Albert Tewende and Queensdale Mining (Pvt) Ltd v Tawanda Dzviti and D & S Mining Syndicate and Others

The second applicant (Queensdale Mining) held title to mining claims known as Jamcro 30 mine. The first applicant was a director of the second applicant. On 10 June 2021, in case HC998/21, the first and second respondents obtained a judgment against Spencer Tshuma (also a director of the second applicant) for restoration of vacant possession of a mining location measuring 9 hectares. Leave to execute that judgment pending appeal was granted on 8 July 2021 under case HC 3039/21. There had been an ongoing dispute over mining boundaries, with the first applicant having complained to the Provincial Mining Director on 21 March 2021 about the second respondent's alleged encroachment onto the second applicant's mine. The respondents allegedly used the order in HC998/21 to eject the applicants from Jamcro 30 mine. On 8 September 2021, the first applicant became aware that the Sheriff had visited Jamcro 30 mine. The applicants filed an urgent chamber application on 10 September 2021 seeking to interdict the respondents from removing them from the mining site and for restoration of their occupation.

• Whether the matter was urgent
• Whether the relief sought was competent
• Whether the first applicant had locus standi
• Whether there was material non-disclosure by the applicants
• Whether the applicants satisfied the requirements for a temporary interdict

The provisional order was granted in terms of the draft filed of record subject to some amendments, interdicting the respondents from removing the applicants from Jamcro 30 mine and ordering restoration of the applicants' occupation of the site.

The binding legal principles established are: (1) The requirements for a temporary interdict are: (a) a clear right or prima facie established right; (b) well-grounded apprehension of irreparable harm if relief is not granted; (c) balance of convenience favouring the grant of relief; and (d) absence of any other satisfactory remedy. (2) In determining urgency, the relevant date is when the applicant became aware of the threat necessitating urgent relief, not when the underlying dispute arose. (3) The Sheriff, as an officer of the court executing a judgment, should not be improperly joined as a party and costs should not be sought against him unless he acts beyond his mandate. (4) A mining title holder who was not a party to eviction proceedings against another person (even a co-director) is entitled to interim relief to prevent eviction from their titled mining area based on such judgment. (5) Minor omissions in drafting relief that do not affect the substantive nature of the provisional order do not render the relief incompetent.

Zhou J made important non-binding observations criticizing the growing practice of legal practitioners raising groundless preliminary objections as a matter of course. The court stated: "The time has come for the court to penalise litigants and legal practitioners who abuse the procedures of this court in this manner notwithstanding the concern which has been raised in many judgments of this court about the raising of groundless preliminary objections." The court noted that raising such objections results in papers becoming unnecessarily bulky to the prejudice of litigants who must incur unnecessary costs. The court also observed that the submission regarding non-disclosure of the relationship with Spencer Tshuma was "a falsehood" given that the CR14 form clearly listed him as a co-director. These comments signal judicial frustration with procedural abuse and foreshadow potential sanctions for such conduct.

This case is significant in Zimbabwean jurisprudence for: (1) reaffirming the proper application of the requirements for temporary interdicts in mining disputes; (2) emphasizing that the Sheriff, as an officer of the court, should not be improperly joined in disputes where he is merely executing a court order; (3) addressing the abuse of preliminary objections by legal practitioners and warning that such abuse may attract penalties; (4) clarifying the standards for urgency, material non-disclosure, and locus standi in urgent chamber applications; and (5) protecting mining title holders from eviction based on judgments obtained against co-directors where the title holder was not a party to those proceedings.