Holam Mining (Pvt) Ltd and Chen Shaoling v Benwise Investments (Pvt) Ltd and Jameson Rushwaya

In October 2015, the applicants and respondents entered into a Contract Mining Agreement to work together in a joint venture partnership to mine 15 gold mining claims belonging to the respondents in Kadoma District. The applicants were to provide capital and equipment and manage operations, while the respondents provided the mining claims. The partnership operated smoothly until 4 March 2016, when the applicants' workers were allegedly chased away from the mine by the respondents' workers who were armed with sjamboks, stones, sticks and iron bars. The applicants' assistant manager stated that their workers were threatened with assault, their belongings were thrown over the fence, and they were given 30 minutes to leave. The respondents claimed the applicants left voluntarily due to reluctance to sink new shafts as required by the agreement, and that problems had started in December 2015.

• Whether the application was properly urgent and accompanied by a proper certificate of urgency
• Whether the applicants were unlawfully despoiled of possession of the mining claims
• Whether the relief sought related to Tolrose Mine or to the specific mining claims listed in Appendix 1 of the Contract Mining Agreement
• Whether the applicants should be restored to possession of the mining claims

The court granted interim relief ordering: (1) restoration of peaceful and undisturbed possession of the mining claims in Appendix 1 to the applicants, with the Sheriff empowered to enlist police assistance if the respondents resisted; (2) the respondents and anyone claiming through them to maintain peace and undisturbed access to the mining claims; (3) an interdict preventing the respondents from interfering with or threatening the applicants' employees physically or verbally; and (4) the respondents to allow the applicants' employees to move freely within the mine compound.

The binding principles established are: (1) A certificate of urgency must be properly prepared by a legal practitioner who has applied their mind independently to the matter and provided reasoned belief that the matter is urgent - a mere cut-and-paste exercise from the notice of application is insufficient; (2) However, courts may exercise discretion under Rule 4C to condone defective urgency certificates where the interests of justice require it, particularly where a litigant with a meritorious case should not be punished for their legal practitioner's shortcomings; (3) In spoliation matters, peaceful possession must be restored to a party who has been unlawfully dispossessed; (4) Courts should prefer to decide cases on their merits rather than on technical objections unless the foundation of the case is hopelessly beyond redemption, as litigants come to court to receive justice which flows from proper consideration of the merits.

The court observed that it is preferable for the certificate of urgency to be prepared by a legal practitioner from a different law firm than the applicant's legal practitioner, to ensure independence and objectivity. The court also commented that the person who purportedly prepared the certificate of urgency in this case did not even identify himself as a legal practitioner or state his law firm, and produced what was characterized as a "dishonest statement" without genuine belief. The court further observed that while technical issues are important and can assist in speedy disposal of matters, they should not be allowed to take precedence over substantive justice.

This case is significant for establishing the standards for certificates of urgency in Zimbabwean urgent chamber applications and for emphasizing the principle that courts should prefer deciding cases on their merits rather than on technical objections where possible. It reinforces the protection against spoliation in mining joint venture agreements and clarifies that litigants should not be unduly prejudiced by the failings of their legal practitioners. The case also illustrates the application of spoliation principles in the context of mining contracts and demonstrates judicial discretion to overlook procedural defects in the interests of substantive justice.