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HB58-15 - TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE

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Procedural Law-viz urgent application re stay of execution.
Procedural Law-viz urgent application re provisional  order iro interim interdict pendente lite.
Procedural Law-viz cause of action re set down of matters iro the audi alteram partem rule.
Procedural Law-viz the audi alteram partem rule.
Procedural Law-viz default judgment re unopposed proceedings.
Procedural Law-viz service of court process.
Procedural Law-viz service of process.
Procedural Law-viz final orders re interim interdict iro confirmation of a provisional order.
Procedural Law-viz final orders re provisional order iro discharge of an interim interdict.
Procedural Law-viz urgent application re urgency iro property disputes.
Procedural Law-viz cause of action re set down of matters iro Rule 246 of the High Court Rules.
Procedural Law-viz final orders re relief in conflict with an extant court order.
Procedural Law-viz urgent application re urgency iro proceedings conflicting with an extant order of court.
Procedural Law-viz urgent application re urgency iro time to act urgency.
Procedural Law-viz pleadings re cross-referencing.
Procedural Law-viz pleadings re cross referencing.

Cause of Action and Draft Orders re: Appearance to Defend, Filing of Opposition Papers & Set Down of Matters


This is an urgent application. The interim relief sought is couched in the following manner:

“(1) That, execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.

(2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.

(3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC2167/14 pending the application for rescission of judgment under HC141/15.”

The facts of the matter show, that, the dispute between the applicants and the respondents centre on a mine situated in Filabusi.

Apparently, in September 2014, the respondents filed an urgent chamber application and served it on the applicants legal practitioners. The applicants legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large, in terms of the Rules, regarding the set down or otherwise of the matter....,.

As for the issue of the provisional order on 20 November 2014, whilst there could have been a notice of opposition in the court record, it is common cause that the learned judge was not compelled, in terms of the Rules, to first set the matter down before granting it. The learned judge had a wide discretion in this regard.

This is clearly proper in terms of Rule 246(2) of the High Court Rules which provides as follows:

“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 or as varied.”

Cause of Action re: Form, Manner and Nature of Proceedings iro Approach to Application, Motion and Action Proceedings


This is an urgent application. The interim relief sought is couched in the following manner:

“(1) That, execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.

(2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.

(3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC2167/14 pending the application for rescission of judgment under HC141/15.”

The facts of the matter show, that, the dispute between the applicants and the respondents centre on a mine situated in Filabusi.

Apparently, in September 2014, the respondents filed an urgent chamber application and served it on the applicants legal practitioners. The applicants legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large, in terms of the Rules, regarding the set down or otherwise of the matter....,.

As for the issue of the provisional order on 20 November 2014, whilst there could have been a notice of opposition in the court record, it is common cause that the learned judge was not compelled, in terms of the Rules, to first set the matter down before granting it. The learned judge had a wide discretion in this regard.

This is clearly proper in terms of Rule 246(2) of the High Court Rules which provides as follows:

“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 or as varied.”

Final Orders re: Confirmation or Discharge of Interlocutory Restraining Orders and Provisional Orders


This is an urgent application. The interim relief sought is couched in the following manner:

“(1) That, execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.

(2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.

(3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC2167/14 pending the application for rescission of judgment under HC141/15.”

The facts of the matter show, that, the dispute between the applicants and the respondents centre on a mine situated in Filabusi.

Apparently, in September 2014, the respondents filed an urgent chamber application and served it on the applicants legal practitioners. The applicants legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large, in terms of the Rules, regarding the set down or otherwise of the matter.

The respondent claims, that, upon receipt of the provisional order, they served same on the applicants legal practitioners and that no notice of opposition was filed to the confirmation of the provisional order leading them to confirm same on 15 January 2015.

In the confirmation proceedings, they filed a certificate of service confirming that indeed the provisional order had been served on the applicants.

Prior to the confirmation of the provisional order, the applicants legal practitioners were served, by the respondents legal practitioners, with an affidavit of evidence and a notice of set down of the matter on the unopposed roll. Such service was effected on 9 January 2015.

The applicants filed an application for rescission of judgment on 21 January 2015.

This is an application to rescind the confirmation of the provisional order.

The applicants now seek to stay execution of the provisional order pending the hearing of their application for rescission of judgement.

They seek rescission on the basis, that, they were not served with the provisional order, and that they would want to be given an opportunity to challenge same. They further contend, that, the relief that was in the provisional order and the one that was obtained upon confirmation of same were materially different.

The terms of the final order in the provisional order that was originally issued read as follows:

“(a) The respondents be and are hereby ordered not to sale the mine in question.

(b) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(c) The respondents pay the costs of suit on an attorney and client scale.”

The terms of the final order granted on confirmation read as follows:

“(1) The respondents be and are hereby ordered not to sell the mine in question.

(2) The respondents be and are hereby ordered not to interfere with the applicant's operations at the mine and not to interfere with the equipment thereat.

(3) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(4) The respondents be and are hereby interdicted from going to the mine known as Eric 21, Trianic Investments Filabusi.

(5) The respondents pay costs at an attorney and client scale.”

The interim relief, as per the provisional order that was granted on 20 November 2014, is as follows:

“(a) The respondents be and are hereby ordered not to interfere with the mine in question and the mining equipment thereof.

(b) The second respondent to fourth respondents be and are hereby interdicted from interfering with whatever nature of threats upon their persons or their family.”

The respondents have challenged the order sought on the basis that the matter is not urgent.

I now turn to look at the issues in this application.

I would first deal with the certificate of urgency. The certificate of urgency gives the following grounds of urgency:

1. The first and second respondents clearly fraudulently got an order which they are currently executing.

2. The first and second respondents are mining and exhausting gold resources at the applicants mine. Gold will be depleted if the respondent is not interdicted from executing the unlawful order.

3. The applicants are suffering great prejudice and irreparable harm in that all mining operations have been stopped based of an unlawful order which was granted based on fraud and due to the first and second respondents misleading of this Honourable court.

4. The applicants have applied for rescission of the fraudulently gotten order under case number HC141/15. The applicants will suffer irreparable harm if the conduct of the first and second respondents is not challenged.

Thus, the final decision of this Honourable court, under case number 141/15, will be rendered a brutum fulmen if the respondents are not interdicted.

5. The applicants have a legitimate fear that the mine can be exhausted at any time by the first and second respondents.

I am not sure if the certificate of urgency seeks to allege that even the provisional order issued on 20 November 2014 was a fraud, as, clearly, the court record does not point at that.

The only issues that perhaps the applicants could contend were done unprocedurally would be the confirmation of the provisional order as they dispute receipt of the order.

As for the issue of the provisional order on 20 November 2014, whilst there could have been a notice of opposition in the court record, it is common cause that the learned judge was not compelled, in terms of the Rules, to first set the matter down before granting it. The learned judge had a wide discretion in this regard.

This is clearly proper in terms of Rule 246(2) of the High Court Rules which provides as follows:

“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 or as varied.”

The harm stated in the certificate of urgency, in my view, is not founded for the simple reason, that, the interim relief granted in the provisional order, which would be operative with or without the confirmation of the provisional order, had the effect of allowing the respondent to take effective control of the farm from 20 November 2014 to date.

That would mean, in my view, that, the confirmation or otherwise of the order did not bring anything new in so far as the applicants fears as stated in the certificate of urgency are concerned.

If the respondent had effective control of the mine since 20 November, then, they should have been mining there since then.

Even if the terms of the final order, which the applicants allege were fraudulently gotten, were to be suspended, the interim relief, which was seemingly obtained above board, would still be operational.

The applicants would still suffer the harm stated in the certificate of urgency as a result of operation of the interim relief which is an order of this court that was not obtained through unlawful means.

It would appear, from the applicants papers, that, they seek a provisional order that would counter and reverse the effects of the provisional order in HC2167/14.

This, in my view, is not desirable.

This court cannot issue a provisional order denying the applicants interference with a mine, and later issue a counter-provisional order now allowing the applicants interference and denying the respondent same.

In my view, if the applicants are not satisfied with the relief sought and granted in HC2167/14, they should seek rescission, but, they cannot seek another provisional order that renders ineffective the relief that the respondents got from this court on 20 November 2014.

Provisional orders cannot be used in the rescission of an order, for the result would be that we now have two provisional orders, one giving rights to the respondents, and a second one now taking away those rights from the respondents and giving them to the applicants.

This kind of approach would result in an absurdity.

The only proper platform to challenge the confirmation of the provisional order would be through an application for rescission of judgment which the applicants have correctly launched.

The application has to fail for this reason.

Proof of Service, Return of Service, Address and Manner of Service re: Approach


This is an urgent application. The interim relief sought is couched in the following manner:

“(1) That, execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.

(2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.

(3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC2167/14 pending the application for rescission of judgment under HC141/15.”

The facts of the matter show, that, the dispute between the applicants and the respondents centre on a mine situated in Filabusi.

Apparently, in September 2014, the respondents filed an urgent chamber application and served it on the applicants legal practitioners. The applicants legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large, in terms of the Rules, regarding the set down or otherwise of the matter.

The respondent claims, that, upon receipt of the provisional order, they served same on the applicants legal practitioners and that no notice of opposition was filed to the confirmation of the provisional order leading them to confirm same on 15 January 2015.

In the confirmation proceedings, they filed a certificate of service confirming that indeed the provisional order had been served on the applicants.

Prior to the confirmation of the provisional order, the applicants legal practitioners were served, by the respondents legal practitioners, with an affidavit of evidence and a notice of set down of the matter on the unopposed roll. Such service was effected on 9 January 2015.

The applicants filed an application for rescission of judgment on 21 January 2015.

This is an application to rescind the confirmation of the provisional order.

The applicants now seek to stay execution of the provisional order pending the hearing of their application for rescission of judgement.

They seek rescission on the basis, that, they were not served with the provisional order, and that they would want to be given an opportunity to challenge same. They further contend, that, the relief that was in the provisional order and the one that was obtained upon confirmation of same were materially different.

The terms of the final order in the provisional order that was originally issued read as follows:

“(a) The respondents be and are hereby ordered not to sale the mine in question.

(b) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(c) The respondents pay the costs of suit on an attorney and client scale.”

The terms of the final order granted on confirmation read as follows:

“(1) The respondents be and are hereby ordered not to sell the mine in question.

(2) The respondents be and are hereby ordered not to interfere with the applicant's operations at the mine and not to interfere with the equipment thereat.

(3) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(4) The respondents be and are hereby interdicted from going to the mine known as Eric 21, Trianic Investments Filabusi.

(5) The respondents pay costs at an attorney and client scale.”

The interim relief, as per the provisional order that was granted on 20 November 2014, is as follows:

“(a) The respondents be and are hereby ordered not to interfere with the mine in question and the mining equipment thereof.

(b) The second respondent to fourth respondents be and are hereby interdicted from interfering with whatever nature of threats upon their persons or their family.”

The respondents have challenged the order sought on the basis that the matter is not urgent.

I now turn to look at the issues in this application.

I would first deal with the certificate of urgency. The certificate of urgency gives the following grounds of urgency:

1. The first and second respondents clearly fraudulently got an order which they are currently executing.

2. The first and second respondents are mining and exhausting gold resources at the applicants mine. Gold will be depleted if the respondent is not interdicted from executing the unlawful order.

3. The applicants are suffering great prejudice and irreparable harm in that all mining operations have been stopped based of an unlawful order which was granted based on fraud and due to the first and second respondents misleading of this Honourable court.

4. The applicants have applied for rescission of the fraudulently gotten order under case number HC141/15. The applicants will suffer irreparable harm if the conduct of the first and second respondents is not challenged.

Thus, the final decision of this Honourable court, under case number 141/15, will be rendered a brutum fulmen if the respondents are not interdicted.

5. The applicants have a legitimate fear that the mine can be exhausted at any time by the first and second respondents.

I am not sure if the certificate of urgency seeks to allege that even the provisional order issued on 20 November 2014 was a fraud, as, clearly, the court record does not point at that.

The only issues that perhaps the applicants could contend were done unprocedurally would be the confirmation of the provisional order as they dispute receipt of the order.

As for the issue of the provisional order on 20 November 2014, whilst there could have been a notice of opposition in the court record, it is common cause that the learned judge was not compelled, in terms of the Rules, to first set the matter down before granting it. The learned judge had a wide discretion in this regard.

This is clearly proper in terms of Rule 246(2) of the High Court Rules which provides as follows:

“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 or as varied.”

The harm stated in the certificate of urgency, in my view, is not founded for the simple reason, that, the interim relief granted in the provisional order, which would be operative with or without the confirmation of the provisional order, had the effect of allowing the respondent to take effective control of the farm from 20 November 2014 to date.

That would mean, in my view, that, the confirmation or otherwise of the order did not bring anything new in so far as the applicants fears as stated in the certificate of urgency are concerned.

If the respondent had effective control of the mine since 20 November, then, they should have been mining there since then.

Even if the terms of the final order, which the applicants allege were fraudulently gotten, were to be suspended, the interim relief, which was seemingly obtained above board, would still be operational.

The applicants would still suffer the harm stated in the certificate of urgency as a result of operation of the interim relief which is an order of this court that was not obtained through unlawful means.

It would appear, from the applicants papers, that, they seek a provisional order that would counter and reverse the effects of the provisional order in HC2167/14.

This, in my view, is not desirable.

This court cannot issue a provisional order denying the applicants interference with a mine, and later issue a counter-provisional order now allowing the applicants interference and denying the respondent same.

In my view, if the applicants are not satisfied with the relief sought and granted in HC2167/14, they should seek rescission, but, they cannot seek another provisional order that renders ineffective the relief that the respondents got from this court on 20 November 2014.

Provisional orders cannot be used in the rescission of an order, for the result would be that we now have two provisional orders, one giving rights to the respondents, and a second one now taking away those rights from the respondents and giving them to the applicants.

This kind of approach would result in an absurdity.

The only proper platform to challenge the confirmation of the provisional order would be through an application for rescission of judgment which the applicants have correctly launched.

The application has to fail for this reason.

Default Judgment re: Default Judgment and Snatching at a Judgment iro Approach and Unopposed Proceedings


This is an urgent application. The interim relief sought is couched in the following manner:

“(1) That, execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.

(2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.

(3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC2167/14 pending the application for rescission of judgment under HC141/15.”

The facts of the matter show, that, the dispute between the applicants and the respondents centre on a mine situated in Filabusi.

Apparently, in September 2014, the respondents filed an urgent chamber application and served it on the applicants legal practitioners. The applicants legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large, in terms of the Rules, regarding the set down or otherwise of the matter.

The respondent claims, that, upon receipt of the provisional order, they served same on the applicants legal practitioners and that no notice of opposition was filed to the confirmation of the provisional order leading them to confirm same on 15 January 2015.

In the confirmation proceedings, they filed a certificate of service confirming that indeed the provisional order had been served on the applicants.

Prior to the confirmation of the provisional order, the applicants legal practitioners were served, by the respondents legal practitioners, with an affidavit of evidence and a notice of set down of the matter on the unopposed roll. Such service was effected on 9 January 2015.

The applicants filed an application for rescission of judgment on 21 January 2015.

This is an application to rescind the confirmation of the provisional order.

The applicants now seek to stay execution of the provisional order pending the hearing of their application for rescission of judgement.

They seek rescission on the basis, that, they were not served with the provisional order, and that they would want to be given an opportunity to challenge same. They further contend, that, the relief that was in the provisional order and the one that was obtained upon confirmation of same were materially different.

The terms of the final order in the provisional order that was originally issued read as follows:

“(a) The respondents be and are hereby ordered not to sale the mine in question.

(b) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(c) The respondents pay the costs of suit on an attorney and client scale.”

The terms of the final order granted on confirmation read as follows:

“(1) The respondents be and are hereby ordered not to sell the mine in question.

(2) The respondents be and are hereby ordered not to interfere with the applicant's operations at the mine and not to interfere with the equipment thereat.

(3) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(4) The respondents be and are hereby interdicted from going to the mine known as Eric 21, Trianic Investments Filabusi.

(5) The respondents pay costs at an attorney and client scale.”

The interim relief, as per the provisional order that was granted on 20 November 2014, is as follows:

“(a) The respondents be and are hereby ordered not to interfere with the mine in question and the mining equipment thereof.

(b) The second respondent to fourth respondents be and are hereby interdicted from interfering with whatever nature of threats upon their persons or their family.”

The respondents have challenged the order sought on the basis that the matter is not urgent.

I now turn to look at the issues in this application.

I would first deal with the certificate of urgency. The certificate of urgency gives the following grounds of urgency:

1. The first and second respondents clearly fraudulently got an order which they are currently executing.

2. The first and second respondents are mining and exhausting gold resources at the applicants mine. Gold will be depleted if the respondent is not interdicted from executing the unlawful order.

3. The applicants are suffering great prejudice and irreparable harm in that all mining operations have been stopped based of an unlawful order which was granted based on fraud and due to the first and second respondents misleading of this Honourable court.

4. The applicants have applied for rescission of the fraudulently gotten order under case number HC141/15. The applicants will suffer irreparable harm if the conduct of the first and second respondents is not challenged.

Thus, the final decision of this Honourable court, under case number 141/15, will be rendered a brutum fulmen if the respondents are not interdicted.

5. The applicants have a legitimate fear that the mine can be exhausted at any time by the first and second respondents.

I am not sure if the certificate of urgency seeks to allege that even the provisional order issued on 20 November 2014 was a fraud, as, clearly, the court record does not point at that.

The only issues that perhaps the applicants could contend were done unprocedurally would be the confirmation of the provisional order as they dispute receipt of the order.

As for the issue of the provisional order on 20 November 2014, whilst there could have been a notice of opposition in the court record, it is common cause that the learned judge was not compelled, in terms of the Rules, to first set the matter down before granting it. The learned judge had a wide discretion in this regard.

This is clearly proper in terms of Rule 246(2) of the High Court Rules which provides as follows:

“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 or as varied.”

The harm stated in the certificate of urgency, in my view, is not founded for the simple reason, that, the interim relief granted in the provisional order, which would be operative with or without the confirmation of the provisional order, had the effect of allowing the respondent to take effective control of the farm from 20 November 2014 to date.

That would mean, in my view, that, the confirmation or otherwise of the order did not bring anything new in so far as the applicants fears as stated in the certificate of urgency are concerned.

If the respondent had effective control of the mine since 20 November, then, they should have been mining there since then.

Even if the terms of the final order, which the applicants allege were fraudulently gotten, were to be suspended, the interim relief, which was seemingly obtained above board, would still be operational.

The applicants would still suffer the harm stated in the certificate of urgency as a result of operation of the interim relief which is an order of this court that was not obtained through unlawful means.

It would appear, from the applicants papers, that, they seek a provisional order that would counter and reverse the effects of the provisional order in HC2167/14.

This, in my view, is not desirable.

This court cannot issue a provisional order denying the applicants interference with a mine, and later issue a counter-provisional order now allowing the applicants interference and denying the respondent same.

In my view, if the applicants are not satisfied with the relief sought and granted in HC2167/14, they should seek rescission, but, they cannot seek another provisional order that renders ineffective the relief that the respondents got from this court on 20 November 2014.

Provisional orders cannot be used in the rescission of an order, for the result would be that we now have two provisional orders, one giving rights to the respondents, and a second one now taking away those rights from the respondents and giving them to the applicants.

This kind of approach would result in an absurdity.

The only proper platform to challenge the confirmation of the provisional order would be through an application for rescission of judgment which the applicants have correctly launched.

The application has to fail for this reason.

Default Judgment re: Rescission of Judgment iro Approach


This is an urgent application. The interim relief sought is couched in the following manner:

“(1) That, execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.

(2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.

(3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC2167/14 pending the application for rescission of judgment under HC141/15.”

The facts of the matter show, that, the dispute between the applicants and the respondents centre on a mine situated in Filabusi.

Apparently, in September 2014, the respondents filed an urgent chamber application and served it on the applicants legal practitioners. The applicants legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large, in terms of the Rules, regarding the set down or otherwise of the matter.

The respondent claims, that, upon receipt of the provisional order, they served same on the applicants legal practitioners and that no notice of opposition was filed to the confirmation of the provisional order leading them to confirm same on 15 January 2015.

In the confirmation proceedings, they filed a certificate of service confirming that indeed the provisional order had been served on the applicants.

Prior to the confirmation of the provisional order, the applicants legal practitioners were served, by the respondents legal practitioners, with an affidavit of evidence and a notice of set down of the matter on the unopposed roll. Such service was effected on 9 January 2015.

The applicants filed an application for rescission of judgment on 21 January 2015.

This is an application to rescind the confirmation of the provisional order.

The applicants now seek to stay execution of the provisional order pending the hearing of their application for rescission of judgement.

They seek rescission on the basis, that, they were not served with the provisional order, and that they would want to be given an opportunity to challenge same. They further contend, that, the relief that was in the provisional order and the one that was obtained upon confirmation of same were materially different.

The terms of the final order in the provisional order that was originally issued read as follows:

“(a) The respondents be and are hereby ordered not to sale the mine in question.

(b) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(c) The respondents pay the costs of suit on an attorney and client scale.”

The terms of the final order granted on confirmation read as follows:

“(1) The respondents be and are hereby ordered not to sell the mine in question.

(2) The respondents be and are hereby ordered not to interfere with the applicant's operations at the mine and not to interfere with the equipment thereat.

(3) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(4) The respondents be and are hereby interdicted from going to the mine known as Eric 21, Trianic Investments Filabusi.

(5) The respondents pay costs at an attorney and client scale.”

The interim relief, as per the provisional order that was granted on 20 November 2014, is as follows:

“(a) The respondents be and are hereby ordered not to interfere with the mine in question and the mining equipment thereof.

(b) The second respondent to fourth respondents be and are hereby interdicted from interfering with whatever nature of threats upon their persons or their family.”

The respondents have challenged the order sought on the basis that the matter is not urgent.

I now turn to look at the issues in this application.

I would first deal with the certificate of urgency. The certificate of urgency gives the following grounds of urgency:

1. The first and second respondents clearly fraudulently got an order which they are currently executing.

2. The first and second respondents are mining and exhausting gold resources at the applicants mine. Gold will be depleted if the respondent is not interdicted from executing the unlawful order.

3. The applicants are suffering great prejudice and irreparable harm in that all mining operations have been stopped based of an unlawful order which was granted based on fraud and due to the first and second respondents misleading of this Honourable court.

4. The applicants have applied for rescission of the fraudulently gotten order under case number HC141/15. The applicants will suffer irreparable harm if the conduct of the first and second respondents is not challenged.

Thus, the final decision of this Honourable court, under case number 141/15, will be rendered a brutum fulmen if the respondents are not interdicted.

5. The applicants have a legitimate fear that the mine can be exhausted at any time by the first and second respondents.

I am not sure if the certificate of urgency seeks to allege that even the provisional order issued on 20 November 2014 was a fraud, as, clearly, the court record does not point at that.

The only issues that perhaps the applicants could contend were done unprocedurally would be the confirmation of the provisional order as they dispute receipt of the order.

As for the issue of the provisional order on 20 November 2014, whilst there could have been a notice of opposition in the court record, it is common cause that the learned judge was not compelled, in terms of the Rules, to first set the matter down before granting it. The learned judge had a wide discretion in this regard.

This is clearly proper in terms of Rule 246(2) of the High Court Rules which provides as follows:

“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 or as varied.”

The harm stated in the certificate of urgency, in my view, is not founded for the simple reason, that, the interim relief granted in the provisional order, which would be operative with or without the confirmation of the provisional order, had the effect of allowing the respondent to take effective control of the farm from 20 November 2014 to date.

That would mean, in my view, that, the confirmation or otherwise of the order did not bring anything new in so far as the applicants fears as stated in the certificate of urgency are concerned.

If the respondent had effective control of the mine since 20 November, then, they should have been mining there since then.

Even if the terms of the final order, which the applicants allege were fraudulently gotten, were to be suspended, the interim relief, which was seemingly obtained above board, would still be operational.

The applicants would still suffer the harm stated in the certificate of urgency as a result of operation of the interim relief which is an order of this court that was not obtained through unlawful means.

It would appear, from the applicants papers, that, they seek a provisional order that would counter and reverse the effects of the provisional order in HC2167/14.

This, in my view, is not desirable.

This court cannot issue a provisional order denying the applicants interference with a mine, and later issue a counter-provisional order now allowing the applicants interference and denying the respondent same.

In my view, if the applicants are not satisfied with the relief sought and granted in HC2167/14, they should seek rescission, but, they cannot seek another provisional order that renders ineffective the relief that the respondents got from this court on 20 November 2014.

Provisional orders cannot be used in the rescission of an order, for the result would be that we now have two provisional orders, one giving rights to the respondents, and a second one now taking away those rights from the respondents and giving them to the applicants.

This kind of approach would result in an absurdity.

The only proper platform to challenge the confirmation of the provisional order would be through an application for rescission of judgment which the applicants have correctly launched.

The application has to fail for this reason.

Interim Interdict or Final Order re: Relief Conflicting with Statutes, Extant Court Orders & Prima Facie Lawful Conduct


This is an urgent application. The interim relief sought is couched in the following manner:

“(1) That, execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.

(2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.

(3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC2167/14 pending the application for rescission of judgment under HC141/15.”

The facts of the matter show, that, the dispute between the applicants and the respondents centre on a mine situated in Filabusi.

Apparently, in September 2014, the respondents filed an urgent chamber application and served it on the applicants legal practitioners. The applicants legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large, in terms of the Rules, regarding the set down or otherwise of the matter.

The respondent claims, that, upon receipt of the provisional order, they served same on the applicants legal practitioners and that no notice of opposition was filed to the confirmation of the provisional order leading them to confirm same on 15 January 2015.

In the confirmation proceedings, they filed a certificate of service confirming that indeed the provisional order had been served on the applicants.

Prior to the confirmation of the provisional order, the applicants legal practitioners were served, by the respondents legal practitioners, with an affidavit of evidence and a notice of set down of the matter on the unopposed roll. Such service was effected on 9 January 2015.

The applicants filed an application for rescission of judgment on 21 January 2015.

This is an application to rescind the confirmation of the provisional order.

The applicants now seek to stay execution of the provisional order pending the hearing of their application for rescission of judgement.

They seek rescission on the basis, that, they were not served with the provisional order, and that they would want to be given an opportunity to challenge same. They further contend, that, the relief that was in the provisional order and the one that was obtained upon confirmation of same were materially different.

The terms of the final order in the provisional order that was originally issued read as follows:

“(a) The respondents be and are hereby ordered not to sale the mine in question.

(b) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(c) The respondents pay the costs of suit on an attorney and client scale.”

The terms of the final order granted on confirmation read as follows:

“(1) The respondents be and are hereby ordered not to sell the mine in question.

(2) The respondents be and are hereby ordered not to interfere with the applicant's operations at the mine and not to interfere with the equipment thereat.

(3) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(4) The respondents be and are hereby interdicted from going to the mine known as Eric 21, Trianic Investments Filabusi.

(5) The respondents pay costs at an attorney and client scale.”

The interim relief, as per the provisional order that was granted on 20 November 2014, is as follows:

“(a) The respondents be and are hereby ordered not to interfere with the mine in question and the mining equipment thereof.

(b) The second respondent to fourth respondents be and are hereby interdicted from interfering with whatever nature of threats upon their persons or their family.”

The respondents have challenged the order sought on the basis that the matter is not urgent.

I now turn to look at the issues in this application.

I would first deal with the certificate of urgency. The certificate of urgency gives the following grounds of urgency:

1. The first and second respondents clearly fraudulently got an order which they are currently executing.

2. The first and second respondents are mining and exhausting gold resources at the applicants mine. Gold will be depleted if the respondent is not interdicted from executing the unlawful order.

3. The applicants are suffering great prejudice and irreparable harm in that all mining operations have been stopped based of an unlawful order which was granted based on fraud and due to the first and second respondents misleading of this Honourable court.

4. The applicants have applied for rescission of the fraudulently gotten order under case number HC141/15. The applicants will suffer irreparable harm if the conduct of the first and second respondents is not challenged.

Thus, the final decision of this Honourable court, under case number 141/15, will be rendered a brutum fulmen if the respondents are not interdicted.

5. The applicants have a legitimate fear that the mine can be exhausted at any time by the first and second respondents.

I am not sure if the certificate of urgency seeks to allege that even the provisional order issued on 20 November 2014 was a fraud, as, clearly, the court record does not point at that.

The only issues that perhaps the applicants could contend were done unprocedurally would be the confirmation of the provisional order as they dispute receipt of the order.

As for the issue of the provisional order on 20 November 2014, whilst there could have been a notice of opposition in the court record, it is common cause that the learned judge was not compelled, in terms of the Rules, to first set the matter down before granting it. The learned judge had a wide discretion in this regard.

This is clearly proper in terms of Rule 246(2) of the High Court Rules which provides as follows:

“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 or as varied.”

The harm stated in the certificate of urgency, in my view, is not founded for the simple reason, that, the interim relief granted in the provisional order, which would be operative with or without the confirmation of the provisional order, had the effect of allowing the respondent to take effective control of the farm from 20 November 2014 to date.

That would mean, in my view, that, the confirmation or otherwise of the order did not bring anything new in so far as the applicants fears as stated in the certificate of urgency are concerned.

If the respondent had effective control of the mine since 20 November, then, they should have been mining there since then.

Even if the terms of the final order, which the applicants allege were fraudulently gotten, were to be suspended, the interim relief, which was seemingly obtained above board, would still be operational.

The applicants would still suffer the harm stated in the certificate of urgency as a result of operation of the interim relief which is an order of this court that was not obtained through unlawful means.

It would appear, from the applicants papers, that, they seek a provisional order that would counter and reverse the effects of the provisional order in HC2167/14.

This, in my view, is not desirable.

This court cannot issue a provisional order denying the applicants interference with a mine, and later issue a counter-provisional order now allowing the applicants interference and denying the respondent same.

In my view, if the applicants are not satisfied with the relief sought and granted in HC2167/14, they should seek rescission, but, they cannot seek another provisional order that renders ineffective the relief that the respondents got from this court on 20 November 2014.

Provisional orders cannot be used in the rescission of an order, for the result would be that we now have two provisional orders, one giving rights to the respondents, and a second one now taking away those rights from the respondents and giving them to the applicants.

This kind of approach would result in an absurdity.

The only proper platform to challenge the confirmation of the provisional order would be through an application for rescission of judgment which the applicants have correctly launched.

The application has to fail for this reason.

Audi Alteram Partem Rule re: Approach, Orders Granted Without a Hearing and the Doctrine of Notice


This is an urgent application. The interim relief sought is couched in the following manner:

“(1) That, execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.

(2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.

(3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC2167/14 pending the application for rescission of judgment under HC141/15.”

The facts of the matter show, that, the dispute between the applicants and the respondents centre on a mine situated in Filabusi.

Apparently, in September 2014, the respondents filed an urgent chamber application and served it on the applicants legal practitioners. The applicants legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large, in terms of the Rules, regarding the set down or otherwise of the matter.

The respondent claims, that, upon receipt of the provisional order, they served same on the applicants legal practitioners and that no notice of opposition was filed to the confirmation of the provisional order leading them to confirm same on 15 January 2015.

In the confirmation proceedings, they filed a certificate of service confirming that indeed the provisional order had been served on the applicants.

Prior to the confirmation of the provisional order, the applicants legal practitioners were served, by the respondents legal practitioners, with an affidavit of evidence and a notice of set down of the matter on the unopposed roll. Such service was effected on 9 January 2015.

The applicants filed an application for rescission of judgment on 21 January 2015.

This is an application to rescind the confirmation of the provisional order.

The applicants now seek to stay execution of the provisional order pending the hearing of their application for rescission of judgement.

They seek rescission on the basis, that, they were not served with the provisional order, and that they would want to be given an opportunity to challenge same. They further contend, that, the relief that was in the provisional order and the one that was obtained upon confirmation of same were materially different.

The terms of the final order in the provisional order that was originally issued read as follows:

“(a) The respondents be and are hereby ordered not to sale the mine in question.

(b) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(c) The respondents pay the costs of suit on an attorney and client scale.”

The terms of the final order granted on confirmation read as follows:

“(1) The respondents be and are hereby ordered not to sell the mine in question.

(2) The respondents be and are hereby ordered not to interfere with the applicant's operations at the mine and not to interfere with the equipment thereat.

(3) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(4) The respondents be and are hereby interdicted from going to the mine known as Eric 21, Trianic Investments Filabusi.

(5) The respondents pay costs at an attorney and client scale.”

The interim relief, as per the provisional order that was granted on 20 November 2014, is as follows:

“(a) The respondents be and are hereby ordered not to interfere with the mine in question and the mining equipment thereof.

(b) The second respondent to fourth respondents be and are hereby interdicted from interfering with whatever nature of threats upon their persons or their family.”

The respondents have challenged the order sought on the basis that the matter is not urgent.

I now turn to look at the issues in this application.

I would first deal with the certificate of urgency. The certificate of urgency gives the following grounds of urgency:

1. The first and second respondents clearly fraudulently got an order which they are currently executing.

2. The first and second respondents are mining and exhausting gold resources at the applicants mine. Gold will be depleted if the respondent is not interdicted from executing the unlawful order.

3. The applicants are suffering great prejudice and irreparable harm in that all mining operations have been stopped based of an unlawful order which was granted based on fraud and due to the first and second respondents misleading of this Honourable court.

4. The applicants have applied for rescission of the fraudulently gotten order under case number HC141/15. The applicants will suffer irreparable harm if the conduct of the first and second respondents is not challenged.

Thus, the final decision of this Honourable court, under case number 141/15, will be rendered a brutum fulmen if the respondents are not interdicted.

5. The applicants have a legitimate fear that the mine can be exhausted at any time by the first and second respondents.

I am not sure if the certificate of urgency seeks to allege that even the provisional order issued on 20 November 2014 was a fraud, as, clearly, the court record does not point at that.

The only issues that perhaps the applicants could contend were done unprocedurally would be the confirmation of the provisional order as they dispute receipt of the order.

As for the issue of the provisional order on 20 November 2014, whilst there could have been a notice of opposition in the court record, it is common cause that the learned judge was not compelled, in terms of the Rules, to first set the matter down before granting it. The learned judge had a wide discretion in this regard.

This is clearly proper in terms of Rule 246(2) of the High Court Rules which provides as follows:

“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 or as varied.”

The harm stated in the certificate of urgency, in my view, is not founded for the simple reason, that, the interim relief granted in the provisional order, which would be operative with or without the confirmation of the provisional order, had the effect of allowing the respondent to take effective control of the farm from 20 November 2014 to date.

That would mean, in my view, that, the confirmation or otherwise of the order did not bring anything new in so far as the applicants fears as stated in the certificate of urgency are concerned.

If the respondent had effective control of the mine since 20 November, then, they should have been mining there since then.

Even if the terms of the final order, which the applicants allege were fraudulently gotten, were to be suspended, the interim relief, which was seemingly obtained above board, would still be operational.

The applicants would still suffer the harm stated in the certificate of urgency as a result of operation of the interim relief which is an order of this court that was not obtained through unlawful means.

It would appear, from the applicants papers, that, they seek a provisional order that would counter and reverse the effects of the provisional order in HC2167/14.

This, in my view, is not desirable.

This court cannot issue a provisional order denying the applicants interference with a mine, and later issue a counter-provisional order now allowing the applicants interference and denying the respondent same.

In my view, if the applicants are not satisfied with the relief sought and granted in HC2167/14, they should seek rescission, but, they cannot seek another provisional order that renders ineffective the relief that the respondents got from this court on 20 November 2014.

Provisional orders cannot be used in the rescission of an order, for the result would be that we now have two provisional orders, one giving rights to the respondents, and a second one now taking away those rights from the respondents and giving them to the applicants.

This kind of approach would result in an absurdity.

The only proper platform to challenge the confirmation of the provisional order would be through an application for rescission of judgment which the applicants have correctly launched.

The application has to fail for this reason.

Urgency re: Approach, the Principle of Equality of Treatment & Discretion of the Court to Hear Oral Arguments on Urgency


In the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (HC) the position regarding the undesirability of delaying to launch urgent applications was cogently stated…,. This is what the learned judge had to say:

“What constitutes urgency is not the only 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 deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows, that, the certificate of urgency, or the supporting affidavit, must always contain an explanation of the non-timeous action if there has been a delay…,.”

Urgency re: Land Reform, Spoliation or Mandament van Spolie Proceedings and Property Disputes


This is an urgent application. The interim relief sought is couched in the following manner:

“(1) That, execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.

(2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.

(3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC2167/14 pending the application for rescission of judgment under HC141/15.”

The facts of the matter show, that, the dispute between the applicants and the respondents centre on a mine situated in Filabusi.

Apparently, in September 2014, the respondents filed an urgent chamber application and served it on the applicants legal practitioners. The applicants legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large, in terms of the Rules, regarding the set down or otherwise of the matter.

The respondent claims, that, upon receipt of the provisional order, they served same on the applicants legal practitioners and that no notice of opposition was filed to the confirmation of the provisional order leading them to confirm same on 15 January 2015.

In the confirmation proceedings, they filed a certificate of service confirming that indeed the provisional order had been served on the applicants.

Prior to the confirmation of the provisional order, the applicants legal practitioners were served, by the respondents legal practitioners, with an affidavit of evidence and a notice of set down of the matter on the unopposed roll. Such service was effected on 9 January 2015.

The applicants filed an application for rescission of judgment on 21 January 2015.

This is an application to rescind the confirmation of the provisional order.

The applicants now seek to stay execution of the provisional order pending the hearing of their application for rescission of judgement.

They seek rescission on the basis, that, they were not served with the provisional order, and that they would want to be given an opportunity to challenge same. They further contend, that, the relief that was in the provisional order and the one that was obtained upon confirmation of same were materially different.

The terms of the final order in the provisional order that was originally issued read as follows:

“(a) The respondents be and are hereby ordered not to sale the mine in question.

(b) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(c) The respondents pay the costs of suit on an attorney and client scale.”

The terms of the final order granted on confirmation read as follows:

“(1) The respondents be and are hereby ordered not to sell the mine in question.

(2) The respondents be and are hereby ordered not to interfere with the applicant's operations at the mine and not to interfere with the equipment thereat.

(3) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(4) The respondents be and are hereby interdicted from going to the mine known as Eric 21, Trianic Investments Filabusi.

(5) The respondents pay costs at an attorney and client scale.”

The interim relief, as per the provisional order that was granted on 20 November 2014, is as follows:

“(a) The respondents be and are hereby ordered not to interfere with the mine in question and the mining equipment thereof.

(b) The second respondent to fourth respondents be and are hereby interdicted from interfering with whatever nature of threats upon their persons or their family.”

The respondents have challenged the order sought on the basis that the matter is not urgent.

I now turn to look at the issues in this application....,.

The other issue is that of urgency.

The applicants got to know of the imminent confirmation of the provisional order they were apparently not served with on 9 January 2015. They did nothing despite knowledge that the matter had been set on the unopposed roll since they had been served with a notice of set down.

It is important to note, that, the application for rescission of judgment was filed on 21 January 2015. However, the urgent application was filed on 16 February 2015 - almost a month later.

Counsel for the applicants sought to bring up the issue of the placement under curatorship of the firm Cheda and Partners. This, however, he submits, occurred on 30 January 2015, more than 9 days after the filing of the rescission of judgment, which itself was filed almost two weeks after the applicants lawyers had been served with a notice of set down.

The applicants have not sought to explain, in the founding affidavit, why no action was taken from 9 January.

In the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (HC) the position regarding the undesirability of delaying to launch urgent applications was cogently stated…,. This is what the learned judge had to say:

“What constitutes urgency is not the only 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 deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows, that, the certificate of urgency, or the supporting affidavit, must always contain an explanation of the non-timeous action if there has been a delay…,.”

In my view, the applicants inaction, from 9 January 2015 to 16 February 2015, is found wanting.

There is no explanation, either in the certificate of urgency or the founding affidavit, for this very long delay.

The application does not, in my view, meet the test on urgency. It has to fail on that basis as well.

Urgency re: Approach iro Time, Consequent and Remedial Alternative Considerations of Urgency


This is an urgent application. The interim relief sought is couched in the following manner:

“(1) That, execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.

(2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.

(3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC2167/14 pending the application for rescission of judgment under HC141/15.”

The facts of the matter show, that, the dispute between the applicants and the respondents centre on a mine situated in Filabusi.

Apparently, in September 2014, the respondents filed an urgent chamber application and served it on the applicants legal practitioners. The applicants legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large, in terms of the Rules, regarding the set down or otherwise of the matter.

The respondent claims, that, upon receipt of the provisional order, they served same on the applicants legal practitioners and that no notice of opposition was filed to the confirmation of the provisional order leading them to confirm same on 15 January 2015.

In the confirmation proceedings, they filed a certificate of service confirming that indeed the provisional order had been served on the applicants.

Prior to the confirmation of the provisional order, the applicants legal practitioners were served, by the respondents legal practitioners, with an affidavit of evidence and a notice of set down of the matter on the unopposed roll. Such service was effected on 9 January 2015.

The applicants filed an application for rescission of judgment on 21 January 2015.

This is an application to rescind the confirmation of the provisional order.

The applicants now seek to stay execution of the provisional order pending the hearing of their application for rescission of judgement.

They seek rescission on the basis, that, they were not served with the provisional order, and that they would want to be given an opportunity to challenge same. They further contend, that, the relief that was in the provisional order and the one that was obtained upon confirmation of same were materially different.

The terms of the final order in the provisional order that was originally issued read as follows:

“(a) The respondents be and are hereby ordered not to sale the mine in question.

(b) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(c) The respondents pay the costs of suit on an attorney and client scale.”

The terms of the final order granted on confirmation read as follows:

“(1) The respondents be and are hereby ordered not to sell the mine in question.

(2) The respondents be and are hereby ordered not to interfere with the applicant's operations at the mine and not to interfere with the equipment thereat.

(3) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(4) The respondents be and are hereby interdicted from going to the mine known as Eric 21, Trianic Investments Filabusi.

(5) The respondents pay costs at an attorney and client scale.”

The interim relief, as per the provisional order that was granted on 20 November 2014, is as follows:

“(a) The respondents be and are hereby ordered not to interfere with the mine in question and the mining equipment thereof.

(b) The second respondent to fourth respondents be and are hereby interdicted from interfering with whatever nature of threats upon their persons or their family.”

The respondents have challenged the order sought on the basis that the matter is not urgent.

I now turn to look at the issues in this application....,.

The other issue is that of urgency.

The applicants got to know of the imminent confirmation of the provisional order they were apparently not served with on 9 January 2015. They did nothing despite knowledge that the matter had been set on the unopposed roll since they had been served with a notice of set down.

It is important to note, that, the application for rescission of judgment was filed on 21 January 2015. However, the urgent application was filed on 16 February 2015 - almost a month later.

Counsel for the applicants sought to bring up the issue of the placement under curatorship of the firm Cheda and Partners. This, however, he submits, occurred on 30 January 2015, more than 9 days after the filing of the rescission of judgment, which itself was filed almost two weeks after the applicants lawyers had been served with a notice of set down.

The applicants have not sought to explain, in the founding affidavit, why no action was taken from 9 January.

In the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (HC) the position regarding the undesirability of delaying to launch urgent applications was cogently stated…,. This is what the learned judge had to say:

“What constitutes urgency is not the only 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 deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows, that, the certificate of urgency, or the supporting affidavit, must always contain an explanation of the non-timeous action if there has been a delay…,.”

In my view, the applicants inaction, from 9 January 2015 to 16 February 2015, is found wanting.

There is no explanation, either in the certificate of urgency or the founding affidavit, for this very long delay.

The application does not, in my view, meet the test on urgency. It has to fail on that basis as well.

Interim Interdict Pendente Lite and Stay of Execution re: Approach


This is an urgent application. The interim relief sought is couched in the following manner:

“(1) That, execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.

(2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.

(3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC2167/14 pending the application for rescission of judgment under HC141/15.”

The facts of the matter show, that, the dispute between the applicants and the respondents centre on a mine situated in Filabusi.

Apparently, in September 2014, the respondents filed an urgent chamber application and served it on the applicants legal practitioners. The applicants legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large, in terms of the Rules, regarding the set down or otherwise of the matter.

The respondent claims, that, upon receipt of the provisional order, they served same on the applicants legal practitioners and that no notice of opposition was filed to the confirmation of the provisional order leading them to confirm same on 15 January 2015.

In the confirmation proceedings, they filed a certificate of service confirming that indeed the provisional order had been served on the applicants.

Prior to the confirmation of the provisional order, the applicants legal practitioners were served, by the respondents legal practitioners, with an affidavit of evidence and a notice of set down of the matter on the unopposed roll. Such service was effected on 9 January 2015.

The applicants filed an application for rescission of judgment on 21 January 2015.

This is an application to rescind the confirmation of the provisional order.

The applicants now seek to stay execution of the provisional order pending the hearing of their application for rescission of judgement.

They seek rescission on the basis, that, they were not served with the provisional order, and that they would want to be given an opportunity to challenge same. They further contend, that, the relief that was in the provisional order and the one that was obtained upon confirmation of same were materially different.

The terms of the final order in the provisional order that was originally issued read as follows:

“(a) The respondents be and are hereby ordered not to sale the mine in question.

(b) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(c) The respondents pay the costs of suit on an attorney and client scale.”

The terms of the final order granted on confirmation read as follows:

“(1) The respondents be and are hereby ordered not to sell the mine in question.

(2) The respondents be and are hereby ordered not to interfere with the applicant's operations at the mine and not to interfere with the equipment thereat.

(3) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(4) The respondents be and are hereby interdicted from going to the mine known as Eric 21, Trianic Investments Filabusi.

(5) The respondents pay costs at an attorney and client scale.”

The interim relief, as per the provisional order that was granted on 20 November 2014, is as follows:

“(a) The respondents be and are hereby ordered not to interfere with the mine in question and the mining equipment thereof.

(b) The second respondent to fourth respondents be and are hereby interdicted from interfering with whatever nature of threats upon their persons or their family.”

The respondents have challenged the order sought on the basis that the matter is not urgent.

I now turn to look at the issues in this application.

I would first deal with the certificate of urgency. The certificate of urgency gives the following grounds of urgency:

1. The first and second respondents clearly fraudulently got an order which they are currently executing.

2. The first and second respondents are mining and exhausting gold resources at the applicants mine. Gold will be depleted if the respondent is not interdicted from executing the unlawful order.

3. The applicants are suffering great prejudice and irreparable harm in that all mining operations have been stopped based of an unlawful order which was granted based on fraud and due to the first and second respondents misleading of this Honourable court.

4. The applicants have applied for rescission of the fraudulently gotten order under case number HC141/15. The applicants will suffer irreparable harm if the conduct of the first and second respondents is not challenged.

Thus, the final decision of this Honourable court, under case number 141/15, will be rendered a brutum fulmen if the respondents are not interdicted.

5. The applicants have a legitimate fear that the mine can be exhausted at any time by the first and second respondents.

I am not sure if the certificate of urgency seeks to allege that even the provisional order issued on 20 November 2014 was a fraud, as, clearly, the court record does not point at that.

The only issues that perhaps the applicants could contend were done unprocedurally would be the confirmation of the provisional order as they dispute receipt of the order.

As for the issue of the provisional order on 20 November 2014, whilst there could have been a notice of opposition in the court record, it is common cause that the learned judge was not compelled, in terms of the Rules, to first set the matter down before granting it. The learned judge had a wide discretion in this regard.

This is clearly proper in terms of Rule 246(2) of the High Court Rules which provides as follows:

“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 or as varied.”

The harm stated in the certificate of urgency, in my view, is not founded for the simple reason, that, the interim relief granted in the provisional order, which would be operative with or without the confirmation of the provisional order, had the effect of allowing the respondent to take effective control of the farm from 20 November 2014 to date.

That would mean, in my view, that, the confirmation or otherwise of the order did not bring anything new in so far as the applicants fears as stated in the certificate of urgency are concerned.

If the respondent had effective control of the mine since 20 November, then, they should have been mining there since then.

Even if the terms of the final order, which the applicants allege were fraudulently gotten, were to be suspended, the interim relief, which was seemingly obtained above board, would still be operational.

The applicants would still suffer the harm stated in the certificate of urgency as a result of operation of the interim relief which is an order of this court that was not obtained through unlawful means.

It would appear, from the applicants papers, that, they seek a provisional order that would counter and reverse the effects of the provisional order in HC2167/14.

This, in my view, is not desirable.

This court cannot issue a provisional order denying the applicants interference with a mine, and later issue a counter-provisional order now allowing the applicants interference and denying the respondent same.

In my view, if the applicants are not satisfied with the relief sought and granted in HC2167/14, they should seek rescission, but, they cannot seek another provisional order that renders ineffective the relief that the respondents got from this court on 20 November 2014.

Provisional orders cannot be used in the rescission of an order, for the result would be that we now have two provisional orders, one giving rights to the respondents, and a second one now taking away those rights from the respondents and giving them to the applicants.

This kind of approach would result in an absurdity.

The only proper platform to challenge the confirmation of the provisional order would be through an application for rescission of judgment which the applicants have correctly launched.

The application has to fail for this reason.

The other issue is that of urgency.

The applicants got to know of the imminent confirmation of the provisional order they were apparently not served with on 9 January 2015. They did nothing despite knowledge that the matter had been set on the unopposed roll since they had been served with a notice of set down.

It is important to note, that, the application for rescission of judgment was filed on 21 January 2015. However, the urgent application was filed on 16 February 2015 - almost a month later.

Counsel for the applicants sought to bring up the issue of the placement under curatorship of the firm Cheda and Partners. This, however, he submits, occurred on 30 January 2015, more than 9 days after the filing of the rescission of judgment, which itself was filed almost two weeks after the applicants lawyers had been served with a notice of set down.

The applicants have not sought to explain, in the founding affidavit, why no action was taken from 9 January.

In the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (HC) the position regarding the undesirability of delaying to launch urgent applications was cogently stated…,. This is what the learned judge had to say:

“What constitutes urgency is not the only 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 deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows, that, the certificate of urgency, or the supporting affidavit, must always contain an explanation of the non-timeous action if there has been a delay…,.”

In my view, the applicants inaction, from 9 January 2015 to 16 February 2015, is found wanting.

There is no explanation, either in the certificate of urgency or the founding affidavit, for this very long delay. The application does not, in my view, meet the test on urgency. It has to fail on that basis as well.

I accordingly dismiss the application with costs for the aforegoing reasons.

Pleadings re: Cross-Referencing, Record of Proceedings and Off the Record Submissions


This is an urgent application. The interim relief sought is couched in the following manner:

“(1) That, execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.

(2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.

(3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC2167/14 pending the application for rescission of judgment under HC141/15.”

The facts of the matter show, that, the dispute between the applicants and the respondents centre on a mine situated in Filabusi.

Apparently, in September 2014, the respondents filed an urgent chamber application and served it on the applicants legal practitioners. The applicants legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large, in terms of the Rules, regarding the set down or otherwise of the matter.

The respondent claims, that, upon receipt of the provisional order, they served same on the applicants legal practitioners and that no notice of opposition was filed to the confirmation of the provisional order leading them to confirm same on 15 January 2015.

In the confirmation proceedings, they filed a certificate of service confirming that indeed the provisional order had been served on the applicants.

Prior to the confirmation of the provisional order, the applicants legal practitioners were served, by the respondents legal practitioners, with an affidavit of evidence and a notice of set down of the matter on the unopposed roll. Such service was effected on 9 January 2015.

The applicants filed an application for rescission of judgment on 21 January 2015.

This is an application to rescind the confirmation of the provisional order.

The applicants now seek to stay execution of the provisional order pending the hearing of their application for rescission of judgement.

They seek rescission on the basis, that, they were not served with the provisional order, and that they would want to be given an opportunity to challenge same. They further contend, that, the relief that was in the provisional order and the one that was obtained upon confirmation of same were materially different.

The terms of the final order in the provisional order that was originally issued read as follows:

“(a) The respondents be and are hereby ordered not to sale the mine in question.

(b) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(c) The respondents pay the costs of suit on an attorney and client scale.”

The terms of the final order granted on confirmation read as follows:

“(1) The respondents be and are hereby ordered not to sell the mine in question.

(2) The respondents be and are hereby ordered not to interfere with the applicant's operations at the mine and not to interfere with the equipment thereat.

(3) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(4) The respondents be and are hereby interdicted from going to the mine known as Eric 21, Trianic Investments Filabusi.

(5) The respondents pay costs at an attorney and client scale.”

The interim relief, as per the provisional order that was granted on 20 November 2014, is as follows:

“(a) The respondents be and are hereby ordered not to interfere with the mine in question and the mining equipment thereof.

(b) The second respondent to fourth respondents be and are hereby interdicted from interfering with whatever nature of threats upon their persons or their family.”

The respondents have challenged the order sought on the basis that the matter is not urgent.

I now turn to look at the issues in this application.

I would first deal with the certificate of urgency. The certificate of urgency gives the following grounds of urgency:

1. The first and second respondents clearly fraudulently got an order which they are currently executing.

2. The first and second respondents are mining and exhausting gold resources at the applicants mine. Gold will be depleted if the respondent is not interdicted from executing the unlawful order.

3. The applicants are suffering great prejudice and irreparable harm in that all mining operations have been stopped based of an unlawful order which was granted based on fraud and due to the first and second respondents misleading of this Honourable court.

4. The applicants have applied for rescission of the fraudulently gotten order under case number HC141/15. The applicants will suffer irreparable harm if the conduct of the first and second respondents is not challenged.

Thus, the final decision of this Honourable court, under case number 141/15, will be rendered a brutum fulmen if the respondents are not interdicted.

5. The applicants have a legitimate fear that the mine can be exhausted at any time by the first and second respondents.

I am not sure if the certificate of urgency seeks to allege that even the provisional order issued on 20 November 2014 was a fraud, as, clearly, the court record does not point at that.

The only issues that perhaps the applicants could contend were done unprocedurally would be the confirmation of the provisional order as they dispute receipt of the order.

As for the issue of the provisional order on 20 November 2014, whilst there could have been a notice of opposition in the court record, it is common cause that the learned judge was not compelled, in terms of the Rules, to first set the matter down before granting it. The learned judge had a wide discretion in this regard.

This is clearly proper in terms of Rule 246(2) of the High Court Rules which provides as follows:

“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 or as varied.”

The harm stated in the certificate of urgency, in my view, is not founded for the simple reason, that, the interim relief granted in the provisional order, which would be operative with or without the confirmation of the provisional order, had the effect of allowing the respondent to take effective control of the farm from 20 November 2014 to date.

That would mean, in my view, that, the confirmation or otherwise of the order did not bring anything new in so far as the applicants fears as stated in the certificate of urgency are concerned.

If the respondent had effective control of the mine since 20 November, then, they should have been mining there since then.

Even if the terms of the final order, which the applicants allege were fraudulently gotten, were to be suspended, the interim relief, which was seemingly obtained above board, would still be operational.

The applicants would still suffer the harm stated in the certificate of urgency as a result of operation of the interim relief which is an order of this court that was not obtained through unlawful means.

It would appear, from the applicants papers, that, they seek a provisional order that would counter and reverse the effects of the provisional order in HC2167/14.

This, in my view, is not desirable.

This court cannot issue a provisional order denying the applicants interference with a mine, and later issue a counter-provisional order now allowing the applicants interference and denying the respondent same.

In my view, if the applicants are not satisfied with the relief sought and granted in HC2167/14, they should seek rescission, but, they cannot seek another provisional order that renders ineffective the relief that the respondents got from this court on 20 November 2014.

Provisional orders cannot be used in the rescission of an order, for the result would be that we now have two provisional orders, one giving rights to the respondents, and a second one now taking away those rights from the respondents and giving them to the applicants.

This kind of approach would result in an absurdity.

The only proper platform to challenge the confirmation of the provisional order would be through an application for rescission of judgment which the applicants have correctly launched.

The application has to fail for this reason.

Urgent Application

MOYO J: This is an urgent application. The interim relief sought is couched in the following manner:

(1) That execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.

(2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.

(3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC2167/14 pending the application for rescission of judgment under HC141/15.

The facts of the matter show that the dispute between the applicants and the respondents centre on a mine situated in Filabusi.

Apparently in September 2014, the respondents filed an urgent chamber application and served it on the applicant's legal practitioners. The applicant's legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large in terms of the rules regarding the set down or otherwise of the matter.

Respondent claims that upon receipt of the provisional order they served same on the applicant's legal practitioners and that no notice of opposition was filed to the confirmation of the provisional order leading them to confirm same on 15 January 2015.

In the confirmation proceedings they filed a certificate of service confirming that indeed the provisional order had been served on the applicants.

Prior to the confirmation of the provisional order, applicant's legal practitioners were served by respondents' legal practitioners with an affidavit of evidence and a notice of set down of the matter on the unopposed roll. Such service was effected on 9 January 2015.

Applicants filed an application for rescission of judgment on 21 January 2015.

This is an application to rescind the confirmation of the provisional order.

Applicants now seek to stay execution of the provisional order pending the hearing of their application for rescission of judgment.

They seek rescission on the basis that they were not served with the provisional order, and that they would want to be given an opportunity to challenge same. They further contend that the relief that was in the provisional order and the one that was obtained upon confirmation of same were materially different.

The terms of the final order in the provisional order that was originally issued read as follows:

“(a) The respondents be and are hereby ordered not to sale the mine in question.

(b) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(c) The respondents pay the costs of suit on an attorney and client scale.”

The terms of the final order granted on confirmation reads as follows:

“(1) The respondents be and are hereby ordered not to sell the mine in question.

(2) The respondents be and are hereby ordered not to interfere with the applicant's operations at the mine and not to interfere with the equipment thereat.

(3) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(4) The respondents be and are hereby interdicted from going to the mine known as Eric 21, Trianic Investments Filabusi.

(5) The respondents pay costs at an attorney and client scale.”

The interim relief as per the provisional order that was granted on 20 November 2014 is as follows:

“(a) The respondents be and are hereby ordered not to interfere with the mine in question and the mining equipment thereof.

(b) The second respondent to fourth respondents be and are hereby interdicted from interfering with whatever nature of threats upon their persons or their family.”

Respondents have challenged the order sought on the basis that the matter is not urgent.

I now turn to look at the issues in this application.

I would first deal with the certificate of urgency. The certificate of urgency gives the following grounds of urgency:

1. The first and second respondents clearly fraudulently got an order which they are currently executing.

2. The first and second respondents are mining and exhausting gold resources at the applicants' mine. Gold will be depleted if the respondent is not interdicted from executing the unlawful order.

3. The applicants are suffering great prejudice and irreparable harm in that all mining operations have been stopped based on an unlawful order which was granted based on fraud and due to first and second respondents misleading of this Honourable court.

4. The applicants have applied for rescission of the fraudulently gotten order under case number HC141/15. The applicants will suffer irreparable harm if the conduct of the first and second respondents is not challenged.

Thus the final decision of this Honourable court under case number 141/15 will be rendered a brutum fulmen if the respondents are not interdicted.

5. The applicants have a legitimate fear that the mine can be exhausted at any time by the first and second respondents.

I am not sure if the certificate of urgency seeks to allege that even the provisional order issued on 20 November 2014 was a fraud as clearly the court record does not point at that.

The only issues that perhaps applicants could contend were done unproceduraly would be the confirmation of the provisional order as they dispute receipt of the order.

As for the issue of the provisional order on 20 November 2014, whilst there could have been a notice of opposition in the court record it is common cause that the learned judge was not compelled in terms of the rules to first set the matter down before granting it. The learned judge had a wide disrection in this regard.

This is clearly proper in terms of Rule 246(2) which provides as follows:

“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 or as varied.”

The harm stated in the certificate of urgency in my view is not founded for the simple reason that the interim relief granted in the provisional order, which would be operative with or without the confirmation of the provisional order, had the effect of allowing respondent to take effective control of the farm from 20 November 2014 to date.

That would mean, in my view that the confirmation or otherwise of the order did not bring anything new in, so far as applicants fears as stated in the certificate of urgency are concerned.

If Respondent had effective control of the mine since 20 November then, they should have been mining there since then.

Even if the terms of the final order which applicants allege were fraudulently gotten, were to be suspended, the interim relief which was seemingly obtained above board would still be operational.

Applicants would still suffer the harm stated in the certificate of urgency as a result of operation of the interim relief which is an order of this court that was not obtained through unlawful means.

It would appear from applicants papers that they seek a provisional order that would counter and reverse the effects of the provisional order in HC2167/14.

This in my view is not desirable.

This court can issue a provisional order denying applicants interference with a mine, and later issue a counter provisional now allowing the applicant's interference and denying respondent same.

In my view if applicants are not satisfied with the relief sought and granted in HC2167/14, they should seek rescission, but they cannot seek another provisional order that renders ineffective the relief that respondents got from this court on 20 November 2014.

Provisional orders cannot be used in the rescission of an order, for the result would be that we now have two provisional orders, one giving rights to respondents, and a second one now taking away those rights from respondents and giving them to the applicants.

This kind of approach would result in an absurdity.

The only proper platform to challenge the confirmation of the provisional order would be through an application for rescission of judgment which applicants have correctly launched.

The application has to fail for this reason.

The other issue is that of urgency.

The applicants got to know of the imminent confirmation of the provisional order they were apparently not served with on 9 January 2015. They did nothing despite knowledge that the matter had been set on the unopposed roll since they had been served with a notice of set down.

It is important to note that the application for rescission of judgment was filed on 21 January 2015. However, the urgent application was filed on 16 February 2015, almost a month later.

Counsel for the applicants sought to bring up the issue of the placement under curatorship of the firm Cheda and Partners. This however, he submits occurred on 30 January 2015, more than 9 days after the filing of the rescission of judgment, which itself was filed almost two weeks after applicants lawyers had been served with a notice of set down.

Applicants have not sought to explain in the founding affidavit why no action was taken from 9 January.

In the case of Kuvarega vs Registrar General, 1998 (1) ZLR 188 (HC) the position regarding the undesirability of delaying to launch urgent applications was cogently stated at page 193; this is what the learned judge had to say:

“What constitutes urgency is not the only 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 deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been a delay---.”

In my view applicants inaction from 9 January 2015 to 16 February 2015 is found wanting.

There is no explanation either in the certificate of urgency or the founding affidavit for this very long delay. The application does not in my view meet the test on urgency. It has to fail on that basis as well.

I accordingly dismiss the application with costs for the aforegoing reasons.



Messrs Cheda and Partners, applicants legal practitioners

Messrs Mugiya and Macharaga Law Chambers, 1st and 2nd respondents legal practitioners

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