Riozim Limited v Falcon Resources (Private) Limited and Rusununguko Nkululeko (Private) Limited

The applicant (Riozim Limited) obtained an interim interdict on 15 June 2018 under HC 5212/18 restraining the respondents from conducting mining activities on Wendale 43 Block registered under Certificate no. 18007 BM, situated at Darwendale. The claim was registered in the applicant's name. The respondents appealed against the order granted on 15 June 2018, which had the effect of suspending it. This resulted in the applicant bringing an urgent chamber application for leave to execute pending appeal, seeking to continue enforcement of the interdict while the appeal was pending. The respondents filed opposing papers and raised various points in limine, which were repetitions of those raised and dealt with in HC 5212/18.

• Whether leave to execute pending appeal should be granted in circumstances where an interim interdict had been obtained
• What principles should guide the court in exercising its discretion to grant leave to execute pending appeal
• Whether the potentiality of irreparable harm to either party favored granting or refusing the application
• What were the prospects of success on appeal
• Whether the absence of the Minister of Mines as a party affected the application

The application for leave to execute pending appeal was dismissed.

When determining whether to grant leave to execute pending appeal, the court must exercise its discretion by determining what is just and equitable in all circumstances, having regard to: (1) the potentiality of irreparable harm to the appellant if leave is granted; (2) the potentiality of irreparable harm to the respondent if leave is refused; (3) the prospects of success on appeal, including whether the appeal is frivolous or vexatious; and (4) where both parties may suffer irreparable harm, the balance of hardship or convenience. Where a necessary party (such as a relevant Minister in a mining dispute) is absent from proceedings, this may tip the balance against granting leave to execute pending appeal, even if the absence was not fatal to the original application.

The court observed that section 43(1)(d) of the High Court Act [Chapter 7:06] allows certain exceptional circumstances where leave to appeal from a judge of the High Court or Supreme Court is not required, one of which is where an interdict is granted or refused. The court also noted that it has inherent power to control its own process and can exercise wide discretion to order a stay of execution or direct that judgment be carried into execution, with the overriding principle being real and substantial justice.

This case illustrates the application of the principles governing leave to execute pending appeal in Zimbabwean law, particularly in the context of mining disputes and interim interdicts. It demonstrates the court's discretion in balancing competing interests and the importance of considering all relevant stakeholders (such as the Minister of Mines in mining disputes) when assessing prospects of success on appeal. The case confirms that while procedural defects may not be fatal to obtaining an interim order, they may become decisive when considering whether to allow execution of that order pending appeal.