KAMBARAMI v KAMBARAMI & ANOR 2015 (1) ZLR 621 (H)

Flynote

Practice and procedure — application — urgent — certificate of urgency — contents — close similarity to wording of founding affidavit — not in itself an indication of failure by legal practitioner to apply his mind properly to issue of urgency — test is whether facts justify hearing case D as a matter of urgency

Words and phrases — immediately — usual meaning of "within a reasonable time" — need for prompt action, with delay, but not requiring the impossible

Headnote

The parties were granted a divorce order by consent. There were three options E in the consent paper regarding the house: (1) that it be sold "immediately" for a minimum agreed price and the proceeds shared equally; (2) that if a buyer could not be found "immediately", either party could buy the other out at the same minimum agreed price within a year; and (3) that if neither bought out the other in that time, the house would be sold by auction. About five months after the divorce, a buyer was found who was F willing to pay more than the agreed minimum. On being told that a buyer had been found, the first respondent (the husband) wrote to the agent, stating that the property was no longer for sale as he wished to exercise his option to buy his wife out. He took the line that a sale not having taken place "immediately", he wanted to exercise the second option. The G wife brought an urgent application to require the husband to withdraw his notification and to ratify the proposed sale. The husband took the point in limine that the matter was not urgent, and that the certificate of urgency by the legal practitioner was not valid. The objection to the certificate was that the legal practitioner appears to have merely copied and pasted information that was in the founding affidavit. This was said H be indicative of failure to apply his mind to the nature of the application before him. The husband's other argument was that the buyer had not A been found "immediately". There had been buyers "in the wings" at the time the divorce was granted.

Held, that the legal practitioner's certificate must contain the reasons for the urgency to justify the Registrar placing the matter before the judge in the initial instance. The judge may then call upon the other party to make representations on urgency before making any decision. Central to the B assessment of urgency is that a matter is urgent, if at the time the need arises, the matter cannot wait. That is the crucial test; it is a fact-based assessment. Inevitably there will be some fundamental factual overlap between what is stated in the legal practitioner's certificate of urgency and what is averred in the applicant's founding affidavit. After all, they C are drinking from the same fountain. That, however, does not mean that a practitioner is there to merely repeat what has been said. Indeed, his role is to apply his analytical skills to those facts, with the primary aim of distilling the urgency and the core message that needs to be communicated to the court as the receiver of the nature of that urgency. In other words, he distils the factual within the context of the legal, to D communicate the exigencies of urgency. A matter cannot be dismissed simply because there are close similarities in the wording between what has been captured as the core of the urgency by the practitioner and what the applicant has said. Ultimately, the true test is whether the facts, as stated, make out a case of urgency that justifies hearing the matter on that basis. Here, a case for dealing with the matter as urgent E had been made out.

Held, further, that the meaning to be attributed to "immediately" depends on the circumstances, and the word usually has been held to mean "within a reasonable time". The word cannot be construed as requiring the impossible, but usually implies prompt, vigorous action without delay. F Although there may have been buyers "in the wings", the reality was that the court was confined to interpreting the word as embodied in the document in light of the circumstances that have developed since its signing. The facts of this matter were a salutary reminder to practitioners to avoid vagueness in the drafting of consent papers. G

Held, further, that the property was being sold within a specific economic environment, which was largely stagnant in nature. Quick sales were certainly not the order of the day. Few people were currently able to come up front with the considerably high deposit that is required even if they get a loan. A five month period in the current circumstances could not, given the sluggish reality of house sales, be said to be indicative of failure to effect a sale "immediately". The husband claimed that he had applied for a mortgage bond, but it took him some time, and the prompting of the court, to produce a document to show that he had applied for a mortgage and that his application was under consideration by the building society. Only when the mortgage had been approved could it be said that the house was no longer for sale. Accordingly, the letter to the estate agent should be withdrawn.