Simalu Mining (Pvt) Ltd & 4 Others v Zibon Sibanda & 13 Others

The respondents were members of Lushonkwe Nqama Small Scale Miners Association, a Community Share Ownership Trust based at Lushonkwe, Ward 4, Gwanda. The association secured mining claims belonging to Freda Rebecca Mine, consisting of Orient 1, 2, Lady Anna 4-11, registered under numbers 37537-46. The respondents delegated the 2nd, 3rd, 4th and 5th applicants to oversee legal transfers, logistics, and payment of arrear fees at the Ministry of Mines. Unknown to the respondents and community leaders, these applicants invited the Zimbabwe Republic Police to evict the community from the claims, alleging the claims belonged to Simalu Mining (Pvt) Ltd, the 1st applicant. The respondents filed summons under HC 3013/19 for eviction of the applicants from the mining claims. A default judgment was granted against the applicants on 3 February 2020 and executed by the Sheriff on 4 February 2020. The applicants then filed this urgent application on 7 February 2020 seeking to interdict execution of the order and to stay it pending rescission proceedings under HC 324/20.

• Whether the urgent application complied with the High Court Civil Rules, 1971 and was in the proper form (Form 29B)
• Whether the certificate of urgency was defective under Rule 244
• Whether the matter had been overtaken by events given that the order had already been executed
• Whether the applicants could seek substantive relief not canvassed in the founding affidavit
• Whether there were material disputes of fact that could not be resolved on the papers without viva voce evidence
• Whether an urgent chamber application was the appropriate procedure to stay execution of a default judgment pending rescission

The application was dismissed with costs.

An urgent chamber application cannot be granted where: (1) the order sought has already been executed, making any interdict a brutum fulmen; (2) there are material disputes of fact that can only be resolved through viva voce evidence and cannot be determined on the papers; (3) substantive relief is sought that was not canvassed in the founding affidavit; and (4) the application is being used as an improper substitute for action proceedings where serious factual disputes exist. A default judgment cannot be set aside via an urgent chamber application; proper rescission proceedings must be pursued.

The court observed that while it has discretion under Rule 4C to overlook the use of the wrong form where it is in the interests of justice, applicants should not avoid strict compliance with court rules. The court also noted that while parties may be called in chambers to clarify issues in an urgent application, this procedure has hazards as there is no scope for cross-examination of witnesses in chambers. The court commented that the applicants appeared to have chosen the urgent application procedure while being aware of the existence of material disputes of fact, and had attempted to suppress the background involving the Community Share Ownership Scheme by simply asserting they were registered owners of the mining claims.

This case illustrates important principles in Zimbabwean civil procedure regarding urgent applications and preliminary objections. It emphasizes the requirement for strict compliance with court rules, the limitations of urgent chamber applications where material disputes of fact exist, and the principle that executed orders cannot be interdicted retrospectively. The case also touches on the protection of Community Share Ownership Schemes in the mining sector and the impropriety of individuals circumventing such schemes by forming private companies. It reinforces that urgent applications must stand or fall on the founding affidavit and cannot be used to obtain substantive relief on disputed facts that require viva voce evidence.