Joseph Simbi v Homestake Mining (Pvt) Ltd (Under Judicial Management) and Francis Chingozho N.O and Environmental Management Agency

The applicant held occupation and agricultural rights on Plot G, Greydine Farm, Tiger Reef, Kwekwe. The first respondent, a company under judicial management, and the second respondent, its judicial manager, held mining claims rights on the same property. The applicant initially brought an urgent chamber application on 8 June 2020 for suspension of the respondents' mining activities, alleging harmful mining practices affecting the farmer, his family, livestock and environment, and that the respondent had not complied with mining and environmental laws regarding environmental impact assessment certificates. A provisional order was granted on 8 June 2020 suspending mining operations. The respondents subsequently regularized their position by acquiring an environmental impact assessment certificate on 13 August 2021, valid until 2023. The applicant then sought confirmation of the provisional order with final relief including: (1) directing respondents to obtain environmental impact assessment clearance; (2) directing parties to enter into an agreement regulating their respective rights; and (3) referring the matter to arbitration if agreement failed.

• Whether the applicant was required to seek leave of court before instituting proceedings against a company under judicial management in terms of section 213 of the Companies Act
• Whether the failure to obtain such leave rendered the provisional order a legal nullity
• Whether the court was functus officio regarding the provisional order
• Whether the relief sought regarding environmental impact assessment was moot given subsequent compliance
• Whether the court could compel parties to enter into an agreement or refer disputes to arbitration

The final order was discharged with costs in favor of the respondents.

1. Section 213 of the Companies Act [Chapter 24:03] operates by law to stay all legal processes against a company under judicial management, and such processes can only proceed with leave of court. 2. Failure to seek leave of court before instituting proceedings against a company under judicial management, as required by section 213, renders such proceedings and any orders granted therein a legal nullity. 3. Anything done contrary to a direct statutory prohibition is generally void and of no legal effect; the mere prohibition operates to nullify the act. 4. The doctrine of functus officio does not apply to interlocutory orders; courts retain jurisdiction to correct, alter or supplement interlocutory orders before final judgment is pronounced. 5. Courts cannot create contracts on behalf of parties or compel parties to enter into agreements, as this would violate the principle of freedom of contract. 6. An agreement that parties will negotiate to conclude another agreement is not enforceable because absolute discretion is vested in parties to agree or disagree.

The court observed that the environmental impact assessment certificate is both a constitutional and statutory prerequisite before commencement of mining operations under section 73 of the Constitution of Zimbabwe Amendment No. 20 of 2013 and the Environmental Management Act [Chapter 20:17]. This is a measure and safeguard to ensure that the environment, its inhabitants and dwellings are not adversely affected by harmful mining methods. The court noted that the regulatory authority would not have issued the certificate if the respondents' acts posed any danger as previously indicated in the interim relief sought.

This case reinforces the strict application of section 213 of the Companies Act [Chapter 24:03], which requires leave of court before instituting proceedings against companies under judicial management or liquidation. It establishes that failure to obtain such leave renders proceedings a legal nullity, even if a provisional order has been granted. The case also reaffirms fundamental principles of freedom of contract in Zimbabwean law, holding that courts cannot compel parties to enter into agreements or impose arbitration on unwilling parties. The judgment clarifies the distinction between interlocutory and final orders for purposes of the functus officio doctrine, confirming that courts retain jurisdiction to correct errors in interlocutory matters before final judgment.