Bigboy Ngwenya v Garikayi Mhino and Others

The applicant owned stand 978 Bernadette Street, Kensington, Bulawayo but resided in Australia. In July/August 2012, he became aware of gold mining activities being conducted by the 1st respondent on adjacent stand 980. The applicant alleged that the mining activities, which included use of an excavator, compressor for drilling, and explosives, caused noise and vibrations that affected his residential property. He claimed the noise traumatized his dogs and delayed the growth of his broiler chickens, though he provided no scientific evidence. The approved land use for the area was residential/agricultural, except for stand 981. In September 2012, while on leave in Zimbabwe, the applicant complained to the 4th respondent (Environmental Management Agency) about the mining activities. The 1st respondent held a Certificate of Registration from the 6th respondent (Commissioner of Mines) authorizing the mining activities. The 4th respondent had already directed the 1st respondent to cease operations pending compliance with environmental safety requirements. The applicant brought an urgent chamber application on 14 December 2012 seeking to stop the mining activities.

• Whether the matter was sufficiently urgent to warrant being heard as an urgent chamber application
• Whether mining activities conducted under a valid Certificate of Registration could be interdicted
• Whether the court should intervene when regulatory authorities (Environmental Management Agency and Commissioner of Mines) had already taken action

The application was dismissed with costs. The court refused to grant the interim relief sought, which would have required the respondents to cease mining activities, remove mining equipment, and directed the 4th and 6th respondents to investigate and file reports.

A matter does not become urgent merely because a party subjectively believes it to be urgent. Courts must objectively examine all facts to determine whether there is real or perceived urgency. Where an applicant has been aware of the alleged wrongful conduct for several months before bringing an urgent application, and where regulatory authorities with jurisdiction over the matter have already taken remedial action, there is no urgency warranting the matter to bypass normal court procedures. The infringement of a legitimate interest must be shown, and it must be demonstrated that failure to address the matter immediately would cause harm that future relief could not remedy.

The court observed that it had become commonplace for applicants to allege urgency when there is no real urgency, whether perceived or actual. The court also noted that the applicant had failed to provide any scientific evidence to support his claims that his dogs were traumatized by the noise or that his broiler chickens experienced delayed growth as a result of the explosives used in mining operations. The court commented that it was not in a position to investigate various allegations of adverse conduct, particularly given that no viva voce evidence was led from witnesses who could be subjected to cross-examination.

This case illustrates the strict approach Zimbabwean courts take to applications brought on a certificate of urgency. It demonstrates that delay in bringing an application, combined with the fact that regulatory authorities have already intervened, will defeat a claim of urgency. The case also confirms that mining activities conducted under valid regulatory authorization cannot easily be interdicted merely on allegations of nuisance without proper evidence. The judgment reinforces the principle that courts will not intervene in matters that fall within the regulatory jurisdiction of specialized statutory bodies, particularly when those bodies have already taken action.