Mazikhethela Banana v Abraham Mpumelelo Mabhena and The Minister of Lands, Agriculture, Climate Change and Rural Resettlement (N.O.)

The applicant entered into a lease agreement with the 2nd respondent (Minister) on 21 August 2014 for Khami Outspan Farm, where he conducted cattle ranching and other farming activities. During a patrol of the farm, the applicant discovered that a structure had been erected on a portion of the farm and that a large portion had been pegged for residential stands. Following police investigations, the applicant was informed on 30 September 2021 that the 1st respondent was the person who erected the structure. The applicant then launched an urgent application seeking to have the 1st respondent's settlement declared illegal, evict him, destroy the illegal structures, and obtain interim relief restraining the 1st respondent from entering or developing the farm. Both respondents were in default at the hearing on 8 October 2021.

• Whether the provisional order sought by the applicant was competent at law
• Whether interim relief that is identical to the substantive relief sought constitutes an impermissible attempt to obtain final relief on a prima facie basis
• Whether a nullity can be amended
• The distinction between provisional/interim orders and final orders in urgent applications

The application was struck off the roll with no order as to costs.

A provisional/interim order must be granted in aid of and as ancillary to the main relief, not be identical to the substantive relief sought. Interim relief that achieves the applicant's ultimate goal and leaves nothing to be determined on the return date is in reality final relief disguised as interim relief, which is incompetent and impermissible. This is because interim relief is granted on proof of a prima facie case, while final relief requires proof of a clear right. An applicant cannot obtain final relief on the lower standard of proof applicable to interim orders. Where the interim relief sought is identical to and has the same substantive effect as the main relief, the application is a nullity that cannot be cured by amendment and must be struck off the roll.

The court observed that incompetent draft orders arising from "final reliefs disguised as interim reliefs" continue unabated despite Supreme Court pronouncements providing guidance and correction. The court noted that the intended guidance in Supreme Court cases does not appear to have been heeded, and suggested there might be a need for remedial intervention for the conscientisation of legal practitioners in this regard. The court referenced multiple Supreme Court and High Court decisions on this issue, indicating systemic concern about the quality of urgent applications being filed.

This case reinforces important principles of civil procedure in Zimbabwe regarding urgent applications and the distinction between interim and final relief. It emphasizes that courts will not permit litigants to circumvent the higher standard of proof required for final orders by disguising final relief as interim relief. The judgment highlights the continuing problem of incompetent draft orders in urgent applications and suggests the need for remedial intervention to educate legal practitioners. The case contributes to the jurisprudence on when applications constitute nullities that cannot be saved by amendment.