Mabwe Minerals Zimbabwe (Private) Ltd v Base Minerals Zimbabwe (Private) Limited and Others

The applicant, Mabwe Minerals (Pvt) Ltd, held six mining claims which it acquired in 2012 from Chiroswa Minerals (Pvt) Ltd through a 100% sale. This sale was disputed by the first and second respondents who claimed 50% shareholding. A tribute agreement had been entered into in May 2008 between John Richard Needham Grooves and the second respondent for a three-year period, which was only registered in February 2014. The respondents obtained occupation of the mine on 21 August 2014 through a writ in a chamber application (HC 5926/14) before Justice Mafusire, seeking to enforce a judgment in HH 261/11 (Justice Patel) which had ordered registration of the tribute agreement. The applicant had previously successfully obtained a spoliation order and interdict on 7 March 2014 (HH 119/14) against the respondents' earlier attempt to take occupation. That decision was appealed (SC 136/14) and the appeal was dismissed on 15 July 2015. The applicant sought urgent relief to evict the respondents, arguing that the writ of occupation was illegally obtained and that the Supreme Court's dismissal of the appeal was based on the tribute agreement having expired.

• Whether the matter was urgent and met the requirements for an urgent application
• Whether the tribute agreement had expired and could no longer be enforced
• Whether the writ of occupation was properly granted
• Whether the occupation order could be enforced against the applicant who was not a party to the matter before Justice Mafusire
• Whether the respondents' conduct constituted violation and contempt of the Supreme Court's findings
• Whether the doctrine of res litigiosa applied to the applicant's acquisition of the mining claims

The matter was dismissed as not urgent. No order as to costs was made.

In an urgent application, where the applicant's case for urgency is founded on an alleged violation of a court order or finding, and where the parties dispute the basis or reasoning of that order, the written reasons for the judgment must be available to properly assess whether urgency exists. Absent such written reasons, the court cannot make an informed decision on urgency, particularly where serious challenges exist to the grounds upon which urgency is sought. The court cannot grant a provisional order, including one seeking to censure a legal practitioner for allegedly violating a court order, without a full understanding of the court's findings that are alleged to have been violated.

The court observed that while the matter was not found to be urgent, the respondents were enforcing their judgment at their own risk. They could be liable to pay significant damages if the written judgment of the Supreme Court confirmed that the tribute had expired, or if the High Court order upon which they assumed occupation was found to have been improperly obtained. The court also noted that there were several difficulties with the application, including that the nature of the 'writ of occupation' obtained from Justice Mafusire was not founded on any recognizable rule, that the order was granted on the same day opposing papers were filed and before expiry of the dies induciae, and that the applicant was not a party to the matter before Justice Mafusire. The court indicated that the applicant had sought clarity from the judge in question regarding the granting of the writ, and that this issue needed no further commentary from the court at that stage.

This case illustrates important principles regarding urgent applications in Zimbabwe, particularly the requirement that urgency must be properly established through documentary evidence. It demonstrates the courts' approach to applications where interpretation of previous court orders is disputed and the actual written reasons for such orders are not yet available. The case also touches on the doctrine of res litigiosa in the context of mining claims and the risks parties assume when enforcing judgments under challenged circumstances. It reinforces that urgent relief cannot be granted on speculation about what a court may have decided without the written reasons being available.