Albert Tewende & 1 Anor v Evelyn Mupandawana & 2 Ors

### Preamble
Judgment No. SC 100/25
1
Chamber Application No. SC 713/25
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REPORTABLE    (100)

ALBERT     TEWENDE     (2)     QUEENSDALE      MINING     (PRIVATE)     LIMITED

v

EVELYN     MUPANDAWANA     (2)     PHILIP    TAKUDZWA  MUPANDAWANA     (3)     MINING     COMMISSIONER   KADOMA/PROVINCIAL   MINING     DIRECTOR     MASHONALAND   WEST     PROVINCE   (PMD)

SUPREME COURT OF ZIMBABWE

HARARE: SEPTEMBER 29 2025 & 31 OCTOBER 2025.

The first applicant in person

No appearance for the second applicant

T. Moyo, for the first and second respondent

No appearance for the third respondent

IN CHAMBERS

UCHENA JA:

This is an opposed chamber application for condonation for non-compliance with r 45 (1) of the Supreme Court Rules, 2025 (“the Rules”) and for extension of time within which to note an appeal in terms of r 50 of the Rules.

FACTUAL BACKGROUND

The applicants filed an urgent chamber application for an interdict before the High Court (‘court a quo’). The applicants sought an order interdicting the first and second respondents from carrying out any mining activities at Jamcro 30 Mine registration number 1262 (the applicants’ mining claim) held under the name of the second applicant.  The applicants also sought an order compelling the third respondent to stop the first and second respondents’ alleged illegal mining.

The applicants alleged that they had obtained an order interdicting the first respondent from illegally mining at their mining claim under HCH 4598/21.  The applicants averred that despite that extant court order, the first respondent came disguised as the second respondent and chased their workers from the mining claim.

The incident was reported to the CID Flora and Fauna Kadoma who visited the mining location.  The second respondent produced a registration certificate number 18848/24, as proof to show that he had rights to the mine.  The applicants then wrote to the third respondent, the Provincial Mining Director, whose office had earlier issued a declaration of mining rights pursuant to High Court order HCH 4598/21, requesting for him to come and resolve the dispute.  The third respondent however failed to resolve the issue which led to the applicants filing the urgent chamber application for an interdict before the court a quo.  The third respondent was ordered by the court to conduct a ground verification of the boundaries of Jamcro 30 and Jamcro K3 to ascertain whether there is encroachment on either side and to produce a report to that effect.  The verification report of 10 September 2024 found partial encroachment attributable to the applicants and concluded that the disputed shaft fell within Jamcro K3.

The respondents, for their part, denied any encroachment, on to the applicant’s claim, maintaining that their mining operations were confined to Jamcro K3, a distinct claim geographically separated from Jamcro 30.  They argued that the applicants were misdirecting their grievance, given that boundaries between the two claims had been surveyed and defined by the third respondent’s office.

DECISION OF THE COURT A QUO

The Court a quo found that the relief sought was an interim interdict, the grant of which required the applicants to establish at least a prima facie right, an apprehension of irreparable harm, a balance of convenience in their favour, and the absence of an alternative remedy.  On the evidence, no such right was established.  To the contrary, the report of the Provincial Mining Director confirmed that it was the applicants who had encroached upon the respondents’ claim.  In those circumstances, no irreparable harm arose, and a satisfactory remedy had been made available by the proper demarcation of the parties’ boundaries.  The court held that the parties ought to have engaged the office of the third respondent to define its boundaries.  In that regard, the court a quo dismissed the urgent application.

Aggrieved, the applicants appealed the decision of the court a quo to this Court under                   SC 133/25.  The appeal was heard on Tuesday 10 June 2025 and the court struck the matter off the roll with costs.  Consequently, the applicants filed an application for condonation and extension of time which was also subsequently struck off the roll, on 9 September 2025 under SC 688/25.

RELIEF SOUGHT

The applicants seek an order in the following terms:

The application for condonation of non-compliance with r 45 (1) (a) of the Supreme Court Rules, 2025 be and is hereby granted.

The application for extension of time in which to appeal be and is hereby granted.

The applicant’s non-compliance with r 45 (1) (a) of the Supreme Court Rules, 2025 be and is hereby condoned.

The applicant to file his notice of appeal within 5 working days after the granting of this order.

Each party to bear to its own costs.

SUBMISSIONS BEFORE THIS COURT

Applicant’s Submissions

The first applicant submitted that he filed the appeal under SC 133/25 timeously and in full compliance with all applicable rules of court.  He explained that his appeal was sponsored by well-wishers, given that his business is a small enterprise lacking the necessary funds to pursue litigation independently.  The appeal was heard on 10 June 2025, only to be unexpectedly struck off the roll.  Persuaded to continue with his claim, he subsequently filed an application for condonation and extension of time, which was also struck off the roll on 9 September 2025 under SC 688/25.  The applicant averred that, constrained by financial limitations, he sought assistance from various legal aid foundations without success, and that these cumulative obstacles accounted for the delay.

The first applicant further contended that the mining certificate obtained by the respondents was invalid, having been issued by an unauthorized person.  He argued that this conferred an unlawful advantage upon the respondents, whose certificate of registration was allegedly fast-tracked.  Moreover, he asserted that the second respondent’s mining claim infringed environmental rights, having been pursued without the requisite environmental impact assessment.  He submitted that these issues were raised in the court a quo but were disregarded.  In these circumstances, the first applicant sought that the indulgence requested in the relief sought be granted.

Respondent’s Submissions

Counsel for the respondents submitted that the delay of seven months was inordinate.  He argued that, beyond the bare averments in the founding affidavit, the applicants furnished no proof to substantiate the alleged lack of funds. While acknowledging that a founding affidavit is evidence, he maintained that supporting material, such as a letter or report from a legal aid institution, was necessary to lend credence to the claim.  He further contended that the first applicant’s efforts to obtain legal assistance were not serious, as he only approached two legal aid organisations when several others exist.  Counsel added that the second applicant, being a juristic person with financial means, ought to have rendered assistance.

Counsel further argued that some issues now raised on appeal, particularly the alleged violation of the right to be heard, were not canvassed before the court a quo.  He submitted that the appeal ought to have been confined to the issue of the interim interdict, yet none of the stated grounds address it. In the result, counsel prayed for the dismissal of the application.

ISSUE FOR DETERMINATION

The issue that is to be determined is whether the applicants have satisfied the requirements for an application for condonation and extension of time within which to appeal.

APPLICATION OF THE LAW TO THE FACTS

An application for condonation is a request to be condoned for noncompliance with the rules of Court.  In proceedings of this nature, an applicant is required to show that he was not in willful default, the degree of non-compliance is not excessive and that he has prospects of success on appeal.  In Hutchison & Anor N.O. v Logan 2001 (2)  ZLR 1 (H), the court echoing the remarks by Holmes JA in United Plant Hire (Pvt) Ltd v Hills & Ors 1976 (1) SA 717 (A) at 720 said:

“It is well settled that, in considering applications for condonation, the court has a discretion, to be exercised judicially upon a consideration of all facts; and that in essence it is a question of fairness to both sides. In this enquiry, relevant considerations may include the degree of non-compliance with the Rules, the explanation therefor, the prospects of success …, the importance of the case, the respondent‘s interest in the finality of his judgment, the convenience of the court, and the avoidance of unnecessary delay in the administration of justice. The list is not exhaustive.

These factors are not individually decisive but are interrelated and must be weighed one against the other; thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong.”

The judgment which the applicants seek to challenge was handed down on 12 February 2025.  In terms of r 45 (1) (a) of the Rules, the applicants, were required to file their notice of appeal within 15 days thereof, that is, by 6 March 2025.  The present application, however, was only lodged on 12 September 2025, rendering the applicants in breach of the Rules for approximately six months and six days.  While it is noted that their earlier attempt at seeking condonation was struck off the roll, just three days before the present application was filed, the period of delay remains considerably inordinate.

The first applicant attributes his failure to note the appeal timeously to lack of financial resources.  He explains that he had borrowed legal fees to secure legal representation before this Court, but after his appeal was struck off the roll, he was compelled to sell his properties to repay the borrowed funds, leaving him without means to progress to the next stage.  The applicant however, explains that he sought assistance from the Legal Aid Directorate but was advised that they were overwhelmed and they referred him to the Legal Resources Foundation in Avondale.  There, he was informed that the organization seldom handles Supreme Court cases due to limited funding and that the relevant lawyer was not available.  He was also advised that several legal practitioners had been retrenched.  Left without legal assistance, he was compelled to lodge this application as a self-actor.

In Tagwirei t/a Tagwirei Transport v Triangle Estate (Pvt) Ltd SC 15/23 at pp 4-5           Bhunu JA aptly cautioned that a lack of funds, standing alone, cannot exculpate                     non-compliance with procedural rules, for the law accords every litigant including                   Self-Actors the right of audience.  He reasoned that an explanation predicated solely on financial hardship, without elaboration or demonstrable effort to act within one’s means, remains insufficient.  However, the present case is distinguishable.  The applicant’s account is one of a genuine struggle.  His narrative reveals a consistent endeavor to obtain legal aid, from state institutions and private foundations, before resorting to self-representation.  That perseverance, though ultimately unsuccessful, bears the hallmark of sincerity.  It cannot be said that he sat on his rights.  The law, in its wisdom, does not in such circumstances demand perfection from litigants, but reasonableness.  Accordingly, while the delay remains inordinate, the explanation proffered mitigates, to some degree, the inordinacy of the delay.

The consideration of an application for condonation calls for the careful balancing of the length of delay, the adequacy of the explanation thereof, and the prospects of success on appeal.  Where the delay is long and the explanation weak, only compelling prospects of success can tilt the scales in favour of the granting of indulgence.  Conversely, where prospects are bleak, even a minor delay may prove fatal.  It thus becomes necessary to examine whether the applicants’ intended appeal bears any realistic chance of success.  A court does not grant condonation to perpetuate hopeless litigation, it does so only when the interests of justice might be served by allowing the merits to be tested on appeal.

The applicants contend that the court a quo grossly misdirected itself in holding that they had failed to establish a prima facie right warranting the protection of an interim interdict.  The lower court found, on the strength of a verification report compiled by the third respondent, that it was in fact the applicants who were encroaching upon the first and second respondents’ mining claim.  That factual finding formed the basis of the dismissal of their application.

The requirements for an interim interdict are trite.  The applicant must show:

A prima facie right, though open to some doubt;

A well-grounded apprehension of irreparable harm if relief is not granted;

That the balance of convenience favors the granting of the interdict; and

The absence of any satisfactory alternative remedy.

See the cases of: Eriksen Motors (Welkom) Limited v Protea Motors, Warrenton & Anor 1973 (3) SA 685 (A) at 691 C-G: Flame Lily Investments Co (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd & Anor 1980 ZLR 378 (G) at 382 and Mine Mills Trading (Pvt) Ltd & Ors v NJZ Resources (HK) Limited SC 40-14 at pp. 6 - 7.

Each element must be satisfied, for they operate conjunctively.  The failure of one brings down the whole case.  Of these, the need to establish a prima facie right stands as a logical point of departure, for without such a right, the question arises as to why a litigant should seek to enforce that which has no legal existence.

A prima facie right, in this context, signifies more than a speculative claim.  It denotes a right that, on the face of available evidence, merits serious consideration by the court, even if not conclusively proven. Patel JA (as he then was) in Judicial Service Commission v Zibani & Ors ZLR (2) 114 (S) at p 124F_G aptly observed:

“Insofar as concerns the first requirement, it is settled in principle that the grant of an interdict is based upon the existence of a right which in terms of the substantive law is sufficient to sustain a cause of action. To sustain such cause of action, the applicant must prove a legal and not merely a moral right and that this right is being infringed or threatened with infringement. Where the alleged interference is in terms of an admittedly legal process, no legal right is established unless the applicant shows a right not to be disturbed in terms of such process. This is so because a party cannot have a right, whether prima facie or clear, contrary to the law. Thus, an interdict cannot ordinarily be granted where the allegedly offending conduct is properly premised on statutory authority. This principle must apply with even greater force where the conduct in question is, as it is in casu, predicated upon and mandated by the Constitution itself.”

The court a quo, after evaluating the documentary evidence, found that the disputed area fell squarely within the first and second respondents’ mining claim, as verified by an independent inspection report. The verification report of the third respondent conclusively demonstrated that the disputed area lies within the respondents’ mining claim, and any alleged encroachment originated from the applicants’ side.  In the absence of contradictory evidence, the applicants’ claims were unsubstantiated.  On this basis, the essential threshold for interim relief was not met.

It is manifest from the record, and incontrovertibly established by the verification report, that the applicants, were the ones who were encroaching upon the mining claim lawfully held by the respondents.  The verification report leaves no room for ambiguity or dispute.  Its findings are definitive and conclusive, demonstrating that the applicants’ claims are entirely without foundation.

The law cannot protect the transgressor at the expense of the lawful holder of the disputed claim.  The court’s jurisdiction is invoked to vindicate rights recognized by the law.  Where the foundation of the claim is tainted by encroachment, no relief can be granted as courts can only grant orders in terms of the law.  Even if the explanation for delay is reasonable, the applicants have no prospects of success.

The rules provide for applications of this nature to enable the system to screen out hopeless cases from burdening the courts with an unnecessary additional work load which should not be allowed entry into the court’s list of deserving appeals.

In the result, the applicants’ delay, though not a result of negligence, remains inordinate; and the intended appeal has no prospects of success. The application is without merit and should therefore be dismissed with costs.

In compliance with the proviso to r 50 subrule (7) this judgment was referred to two Judges of this Court, who were appointed by the Senior Judge for concurrence, which concurrence has been obtained.

It is accordingly ordered as follows:

“The application be and is hereby dismissed with costs.”

CHITAKUNYE JA    :   	I agree

CHATUKUTA JA      :  	I agree

Tamuka Moyo Attorneys, 1st & 2nd respondents’ legal practitioners.