Huruyadzo Mining (Private) Limited v Theuns John Coetzee and Others

Applicant was the registered owner of Lily 13B Mine (registration number 17509). On 4 March 2021, applicant and 1st respondent entered into an agreement of sale for the mine for USD 60,000, payable in six instalments. A dispute arose regarding whether 1st respondent had failed to make payments. On 10 June 2021, applicant served 1st respondent with a notice of cancellation of the agreement on the basis of breach, incorporating a notice to cease operations and vacate the mine within 48 hours. The 1st respondent refused to accept the cancellation and continued mining operations. Applicant launched an urgent application on 17 June 2021 seeking interim relief to stop 1st respondent from working at the mine pending finalisation of eviction and/or arbitration proceedings. Applicant alleged that 1st respondent had brought six excavators to the mine and escalated gold ore extraction to deplete the resource. The 1st respondent disputed this, stating that no excavators were brought to the mine, no extraction of gold ore occurred at the mine, and the site was only used for processing gold dumps from other mines.

• Whether the application was urgent and could be heard on an urgent basis
• Whether the applicant had established the requirements for urgent relief
• Whether the urgency was self-created
• Whether there were genuine and bona fide disputes of fact that precluded relief on motion
• Whether the applicant established a prima facie case for urgent relief

1. The point in limine on urgency is upheld. 2. This application is not urgent and is removed from the roll of urgent matters with costs of suit.

Where an applicant seeks urgent relief on the basis of factual allegations that are genuinely and bona fide disputed by the respondent, and where such disputes of fact cannot be resolved on the papers, the applicant fails to establish the urgency required for the matter to be heard outside the normal court roll. The urgency of an application cannot be established on disputed facts where the applicant has failed to prove a prima facie case. An applicant seeking urgent relief must show exceptional circumstances and an emergency that cannot wait; the ordinary consequences of disputed rights pending adjudication do not constitute such an emergency. The certificate of urgency must contain facts that, if proven, would justify departure from ordinary procedure, and these facts must not be genuinely disputed in a manner that cannot be resolved on motion.

The court observed that every litigant wishes to have their matters heard on an urgent basis because delay in obtaining relief may seem like justice delayed and thus denied, but this is not possible for all cases. The court emphasized the need to guard against litigants who may try to take advantage and abuse the urgency procedure to get a procedural advantage over other litigants waiting in queue. The court also noted that it adopts a holistic approach where preliminary points can be argued together with the merits, but the court may dispose of the matter solely on preliminary points despite this approach. The court remarked that applicant's counsel's concession that they could not obtain more evidence to substantiate the allegations was fatal to the application.

This case is significant in Zimbabwean civil procedure for clarifying the standards for urgent applications in the context of mining disputes and contract cancellations. It reinforces the principles that: (1) urgency must be established on facts that are not materially disputed; (2) the certificate of urgency is the sine qua non for urgent relief and will be carefully scrutinized; (3) applicants seeking to jump the queue on the roll must show exceptional circumstances and an emergency that cannot wait; (4) where urgency is anchored on disputed facts and the applicant fails to establish a prima facie case, the application cannot succeed as urgent; and (5) the mere fact that an applicant wishes to preserve assets or prevent ongoing alleged unlawful conduct is not sufficient to constitute urgency - this is what all litigants face while waiting for their matters to be heard. The case serves as a warning against attempts to abuse urgent procedures to gain procedural advantages.