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Interim Interdict Pendente Confirmation or Discharge Proceedings re: Approach, Return Date and the Prima Facie Concept

HH54-09 : ROGERS DHLIWAYO vs SHAUN MANDAA KUDINGA AND TWO OTHERS
Ruled By: MAKONI J

On 25 January 2008, the first respondent obtained a certificate of ejectment from the Rent Board. On 18 February 2008 the applicant appealed to the Administrative Court against the issuance of the certificate. On 17 March 2008 the applicant was granted a rule nisi for stay of execution of the certificate of ejectment until the ...
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SC32-12 : SWIMMING POOL & UNDERWATER REPAIR PL and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL and PATTERSON TIMBA vs JAMESON RUSHWAYA and ANNIE RUSHWAYA
Ruled By: CHIDYAUSIKU CJ

I now turn to deal with the application for interim relief to stop the Rushwayas from conducting mining operations and their eviction from the mine pending the hearing of the appeal. This relief is at the core of the ownership wrangle between the parties, who are Shareholders and Directors of the company that owns the mine. A similar ...
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SC13-09 : CALISTO CHIRENJE vs VENDFIN INVESTMENTS (PRIVATE) LIMITED AND TWO OTHERS
Ruled By: CHIDYAUSIKU CJ, SANDURA JA and MALABA JA

Before a court can grant an interim interdict, it is necessary for the applicants to establish a prima facie case, that is to say, the applicants must aver facts which if proved in the main action will constitute a cause of action.
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HH192-12 : NATIONAL AIRWAYS WORKERS' UNION AND AIR TRANSPORT UNION vs AIR ZIMBABWE HOLDINGS (PVT) LTD AND NATIONAL HANDLING SERVICES (PVT) LTD AND THREE OTHERS
Ruled By: MUTEMA J

The requisites for a temporary or interim interdict are these;- (i) That the right sought to be protected is clear; or (ii)(a) If not clear, it is prima facie established, even though open to doubt; and (ii)(b) There is a well-ground apprehension of irreparable harm if the relief is not granted and the applicant ultimately succeeds in establishing ...
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HH36-09 : T NYIKADZINO vs JOHN ASHER and MUSUNGA & ASSOCIATES and THE DEPUTY SHERIFF and THE MINISTER OF STATE FOR LANDS AND RURAL RESETTLEMENT
Ruled By: MAKARAU JP

It is trite that a provisional order granted under Rule 246(2) of the High Court Rules 1971, is granted upon the judge, sitting in chambers, being satisfied that the papers filed disclose a prima facie case....,.A provisional order granted under the Rules is always subject to confirmation or discharge before ...
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HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU
Ruled By: MAWADZE J

This is an urgent chamber application for a provisional order whose interim relief sought is stated as follows:“INTERIM RELIEF GRANTEDPending determination of the lawful owner of ANSH NORTH situated on the following map coordinates;Point A 0187976 ...
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HH32-09 : MAFOSHORO FARM (PVT) LTD vs HURBERT NYANHONGO and TENDAI MBEREKO
Ruled By: CHITAKUNYE J

The applicant is a company with limited liability which purports to own all agricultural equipment and implements and runs farming operations at ELDORADO OF GWINDINGWI commonly known as MAFOSHORO FARM (PVT) LTD.The first respondent is a beneficiary of land wherein he was offered the “whole of Eldorado of Gwindingwi in ...
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HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

Rule 246(2) of the High Court Rules, 1971 provides as follows:“(2) Where, in an application for a provisional order, the judge is satisfied that the papers establish a prima facie case he shall grant a provisional order either in terms of the draft filed or as varied.”This means an application ...
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HH01-08 : SIMON FRANCIS MANN vs THE REPUBLIC OF EQUATORIAL GUINEA
Ruled By: MAKARAU JP and PATEL J

In my view, the concept of a prima facie case is one of those legal concepts that are easier to recognize than to define. The concept eludes definition not only due to the fact that it deals with subjective measures of the cogency of evidence presented before a trier of fact, but also because the term ...
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HH113-09 : DIDYMUS MUTASA vs NGONI NDUNA N.O. and ATTORNEY-GENERAL and COMMISSIONER-GENERAL OF POLICE and ROBERT MCKERSIE
Ruled By: PATEL J

The applicant herein is the Minister of State responsible for Presidential Affairs. He was formerly the Minister responsible for Land Reform and Resettlement. The applicant originally sought an order, inter alia, staying and eventually setting aside the execution of a warrant of arrest issued against him on the 6th of ...
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HB02-09 : NDUMISO DUBE vs LEONARD DUBE
Ruled By: KAMOCHA J

The applicant seeks an order in the following terms – “It is hereby ordered that: 1. The first respondent be and is hereby interdicted from carrying out construction work of any sort on Stand Number 16764 Romney Park, Bulawayo, until the proceedings in case number 1276/06 are finalised; 2. The first respondent be and is hereby interdicted from selling ...
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HB25-09 : MEKIYA NYATHI vs JOYCE MUVEZWA and B. TADERERA and SENDRA MUVEZWA and THE REGISTRAR OF DEEDS (BULAWAYO)
Ruled By: CHEDA J

This is an urgent application barring the first and second respondents from selling, or transferring, property. The relief sought is couched as follows:- “TERMS OF FINAL ORDER SOUGHT That First, Second, and Fourth Respondents show cause to this Honourable Court why a final order should not be made in the following terms:- (1) That the First Respondent ...
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HB27-09 : ZIMBABWE NATIONAL STUDENTS UNION and NUST STUDENTS' REPRESENTATIVE COUNCIL vs NATIONAL UNIVERSITY OF SCIENCE AND TECHNOLOGY and MINISTER OF HIGHER EDUCATION
Ruled By: NDOU J

The applicants seek a provisional order in the following terms:- “Terms of the Final Order Sought (a) That the fees for the first semester of the National University of Science and Technology being charged by the first respondent, without the approval of the second respondent, be and are hereby declared to illegal and unlawful. (b) The refusal by the ...
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HB31-09 : ZIMBABWE NATIONAL ARMY vs RANGARIRAYI GUNDA
Ruled By: NDOU J

The applicant sought a provisional order in the following terms:- “Terms of the Final Order Sought 1. That the respondent be restrained from attempting to, or repossessing, the Peugeot registration number AAO 0197 or 01 BF 04. 2. That the respondent be ordered to bear the costs of this application. Interim Relief Granted 1. That the respondent be and is hereby ...
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HB57-09 : TRYSON INVESTMENTS vs MAPLE LEAF MINING (represented by Cecil Madondo N. O.) and MINING COMMISSIONER
Ruled By: NDOU J

On 25 March 2009 Mr. Madondo wrote a letter to the applicant in which the first respondent was purporting to cancel the..., Tribute Agreement. The applicant challenged the cancellation, and its legal practitioners wrote to the first respondent conveying this. The applicant's legal practitioners also wrote two letters to the second respondent expressing the applicant's legal understanding ...
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HB110-09 : EDGARS STORE LIMITED vs RAMSON (PVT) LTD and BHIMJI INVESTMENTS (PVT)LTD and THE MESSENGER OF COURT, HARARE
Ruled By: NDOU J

The effect of the order sought by the applicant is to reverse the order by the Harare Magistrate, even before the appeal is heard – thus rendering the hearing of the appeal academic.
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HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

The first respondent tried once again to evict the applicant from the property using the Order in the main matter. The applicant, in turn, approached this court under a certificate of urgency, and her bid to stay the eviction was unsuccessful. The applicant then wrote to the Deputy Sheriff pointing out that the writ of execution was not ...
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HH04-10 : MYDALE INTERNATIONAL MARKETING (PVT) LTD vs DR ROB KELLY and HAMMER AND TONGUES (PVT) LTD
Ruled By: GOWORA J

The first respondent herein had, under Case No. HC1049/09, instituted proceedings against the applicant and second respondent herein. On 30 March 2009, OMERJEE J issued an order as follows:“IT IS ORDERED THAT:1. Mydale International Marketing (Pvt) Ltd is entitled to receive from the second respondent and have in its custody ...
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HH16-10 : AMBASSADOR CHIMONYO vs ROUTE TOUTE BV and PENINSULAR PLANTATIONS PL and MATANUSKA PL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and THE MINISTER OF FOREIGN AFFAIRS
Ruled By: MUSAKWA J

In his submissions, counsel for the applicant pointed out that no opposing papers were filed in answer to the non-service of the application and notice of set down on the applicant. While it is not a requirement, in urgent matters, to file opposing papers, it was his submission that the inescapable conclusion is ...
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HH16-10 : AMBASSADOR CHIMONYO vs ROUTE TOUTE BV and PENINSULAR PLANTATIONS PL and MATANUSKA PL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and THE MINISTER OF FOREIGN AFFAIRS
Ruled By: MUSAKWA J

Counsel for the first, second, third and fourth respondents also submitted that the applicant had not filed any opposing papers to the provisional order that was granted on the 5th of January 2010. Finally, it was also submitted that the applicant had an alternative remedy as he could have filed opposing papers and anticipated the return ...
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HH57-10 : AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT and SECRETARY FOR MINES AND MINING DEVELOPMENT and CHIEF MINING COMMISSIONER
Ruled By: UCHENA J

The first applicant is a public company listed on the London Stock Exchange. The second to fifth applicants (Dashaloo Investments (Pvt) Ltd, Possession Investments (Pvt) Ltd, Heavy Stuff Investments (Pvt) Ltd, Olebile Investments (Pvt) Ltd) are Zimbabwean companies duly incorporated in terms of the laws of Zimbabwe. They are wholly ...
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HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MAVANGIRA J

The applicant seeks before this court relief in the following terms - “A. 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: 1. Pending determination of the Supreme Court application made by the applicant for the reinstatement of its appeal in Case ...
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HH118-10 : JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED vs WILLIAM WACHENUKA and MINISISTRY OF LANDS, AGRICULTURE AND RESETTLEMENT
Ruled By: GOWORA J

The applicant applied to this court for a provisional order under a certificate of urgency, and on 4 May 2009, this Honourable Court issued a provisional order in their favour in the following terms –“PROVISIONAL ORDERTERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the ...
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HH150-10 : STRAUSS LOGISTICS LIMITED (UK) vs BP & SHELL MARKETING SERVICES (PRIVATE) LIMITED and SHELL ZIMBABWE (PRIVATE) LIMITED and BP ZIMBABWE (PRIVATE) LIMITED
Ruled By: PATEL J

As for the balance of convenience, the prohibition of the intended sale might cause the potential purchasers to withdraw and thereby occasion irreversible prejudice to BP Africa Limited and Shell Petroleum Company Limited. In short, the applicant has failed to establish any prima facie right or prospect of irreparable harm entitling it to the interdict ...
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HH191-10 : SHEPHERD MURAHWI and DEBORAH MURAHWI and PETER SIGAUKE and OTHERS vs MS MAGWENZI and ARROSUM CONSTRUCTION (PVT) LTD and DIVINE HOMES (PVT) LTD and NICANOR ENTERPRISES (PVT) LTD
Ruled By: BERE J

The thrust of counsel for the third to fifth respondents' point in limine was that the applicants were not on firm ground in bringing the interim interdict sought, particularly against the third and fifth respondents, because they did not have a real right to justify their action. He passionately argued it was an elementary principle ...
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HH203-10 : SHEPHERD MURAHWI and DEBORAH MURAHWI and PETER SIGAUKE and OTHERS vs MS MAGWENZI and ARROSUM CONSTRUCTION (PVT) LTD and DIVINE HOMES (PVT) LTD and NICANOR ENTERPRISES (PVT) LTD
Ruled By: BERE J

I have had the privilege of hearing counsel in this matter both on the question of law and the facts relating to this case. I propose to adopt a holistic approach. The question of law It is the settled legal position that in order to be granted interim interdict the applicant must satisfy the following requirements - (a) That ...
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HB198-11 : N & R AGENCIES (PVT) LTD and MARK ANDROLIAKOS vs THABANI NDLOVU and MACLEAN BHALA
Ruled By: MATHONSI J

In this urgent application filed on 5 December 2011, the two (2) applicants seek the following relief;“Terms of final order soughtThat you show cause to this honourable court why a final order should not be made in terms of the following terms (sic);It and is hereby ordered that:1. The eviction and removal of the applicants from subdivision ...
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HB32-10 : CHIGOZIE KINGSLEY OBI vs THE STATE and THE CHIEF IMMIGRATION OFFICER (BULAWAYO)
Ruled By: NDOU J

From the foregoing, the applicant has failed to establish one of the requirements of the interdict i.e. a clear right and show an infringement of such right or at least a well-grounded apprehension of such infringement – Mabhodo Irrigation Group v Kadye Ors HB08-03; Setlogelo v Setlogelo 1914 AD 221…, and Zimbabwe Music ...
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HB33-10 : PANSIKWE MINERALS CO-OPERATIVE vs FOREMAN HLABANGANA and CONSOLIDATED PRE-CO-OPERATIVE
Ruled By: NDOU J

The applicant has established as least a prima facie right which requires legal protection in respect of Norma V 2-4 mining claims.
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HB54-10 : VISION SITHOLE vs LESLIE KHUMALO and DEPUTY SHERIFF
Ruled By: KAMOCHA J

There can be no doubt that the applicant timeously filed his two applications.The sticking point, however, is whether or not he has met the requirements for the interdict that he seeks. Has he got a prima facie or a clear right over the property that is at the centre of this dispute? His story was that sometime in ...
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HB100-10 : STEPHEN NDLOVU vs THE OFFICER COMMANDING ZRP, BULAWAYO PROVINCE and THE COMMISSIONER GENERAL and CO-MINISTER OF HOME AFFAIRS
Ruled By: CHEDA J

In the determination of an interdict, one of the considerations a court will bear in mind is the harm which may flow from its failure to stop or allow a certain occurrence. In casu, the applicant has a seven (7)-day sentence hanging on him. If the respondent is allowed to execute and he succeeds ...
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HB110-10 : HIGHLANDERS FC vs DYNAMOS FC and PREMIER SOCCER LEAGUE and BANC ABC (PRVIATE) LIMITED and CUTHBERT CHITIMA and DON MOYO, Chairman, Ad Hoc Arbitrators Committee and KENNEDY NDEBELE, PSL, C.E.O
Ruled By: NDOU J

The applicant seeks a provisional order suspending the playing of the BANC ABC Super 8 Cup Final game between the first respondent and CAPS United pending the application for review filed in this court under HC1800/10. The salient facts of the case are the following. Highlanders and Dynamos are football teams playing in the Premier Soccer League. ...
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HH25-11 : THIRDLINE TRADING (PRIVATE) LIMITED t/a ZITAC and ONCLASS INVESTMENTS (PRIVATE LIMITED) vs BOKA INVESTMENTS (PRIVATE) LIMITED
Ruled By: MAVANGIRA J

The applicants' contention that the respondent intends to evict them from the leased premises without their consent or the authority of a court order is based, or premised, on suspicion and from certain media reports. It is not based on any direct communication to them from the respondent. It is the applicants' suspicion that as ...
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HH25-13 : YEMANE BERHE WELDESLASSIE vs MORDORIC MARKETING (PVT) LTD and MOLLIE MUCHABAIWA and SHAMSTER INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

On the merits of the application, the papers before me show that the parties entered into an agreement, the spirit of which was that the applicant would inject money and stock into a joint venture. The second respondent would market the goods brought into the country on behalf of the ...
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HH52-13 : SOUTHMARK TRADING (PRIVATE) LIMITED and OTHERS vs KAROI PROPERTIES (PRIVATE) LIMITED and GEDION HWEMENDE and NATIONAL INDIGENISATION AND ECONOMIC EMPOWERMENT BOARD and OTHERS
Ruled By: ZHOU J

The requisites for…, temporary relief are settled. They are: (a) That the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt; (b) That, if the right is only prima facie ...
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HH69-11 : WALTER CHIGWADA and PATRICIA CHIGWADA vs THE OFFICER COMMANDING C.I.D. SERIOUS FRAUDS and THE COMMISSIONER GENERAL, ZRP and OTHERS
Ruled By: KARWI J

It is also my view that the applicants have failed to comply with the requirements for an interdict of this nature on an urgent basis. It seems to me that the applicants have failed to prove that they would suffer some irreparable harm if their prayer is not granted. When the motor vehicle was recovered by ...
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HH101-11 : HERENTALS COLLEGE (PRIVATE) LIMITED vs RELEASE POWER INVESTMENTS (PRIVATE) LIMITED and ONIYAS GUMBO and MR CHINYAMUCHIKO (In his capacity as the Headmaster of Cold Comfort Primary School)
Ruled By: BERE J

ALLEGED OWNERSHIP OF THE PROPERTY It would appear to me that the respondents' position was that in the absence of evidence that the applicant had acquired ownership of the property in question then it could not sue for an interdict to be granted in its favour. I am afraid I did not find this argument to be ...
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HH328-13 : NORTHERN FARMING [PVT] LTD vs VEGRA MERCHANTS [PVT] LTD t/a VEGRA COMMODITIES and CHENA MILLERS (PVT) LTD
Ruled By: MAFUSIRE J

What the applicant sought in the present matter was simply a prohibitory interdict in the interim. The requisites for such an interdict are: 1. A prima facie right; 2. A well-grounded apprehension of irreparable harm if the relief is not granted; 3. That the balance of convenience favours the granting of an interim interdict; 4. That there is ...
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Appealed
HH158-11 : TRUSTCO MOBILE (PTY) LIMITED and TRUSTCO GROUP INTERNATIONAL (PTY) LIMITED vs ECONET WIRELESS (PRIVATE) LIMITED and FIRST MUTUAL LIFE ASSURANCE COMPANY (PRIVATE) LIMITED
Ruled By: MUTEMA J

THAT REQUIREMENTS FOR AN INTERDICT HAVE NOT BEEN MET The requirements for a temporary interdict are trite and there exists a plethora of case law authorities on this subject. They are these: 1. A prima facie right, even though open to some doubt; 2. A well-grounded apprehension of injury; 3. The absence of some other adequate and ...
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HH363-13 : TAKANAYI MUREYI vs FORTUNE CHARUMBIRA
Ruled By: MTSHIYA J

Counsel for the respondent went further to argue that apart from other remedies available to the applicant, such as reporting to the police; the Traditional Leaders Act [Chapter 27:17] had provisions that dealt with acts of misconduct perpetrated by person's in the position of the respondent. He therefore prayed for the dismissal of the application ...
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HB35-11 : CARSLONE ENTERPRISES P/L vs WILSON SVOVA
Ruled By: MATHONSI J

The requirements for an interlocutory interdict were set out in Bozimo Trade Development Co (Pvt) Ltd v First Merchant Bank of Zimbabwe Ltd Others 2000 (1) ZLR 1 (H) where CHATIKOBO J stated…,: ''One must then recall the traditional requirements for an interlocutory interdict. They were originally set out in Setlogelo ...
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HH68-14 : FAIRDROP TRADING (PRIVATE) LIMITED vs THE ZIMBABWE REVENUE AUTHORITY
Ruled By: MAFUSIRE J

On the merits, for one to succeed for an interim interdict one must show at least four elements. These are: 1. That one has a prima facie right that one wishes to protect even though the right be open to some doubt. 2. That one has a well-grounded apprehension of an irreparable harm such as would not ...
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HH87-14 : MUTUMWA MAWERE and SMM HOLDINGS LTD and THZ HOLDINGS LTD and AFRICA RESOURCES LTD vs MINISTER OF MINES AND MINING DEVELOPMENT and ZIMBABWE MINING DEVELOPMENT CORP and AFARAS GWARADZIMBA
Ruled By: MANGOTA J

The respondents' third matter in limine was that the applicants will not suffer irreparable harm. The applicants, on the other hand, insisted that irreparable harm would visit them if the main application is not heard on an urgent basis. They stated that, where the main and the rescission, applications succeed when execution has been made ...
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HB130-11 : THOMAS MUTAMBIRWA and 70 OTHERS vs ARJUN INVESTMENTS (PVT) LTD
Ruled By: NDOU J

If I am wrong…, still the application should fail because the applicant has alternative remedy. The applicants have asserted that they were given a right of first refusal by the previous owner of the property who sold it to the respondent. They have remedies in the nature of whatever damages they can prove against the previous owner….,. ...
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HH303-14 : BRIGHTON NZARA vs CALISTO TSANYAU & OTHERS
Ruled By: MATHONSI J

On the merits of the matter, counsel for the first respondent did not advance any basis for denying the applicant his absolute right of appeal, content to say that the trial magistrate was correct in arriving at that decision because the other members of the co-operative had been prejudiced. Considering that an interim order for a ...
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HH311-14 : MAXWELL MATSVIMBO SIBANDA vs GYWNNE ANN STEVENSON and THE REGISTRAR OF DEEDS
Ruled By: DUBE J

Having found that there has not been shown the existence of a prima facie right, the issue of irreparable harm does not arise. However, even assuming I am wrong in this view, the applicant's fears are without foundation. The applicant fears that if the respondent sells the property and takes the funds out of the jurisdiction ...
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HH322-14 : J.L ROBINSON AGENCIES (PVT) LTD t/a AMALGAMATED MOTOR CORPORATION vs DANFORD CHAMWARURA and THE SHERIFF OF ZIMBABWE
Ruled By: MUREMBA J

I granted the final order, as prayed for, for two reasons. Firstly, the first respondent had consented to it. Secondly, it is the order which made sense since the application for rescission of judgment had been granted. The interim order initially applied for would not have made any sense considering that there had been ...