Carry Mine Complex (Pvt) Ltd v Easy Cash Syndicate and Others

This was the third mining dispute between the applicant and first respondent in five months regarding mining claims around Matopos National Park in Matabeleland South. The applicant owned Shamrock mining claims adjacent to the first respondent's claims held under special grant 5968. On 21 April 2017, the parties consented to a provisional order referring their dispute to the provincial mining director. On 22 June 2017, the mining director determined that only shaft 6 of the first respondent's seven mining shafts encroached onto the applicant's claim. On 27 July 2017, Mathonsi J granted an order evicting the applicant from the first respondent's mining shafts 1, 2, 3, 4, 5, and 7 (where the applicant had been illegally mining). On 28 July 2017, the sheriff served a notice of ejectment on the applicant. By 3 August 2017, the applicant had voluntarily vacated the premises. On 10 August 2017, the applicant noted an appeal against the 27 July 2017 judgment. On 12 September 2017, the applicant brought an urgent application seeking to interdict the first respondent from interfering with its mining activities, claiming the appeal had suspended the judgment.

• Whether an evictee who voluntarily vacated premises pursuant to a valid court order can be reinstated merely because they subsequently noted an appeal
• Whether the applicant observed the duty of utmost good faith in urgent applications by disclosing all material facts
• Whether execution of a judgment prior to the noting of an appeal is lawful and effectual
• Whether the noting of an appeal after execution of a judgment entitles the evicted party to restoration

The application was dismissed with costs on a legal practitioner and client scale (admonitory costs).

An evictee who has lost possession of premises by execution of a valid court order which is subsequently suspended by an appeal is not entitled to restoration merely on the ground that they noted an appeal. The execution of an order that had not yet been suspended at the time of execution is lawful and effectual, and cannot be impugned by the subsequent noting of an appeal. Only an evictee who lost occupation by virtue of a judgment that was a nullity at the time of execution is entitled to reinstatement. Applicants in urgent applications must observe the utmost good faith and disclose all material facts relevant to the resolution of the dispute, failing which the court will impose admonitory costs.

The court observed that there was no reason why this mining dispute was still ongoing, suggesting that either one or both parties were deliberately mystifying what was otherwise a simple and straightforward matter. The court noted that the mining director's determination of 22 June 2017 had not been contested by either party and should have put the matter to rest had the parties been acting in good faith. The court expressed strong disapproval of the applicant's attempt to continue mining a claim that had been shown by the mining director not to belong to it, characterizing this as using technicalities to achieve an improper result.

This case establishes important principles in Zimbabwean law regarding urgent applications and the consequences of noting appeals after judgment execution. It reinforces the requirement of utmost good faith in urgent applications and establishes that an evictee who has lost possession through lawful execution of a valid court order cannot be reinstated merely on the basis that they subsequently noted an appeal. The case also demonstrates the court's willingness to impose admonitory costs where applicants fail to observe their duty of candor and full disclosure in urgent applications. The judgment protects the integrity of court processes by preventing litigants from using technicalities and procedural manipulation to reverse lawfully executed judgments.