Falcon Mine Zimbabwe Limited v Wendall Robert Parsons and Others

The applicant, Falcon Mine Zimbabwe Limited, owned a mining claim at Site 672, Antelope East, Antelope East Extension and Antelope East Extension 2, in Maphisa Kezi, Matabeleland South. The applicant alleged that in 2020, the 2nd and 3rd respondents with accomplices invaded the mining claim to execute an order granted by the High Court in Bulawayo in HCB 1249/20. The applicant filed an application for rescission of that order and simultaneously filed the present urgent application seeking an interim interdict to bar the 1st to 3rd respondents from removing gold dump, material or ore from the applicant's mining claim. The application was prompted by alleged collection of gold dump on 18 September 2021. The applicant reported the matter to the police but claimed not to receive assistance. The 1st respondent stated he had been wrongly cited personally as he never went to the applicant's site, and that Wendall Parsons (Pvt) Ltd (a company he directs) has adjacent mining claims. Police investigations revealed that a truck driver intercepted with dump was employed by Mc Galf Investments, not the respondents, and the police could not identify exact boundaries between the two mining claims.

• Whether the matter was urgent and the certificate of urgency valid
• Whether the relief sought was competent (interim versus final relief)
• Whether there was a material dispute of fact requiring oral evidence
• Whether the deponent had locus standi
• Whether the applicant established a prima facie right necessary for an interim interdict
• Whether the other requirements for an interim interdict (irreparable harm, balance of convenience, no other remedy) were satisfied

1. The points in limine are hereby dismissed. 2. The application is hereby dismissed. 3. The interim protective order granted in this matter is hereby discharged. 4. The applicant to pay respondents' costs of suit.

For an interim interdict to be granted, the applicant must establish: (1) a clear right or prima facie right though open to some doubt; (2) if only prima facie, well-grounded fear of irreparable harm; (3) balance of convenience favours interim relief; and (4) no other satisfactory remedy. Where an applicant seeks an interim interdict based on alleged unlawful conduct, the applicant must objectively substantiate the allegations and establish a prima facie right - mere assertions without evidence are insufficient. Where competing rights exist (such as adjacent mining claims), a court cannot grant an interdict negating the respondent's rights without the applicant first establishing a prima facie right to the relief sought. If a prima facie right is not established, it is unnecessary to consider the other requirements for an interim interdict.

A certificate of urgency need not be a regurgitation of the entirety of an applicant's founding affidavit - it must in summary form give a basis for perceiving the matter as urgent and conclude by certifying it as urgent. Courts should take a robust and common sense approach to achieve justice when dealing with procedural issues, as urged in Douglas Muzanenhamo v Officer in Charge CID Law & Order. A material dispute of fact does not arise merely from denying allegations - the respondent must present a story in defence that leads the court to conclude a dispute exists that cannot be resolved on the papers. In affidavits supporting applications, an amount of hearsay is permissible. The court has power under section 176 of the Constitution to regulate its own processes in the interest of justice, including granting interim protective orders to prevent final orders from becoming brutum fulmen (ineffective).

This case provides important guidance on the requirements for granting interim interdicts in mining disputes in Zimbabwe, particularly emphasizing the need for objective substantiation of allegations and establishing a prima facie right before relief can be granted. It illustrates the court's approach to preliminary objections in urgent applications, including the requirements for valid certificates of urgency, the distinction between interim and final relief, and material disputes of fact. The case demonstrates judicial restraint in not granting interdicts that would negate competing rights where the applicant has not established a prima facie case. It also illustrates the exercise of constitutional powers under section 176 to regulate court processes in the interest of justice through interim protective orders pending full argument.