreparably prejudicing the legal interest of the applicant.
In urgent chamber applications, the order sought is granted as a temporary measure while the parties litigate on the merits of their case for final relief.
For example, a person may seek an interim relief of staying execution or sale of its property by the Messenger of Court pending the hearing of the cause giving rise to the execution.
This can be where a person obtains a default judgment against a defendant and proceeds to have defendant’s property attached for sale in execution.
Because of the imminence of the sale in execution and fear of irreparable harm if the goods are sold, the defendant may seek an interim order to stay the sale pending rescission of the default judgment.
When the order is granted, the parties will then argue the case of whether or not the defendant is liable to the plaintiff.
The object of an urgent chamber application is to get interim protection, but not final relief.
Chatikobo J In Kuvaregav Registrar Gen & Anor 1998 (1) ZLR 188 (H) said: “The practice of seeking interim relief which is exactly the same as the substantive relief sued for, and which has the same effect, defeats the whole object of interim protection. In effect a litigant who seeks relief in this manner obtains final relief without proving his case. That is so because interim relief is normally granted on the mere showing of a prima facie case.
“If the interim relief is identical to the main relief and has the same substantive effect, it means that the applicant is granted the main relief on proof merely of a prima facie case. This, to my mind, is undesirable where, as here, the applicant will have no interest in the outcome of the case on the return day.”
Urgent chamber application procedure must be used only in deserving cases.
An applicant runs the risk of having his or her case dismissed if the court views the use of the procedure as an abuse of court process.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646.
