Tapfumaneyi and Others v Xinfeng Li and Others (430 of 2025) [2025] ZWHHC 430 (16 July 2025)

10 HH 430 - 25 HCH 3271/25 ZHAKATA TAPFUMANEYI and HARARE SOUTH RESIDENCE ASSOCIATION and HARARE SOUTH CONSTITUENCY DEVELOPMENT and LUSTY MUSAYANEMBEU versus XINFENG LI and JACOB ZVOMUNYA and BERNADINO MUVADI and KUDZAI KARIMAZONDO and RANGARIRAI MUZVANYA and KINGSTON KAHIYA and EDMOND NYAMUKAPA and DORCA ARIFANDIKA and TECLAR CHAGWAMBARE and CHITSANGA DANIEL and CANELS. MAKUREYA and JOSSIPHINE SIBANDA and SHEALAH MUSHANINGA and ANYWILL CHIMUGOTI and KUDZANAI DUVE and WINNET CHIDHONZA and IRINE MABHIZA and NORMAN MANJENGWA and CHRISTINA MUPFATSO and LILIOSAL TSINGARWO and GETRUDE NGANDU and PEPUKAI MADIMBO and SHEPHARD MUDZONGA and RUTH ZVIMBA and LETWIN DURA and MAILELE CHIGARIRO and WILBERT K. MUROZVI and PATRICK MUTASA and PRECIOUS RUGARA and MOLLINE CHUMA and TECLAR CHIGARA and VIOLAH MAGAUZE and WILSON MUCHADAKUENDA and GILBERT MUROVE and BHIMOS MHURIENGWE and ALICE MAGUTA and CORNSTANCE JAKARASI and CHRISTINA NYAMHARAPARE and OTILLIA CHINZARA and DAVID SHERENI and MEKUSI KENIAS MAPLANKA and EMMA KISS and ELIAS SAMSON and SARUDZAI KARIMAZONDO and CHRISTINA RONDODZAI and JULIET MUKOMBWA and ANNIE CHIWARA and BENHILDA MARISA and TAVAKAYI CHIHEYA and PRINCE NHERERA and FAINES PARIKUSARA and VENDA BUMHIRA and RODGERS MUSEMWA and TRYPHINE SIBANDA and JOHWANIS CHINOMWE and ELIZABETH NYAMUKAPA and MEGGIE PIKI and EDSON MUDZVITI and KUDAKWASHE MUJURU and GLADYS ZARANYIKA and RUDO MUSHAMBI and KETINA MUPARADZI and SIBONIKHULE NDLOVU and EZIUS KUMUTSUNGIRA and FINANCE MUBAIWA and ALBERT MAKONDO and STARNLY CHIGWEREMBA and TABARIRA N. KUFA and JESI MUDZONGA and RHODA KAUNDO and SCOLASTIC MARWI and SAMUEL HONDO and SOPHIA CHIDEMBO and SIMON MUBARIRI and NORMEN MAJEGWA and EVERJOICE PANGANAI HIGH COURT OF ZIMBABWE ZHOU J HARARE, 15 & 16 July 2025 Urgent Chamber application K. Chimiti for the applicants C. Makorokotera for the first respondent No appearance for the 2nd to 77th respondents ZHOU J: This is an urgent chamber application for stay of execution of the order of this court granted in HCH 2637/20. The stay of execution is being sought in the interim pending the return date. On the return date execution is sought to be stayed pending determination of the application for rescission of judgment instituted by the applicant under case number HCH 3256/25. The application is opposed by the first respondent who in addition to contesting the matter on the merits has taken two objections in limine namely: That there are material falsehoods made by the applicants and;that the matter is not urgent. It is convenient to deal with the question of urgency first as it informs whether the court should relate to any other aspect of the application. For the purpose of the determination of the points in limine the following material facts are relevant. The applicants state that they were served with a writ of ejectment issued pursuant to a court order in case number HCH 2637/20. The copy of the writ of ejectment is not attached to the papers filed on behalf of the applicants neither do the applicants state the precise date on which they were served with the writ of ejectment. The applicants further state that they were not cited as respondents in case number HCH 2637/20 hence the application for rescission of judgment on the basis that the order in question affects them. Their contention is that they do not claim occupation of the property described on the papers as Subdivision A of Subdivision A of Nyarangu of Subdivision A Stoneridge, Harare, through the respondents cited in case number HCH2637/20. They have also cited those respondents in the present case as 2nd to 77th respondents. Urgency In objecting to the urgent hearing of this matter, the first respondent states that the need to act arose at the very latest in 2024 when case number HCH 2277/24 was instituted. It is common cause that the first applicant who is also the chairman of the second applicant in casu participated as a member of those that instituted the application in HCH 2277/24. Mr Chimuti for the applicant submitted that the need to act arose when the applicants were served with a writ of ejectment. A matter is urgent if it “cannot wait to be dealt with as an urgent court application”. See Dilwin Investments (Pvt) t/a Formscaff v Jopa Engineering Company (Pvt) Ltd HH 116-98 at p.1; Pickering v Zimbabwe Newspaper (1980) Ltd 1991(1) ZLR 71 (H) at 93E. Authorities show that a party who seeks to be heard on urgent basis is essentially seeking preferential treatment from the court by jumping the queue of other pending matters that were filed before his. Hence, the expectation of the law that the party must have acted expeditiously in instituting the urgent application once the need to act arose. Urgency which stems from deliberate inaction until the arrival of the date of reckoning is not the urgency that is envisaged by the rules of this court. In Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H) at p 193 F – G it was held 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 deadline draws near is not the type of urgency contemplated by the rules.” In this case, quite clearly the need to act did not arise upon the service of the notice or writ of ejectment. Apart from the obvious fact in the applicant’s papers arising from the omission to state when they were served with the writ of ejectment, it is clear from the papers that the applicants were aware of the order in HCH 2637/20 as long ago as 2024. As pointed out earlier on, the first applicant was listed as a member of those who participated in that case. The first applicant is also the chairperson of the second applicant and his awareness of the proceedings in HCH 2277/20 is imputable to the second applicant as well. As for the third and fourth applicants there are no founding affidavits filed on their behalf in this instant application hence, they are not properly before the court as parties to these proceedings. See Prosser & Ors v Zimbabwe Iron & Steel Co Ltd HH 201-93. Therefore, the need to act in this case did not arise upon service of the writ of ejectment but in 2024. For these reasons the matter is not urgent. Ordinarily the appropriate relief where a matter is not urgent is to struck it off the roll of urgent matters in which case it, by operation of law, automatically migrates to the ordinary roll. However, in this case there is a dimension presented by the additional ground upon which the first respondent objected to the hearing of the matter, namely, that there was material non-disclosure. The material non-disclosure in this case relates to a number of issues, firstly the first applicant’s involvement in case number HCH 2277/24 was not disclosed. Secondly the claim made in the papers that the applicants were allocated the land in dispute by the Minister of Local Government is false. The first applicant is aware from his involvement in previous proceedings that the Minister of Local Government denied in an affidavit that he allocated this land to any person. Mr Chimuti for the applicants made a startling submission that the falsehoods or non-disclosure afflict the first applicant only. That submission is mischievous when one considers that the first applicant in casu is also the chairperson of the second applicant and deposed of an affidavit on its behalf. Clearly the second applicant is equally guilty of the material non-disclosure and the presentation of the falsehoods in this case. The position of the third and fourth applicants has already been explained that they are not properly before this court by reason of not deposing to any affidavits. Even if these two “applicants” were not aware of the falsehoods and material non-disclosure which I do not believe to be the position, the application would not be saved from the consequences of the falsehoods and non-disclosure. It has been held that in urgent applications a material non-disclosure of all the facts that might affect the granting of otherwise of the order will justify dismissal of that application. See the Beverly Building Society v Rwafa 2005 (1) ZLR 108 (S) and De Jager v Heilbron 1947 (2) SA 415(W). The court has a discretion as to whether or not to dismiss the application for non-disclosure of material facts in urgent applications. See Venter v Van Graan 1929 TPD 435. That discretion must, of course, be exercised judicially taking into account the circumstances of each case. The court expects the utmost good faith from litigants making urgent applications hence the need for full disclosure of all material facts. In this case, the applicants deliberately withheld material information in order to mislead the court regarding previous involvement in the dispute. For that reason, the material non-disclosure justifies dismissal of the instant application. Having found that the matter is not urgent and also that it is afflicted by material non-disclosure the appropriate order to make in the unique circumstances of this case is the dismissal of this application. A special order of costs has been sought against the applicants. Punitive costs are granted in special cases where there is misconduct on the part of the parties concerned, See Zimbabwe Online Private Limited v Telecontract Private Limited 2012 (1) ZLR at 197. In casu, the conduct of the first applicant reveals dishonesty and a deliberate intent to mislead the court. The special order of costs is therefore warranted. In the result, IT IS ORDERED THAT; The application be and is dismissed.The applicants shall pay costs on the attorney-client scale jointly and severally the one paying the others to be absolved. Zhou J: ………………………………….……………... Machaya and Associates, applicants’ legal practitioners Sinyoro and Partners, first respondent’s legal practitioners 10 HH 430 - 25 HCH 3271/25 10 HH 430 - 25 HCH 3271/25 ZHAKATA TAPFUMANEYI and HARARE SOUTH RESIDENCE ASSOCIATION and HARARE SOUTH CONSTITUENCY DEVELOPMENT and LUSTY MUSAYANEMBEU versus XINFENG LI and JACOB ZVOMUNYA and BERNADINO MUVADI and KUDZAI KARIMAZONDO and RANGARIRAI MUZVANYA and KINGSTON KAHIYA and EDMOND NYAMUKAPA and DORCA ARIFANDIKA and TECLAR CHAGWAMBARE and CHITSANGA DANIEL and CANELS. MAKUREYA and JOSSIPHINE SIBANDA and SHEALAH MUSHANINGA and ANYWILL CHIMUGOTI and KUDZANAI DUVE and WINNET CHIDHONZA and IRINE MABHIZA and NORMAN MANJENGWA and CHRISTINA MUPFATSO and LILIOSAL TSINGARWO and GETRUDE NGANDU and PEPUKAI MADIMBO and SHEPHARD MUDZONGA and RUTH ZVIMBA and LETWIN DURA and MAILELE CHIGARIRO and WILBERT K. MUROZVI and PATRICK MUTASA and PRECIOUS RUGARA and MOLLINE CHUMA and TECLAR CHIGARA and VIOLAH MAGAUZE and WILSON MUCHADAKUENDA and GILBERT MUROVE and BHIMOS MHURIENGWE and ALICE MAGUTA and CORNSTANCE JAKARASI and CHRISTINA NYAMHARAPARE and OTILLIA CHINZARA and DAVID SHERENI and MEKUSI KENIAS MAPLANKA and EMMA KISS and ELIAS SAMSON and SARUDZAI KARIMAZONDO and CHRISTINA RONDODZAI and JULIET MUKOMBWA and ANNIE CHIWARA and BENHILDA MARISA and TAVAKAYI CHIHEYA and PRINCE NHERERA and FAINES PARIKUSARA and VENDA BUMHIRA and RODGERS MUSEMWA and TRYPHINE SIBANDA and JOHWANIS CHINOMWE and ELIZABETH NYAMUKAPA and MEGGIE PIKI and EDSON MUDZVITI and KUDAKWASHE MUJURU and GLADYS ZARANYIKA and RUDO MUSHAMBI and KETINA MUPARADZI and SIBONIKHULE NDLOVU and EZIUS KUMUTSUNGIRA and FINANCE MUBAIWA and ALBERT MAKONDO and STARNLY CHIGWEREMBA and TABARIRA N. KUFA and JESI MUDZONGA and RHODA KAUNDO and SCOLASTIC MARWI and SAMUEL HONDO and SOPHIA CHIDEMBO and SIMON MUBARIRI and NORMEN MAJEGWA and EVERJOICE PANGANAI HIGH COURT OF ZIMBABWE ZHOU J HARARE, 15 & 16 July 2025 Urgent Chamber application K. Chimiti for the applicants C. Makorokotera for the first respondent No appearance for the 2nd to 77th respondents ZHOU J: This is an urgent chamber application for stay of execution of the order of this court granted in HCH 2637/20. The stay of execution is being sought in the interim pending the return date. On the return date execution is sought to be stayed pending determination of the application for rescission of judgment instituted by the applicant under case number HCH 3256/25. The application is opposed by the first respondent who in addition to contesting the matter on the merits has taken two objections in limine namely: That there are material falsehoods made by the applicants and; that the matter is not urgent. It is convenient to deal with the question of urgency first as it informs whether the court should relate to any other aspect of the application. For the purpose of the determination of the points in limine the following material facts are relevant. The applicants state that they were served with a writ of ejectment issued pursuant to a court order in case number HCH 2637/20. The copy of the writ of ejectment is not attached to the papers filed on behalf of the applicants neither do the applicants state the precise date on which they were served with the writ of ejectment. The applicants further state that they were not cited as respondents in case number HCH 2637/20 hence the application for rescission of judgment on the basis that the order in question affects them. Their contention is that they do not claim occupation of the property described on the papers as Subdivision A of Subdivision A of Nyarangu of Subdivision A Stoneridge, Harare, through the respondents cited in case number HCH2637/20. They have also cited those respondents in the present case as 2nd to 77th respondents. Urgency In objecting to the urgent hearing of this matter, the first respondent states that the need to act arose at the very latest in 2024 when case number HCH 2277/24 was instituted. It is common cause that the first applicant who is also the chairman of the second applicant in casu participated as a member of those that instituted the application in HCH 2277/24. Mr Chimuti for the applicant submitted that the need to act arose when the applicants were served with a writ of ejectment. A matter is urgent if it “cannot wait to be dealt with as an urgent court application”. See Dilwin Investments (Pvt) t/a Formscaff v Jopa Engineering Company (Pvt) Ltd HH 116-98 at p.1; Pickering v Zimbabwe Newspaper (1980) Ltd 1991(1) ZLR 71 (H) at 93E. Authorities show that a party who seeks to be heard on urgent basis is essentially seeking preferential treatment from the court by jumping the queue of other pending matters that were filed before his. Hence, the expectation of the law that the party must have acted expeditiously in instituting the urgent application once the need to act arose. Urgency which stems from deliberate inaction until the arrival of the date of reckoning is not the urgency that is envisaged by the rules of this court. In Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H) at p 193 F – G it was held 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 deadline draws near is not the type of urgency contemplated by the rules.” In this case, quite clearly the need to act did not arise upon the service of the notice or writ of ejectment. Apart from the obvious fact in the applicant’s papers arising from the omission to state when they were served with the writ of ejectment, it is clear from the papers that the applicants were aware of the order in HCH 2637/20 as long ago as 2024. As pointed out earlier on, the first applicant was listed as a member of those who participated in that case. The first applicant is also the chairperson of the second applicant and his awareness of the proceedings in HCH 2277/20 is imputable to the second applicant as well. As for the third and fourth applicants there are no founding affidavits filed on their behalf in this instant application hence, they are not properly before the court as parties to these proceedings. See Prosser & Ors v Zimbabwe Iron & Steel Co Ltd HH 201-93. Therefore, the need to act in this case did not arise upon service of the writ of ejectment but in 2024. For these reasons the matter is not urgent. Ordinarily the appropriate relief where a matter is not urgent is to struck it off the roll of urgent matters in which case it, by operation of law, automatically migrates to the ordinary roll. However, in this case there is a dimension presented by the additional ground upon which the first respondent objected to the hearing of the matter, namely, that there was material non-disclosure. The material non-disclosure in this case relates to a number of issues, firstly the first applicant’s involvement in case number HCH 2277/24 was not disclosed. Secondly the claim made in the papers that the applicants were allocated the land in dispute by the Minister of Local Government is false. The first applicant is aware from his involvement in previous proceedings that the Minister of Local Government denied in an affidavit that he allocated this land to any person. Mr Chimuti for the applicants made a startling submission that the falsehoods or non-disclosure afflict the first applicant only. That submission is mischievous when one considers that the first applicant in casu is also the chairperson of the second applicant and deposed of an affidavit on its behalf. Clearly the second applicant is equally guilty of the material non-disclosure and the presentation of the falsehoods in this case. The position of the third and fourth applicants has already been explained that they are not properly before this court by reason of not deposing to any affidavits. Even if these two “applicants” were not aware of the falsehoods and material non-disclosure which I do not believe to be the position, the application would not be saved from the consequences of the falsehoods and non-disclosure. It has been held that in urgent applications a material non-disclosure of all the facts that might affect the granting of otherwise of the order will justify dismissal of that application. See the Beverly Building Society v Rwafa 2005 (1) ZLR 108 (S) and De Jager v Heilbron 1947 (2) SA 415(W). The court has a discretion as to whether or not to dismiss the application for non-disclosure of material facts in urgent applications. See Venter v Van Graan 1929 TPD 435. That discretion must, of course, be exercised judicially taking into account the circumstances of each case. The court expects the utmost good faith from litigants making urgent applications hence the need for full disclosure of all material facts. In this case, the applicants deliberately withheld material information in order to mislead the court regarding previous involvement in the dispute. For that reason, the material non-disclosure justifies dismissal of the instant application. Having found that the matter is not urgent and also that it is afflicted by material non-disclosure the appropriate order to make in the unique circumstances of this case is the dismissal of this application. A special order of costs has been sought against the applicants. Punitive costs are granted in special cases where there is misconduct on the part of the parties concerned, See Zimbabwe Online Private Limited v Telecontract Private Limited 2012 (1) ZLR at 197. In casu, the conduct of the first applicant reveals dishonesty and a deliberate intent to mislead the court. The special order of costs is therefore warranted. In the result, IT IS ORDERED THAT; The application be and is dismissed. The applicants shall pay costs on the attorney-client scale jointly and severally the one paying the others to be absolved. Zhou J: ………………………………….……………... Machaya and Associates, applicants’ legal practitioners Sinyoro and Partners, first respondent’s legal practitioners