Florence Mbizo N.O (In her capacity as Executrix Dative of Estate Late Nicholas Mudzengi DR 980/18) v Tichaona Darangwa and Others

The applicant was the executrix dative of the estate of late Nicholas Mudzengi, who died on 30 January 2012. During his lifetime, Mudzengi was the holder of a registered gold mining claim known as Ansh 267 gold mine, registered on 29 February 2008 and situated at Selukwe Peak Farm, Shurugwi. The 1st respondent held adjacent mining claims at Ansh Red gold mine. On 28 April 2021, the 2nd respondent approached the applicant to verify the beacons of her mining claims. On 30 April 2021, the applicant alleged that the 1st and 2nd respondents and others invaded Ansh 267 mining claims and began prospecting for gold, leading to violent confrontations between applicant's employees and 1st respondent's agents. The incident was reported to Shurugwi Police. On 3 May 2021, the applicant's legal practitioners wrote to the Police complaining about the conduct of police officers. On 14 May 2021, the applicant wrote to the 4th respondent (Provincial Mining Director) requesting a ground verification exercise. The applicant filed this urgent chamber application on 27 May 2021 seeking an interdict to prevent the respondents from mining activities on her claim.

• Whether the matter was lis pendens given that the 4th respondent was seized with the boundary dispute
• Whether the matter was urgent and properly brought as an urgent chamber application
• Whether there was adequate explanation for the delay between the incident (30 April 2021) and filing the urgent application (27 May 2021)

1. The matter is not urgent. 2. The matter is removed from the roll of urgent matters. 3. The applicant shall pay the costs of suit.

A matter cannot be treated as urgent where there is an unexplained delay between the event triggering the need to act and the filing of the urgent application. Urgency is determined not only by the imminent arrival of a deadline, but by whether the matter could wait when the need to act arose. The Certificate of Urgency and supporting affidavit must always contain an explanation for any delay or non-timeous action. Where an applicant fails to act when the need to act arose and offers no explanation for a delay of nearly a month, the matter does not qualify to be treated as urgent and will be removed from the roll of urgent matters.

The court observed that litigants must be reminded that preferential treatment of allowing a matter to be dealt with urgently is only to be extended where good cause is shown for treating the litigant in question differently from other litigants. The court noted that the 4th respondent's letter indicated it was awaiting court instruction to conduct the ground verification exercise, suggesting that the proper procedure would have been for the court to instruct the Provincial Mining Office rather than the parties directly approaching the office. The court also noted the detailed provisions of the Mines and Minerals Act empowering the 4th respondent to deal with boundary disputes.

This case reinforces the strict requirements for urgent applications in Zimbabwe, particularly emphasizing that applicants must act promptly when the need to act arises and must provide adequate explanations for any delays. It reaffirms the principles established in Kuvarega v Registrar General that urgency which stems from deliberate or careless abstention from action until a deadline approaches is not the type of urgency contemplated by the rules. The case serves as a warning to litigants in mining disputes and other matters that the preferential treatment of urgent applications will only be extended where good cause is shown, and that a delay of nearly a month without adequate explanation will result in the matter being struck from the urgent roll.