Damofalls Investments v Tilfury Zimbabwe (Pvt) Ltd and Others

The applicant was the owner of the Remainder of Glen Arroch of the Main Belt and was issued with an Exclusive Prospecting Order (EPO) RA 988 in 2009. In March 2012, the 2nd respondent requested partial withdrawal of the EPO to prospect and mine on a 20 hectare plot, which was granted on 2 April 2012. The 1st and 2nd respondents then registered mining blocks Glen Arroch 80, 81, 82 and 83 and carried on mining operations between 2012 and 2018, investing substantial sums of money. In May 2018, the applicant discovered that the respondents were allegedly mining outside the area permitted and had altered the agreed co-ordinates. The applicant also discovered three other claims had been registered without its knowledge. Multiple court cases ensued between 2018 and 2020, including HC 1707/18 which was dismissed on 21 May 2020. On 7 June 2020, the applicant filed an urgent application alleging the respondents had resumed mining activities at Glen Arroch, seeking an interdict to stop them from mining and an order for their eviction.

• Whether the matter was properly before the court as an urgent application
• Whether the applicant had made material non-disclosure of relevant facts
• Whether the interim relief sought was substantially similar to the final relief, rendering it incompetent
• Whether the applicant had manufactured its own urgency
• Whether the application constituted an abuse of court process

The application was dismissed with costs awarded to the respondents.

The binding legal principles established are: (1) A matter does not assume urgency merely because a litigant has plans requiring immediate solution - urgency arises when an event occurs requiring contemporaneous resolution without which extensive prejudice would result. The test for urgency is objective, not subjective. (2) A litigant who has knowledge of facts giving rise to a claim for two years and fails to act timeously cannot later manufacture urgency based on the same facts. (3) An applicant seeking urgent relief has a duty to disclose all material facts relevant to the matter, including the existence of other pending proceedings between the same parties seeking similar relief. Deliberate material non-disclosure will result in dismissal of the application. (4) It is an abuse of court process to file multiple actions in different courts arising from the same facts and seeking the same or similar relief. (5) Interim relief that has the same effect as the final relief sought is incompetent and will not be granted.

Makonese J made several important observations: (1) The court noted that litigants are discouraged from filing a multiplicity of actions in different courts seeking the same or similar relief, as this leads to confusion and potentially conflicting judgments. (2) The court observed that time has come for legal practitioners to be reminded that it is improper for litigants to file multiple suits arising from the same facts in different courts. (3) The court emphasized that courts have no capacity to reward dishonesty on the part of litigants and expressed concern about counsel engaging in forum shopping for judges, describing such conduct as "most reprehensible" and stating it "does not add value to the practice of law." (4) The court suggested that the need to disclose material information should extend to cover any matter brought before the court, whether on an urgent basis or not. (5) The court noted that the 3rd respondent's report confirmed that the 1st and 2nd respondents were substantially within the partially withdrawn area and what may be required was merely an adjustment of beacon positions, though the validity of this report had not been challenged.

This case reinforces important principles in Zimbabwean procedural law regarding urgent applications. It emphasizes that: (1) urgency must be assessed objectively and cannot be manufactured by a litigant's delay in acting on known facts; (2) litigants seeking the indulgence of urgent relief have a duty to make full disclosure of all material facts, including related pending proceedings; (3) courts will not assist litigants who engage in forum shopping or file multiple actions seeking the same relief in different courts; (4) interim relief cannot be granted where it has the same effect as the final relief sought. The judgment serves as a warning against abuse of the urgent court process and emphasizes the importance of candor and good faith in litigation.