Grandwell Holdings (the applicant) held 50% shares in Mbada Diamonds (Private) Limited (3rd respondent) and managed its diamond mining activities at Marange diamond fields, including security services. Zimbabwe Consolidated Diamond Company (1st respondent) was a government-controlled mining company operating at the same fields. On 24 February 2017, the applicant obtained a provisional order under HC 1290/17 interdicting the 1st and 2nd respondents from collecting diamond ore from the 3rd respondent's concession and interfering with security arrangements. The 1st respondent appealed (SC 159/17). On 25 April 2017, by consent, the court granted leave to execute pending appeal under HC 2593/17. Despite this order, the respondents allegedly continued to deny access to the 3rd respondent's security personnel. On 5 May 2017, the 1st respondent filed another notice of appeal (SC 290/17) against the leave to execute order. The applicant then filed this urgent chamber application seeking, inter alia, another order for leave to execute pending appeal and for the respondents to be held in contempt of court.
The application was dismissed with costs.
1. A court is functus officio and cannot grant relief that has already been granted in previous proceedings between the same parties on the same cause of action - the matter becomes res judicata. 2. An order for leave to execute pending appeal, once granted, cannot be the subject of a second application for identical relief, even if an invalid notice of appeal has been filed against it. An invalid notice of appeal simply means no appeal is pending, not that duplicate relief should be sought. 3. Contempt of court proceedings must be instituted by way of court application in accordance with Order 43 rule 388 of the High Court Rules, 1971, and cannot be brought by way of urgent chamber application. 4. Where both interim and final relief sought in an application are incompetent, the court has no application to determine and must dismiss it.
The court observed that urgency issues have been "blown out of proportion" in Zimbabwean litigation, noting that a delay of 17 days (or even 22 days as in cited precedent) cannot be considered inordinate as "litigants do not eat and live on filing court process." The court also commented on the illogical nature of arguing that enforcement of an urgent order is not itself urgent. The judge questioned rhetorically what would happen if respondents repeatedly filed invalid notices of appeal - whether applicants could perpetually seek successive orders for leave to execute - implicitly rejecting such an approach as untenable and emphasizing that other remedies must exist for dealing with invalid appeals.
This case clarifies important procedural requirements in Zimbabwean civil procedure: (1) A court cannot grant the same relief twice - once leave to execute pending appeal is granted, subsequent applications for the same relief render the matter res judicata and the court functus officio, regardless of whether an invalid appeal has been noted; (2) Contempt of court proceedings must be instituted by way of court application under Order 43 rule 388, not by urgent chamber application; (3) The remedy for an invalidly noted appeal is not to seek duplicate relief but to pursue other legal recourse; (4) Interim relief predicated upon incompetent final relief is itself incompetent. The judgment demonstrates strict adherence to procedural rules governing the form and manner of applications, while also showing judicial flexibility in condoning technical irregularities (such as use of wrong form) where no prejudice results.