DS Mining Syndicate and Tawanda Dzviti v Spencer Tshuma

### Preamble
1
HH 358-21
HC 3039/21
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DS MINING SYNDICATE

and

TAWANDA DZVITI

versus

SPENCER TSHUMA

HIGH COURT OF ZIMBABWE

MANZUNZU J

HARARE, 17, 21, 23, 24, 25 June & 8 July 2021

Urgent Chamber Application

T Moyo with V Vhera, for the applicants

M Ndlovu with B Chideme, for the respondent

MANZUNZU J:  This judgment covers two urgent applications. The parties are the same. I shall refer to the first application as “the application.” In opposing the application, the respondent raised a counter-application, (hereinafter referred to as “the counter-application.) For convenience, the citation of the parties shall remain the same in both the application and counter-application. I will deal with the application and counter-application separately in this judgment. Both applications are fiercely contested.

THE APPLICATION:

This is an application for leave to execute pending appeal. There is a deep seated boundary dispute between the parties over a certain mining location at Queensdale Farm in Kadoma. The applicants through an urgent application in case number HC 998/21 obtained a spoliation order against the respondent on 10 June 2021 in a full judgment of this court. The order in favour of the applicants in that judgment reads;

“1. 	The respondent and all those claiming occupation through him be and are hereby ordered to restore vacant possession of the mining location being a portion of Queensdale Farm measuring 9 hectares with the following co-ordinates, A0199925, 7958476, B0200125, 7958914, C0200278, 7958822, D0200115, 7958045, DP0200045, 7958510 to the applicants upon service of this order.

2. 	The respondent shall pay costs of the application.”

Dissatisfied with the order, the respondent exercised his right of appeal and filed an appeal with the Supreme Court on 11 June 2021 under SC 182/21. The appeal has the effect to suspend the judgment of 10 June 2021.

This is what has caused the applicants to bring the present application seeking the following order:

“TERMS OF FINAL ORDER SOUGHT:

That you show cause to this Honourable Court why a final order should not be made in the following terms:

The respondent and/or his agents be and is hereby interdicted from interfering with the applicants’ operations at Queensdale farm measuring 9 hectares with the following co-ordinates, 199925, 7958476, B0200125, 7958914, C0200278, 7958822, D0200115, 7958045, DP0200045, 7958510.

Respondent be and is hereby ordered to pay costs of this suit on a legal practitioner client scale.

INTERIM RELIEF GRANTED:

Pending finalization of this matter an interim order is hereby granted in the following terms;

IT IS ORDERED THAT:

The applicants be and are hereby granted leave to execute the judgment granted in their favour by the Honourable Court under case number HC 998/21 pending the respondent’s appeal noted with the Supreme Court under case number SC 182/21.

It is further ordered that the noting of an appeal against this order will not suspend the present order of execution pending appeal.”

Faced with this application, the respondent’s first reaction was to seek refuge in five preliminary points. For expedience I allowed the preliminary points to be argued together with the merits. I will now turn to the points in limine, which if successful, may turn the application into a still birth.

URGENCY:

The respondent said the application is not urgent. While the respondent accepts that the applicants acted timeously when the need to act arose, he alleges the applicants will not suffer any irreparable harm if the matter is not heard on an urgent basis.

The requirements for urgency are settled. In Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188 (HC) it was stated “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 dead-line draws near is not the type of urgency contemplated by the rules.”

This is the authority relied upon by Mr Moyo for the applicants. He said urgency is defined by what the litigant does when the need to act arise. In casu, the applicants acted immediately when the appeal was noted.

It is not disputed that the applicants are holders of a prospecting licence who for now have applied for a certificate of registration. The respondent is a member of the Family Mining Syndicate, which syndicate has mining rights derived from a certificate of registration 16507. In pushing for the none urgency of the matter, the respondent concentrated more on the rights derived from the titles held by the parties. However, the applicants are merely saying that they be given possession as spelt out in the spoliation order. A spoliation order deals with the issue of restoration of possession and not the substantive rights of the parties which can be pursued in a separate action.

In Mushore v Mbanga HH 381/16, dealing with the issue of urgency, the court had this to say; “On urgency, the parties seemed ad idem that the court looks at the issue objectively, rather than subjectively. They were ad idem that the two paramount considerations were [i] “time” and [ii] “consequences”. By ‘consequences’ was meant the effect of a failure to act promptly when harm is apprehended. It was also meant the effect of, or the consequences that would be suffered if a court declined to hear the matter on an urgent basis. If the prejudice would be irreplaceable, then the matter should be deemed urgent. Put another way, if the remedy that the court could eventually grant, possibly in ordinary motion proceedings, would effectively be a brutum fulmen because it was too late, then the matter could be urgent.”

In casu, the first leg of time is not disputed because the applicants acted promptly to the noting of the appeal. The applicants claim legitimate expectation of mining rights. The respondent through Family Mining Syndicate has mining rights which if continued to be exercised will cause irreparable harm to the applicants in the event applicants succeed when the dispute is resolved. This is because mineral resources deplete. The applicants also left their equipment at the disputed location which they allege respondent is using. The circumstances of this matter call for the matter to be heard on an urgent basis. This is even more so because applicants are seeking to enforce a spoliation order which was granted on an urgent basis. The matter is therefore urgent. The point in limine must be put to rest.

MATERIAL NON DISCLOSURE:

The non-disclosure of facts, the respondent alleged, arise from the fact that the applicants did not disclose that there was a pending application under case number HC 1990/21 in which the applicants seek an order to compel the Provincial Mining Director and the Minister of Mines and Mining Development to issue them with a certificate of registration.

When is a party guilty of material non-disclosure? It is not every non- disclosure of facts which is punishable. The information withheld must be within the knowledge of the party withholding it; it must either be deliberately, mala fide or negligently withheld to the party’s advantage and to the prejudice of the other party; the information must be vital and relevant to the determination of the matter before the court; In Centra Pvt Ltd v Pralene Moyas & Anor; HH 57/12 Bere J had this so say;

“It is accepted position that courts detatse or frown on those litigants or legal practitioners who desire to derive the sympathy of the Court by deliberately withholding vital information which has a bearing on the very matter that the Court is called upon to determine.”

The rationale behind punishing litigants for material non-disclosure is that, those who bring matters on urgency have a duty to disclose all the material facts including those they consider unfavourable to their case. This is for the simple reason that the court must be put in the full picture of the facts in order to do justice to the parties. More so, this is because parties who bring matters on urgency enjoy the privilege of their cases being heard ahead of others. Courts will ordinarily and understandably so, lean in favour of parties who are honest than the dishonest ones.

Mr Ndlovu for the respondent maintained that the application be struck off the roll with punitive costs because of the applicants’ failure to disclose the existence of pending litigation in HC 1990/21.Several authorities were cited where the court frowns at litigants who are not candid with the court and are economic with the truth. However as already been stated it is not every omission which amounts to material non-disclosure. The respondent failed to demonstrate how the non-disclosure will influence the court’s decision in its determination either on the issue of urgency or on merits. On the whole, I agree with Mr Moyo’s argument that the facts to be disclosed must be relevant as to urgency and/or the dispute before the court. The matter before the court is in respect to the judgment and the notice of appeal. Disclosure of a mandamus application against the Government is not a relevant matter before the court. Simply put, the issue of disclosure must be relevant to the issues before the court.

I do not find the applicants guilty of material non-disclosure, the preliminary point must therefore fail.

FALSEHOODS:

The respondent also pursued the non-disclosure from a different angle where he alleged certain untruths in the founding affidavit. Applicants are said to have referred to the disputed mining location as their “mining block”. Such a phrase will not mislead the court in any way because it is common cause that the applicants are holders of a prospecting licence. That position is fully disclosed in the founding affidavit. They did not claim to be holders of any certificate of registration. If they had done so, then that would be a lie. To insinuate that by saying “my mining block” meant a claim for holding a certificate of registration is stretching the matter too far. Applicants maintained they have certain right which accrue to a prospecting licence. This point in limine must fail.

WHETHER THE ORDER SOUGHT IS INCOMPETENT:

Respondent says the order sought by the applicants is incompetent in that, taking occupation of the mining location is illegal. I have no hesitation to dismiss this preliminary point on the face of it as having no merit. This is what the respondent should have raised with the court hearing the spoliation proceedings. An order was made by this court restoring occupation of the mining location to the applicants. The order is extant. For the respondent to then ask this court to declare such restoration unlawful amounts to this court reviewing its on judgment or worse still decide the matter as if it were an appeal court against its own judgment.

The respondent has gone to sea to fetch section 31(1) (b) of the Mines and Minerals Act, [Chapter 21:05] which reads;

“(1) 	Save as provided in Parts V and VII, no person shall be entitled to exercise any of his rights under any prospecting licence or any special grant to carry out prospecting operations or any exclusive prospecting order—

(b) 	upon any mining location, other than one in respect of which he may have acquired the exclusive right of prospecting under such licence or special grant or exclusive prospecting order.”

On the basis of this provision, the respondent argues that legislation prohibits prospecting in a mining location. That may be so, but that is not the issue here especially when one looks at the order sought. The interim order sought is to execute judgment under case number HC 998/21 pending appeal. The order in HC 998/21 which I have already cited above restores possession of a mining location to the applicants. It is improper to sneak in an argument relating to the substantive dispute between the parties in this forum. As earlier on stated, there is no merit in this preliminary point and it must fail.

CERTIFICATE OF URGENCY

Respondent claimed the certificate of urgency was invalid because it erroneously expressed that mining operations can be done on the basis of a prospecting license. The respondent even asked for costs de bonis propriis against the author of the certificate, as chastisement, which is quite uncalled for. During hearing the preliminary point was not pursued in oral submissions. I find no merit in it and must fail.

MERITS:

What are the relevant consideration in an application for leave to execute pending appeal? In Zimbabwe Commercial Farmers Union v Gambara, HH 375/15 the court with the aid of previously decided authorities had this to say;

“In an application for leave to execute pending appeal the following factors are considered:

The preponderance of equities; that is to say the potentiality of irreparable harm and prejudice to the applicant if leave to execute is refused, or the potentiality of irreparable harm and prejudice to the respondent if leave to execute is granted,

The prospects of success of the appeal, whether the appeal is frivolous or vexatious or has been noted not with a genuine intention of correcting a perceived wrong but merely in order to buy time,

If the competing interests are equal, then the balance of hardship to either party.

see Graham v Graham 1950 (1) SA 655 (T); Zaduck v Zaduck (2)1965 RLR 635 (GD); 1966 (1) SA 550 (SR); South Cape Corporation v Engineering Management Services 1977 (3) SA 534; Fox & Carney (Pvt) Ltd v Carthew – Gabriel (2) 1977 (4) SA 970 (R); Arches (Pvt) Ltd v Guthrie Holdings (Pvt) Ltd 1989 (1) ZLR 152 (H); ZDECO (Pvt) Ltd v Commercial Carriers College (1980) (Pvt) Ltd 1991 (2) ZLR 61 (H); Econet (Pvt) Ltd v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (HC).”

These factors are considered cumulatively. The court has an inherent power to control its own process. Thus, in the exercise of its wide discretion it can order a stay of execution or order that the judgment be carried into execution. The court strives to achieve real and substantial justice. In Santam Insurance Company Limited v Paget (2)  GUBBAY J, as he then was, stated as follows:

“As observed by GOLDIN J, (as he then was), in Cohen v Cohen (1), 1979 R.L.R. 184 (G.D.); 1979 (3) S.A. 420 (R.) at 423 B – C, the court enjoys an inherent power, subject to such rules as there are, to control its own process. It may, therefore in the execution of a wide discretion, stay the use of its process of execution where real and substantial justice so demands. See also Graham v Graham, 1950 (1) S.A. 655 (T.) at 658. The onus rests on the party claiming this type of relief to satisfy the court that injustice would otherwise be caused to him or, to express the proposition in a different form, of the potentiality of his suffering irreparable harm or prejudice.”

Mr Moyo in advancing the requirements of this application relied on three authorities which all dealt with applications for leave to execute pending appeal. The first is the case of Chematron (Pvt) Ltd v Tenda Transport (Pvt) Ltd & Anor, HH 343/13 where the court stated;

“In an application for leave to execute pending an appeal the court considers the following factors:

The preponderance of equities; that is to say the potentiality of irreparable harm and prejudice to the applicant if leave to execute is granted, or the potentiality of irreparable harm and prejudice to the respondent on appeal if leave to execute is refused;

The prospects of success of the appeal, whether the appeal is frivolous or vexatious or has been noted not with the genuine intention of correcting a perceived wrong but merely in order to buy time;

If the competing interests are equal, then the balance of hardship to either party.”

The second case is that of Machote v Zimbabwe Manpower Development Fund, HH 13/16 which states;

“It is trite law that when considering an application for leave to execute pending appeal the court must consider the following:

“1.	The possibility of irreparable harm or prejudice being sustained by the appellant should leave to execute be granted;

The possibility of irreparable harm or prejudice to be suffered by the respondent should leave to execute be denied;

Prospects of success of the appeal.

Where there is possibility of irreparable harm to either parties, the hardship or convenience as the case may be.”

The third authority is that of Ladrax Investments (Pvt) Ltd v Chirenje and Anor, HH 776/15 where the court had this to say; “In assessing an application for leave to execute pending appeal the court looks at various factors amongst them the following;

“1.	Whether irreparable harm or prejudice would be suffered by the appellant should leave be granted,

2.  Whether irreparable harm or prejudice would be suffered by the respondent should

leave be refused,

The prospects of success on appeal

The balance of convenience favours the granting of the relief sought.”

On the other hand, Mr Ndlovu chiefly relied on the authority of Mupini v Makoni 1993 (1) ZLR 80 (SC) which was an application for stay of execution. He cited the following dicta from the case;

“Execution   of a judgment is a process of the court and the court has an inherent power to control its own processes and procedures, subject to such rules as are in force. In the exercise of a wide discretion, the court may set aside or suspend a writ of execution or cancel the grant of a provisional stay. It will act where real and substantial justice so demands. The onus rests on the party seeking a stay of execution to satisfy the court that special circumstances exist.”

Mr Ndlovu, while admitting that the Mupini case dealt with the application to stop execution, was of the view that the considerations are the same. I do not think so. An application for leave to execute and an application to stay execution while there are overlapping similarities do not share the same requirements. Their intended results are the opposite of each other. What is common between them is that the court exercises its discretion to achieve real and substantial justice. Despite a plethora of authorities dealing with leave to execute pending appeal, the respondent chose to deal with an authority which is not on all fours with the present application.

The applicants’ application is premised on the facts that having obtained an order for spoliation in their favour on 10 June 2021, the respondent has spoiled the fruits of their success by filing an unmeritorious appeal on 11 June 2021. They therefore seek restoration of the occupation of the mining location. In defending this application, the respondent has cast his net wider than the pre requisites of this application. There was temptation for the parties to wrap in everything without limitation. The court must be guided by the requirements of such an application in its determination. I will now turn to the requirements.

PROSPECTS OF SUCCESS OF THE APPEAL

In the face of a well-reasoned and detailed judgment of my brother Judge Chitapi J stands the following four grounds of appeal by the respondent;

“1.  	The High Court erred and misdirected itself in holding that the respondents were entitled to a spoliation order when on the specific facts placed before the court, the respondents’ possession was not peaceful and undisturbed.

2.	The High Court erred and misdirected itself in holding that the appellant had illegally disturbed and interfered with the respondents’ possession of a mining location when on the fact of the matter, the area concerned, was not any mining location in respect of which the respondent could exercise possessory rights. The Court a quo, therefore, erred in granting a spoliation order in respect of a mining location that does not exist in both fact and law.

The Court a quo erred in not finding that the appellant had been in undisturbed possession    of the same place by virtue of the mining certificate issued to Family Mining Syndicate and consequently could not be evicted therefrom via the medium of a spoliation order of the nature that it granted.

The court a quo erred in failing to deal with the appellant’s defence that to the extent that the respondents sought vacant possession, their claim was one for eviction which fell to be resolved on principles applicable to evictions and not spoliation proceedings.”

The applicants’ argument is that there are no prospects of success in the appeal. The attack was from two angles, first being that the grounds are not concise and precise. As if it were an admission by the respondent, Mr Ndlovu said the grounds were amended but the amended grounds were not part of the record. Secondly, it was argued that the appeal had no merit.

Respondent maintained the grounds of appeal were precise and with merit without explaining why he saw the need to amend the grounds. It is trite that grounds of appeal must be concise and clear, which means they must be clearly and succinctly set out in clear and unambiguous terms, see: Songono v Minister of Law and Order 1996 (4) SA 384 which held that:

“grounds of appeal are bad if they are so widely expressed that it leaves the appellant free to canvass every finding of fact and every ruling of law made by the court a quo or if they specify the findings of fact or rulings of law appealed against so vaguely as to be of no value either  to the court or to the respondent or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet the lengthy and rambling notice of appeal filed in casu falls woefully short of what was required. Mr Bursey suggested that the grounds of appeal could be gleaned from the notice but that is not the point… the point is that the notice must clearly set out the grounds and it is not for the court to have to analyse a lengthy document in an attempt to establish what grounds the appellant intended to rely upon but did not clearly set out…”

In my view the respondent’s grounds of appeal are so widely cast and cannot be said to be precise. Even if I were wrong in this finding, which I do not believe I am, I see no merit in this appeal. The judgment of CHITAPI J captured the correct legal position in spoliation proceedings. The grounds of appeal mention no misdirection on the legal position. The grounds tend to attack the factual findings of the court without coming out clear as to where the misdirection lies. In fact, Mr Moyo was quick to draw the court’s attention to the findings made in the judgment based on concessions by the respondent which respondent now raises as grounds of appeal. Page 8 of the cyclostyled judgment reads in part;

“In order to satisfy myself fully as to whether there had been a spoliation, I directed both counsel to address me on what the situation on the ground was in the light of the respondents’ assertion in the opposing affidavit that it was in fact his mining syndicate which was in lawful occupation of the mining site with the applicants as invaders. I directed counsel to address me on what the situation was as at 23 March, 2021, the date of spoliation. In particular, I asked counsel to address me on what had become of the mining equipment, the security guards, their fire arms and mining operations. The respondent’s instructing legal practitioner commendably and in a gesture expected of a professional legal practitioner reported that indeed the applicants had fenced off an area where mining had been taking place and were no longer on site and the respondent had taken and was now in control. The respondent did not submit that the applicants consented to their removal.” (emphasis is mine).

I see no prospects of success in this appeal which in my view was noted for the purposes of disabling an otherwise extant judgment of this court.

THE PREPONDERANCE OF EQUITIES

The court should look at the irreparable harm or prejudice to be suffered by either party in the event that leave is granted or refused. It must be noted that the mining location which is subject of a spoliation is the subject of the dispute between the parties. Each party claims some intrusion into the other party’s location. The answer lies with the verification of co-ordinates by those within the Ministry of Mines and Mining Development. The parties are aware of this domestic route but for some reason have chosen litigation. The choice is within their constitutional right.  Applicants claim certain rights to the location derived from a prospecting licence and one based on legitimate expectation, while the respondent relies on a certificate of registration. It cannot be disputed that certain rights accrue to those titles. But that is not the solution. The solution lies on the identity of the location where such rights are exercised. The respondent says he is mining within the disputed area. The applicants say they are prospecting within the disputed area.

Applicants argued that they are beneficiaries of a judgment against a person who had taken the law into his own hands. They persist with restoration so that whosever has any right to claim, does so lawfully. The balance of equities should tilt in their favour, so they persuaded the court. They insisted on respondent behaving lawfully as no hardship will be suffered by the respondent when the application is granted.

Respondent however, argued that the remedy sought by applicants will protect unlawful prospecting on a registered mining location. But this is the unresolved dispute between the parties. In the meantime, the respondent has admitted that he is mining within the disputed are. In the event that the disputed area is declared to be outside the Family Mining Syndicate mining block then the respondent will have unlawfully benefitted. Or in the event the disputed area is declared to be within the applicants’ prospecting area then applicants will suffer irreparable harm.

I find the preponderance of equities to be in favour of the applicants because they are not allowed to extract minerals for sale by virtue of a prospecting licence while respondent under cover of the certificate of registration can do mining.

THE BALANCE OF HARDSHIP TO EITHER PARTY

The balance of hardship is weighed where the competing interest of the parties are equal. In casu, I have found that the balance of convenience favours the applicants more than the respondents. For the reasons already stated, the applicants will suffer more harm than the respondent if this application were denied.

The applicants have made a prima facie case which entitle them to the order sought.

COUNTER-APPLICATION

The respondent filed his counter-application simultaneously with his notice of opposition to the application. He seeks the following order against the applicants;

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court, if any, why a final order should not be made in the following terms;

That pending the final determination and outcome of case number HC 3113/21 the applicants and any person acting through them be and are hereby barred from occupying, excavating, prospecting or conducting mining activities of any nature whatsoever on Jamcro Mine situated at Queensdale Farn in Kadoma held under certificate of registration number 16507.

Costs on a legal practitioner client scale against any party that opposes this application.

TERMS OF THE INTERIM RELIEF GRANTED

Pending the return date any prospecting, excavating or mining activities of any nature whatsoever by applicants and/or any other persons acting through them at Jamcro Mine situated at Queensdale Farm in Kadoma held under certificate of registration number 16507 be and are hereby suspended.”

The applicants have opposed this counter-application and raised three points in limine which I shall deal with in turn. Applicants alleged that the counter-application was not urgent.

URGENCY

I have already dealt with the issue of what constitutes urgency. Firstly, a counter-application does not automatically carry the status of urgency by its mere being a counter-application to an urgent application. It must satisfy the requirements of urgency within its own right.

The facts upon which the respondent claim urgency of the counter-application are summarized in the respondent’s heads as follows;

“The respondent is a member of the mining syndicate known as Family 56 Mining Syndicate which in turn is a holder of mining rights through a certificate of registration number 16507. The Family Mining Syndicate together with the respondent have been carrying out active mining operation since 2017. The 1st applicant obtained a prospecting licence on the 13 January 2020.

The 1st applicant proceeded to carry out prospecting and mining activities in the mining location owned by the Family Mining Syndicate wherein the respondent is a member. The unlawful operations of the applicants resulted in Family Mining Syndicate and the respondent jointly instituting proceedings in the High Court for a declaratory order and consequential relief of eviction. The application was filed under case number HC 3113/21 and is still pending in this court.

The respondent seeks in the interim an order which bars pendente lite the prospecting, mining activities and trespassing at the instance of the applicants.”

From these scanty submissions the question is when did the need to act arise. A look at the certificate of urgency shows that case number HC 3113/21 was filed on 16 June 2021. It does not tell us when the alleged offending acts by the applicants were committed which have brought about the need to file HC 3113/21. Instead of assisting the court with the issue of urgency the certificate of urgency has gone out of its way to comment about the CHITAPI J judgment and praise the respondent as a law abiding someone who has accrued rights from the certificate of registration. The founding affidavit added that the applicants fenced part of his mining block in March 2021. He then started filing complaints with the Ministry of Mines.

Instead of adequately addressing the issue of urgency the respondent believes in wielding a certificate of registration as its main weapon. But for a matter to be heard on urgency the respondent must show that the matter is urgent. In General Transport & Engineering (Pvt) Ltd & Ors v Zimbabwe Banking Corporation Ltd 1998 (2) ZLR 301 (HC) GILLESPIE J, as he then was stated;

“A party who brings proceedings urgently gains a considerable advantage over persons whose disputes are being dealt with in the normal course of events. This preferential treatment is only extended where good cause can be shown for treating one litigant differently from most litigants.”

Mr Moyo for the applicants raised a highly persuasive argument that the matter was not urgent. He said the respondent was trying to pull wool over the court’s face to say the matter was urgent when in truth and actual fact the application was part of respondent’s tactical reaction to the CHITAPI J’s judgment. He narrated the chronology of events as follows. The applicants took occupation of the disputed location in January 2020 or latest by March 2021 as per respondent’s story. The respondent unlawfully invaded the location with the result of the CHITAPI J judgment on 10 June 2021. On 11 June 2021 the respondent filed an appeal. On 14 June 2021 the application for leave to execute judgment was filed. The respondent then filed an application for a declaratur on 16 June 2021 under case number HC 3113/21. On 17 June 2021 the respondent filed notice of opposition to the application for leave together with a counter-application for an interdict whose urgency is premised on the filing of HC 3113/21. The complaints in the counter-application occurred way before the filing of HC 311/21 which now stands as the pillar for urgency of a counter-application. Two things logically emerge from the conduct of the respondent. The first is that urgency is self-created. The second is, the counter-claim is a defence mechanism to fight the judgment of CHITAPI J.

The respondent decided to fight tooth and nail the execution of the judgment by CHITAPI J. He has raised dust from every corner of the battle field to ensure no stone remains unturned. Unfortunately, the applicants have kept guard against every corner of the attack. The respondent failed to show that the counter application is urgent.

DISPOSITION

IT IS ORDERED THAT:

The application for leave to execute a judgment pending appeal succeeds.

The applicants be and are hereby granted leave to execute the judgment granted in their favour by the Honourable Court under case number HC 998/21 pending the respondent’s appeal noted with the Supreme Court under case number SC 182/21.

It is further ordered that the noting of an appeal against this order will not suspend the present order of execution pending appeal.

The counter-application is not urgent.

The counter-application be and is hereby struck off the roll of urgent matters.

The respondent shall pay the applicants’ costs in both the application and counter-application on the ordinary scale.

Tamuka Moyo Attorneys, applicants’ legal practitioners

Mutamangira and Associates, respondent’s legal practitioners.