Combined Harare Residents Association v City of Harare & Anor (HC 2899 of 2004) [2004] ZWHHC 73 (23 March 2004)

HH-73-2004 HC 2899/04 COMBINED HARARE RESIDENTS ASSOCIATION Represented Michael Davies versus CITY OF HARARE and SEKAI MAKWAVARARA N. O. HIGH COURT OF ZIMBABWE KAMOCHA, J HARARE 18 and 24 March 2004 Urgent Chamber application Mrs Zindi, for the applicant Mr D. Kanokanga, for the plaintiff KAMOCHA J: On 11 March 2004 the applicant filed this application, on a certificate of urgency, seeking an interdict restraining the City of Harare and its Acting Mayor from implementing the 2004 tariffs. The applicant also sought to have the respondents directed to renew applicant's members licences and also to accept rates and levies at year 2003 levels and not to interfere in any way with the operations of applicant's members' businesses. On receipt of the application I directed that the parties do appear in my chambers to address me on whether or not the matter deserved to jump the queue and be dealt with urgently. The applicant submitted that although the owners rates, levies and charges came into effect on 1 January 2004 that did not mean that the matter was not urgent. Applicant submitted that it had to first reach consensus before approaching the court. It was argued that applicant's members would be put to unnecessary expenses if the matter was not dealt with urgently. Moreover, so the argument went, there was no other remedy available to the applicant's members. Consequently they would suffer irreparable damage if the matter was not treated urgently. The respondent on the other hand submitted that there was no explanation proffered why it took the applicant more than two months to lodge this HH-73-2004 HC 2899/04 application. The applicant did not explain in its founding affidavit why it did not bring this application earlier. Similary the legal practitioner who certified the matter did not give any explanation why it took the applicant ten weeks to file this application. In cases where a matter which the party believes to be urgent has not been timeously brought to court it is imperative that an acceptable explanation be given by such applicant in his founding affidavit or by the legal practitioner in his certificate of urgency. This court has on a number of times reminded legal practitioners to give acceptable explanations why no action is taken timeously,. One such case in which a reminder was again given was that of Marjories Zenda Kuvarega vs The Registrar-General and Wurayayi Nyaruwata HH -48-98 CHATIKOBO J had this to say at page 9 of the cyclostyled judgement: "It was not until 20 February, 1998 that this application was launched. The certificate of urgency does not explain why no action was taken until the very last working day before the election began. 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 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 any delay…." In the above case there was a delay of one week while in casu it is 10 weeks. As has already been indicated supra no explanation was made by either the applicant or the legal practitioner in his certificate of urgency. Mrs Zindi conceded that there was no explanation for the delay to act timeously. It is therefore common cause that no explanation whatsoever was proffered for failing to act timeously. Similary, it is common cause that although applicant seeks a provisional order pending an application for review such application is yet to be filed. On the issue of irreparable harm and lack of alternative remedy the respondents submitted that in the event that applicant succeed in its application for review its members can either sue Council for unjust enrichment or alternatively have whatever amounts they paid unlawfully HH-73-2004 HC 2899/04 credited to their rates accounts. It was further submitted that applicant's members can refuse to pay new charges on the basis that such should be set off from the unlawful payments. I am persuaded by the above submission and accordingly find that the applicant has an alternative remedy. Having made specific findings that there was no explanation why the applicant only launched this application after ten weeks and that the applicant has an alternative remedy I, therefore, decline to treat this matter as urgent. The applicant is at liberty to proceed by way of ordinary court application if so advised. Kantor & Immerman, applicant's legal practitioners. Kanokanga & partners, respondents' legal practitioners