John Mahudu and Chabvonga Mining Syndicate v Melvin Gwishiri and Others / Melvin Gwishiri and Others v John Mahudu and Others

Two urgent chamber applications involved a dispute over a mining location in communal land at Madicheche, Pfungwe under Chief Chitsungo. John Mahudu claimed the land was part of his field under cultivation where he discovered gold deposits. He formed Chabvondoka Mining Syndicate to extract the gold. However, Melvin Gwishiri prospected the area and was issued a Certificate of Registration to mine gold in December 2020. Mahudu's subsequent application for registration was rejected. Gwishiri commenced mining operations. On 2 February 2021, the Provincial Mining Director issued an injunction suspending all mining operations pending dispute resolution and requested police assistance in enforcement. Despite this injunction, both parties approached the High Court on an urgent basis seeking relief. In HC 89/21, Mahudu sought to enforce the injunction and compel Gwishiri to vacate. In HC 90/21, Gwishiri sought to suspend/discharge the injunction and resume mining operations.

• Whether the matters were urgent and could be heard on an urgent basis
• Whether urgency exists where an adequate administrative remedy (the injunction) already exists to protect the parties' interests
• Whether non-utilization of available remedies constitutes self-made urgency
• Whether the mere unlawfulness of administrative action renders a matter urgent
• The proper test for urgency in chamber applications

Both matters (HC 89/21 and HC 90/21) were removed from the roll of urgent matters for lack of urgency.

A matter is urgent only where the circumstances of the cause of action and the nature of relief sought cannot wait for ordinary set down. Where an adequate remedy exists (such as an administrative injunction with enforcement mechanisms) and a litigant fails to utilize it or demonstrate its ineffectiveness, urgency ceases to arise and the failure to use available remedies amounts to self-made urgency which courts will not entertain on an urgent basis. Mere unlawfulness of administrative action, without demonstrating immediate irreparable harm or why the matter cannot wait, does not constitute urgency. Courts will consider whether the available mechanism has failed to provide effective protection before entertaining urgent applications.

The court expressed concern about the increasing trend of applications brought under cover of urgency where the interim relief sought is final in nature, stating that where such is the case, the court may decline to deal with the matter on an urgent basis. The court noted that once such interim relief is granted, there is no impetus to confirm the order since it can operate in perpetuity or the applicant has already obtained all desired relief. The court also observed that in HC 90/21, the legal practitioner who certified the matter as urgent clearly did not address his mind fully to the issue of urgency.

This case provides important guidance on the test for urgency in Zimbabwean law, particularly in the context of mining disputes. It reinforces the principle that where adequate administrative remedies exist, litigants cannot bypass those remedies and approach the court on an urgent basis without first demonstrating that the existing remedies are ineffective. The case also addresses the problem of self-made urgency where litigants fail to utilize available mechanisms before seeking urgent court intervention. It clarifies that mere unlawfulness of administrative action, without more, does not constitute urgency. The judgment also comments on the growing trend of applicants seeking interim relief that is final in nature under the guise of urgency, suggesting courts may decline to hear such matters urgently.