A mining dispute arose between the applicant (a mining co-operative) and the first respondent concerning mining activities and possession of land over which the first respondent alleged it had mining claims (registration numbers 12731G, 12734G and 21715BN). The first respondent brought an ex parte application in the Magistrates Court at Chegutu (case MC-CIV-51-19) seeking to interdict the applicant from mining activities and to evict the applicant and its members. The magistrate (second respondent) granted a rule nisi on 12 February 2019 interdicting the applicant from mining and ordering it to vacate within 24 hours. The applicant only became aware of this order on 14 February 2019. The applicant had previously been convicted of trespass on these mining claims and paid a $200 fine. The applicant filed an application for review of the magistrate's proceedings and then filed this urgent chamber application seeking a stay of execution of the magistrate's order pending the review. The first respondent threatened to execute the magistrate's order despite being served with the review application.
The court granted an interim order staying execution of the magistrate court order in case MC-CIV-51-19 pending the return date. The court ordered that all respondents were directed not to carry out the terms of the magistrate's order. Should execution have already been carried out, the respondents were ordered jointly and severally to restore the applicant into possession of the mining claims upon service of the order. The applicant's legal practitioners were authorized to serve the provisional order on the respondents. The court issued a rule nisi requiring the respondents to show cause why a final order should not be made setting aside any warrant or writ of execution/ejectment, requiring the first respondent to pay all costs, charges, expenses and damages, and ordering costs on a legal practitioner and client scale against the first respondent.
The binding legal principles established are: (1) Section 85(2) of the Constitution provides that the fact a person has contravened a law does not debar them from approaching a court for relief, and this constitutional provision takes precedence over the common law 'dirty hands' doctrine; (2) Where rights of an individual are being affected and a final order is being sought, it is desirable in the interest of justice that the party whose rights are to be adversely affected be given an opportunity to be heard (audi alteram partem principle), and special circumstances must be advanced to justify an ex parte approach; (3) Section 345 of the Mines and Minerals Act confers original jurisdiction in civil matters, complaints or disputes arising under the Act on the High Court (or mining commissioner by agreement), and does not confer such jurisdiction on magistrates courts; (4) A stay of execution pending review will be granted where there is a reasonably arguable case on review with prospects of success and a real possibility of irrepaable harm if execution proceeds.
The court observed that the principle that courts frown upon people who approach the court for assistance when they have themselves failed to obey court orders should not be stretched too far, particularly where the party has complied with the order (by paying the fine imposed). The court also observed that the applicant's right to be on the mine claim was an issue to be argued on the return date and did not determine that issue. The court noted that Lord Radcliffe's statement in Smith v East Elloe Rural District Council regarding the doctrine of obedience to the law until its lawful invalidation - that an order bears no brand of illegality on its forehead and remains effective until properly set aside - while a valid principle, must be balanced against constitutional rights of access to courts and natural justice requirements in the context of ex parte orders affecting substantive rights.
This case is significant in South African (Zimbabwean) jurisprudence as it affirms the constitutional right of access to courts under section 85(2) of the Constitution, holding that prior contraventions of law do not debar a party from seeking relief. It addresses the tension between the 'dirty hands' doctrine and constitutional rights. The case also provides important guidance on: (1) the jurisdictional limitations of magistrates courts in mining disputes under section 345 of the Mines and Minerals Act; (2) the requirements for ex parte applications where final orders affecting rights are sought; (3) the application of the audi alteram partem principle; and (4) the circumstances justifying urgent relief and stay of execution pending review proceedings. The judgment emphasizes that where a party's rights are being adversely affected by a final order, natural justice requires the party be given an opportunity to be heard unless special circumstances justify an ex parte approach.