The first applicant is a registered company holding copper mining rights for mining claims known as Gubudu 1-3 (registration numbers 40850 BM, 40855 BM and 40856 BM). The second applicant claims to be the majority shareholder with 66% shareholding in the first applicant. The respondent is the biological elder brother of Baoming Huang, the minority shareholder with 34% shares. There was a pending shareholding and directorship dispute between the parties under cases HC 2480/20 and HC 2492/20. There had been no mining activity at the mine since sometime in 2021, with each party maintaining security guards at the mine. On 21 May 2022, the applicants allegedly received a report that water in two shafts had exceeded risk levels, signaling high possibility of shaft collapse and requiring urgent extraction of water and reinforcement of underground structures. The applicants sought urgent interim relief to access the mine for maintenance work. Following a joint inspection on 20 June 2022 with an Inspector of Mines and Explosives, a report found that water levels could not be ascertained from the surface, there was no appointed mine manager, and no hoist drivers to operate equipment for underground inspection.
The application for interim relief was dismissed with costs on 24 June 2022.
A matter stands or falls on its founding affidavit. An applicant cannot rely on evidence, expert reports, or legal grounds (such as statutory instruments) that were not pleaded in the founding affidavit to support relief sought, even if such evidence emerges during the course of proceedings. Where the founding affidavit cannot support the amended relief sought, the application must be dismissed. Applicants cannot build their case as proceedings progress by introducing new factual or legal bases not contained in their founding papers.
The court noted that the expert report confirmed that water levels in the shafts could not be ascertained from the surface, thereby contradicting the applicants' initial assertion. The court also observed that SI 109 of 1990 (Mining Management and Safety Regulations) requires every mine to appoint a mine manager who must appoint a reasonable crew to carry out operations including care and maintenance and dewatering. The court referenced Rule 60(8) which allows a judge to request further relevant information, though this did not assist the applicants given the deficiencies in their founding affidavit. The court noted the unfairness to the respondent of having to respond to an effectively new application based on supplementary submissions when the notice of opposition was filed in respect of what was originally pleaded.
This case reinforces the fundamental principle in Zimbabwean urgent application procedure that a matter stands or falls on its founding affidavit. It illustrates that applicants cannot supplement or fundamentally alter their case through subsequent submissions, expert reports, or proposed amendments to draft orders that introduce new legal bases (such as statutory instruments) not pleaded in the founding papers. The case is important for mining law disputes and corporate deadlock situations, emphasizing the need for proper pleading and preparation of urgent applications from the outset.