Sheila Mpofu v Emmanuel Chirwa and Others

The applicant and 1st respondent were in a mining partnership concerning Herbenia Mine registration number 31578. A dispute arose between the parties sometime in June 2021. On 8 October 2021, the 1st respondent wrote to the applicant cancelling their partnership. The applicant filed HC 1462/21 on 10 October 2021 (withdrawn on 18 October 2021) complaining of the same conduct. On 29 October 2021, the 3rd respondent (Provincial Mining Director) uplifted a suspension of mining operations and the 1st respondent resumed operations. On 26 November 2021, the applicant wrote to the 1st respondent retiring him from the partnership. On 6 December 2021, the applicant issued summons in HC 1908/21 seeking confirmation of the retirement and dissolution of the partnership. On 10 December 2021, the applicant filed this urgent chamber application seeking an interim interdict to stop the 1st respondent from mining activities pending determination of HC 1908/21. Prior litigation (HC 1217/21, judgment HB 185-21 by Dube-Banda J on 30 September 2021) had ordered the applicant to restore 7 tonnes of gold ore to the 1st respondent, which the applicant had allegedly not complied with, leading to a criminal report (CR 26/10/21 Filabusi).

• Whether the applicant approached the court with 'dirty hands' due to non-compliance with a previous court order
• Whether the urgent chamber application met the requirements for urgency
• Whether internal remedies under the Mines and Minerals Act had to be exhausted before approaching the High Court

1. Points (1) and (2) raised in limine by the 1st respondent are hereby upheld. 2. Point (3) raised in limine by the 1st respondent is hereby dismissed. 3. The urgent chamber application be and is hereby struck off the roll with costs.

The binding legal principles established are: (1) An applicant who has failed to comply with an existing court order approaches the court with 'dirty hands' and is not entitled to equitable relief, particularly urgent interdictory relief; (2) For an application to qualify as urgent, the applicant must act promptly when the need to act arises - where a dispute has been ongoing for months and the applicant has previously filed and withdrawn similar relief, a subsequent urgent application will fail the test for urgency; (3) The High Court has inherent jurisdiction over mining disputes under section 345 of the Mines and Minerals Act notwithstanding the Mining Commissioner's powers under section 346, and applicants are not required to exhaust internal mining remedies before approaching the High Court unless they have contractually agreed to do so.

The court noted the pattern of the parties repeatedly dragging each other to court, suggesting the ongoing litigation was becoming vexatious. The court also observed that the applicant failed to address the 'dirty hands' point in her Heads of Argument filed on 16 December 2021, and failed to provide details of when compliance allegedly occurred or to dispute that the matter was being considered for prosecution by the National Prosecuting Authority. The court's indication that it reserved ruling on the points in limine while allowing arguments on the merits demonstrated judicial efficiency, though ultimately the merits were not addressed given the success of the preliminary points.

This case is significant in Zimbabwean jurisprudence (applicable to South African law context given similarities in common law principles) for reinforcing: (1) the 'clean hands' doctrine - that litigants must comply with existing court orders before seeking further relief, particularly in urgent applications; (2) the strict requirements for urgency in chamber applications, emphasizing that applicants cannot delay when the circumstances giving rise to the need for relief are longstanding; and (3) the High Court's concurrent jurisdiction in mining disputes alongside specialized mining tribunals, affirming access to justice principles. The case demonstrates judicial enforcement of procedural integrity and discouragement of forum shopping through repeated urgent applications on substantially the same issues.