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Chad Cecil Mupandanyama and Swifteagle Investments Business Consultancy (Pvt) Ltd v Ruan Meats Enterprises (Pvt) Ltd and Tarirai David Munangagwa and Wozheri Stone Crushers (Pvt) Ltd
HH 40-21HH 40-212021
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1
HH 40-21
HC 27/21
REF CASE HC 7529/20
CHAD CECIL MUPANDANYAMA
and
SWIFTEAGLE INVESTMENTS BUSINESS CONSULTANCY (PVT) LTD
versus
RUAN MEATS ENTERPRISES (PVT) LTD
and
TARIRAI DAVID MUNANGAGWA
and
WOZHERI STONE CRUSHERS (PVT) LTD
HIGH COURT OF ZIMBABWE
CHITAPI J
HARARE, 13 January 2020 & 2 February 2020
Urgent Chamber Application: Execution pending appeal
R. Mabwe, for the applicants
M Chipetiwa, for the respondents
CHITAPI J: The parties appeared before ZHOU J in case no. HC 7529/21 which was
an urgent application brought by the applicants against the same respondents herein and other
respondents who are not parties herein. ZHOU J granted a provisional order in favour of the
applicants on 28 December, 2020. The terms of the provisional order are set out in the order
granted as follows:
“TERMS OF FINAL ORDER MADE
That you show cause to this Honourable Court why a final order should not be made in the
following terms:
1. The 1st respondent be and is hereby barred from carrying out any mining activities
and ferrying quarry stones from Jilikin 25 Mine held under Certififcate Number
12641BM until Case No. HC 6457/20 is finalised.
2. 1st, 3rsd and 4th respondents shall pay costs of this suit on a legal practitioner client
scale.
IT IS HEREBY ORDERED THAT
TERMS OF INTERIM RELIEF GRANTED
That pending the determination of this matter on the return date, the applicants are
granted the following relief:
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HC 27/21
REF CASE HC 7529/20
i) All forms of mining activities by the 1 st respondent and anyone acting through them on
disputed mine known as Jilikin Mine Registration Number 12661BM be and is hereby
ii) The respondents are interdicted from removing any stones mined from Jilikin
Mine
SERVICE OF PROVISIONAL ORDER
That the applicant/applicant’s legal practitioner and/or employees be and are hereby
permitted to serve copies of this provisional order on the respondents or their legal
practitioners/employees.
Following on the grant of the provisional order, the applicants enlisted the services of
the Sheriff to serve the order. The respondents admitted the first applicant’s averment that on
attempting to serve the provisional order on the first respondent on 30 Decmber 2020, the
deputy sheriff was advised by or on behalf of the first respondent that the first respondent had
noted an appeal against the provisional order. The first applicant contacted his legal
practitioners to ascertain the position with regards the alleged appeal because the Deputy
Sheriff was not furnished with a copy. The applicant averred in para 3 of the founding
affidavit as follows:
“3. I was not served with the Notice of Appeal. On 31 st of December, 2020, I
enquired from my legal practitioners of record whether they were served with any
appeal. They professed ignorance of the appeal since it was during the festive holiday
and their offices were closed. Efforts to obtain the Notice of Appeal before 1 January
this year were fruitless. I only managed to get a copy photo copied for me in the
Supreme Court Registry on the 5 th January, 2021. I refer to “Annexure B” which
shows that the appeal was noted on 29 December, 2020 which date was the next day
following the granting of the order which was issued on the same day that the appeal
was noted”
The respondents responded to the above as follows in paragraph 18 of the opposing
affidavit.
“Ad para 7.3
18. the applicants’ legal practitioners’ offices were closed on the 29 th December, 2020. Thus
service was done through filing (sic) the Notice of Appeal in the pigeon hole for the legal
practitioners at the High Court.”
The applicants in consequence of obtaining the copy of the notice of appeal from the
Supreme Court Registry then filed this application on 8 January, 2021. This application is for
leave to execute the provisional order in Case No. HC 7529/20 pending the appeal No. SC
584/20 noted by the respondents to the Supreme Court. The respondents vehemently opposed
the application. In their opposition the respondents raised a preliminary objection to the effect
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HC 27/21
REF CASE HC 7529/20
that the application is not urgent and should not be heard or determined on the urgent roll or
basis.
The decision to hear a matter on the urgent basis is informed by the circumstances of
each case. It is in the discretion of the Judge to hear the matter on the urgent basis if he or she
considers that the matter merits an urgent hearing or to refuse to hear the matter on the urgent
basis and strike it off the roll of urgent matters if the Judge considers that the matter is not
urgent. See Econet Wireless Ltd v Trustco Motsele Ltd SC 41/13. This discretion is to be
exercised judiciously and as with the exercise of every other judicial discretion, it will be
informed by the facts and circumstances of each case.
The subject of whether or not a matter is urgent is many times raised by legal
practitioners for the respondents as a matter of fashion. In the case of Telecel Zimbabwe (Pvt)
Ltd v Portaz HH 446/15 MATHONSI J (as he then was) noted that the raising of the point in
limine on urgency had become routine on the part of legal practitioners as it was in most
cases raised where there was not the remotest chance that the objection would succeed. A
point in limine objecting to the urgency of the matter should not therefore be taken as a
matter of unwritten procedure or sequence of opposing urgent applications. It must be taken
where merited. Tthe taking of the point in limine must be bona fide. Time may have come to
seriously consider carrying out the threat made by MATHONSI J in the case aforesaid that it
may be necessary to reign in errant legal practitioners who raise totally unmerited points of
law and procedure which are nothing but a show of the legal practitioners’ fertile imagination
and ingenuity, by ordering the legal practitioner concerned to pay costs debonis propris. It
may be well to order the errant legal practitioner not to charge his or her client in regard to
the matter or to refund the client where such payment has been made. Legal practitioners as
officers of the court are expected to advance the delivery of justice between the warring
parties whom they are called upon to represent and not to be complicit in avoiding justice
dispensation while lining up their pockets in fees charged for raising points in limine which
predictably get dismissed. Therefore, a point in limine such as challenging urgency should be
genuinely raised and the facts of the case should support the challenge.
The respondents’ challenge that this matter was not urgent was in my view raised as a
matter of routine. The respondents submitted in para 8 of the opposing affidavit that the need
to act arose on 30 December, 2020 when the first applicant was advised by the Deputy
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HC 27/21
REF CASE HC 7529/20
Sheriff that the first respondent had intimated that the provisional order had been appealed
against. The first applicant was not shown the notice of appeal and this prompted him to
contact his legal practitioners who equally had not been served with the notice of appeal at
their offices. The applicants were to later obtain the copy of the notice of appeal on 5
January, 2021 from the registry of the Supreme Court before filing this application on 8
January, 2021. The respondents did not deny the applicants trail of events. They instead
alleged that the applicant ought to have acted on 30 December, 2020 when the Deputy Sheriff
advised of the appeal. The respondents averred that the need to act arose on 30 December,
2020 which is true. They then averred in the same breath that the applicants only lately acted
on 8 January, 2021. They averred that the need to act and the action taken should be
“contemporaneous.” Respondents further averred that the applicants did not explain the delay
between 30 December, 2020 and 8 January, 2021 either in the founding affidavit nor in the
certificate of urgency.
The respondents of course are being dishonest or deliberately seeking to mislead the
Judge by misstating facts. It is not true that the applicants did not explain the delay between
30 December, 2020 and 8 January, 2021. Para 3 of the founding affidavit explained what the
first respondent did to follow up on and assert the applicants’ interests. The respondents did
not deny this trail of events in para 18 of the opposing affidavit. The respondents in the
process therefore seek to approbate and reprobate at the same time. Such manner of pleading
is not allowed see Wangayi v Mudukuti HCB 155/17. The maxim quod approbe non reprobo
connotes that the respondents cannot on one hand plead no issue with the applicants’
explanation for the delay and on the other hand make issue out of the non-issue. Such
conduct by the respondents showed no genuine resolve to challenge the issue of whether the
applicants acted with urgency or not. The objection to urgency therefore was routinely raise.
To compound matters, the respondents did not properly serve the notice of appeal as they
served it by “filing” it in the pigeon hole allocated to the respondents’ legal firm at the High
Court. Such manner of service is not provided for in the rules of court. The respondents
counsel submitted that their own offices closed on 29 December, 2020 for the Christmas and
New Year break.
The respondents did not deny that the applicants’ legal practitioners offices were
equally closed for the Christmas and New Year festive period. In such circumstances whilst
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HC 27/21
REF CASE HC 7529/20
the legal practitioners were enjoying their break, the applicant was busy pursuing his rights.
He ended up obtaining a copy of the notice appeal from the Supreme Court. The obtaining of
the notice of appeal was the condicio sine qua non for the applicants to decide what action to
take to protect their rights. The mere mention by the Deputy Sheriff that the first respondent
had made indication that an appeal had been filed would not have informed the applicants on
the nature of the appeal nor its genuineness and prospects of success. A perusal of the notice
and grounds of appeal as submitted by the applicant’s counsel was necessary. Under the
circumstances, I find that whilst the need to act arose on 30 December, 2021 when the
Deputy Sheriff communicated with the first applicant, the latter immediately acted by taking
steps to confirm the existence or otherwise of the notice of appeal. The first applicant then
acted without undue delay to file this application on 8 January, 2021 after obtaining a copy of
the notice of appeal from the Supreme Court on 5 January, 2021.
In regard to whether the matter is urgent or not on its facts, it is an accepted principle
that a matter is urgent if, were the court not to deal with it then and wait for the matter to go
through the slow court processes of bringing it to a hearing, the applicant would suffer
irreversible harm. See Documents Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 240
(H); Kuvarega v Registrar General 1998 (1) ZLR 188 (H). The starting point is to note that
ZHOU J, determined that the dispute between the parties was urgent, determined the matter on
the urgent basis and granted the provisional order. The respondents first ground of appeal is
couched as follows-
“1. The court a quo erred and misdirected itself by holding that the matter was urgent”
The ground of appeal is so generalized as to be meaningless. One cannot make sense
of the alleged erring or misdirection by the learned judge. The way the ground is couched is
like saying “Judge you made an error to say the matter is urgent” and one ends there. How
does the Judge respond other than to ask, “in what way did I err/or misdirect myself?” Where
a ground of appeal begs such a question, then the appellant would have failed to elaborate the
detail of the error or misdirection alleged. Such ground of appeal is considered as not being
clear and concise. I am therefore unable to appreciate the ground of appeal in this regard.
Whilst it is not within my power to pronounce on the nullity of this ground of appeal as it is
the prerogative of the Supreme Court, I have no hesitation to pronounce that there are no
prospects of success of the appeal on the said ground of appeal.
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HC 27/21
REF CASE HC 7529/20
The respondents submitted that the applicants did not establish the harm which they
would suffer such as justified seeking urgent relief. They averred that the first respondent had
been at the mining site since March, 2020 before it started mining in September, 2020. The
respondent averred that the first applicant would not suffer harm as he was a shareholder in
the third respondent which was in turn also a joint venture partner with the first respondent in
exploiting the mine. The respondents averred that the second applicant had no rights in the
mine and therefore did not stand to suffer any prejudice. The rights of the parties to the mine
is the issue to be determined in the main matter. ZHOU J clearly outlined the facts giving rise
to the dispute in his judgment in case no. HC 7529/20. It is not necessary to repeat them in
detail. The background aforesaid was simply that the first applicant therein as he still is
herein produced a certificate of Registration no. 1264 BM showing that he is the registered
owner of the mining claim in dispute, namely, Jilikin 25. The respondents for their part in
disputing the first applicants’ claim produced a “certificate of registration after transfer”
number 23368 in the name of the third respondent herein. A tribute agreement was executed
between the first applicant and Eliazel Mushiringi who was the first respondent in the
application before ZHOU J. The first respondent has not appealed against Zhou J’s order. In
terms of the tribute agreement, the first respondent in case no. HC 7529/20 would work the
mine, develop it and treat ore produced for a consideration of five per centum of the gross
proceeds realized by the first respondent.
As summarized by ZHOU J, the first applicant averred that on 27 November, 2017 he
agreed with the Eliazel Mushiringi and second respondent herein to transfer the mining claim
held by the applicants to the third respondent herein. The third respondent would be the
vehicle to be used in quoting investors to exploit the mining claim. The second respondent
was brought into the arrangement as an investment consultant who would look for investors
to invest in the mining project. A dispute arose between the parties in regard to the
shareholding of the parties in the third respondent and how its registration had been procured
by the second respondent. The applicants alleged that there had been a fraudulent allocation
of shares in the third respondent and that there was committed a fraud in how the first
respondent came to be involved in the mining enterprise. The applicants on 5 November,
2020 then instituted an action under case no. HC 6457/20 wherein the registration of the third
respondent is challenged as having been fraudulently procured by Eliazel Mushiringi. They
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HC 27/21
REF CASE HC 7529/20
seek a declaratur of nullity of such registration and consequential relief. Following on the
filing of case no. HC 6457/20 as aforesaid, first applicant averred that he got wind on 10
December, that there was active mining of ore going on at the mining site in dispute. The first
applicant visited the mining site on 11 December, 2020 and witnessed for himself active
mining of ore and crushed stone being loaded with the stones destined for delivery to a
company called Exodus Mining. This is what prompted the applicants to file the urgent
application HC 7529/20 wherein ZHOU J granted the provisional order.
Despite the respondents’ protestations on the urgency of the application, case no. HC
7529/20, ZHOU J determined that the applicants had acted expeditiously under the given
circumstances by filing the urgent application on 16 December for an interdict to hold over
further exploitation of the mine and ore removal. The learned Judge made reference to a letter
dated 16 October, 2020 addressed to the first respondent wherein the unauthorized setting up
of mining equipment was brought to first respondents’ attention. The letter was written by
one Alecs Mawere who wrote the letter on behalf of the third respondent after he noted the
unauthorized mining as deposed to in his affidavit which was filed and considered by ZHOU J.
The learned Judge found on this account that the knowledge of what was taking place at the
mining site could not be attributed to the applicants before him. Further the learned Judge
noted that the nature of the interdict sought before him being one to stop ongoing mining
activity and removal of crushed stone from the mining site could not have been prayed for in
October because what Alecs Mawere witnessed was not the active mining and ore removal
but the setting up of mining equipment.
The learned Judge noted that there were many players involved in the dispute whose
interests were polarized and that it was not possible to determine with certainly what precise
interest was being pursued by each party. It was also noted that Eliazel Mushiringi who had
brought the second respondent herein into the mining arrangement now in dispute had taken
sides with the applicant. Effectively what this meant was that the person upon whom the
second respondent herein relied upon as having brought him into the picture in effect did not
oppose this urgent application and would likely not oppose the relief sought in case no. HC
6457/20.
The learned judge was persuaded to and accepted that the quarry being mined could
be exhausted before the determination of case no. HC 6457/20 such that the litigation thereof
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REF CASE HC 7529/20
would then be rendered academic if the applicants succeeded in the main case HC 6457/20.
The learned judge exercised his discretion to dismiss the challenge on urgency. I have
commented on the unmeritorious and generalized ground of appeal attacking the learned
judge’s findings that the matter was urgent. The respondents averred that the learned judge
reached a conclusion that the mine resources would deplete and be exhausted without
evidence. In fact, the respondent’s position was expressed in para 13 of the opposing affidavit
as follows:
“18 ...the 1st applicant is a shareholder for the 3 rd respondent. he will not suffer any harm as he
is entitled to his dividend. The 2nd applicant does not have any rights and as such will not
suffer any harm if the mining activities continue. the granite in question is indeed a finite
resource but claims that it will be exhausted by the first respondent in the here and now is
preposterous and misleading. the granite deposits are vast with prospects of both surface
mining and open cast mining...”
It was submitted that the resource would not have been exhausted by the time that the
cases between the parties are finalised. This submission as conceded by the respondents’
counsel in argument before me was not well founded for the reason that it is a given that any
forms of mining depletes the resource mined without regenerating it. It is difficult to conceive
where the learned Judge was misdirected as alleged. It follows that the continued exploitation
of the mine and the applicant’s losses make the current application equally urgent. In other
words, the matter remains urgent today as it was on the findings of ZHOU J. The challenge to
urgency as already observed was made for the sake of it and was without merit.
Reverting to other grounds of appeal being grounds 2, 3 and 4, they are couched as
follows-
“2. The court a quo erred and misdirected itself by holding that the 1 st respondent
had rights in respect of 25 Jilikin Mine.
1. The court a quo erred and misdirected itself by holding that the second respondent had a
right in respect of 25 Jilikin Mine
2. The court a quo erred and misdirected itself by granting an order which is final in nature
when interim relief had been sought
3. The court a quo erred and misdirected itself at law by holding that the second
respondent had a valid tribute agreement.
4. The court a quo erred and misdirected itself by holding that the first respondent had no
rights to be on 25 Jilikin Mine.”
At the initial hearing of the application, it was noted that the judgment by Zhou J had
been read out by the learned Judge to the parties. The same was however not typed out. The
respondents apparently noted the appeal before they had obtained copy of the typed
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REF CASE HC 7529/20
judgment. They had not even requested for such typed copy to be prepared. In the notice of
appeal, the respondents indicated inter alia as follows-
“TAKE NOTICE THAT the appellants will reserve the right to amend their grounds of
appeal upon delivery of the written judgment”.
By the above statement, the respondents admit implicitly that they just noted the
appeal to avoid complying with the provisional order. I say so because they sought to reserve
a right to revisit the grounds of appeal. Whilst I cannot usurp the functions of the Supreme
Court in determining the validity of the notice of appeal, I can take note of relevant general
pronouncements of the Supreme Court in relation to notices of appeal and express an opinion
on whether the respondents enjoy prospects of success on appeal.
I expressed my observation that the grounds of appeal are too generalized. They
simply allege that the court a quo erred in making certain findings. They do not indicate why
the appellant avers that the learned judge erred or was misdirected. It is not clear nor is it
stated whether the learned judge erred in fact or law or both and the grounds for so averring.
In other words, what did the learned judge do or not do or take into account or not take into
account which amounts to an error or misdirection and the nature of the misdirection or
error? These are the details which the grounds of appeal should include so that there is no
generalization. To the extent that the respondents notice of appeal fails to do so, I consider
that the respondents have no prospects of success on appeal. See the judgment in Ncube v S
1990 (2) ZLR 303 (S) and Jack v S 1990 (2) ZLR 166 (S) where the principle is pronounced
that a vague and generalized notice of appeal is a nullity which cannot be amended by putting
in a more detailed or amended appeal later because such vague and generalized notice being a
nullity, it is as if it is non-existent and one cannot revisit or correct something that is non-
existent. This principle cuts across all nature of appeals be they civil or criminal appeals. In
the case of Yumus Ahmed v Decking Station Safaris (Pvt) Ltd t/a CC Sales SC 70/18; BHUNU
JA reiterated the dicta by GARWE JA in Econet Wireless (Pvt) Ltd v Trustco Mobile
(Proprietory Ltd & Anor SC 43/13 that a notice of appeal which does not comply with
mandatory provisions of the rules is a nullity which cannot be amended or condoned. In casu
having expressed the view that the grounds of appeal are too generalised to constitute any
meaningful attack on ZHOU J’s judgment, there appears to be no prospects of the Supreme
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REF CASE HC 7529/20
Court finding the grounds to be clear and concise as required under r 44 (1) of the Supreme
Court Rules, 2018.
In regard to the alleged misidrection in the second and third grounds of appeal that the
learned judge wrongly found that the first and second respondent in that application had
rights to 25 Jelikin Mine, I have considered the reasons for judgment by ZHOU J. The learned
judge properly found that there were many players in the dispute which made the
ascertainment of the precise interest being pursued by each party difficult to appreciate. The
learned judge only had to consider whether the applicants had established a prima facie right
on their papers. The learned judge was presented with documents of ownership of the mining
claim which connected the applicants to the ownership of the mining claim. The second
respondent therein took sides with the applicants as observed by the learned judge. Any rights
which the learned judge may have attributed to the applicants were prima facie established on
the documents and affidavits of the applicants.
In the fourth ground of appeal, the respondents averred that the learned judge
misdirected himself by granting an interim interdict which is final in nature. The applicants
applied for an interim interdict wherein there would be a temporary moratorium on the
mining of the disputed claim and removal of mined stones. It is not incompetent for a court to
grant a provisional order whose effects are final in nature. Indeed, where a temporary relief
granted causes undue hardship or prejudice on the respondent, the provisional order as clearly
appears upon perusal of Form 29, provides as follows:
“…If you wish to have the provisional order changed or set aside sooner that the rules of
Court normally allow and can show good cause for this, you should approach the
applicant/applicants’ legal practitioners to agree in consultation with the Registrar, on a
suitable hearing date. If this cannot be agreed or there is great urgency, you make a chamber
application on notice to the applicant, for directions from a judge as to when the matter can be
heard.”
The option above was not exercised by the respondents. Their election not to do so is
not a ground to draw adverse inferences against them because the appeal route is also
competent to pursue. Anticipation of the return date may well have been a quicker option to
consider adopting as it would expedite the final determination of the matter and/or variations
being considered where the respondents are adversely affected by the order. The rule maker
in providing for the anticipation of the normal time rules of court by the respondent realized
that provisional orders may have prejudicial effects upon the respondents and thus provided
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respondents with a window to petition the court to reconsider its order and to vary it as the
interests of justice may dictate or for the court to give directions on a set down and hearing of
the application to finality by inter alia directing for an anticipated return date.
As I have intimidated, the other option is the noting of an appeal where the
provisional order is in the form of an interdict. Section 43 (2) (d) (ii) of the High Court Act,
[Chapter 7:06] provides that leave to appeal is not required where the interim order appealed
against is the refusal or grant of an interdict. The aforesaid section by implication recognizes
that an interdict invariably has the effect of a final order in that it prohibits or orders the doing
of something. The court can make such an order as was done in this case. The interdict
though final in its effects would be temporary because it temporarily governs the relationship
of the parties involved pending the happening of another event. In casu the interdict was to
protect the disputed mine claim from further exploitation by the respondent until the
determination of case No. HC 6457/20. The order is not final. Its effects are however final.
The ground of appeal therefore is in my view bad in law and again unlikely to hold as a valid
ground of appeal before the Supreme Court. For the avoidance of doubt, even if I am wrong
to have commented on the invalidity of the ground of appeal, I determine that on the facts of
this case, the ground of appeal does not enjoy any prospects of success.
In regard to grounds 5 and 6, apart from their generalized character as already noted
the grounds of appeal do not properly capture what the learned judge determined. The learned
judge did not make a final and definitive finding on the rights of the first and second
respondents to the mine. From the judgment, the learned judge did not anywhere in the
judgment hold or state that the first respondent had no interest in 25 Jilikin Mine. What the
learned judge stated was that the original certificate of registration was in the name of the
applicant. Consequent on that finding, the learned judge then held that the certificate was
prima facie proof of the first applicant’s ownership of the disputed mining claim The parties’
definitive rights would be determined in case No. HC 6457/20.
As regards ground number 5 which alleges that the learned judge erred at law to hold
that the second applicant had a tribute valid agreement, one must just trash the purported
ground as it must even embarrass the respondents. Surely, a finding that there is a tribute
agreement is a factual finding based on documentary evidence of the agreement which was
produced by the applicants. In any event if the respondents’ position was that the conclusion
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was based upon a wrong application of the law to the facts, details of the law on which the
learned judge was allegedly misdirected are not been stated in the ground of appeal. Having
carefully gone through the judgment, the learned judge did not make any finding nor hold
that the second respondent had a valid tribute agreement. The learned judge did not make a
decision on the validity of the tribute agreement. The validity or invalidity of that agreement
did not arise in the papers as an issue let alone one for determination by the learned judge. All
that the learned judge did was to observe when summarizing a rundown of the applicant’s
case that the respondents were challenging the ownership of the mining claim by the
applicants and had in that regard produced another certificate of registration which bears a
later date to that produced by the applicants. The learned judge then stated:
“...A written tribute agreement entered into between the first applicant and the second
respondent is attached to the applicant’s papers…”
Nothing more was said by the learned judge. The criticism that the learned judge
determined the validity of the tribute agreement amounts to a misstatement or
misrepresentation of facts. That being the case, I can safely state that there are virtually no
prospects of success on appeal of this ground of appeal.
The grounds of appeal do not take issue with the learned judge’s appreciation of the
legal principles which are considered when deciding an application for an interdict. The
learned judge was properly directed and relied on the case of Setlegelo v Setlegelo 1914 AD
221 at 227 for guidance and set out principles that guide the court. The crux of the matter was
that it was common cause that there is an ownership wrangle over mining claim 25 Jilikin
involving the applicants and the respondents. The learned judge determined on the papers that
the application was urgent and further that the applicants had established a prima facie case
on their papers. In terms of r 246 (2) of the High Court Rules, 1971, the judge is obligated to
grant the provisional sought by the applicant or as varied upon a finding that the applicants’
papers established a prima facie case. This is what the learned judge did.
I have also taken note that the respondents did not appeal against the learned judge’s
findings that if the interim relief was not granted to interdict mining and removal of ore. “the
quarry being mined could be easily exhausted before the final determination of case No. HC 6457/20,
thereby causing irreparable prejudice if the matter is not dealt with urgently and the applicants
ultimately succeed.” The respondents counsel when making his submissions before me
attempted to take issue with the learned judge’s findings as quoted. Such attempt was futile in
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that the learned judge’s findings were not subject of the pending appeal. Until the findings are
appealed against, they stand.
The failure to appeal against the leaned judge’s finding has a bearing on the present
application in that it determines the issue of the balance of equities or convenience which
must be held to be in favour of the applicants. The learned judge in granting the temporary
interdict determined that there was no other alternative remedy that would give protection to
the applicants to avoid causing them irreparable or irreversible prejudice. The learned judge
determined that an audit of the books of the first and/or fourth respondent as suggested by
them would not offer similar protection as sought by the applicants. Again these findings
were not appealed against and therefore stand. They have a bearing on the determination of
the balance of convenience in this application.
In determining an application for leave to execute pending appeal the starting point is
to be mindful of the common law rule of practice that generally speaking, the noting of an
appeal against a judgment of the court arrests execution on that judgment pending appeal.
The rational of the rule of practice is to safeguard the appellant from suffering irreparable
damage were the appellant to succeed on appeal. The court whose judgement has been
appealed against however has a discretion upon an application for leave to execute pending
appeal being made to it, to grant or refuse the application for leave to execute pending appeal.
In the exercise of its wide discretion, the court should have regard to the following factors:
(a) balance of equities whereby the court must consider the potentiality of
irreparable harm or prejudice to the respondent if leave is granted against the
potentiality of irreparable harm to the applicant if leave is refused
(b) prospects of success of the appeal whereby the court must consider whether
the appeal is frivolous or vexatious or has been noted to buy time without a
genuine intention to correct a personal wrong
(c) where competing interests are equal, the court must consider the balance of
hardship to either party.
See Amalgamated Rural Teachers Union of Zimbabwe v Obert Musaraure & 2 Ors
HMA 37/18 and cases referred therein
In making my determination I have kept in mind that the order of execution pending
appeal is itself a special type of relief as it negates the common law principle that ordinarily,
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in respect of a judgment of superior courts, the noting of an appeal against a judgment of such
court suspends the judgment appealed against. See Associated Newspapers of Zimbabwe v
Minister of State for Information & Ors 2005 (1) ZLR 222 (S). An order of execution
pending appeal should only be granted or refused after taking the principles I have noted into
account. The overriding factor to be considered however is the need to curb an injustice
resulting from the order.
In casu, it has been noted that there are virtually no prospects of success on appeal
and in such a case it cannot be said that the appeal has been informed by the desire to have
the Supreme Court correct a perceived wrong judgment. The grounds of appeal appear to
have been rushed without much thought being put to drafting them. Drafting grounds of
appeal is not just a walk in the park done perfunctorily. It is a task that requires a certain
amount of expertise. It is hardly a task that can be property discharged without carrying out
an in-depth or close analysis of the court judgment being appealed against and carrying out
necessary research. After all, the appeal in this case is directed to the highest and last court of
the land in such cases and it goes without saying that a lot of thought and experience is
required to draft the notice of appeal which the court makes.
Counsel does not do justice to his or her client if he or she makes a rushed decision to
file an appeal without painstakingly going through the judgment and in this case, the
application papers which the learned judge had to consider. I have already indicated my view
that the noting of the appeal was rushed because on its face, the respondents purported to
reserve unto themselves the right to amend the grounds of appeal upon “delivery of the
written judgment” which they did not request for before noting the appeal. The noting of the
appeal appears to have been intended to ensure that the interim order granted does not see the
light of day in its implementation. In the result, and in the absence of prospects of success on
appeal, the noted appeal cannot be said to have been intended to test the genuineness of the
judgment appealed against but to frustrate the interim order thus prejudicing the applicants
herein and benefitting the respondents.
The learned judge in granting the interim order determined that the continued mining
on the disputed site would lead to the depletion and exhaustion of the resource and cause
irreparable prejudice to the applicant herein. This finding as indicated was not appealed
against. I also find that there can be no disputation of the objective fact that mining does not
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maintain or regrow the mined resource. If taken out of the ground, the mined product
becomes a consumed resource. The learned judge made a finding that the submission by the
respondents that an audit could then be put in place did not offer an adequate alternative
remedy. Again, no ground of appeal attacked this finding and therefore the learned judge’
finding stands.
In argument and in the opposing affidavit, the respondents submitted that some 100
employees and their families would be rendered jobless. In this regard, I must note that the
interim order is temporary in nature. The respondents are free to approach the same court and
move for an urgent disposition of the final relief. I also noted that no information was placed
before the court to prove that 100 employees are employed at the mine. If as matters stand the
order appealed against is temporary in nature, the employees are not rendered jobless unless
they are discharged from employment.
The respondents also submitted that the temporary order granted would affect the
courting of foreign investors and also result in “investor fright and fatigue, not only for the
respondents but the country at large which is anathema to the current investment discourse” . The
respondents also averred that they would suffer financial loss without giving further details.
The rule of law in my view cannot be considered as anathema by any honest investor. An
honest investor should applaud the rule of law and the existence of a functional judicial
system as such system assures the intending investor that such investor can depend on the
system to correct wrongs and ensure the safety of the investment. The respondents’
submission does not have merit.
The respondents also averred that they stood to lose out on a contract to supply quarry
for the refurbishment of Harare -Masvingo Highway. The respondents then averred in regard
to the applicants that they “…. have no impending hardship save for bold and generalized claims
that the quarry is a finite resource which issue has been traversed herein.” The fact that the quarry is
a finite resource is given. The respondents did not provide any details of the contract they
have for the supply of quarry for the Masvingo-Harare highway. Therefore, one cannot gauge
the extent of their alleged loss. The respondents have not offered to or suggested any ring
fencing arrangement to avoid irreparable prejudice to the applicants if leave to execute is
refused.
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I have considered as well that the main dispute in case NO. HC 6457/20 concerns
adjudication of ownership of property rights which are protected by the constitution. The
courts would be sending a wrong message to the public and investors at large if it fails to
safeguard property rights. Certainly where there is a genuine dispute of ownership of
property, it becomes logical to ring fence or protect the resource concerned unless to do so
would result in irreparable harm to the respondent. A temporary shutdown of operations does
not ordinarily result in irreparable harm to a business and in casu there is no credible
evidence of such irreparable harm resulting. On the contrary the irreparable harm stands to be
suffered by the applicants if they succeed in the main matter as the resource whose ownership
is in dispute is being exploited unlawfully to their financial prejudice.
At the hearing of the application, I asked counsel to address me on the propriety of the
applicant praying for a provisional order of execution pending appeal and how such an order
could be provisional in nature. Both counsel agreed that the order would have to be final in
nature. Applicants counsel then applied to amend the order sought to seek an order granting
leave to execute pending appeal and costs. Respondents counsel did not oppose the
amendment. In regard to costs the respondents did not submit any special reasons as to why
the general rule that costs follow the result should not be applied.
In the result, the following order is made:
(a) The application for leave to execute the provisional order granted by ZHOU J
on 28 December, 2020 in case No. HC 7529/20 pending an appeal against that
order noted by the respondents herein under case No. SC 584/20 is hereby
granted.
(ii) The first, second and third respondents shall jointly and severally, the one
paying the other to be absolved pay the costs of this application.
Chatsanga and Partners, applicants’ legal practitioners
Maja and Associates, respondent’s legal practitioners