Amos Machona v Elite Park Enterprises (Pvt) Ltd and The Ministry of Mines

The applicant, Amos Machona, was allocated a farm known as Imbesu Kraal in 2007 as a beneficiary of the land resettlement programme. He built a homestead on the farm and rears goats and cattle. The 1st respondent, Elite Park Enterprises (Pvt) Ltd, held a mining claim with a certificate of registration indicating the claim was located at Fundisi Farm. However, on the ground, the mining activities were being conducted on what the applicant claimed was his farm, Imbesu Kraal. The 1st respondent commenced mining activities in October 2020. The applicant claimed that the mining activities caused noise from blasting, cracks in his house, his goats ran away, and his borehole was destroyed when mining shafts cut across the casings. Before approaching the court on 15 January 2021, the applicant sought assistance from the police, Ministry of Agriculture, and Ministry of Mines and Mineral Development, but to no avail. The applicant then filed an urgent application seeking to interdict the 1st respondent from mining within 450 metres of his homestead and to have the 1st respondent vacate Imbesu Kraal.

• Whether the application was urgent and justified departure from ordinary court procedures
• Whether the applicant acted timeously when the need to act arose
• Whether the urgency was self-created through deliberate or careless abstention from action
• Whether the certificate of urgency provided adequate factual basis to support the claim of urgency
• Whether an application could be deemed urgent merely because Practice Directive 1 of 2021 suspended the filing of ordinary court applications
• Whether costs should be awarded on an attorney-client scale (legal practitioner and client scale)

The application was struck off the roll of urgent matters with costs on a party and party scale.

The binding legal principle established is that: (1) A matter is urgent because of the nature and timing of the circumstances requiring relief, not because alternative procedural avenues are unavailable to the applicant. Practice Directives or other procedural limitations do not transform non-urgent matters into urgent ones. (2) Urgency requires immediate action when the need arises. Where an applicant has the luxury to first exhaust other remedies (administrative, ministerial, or otherwise) before approaching the court, this demonstrates that the matter is not urgent in the sense contemplated by the rules of court. (3) Urgency that stems from deliberate or careless abstention from action until a deadline draws near is not the type of urgency contemplated by court rules. The applicant must act when the need to act arises, not months later. (4) A certificate of urgency must contain specific timelines and factual basis supporting the claim of urgency, not mere conclusions. Where the certificate fails to show that the applicant acted timeously when the need arose, the court cannot exercise its discretion to grant the matter urgent hearing. (5) The onus of proving urgency rests squarely on the applicant seeking to jump the queue and have their matter heard ahead of other pending matters.

The court made several notable obiter observations: (1) On COVID-19 and court procedures: The court emphasized the serious nature of the COVID-19 pandemic, noting it "has infected millions the world over, killed over a million in the world, infected thousands in this country and killed hundreds of people in this country." The court stressed that Practice Directive 1 of 2021 serves a noble cause of arresting the spread of the deadly coronavirus, and attempts to subvert it unnecessarily expose court officials, opposing litigants, and counsel to risk of the deadly virus, which is "unacceptable and wrong." (2) On punitive costs: While not awarding punitive costs in this case, the court provided extensive discussion of the principles governing attorney-client (legal practitioner-client) costs, noting these are exceptional, penal in character, and reserved for fraudulent, dishonest, mala fide, vexatious conduct, or abuse of court process. The court cited South African authorities on this point, describing such costs as "very punitive and indicative of extreme opprobrium" that should only be awarded for conduct that is "clearly and extremely scandalous or objectionable." (3) The "yellow card" metaphor: The court issued a "yellow-card" warning to the applicant for the borderline conduct, sparing him the more severe punitive costs but signaling disapproval of the attempt to bypass the Practice Directive. (4) On justice and court delays: The court acknowledged that "every litigant appearing before the courts wishes their matter to be heard on an urgent basis, because the longer it takes to obtain relief, the more it seems that justice is being delayed or denied" and that courts endeavor to hear matters as soon as reasonably possible, but this is not always possible, necessitating the court's discretion to distinguish between urgent and non-urgent matters.

This case is significant in Zimbabwean (and by extension South African) jurisprudence on urgent applications for several reasons: (1) It reinforces the strict approach courts take to applications for urgent relief, emphasizing that urgent applications are an extraordinary remedy and parties must demonstrate genuine urgency, not merely convenience or self-created urgency. (2) It clarifies that attempting alternative remedies before approaching the court undermines a claim of urgency - if a matter is truly urgent, it requires immediate court action, not exploration of other avenues first. (3) It establishes that procedural obstacles (such as Practice Directives suspending ordinary filings) do not automatically convert non-urgent matters into urgent ones. (4) It demonstrates the courts' role in protecting the integrity of emergency health measures (like COVID-19 Practice Directives) by refusing to allow litigants to bypass such measures through unmeritorious urgent applications. (5) It reinforces the importance of a properly drafted certificate of urgency with specific timelines and factual basis, not mere conclusions. (6) It provides guidance on when punitive costs (legal practitioner and client scale) are appropriate, distinguishing between conduct deserving rebuke versus conduct warranting severe financial penalty.