ASMDEV Incorporated (Pvt) Ltd v Johand Lewis Investments (Pvt) Ltd and Others

The Applicant and Respondents were involved in numerous pending cases in the High Court of Zimbabwe. In case HCH 2159/25, Takuva J granted a provisional order interdicting the Respondents from carrying out mining activities at a disputed mining site pending determination of the matter. The Respondents appealed this provisional order to the Supreme Court. The Applicant, believing the appeal was unmerited, frivolous, vexatious and meant to buy time, filed an urgent chamber application (HCH 4680/25) seeking leave to execute the provisional order pending the appeal. The Respondents opposed this application. While the court was preparing judgment in this application, the Supreme Court heard and determined the appeal under SC 645/25, dismissing it with costs.

• Whether leave to execute pending appeal should be granted
• Whether the application for leave to execute pending appeal became moot after the Supreme Court dismissed the underlying appeal
• The appropriate order as to costs in circumstances where an application becomes moot due to supervening events

1. The application for leave to execute pending appeal has been overtaken by events and has become moot. 2. The matter is struck off the roll. 3. There shall be no order as to costs.

Where an application for leave to execute pending appeal is filed but the underlying appeal is determined by the appellate court before judgment is delivered on the leave application, the application for leave to execute becomes moot and must be struck off the roll as there is no longer any live controversy requiring judicial determination.

The court expressed the view (through the Applicant's perspective as recorded in the judgment) that the Respondents' appeal was believed to be "unmerited, frivolous, vexatious and meant to buy time," though this characterization was ultimately vindicated by the Supreme Court's dismissal of the appeal with costs. The court did not need to make findings on these allegations given that the matter became moot.

This case illustrates the principle of mootness in Zimbabwean civil procedure, demonstrating that courts will not adjudicate applications that have become academic due to supervening events. It shows the court's approach when an application for leave to execute pending appeal is rendered irrelevant by the determination of the underlying appeal before judgment can be delivered on the leave application. The case also demonstrates judicial economy in declining to make costs orders where neither party can be faulted for the application becoming moot.