Themba Sibanda v G & G Preserves (Pvt) Ltd and Sheriff of the High Court N.O

The applicant conducted mining operations on land owned by the first respondent (remaining extent of Lot "B" Lower Rangemore, Umguza). In HC 1430/17, judgment was granted on 21 May 2020 ordering the applicant to vacate the property, finding he had no lawful authority to occupy it as his mining documents did not relate to the respondent's property. The applicant appealed but the Supreme Court dismissed the appeal on 17 November 2021. Meanwhile, the applicant obtained an order in HC 571/21 against the Provincial Mining Director compelling issuance of a certificate of registration for mining operations on the same land. The Provincial Mining Director issued Certificate of Registration 025192BA on 29 November 2021. After being notified of this development on 30 November 2021, the respondent obtained a writ of ejectment on 2 December 2021. The applicant then filed this urgent application on 13 December 2021 to stay execution of the eviction pending determination of the validity of his new mining certificate.

• Whether the applicant's prior application (HC 1925/21) which was withdrawn before determination precluded the filing of the current application
• Whether execution of an existing court order (HC 1430/17) could be stayed pending determination of changed circumstances (issuance of mining certificate)
• Whether the applicant met the requirements for an interim interdict
• Whether the applicant established urgency for the application
• Whether the balance of convenience favoured granting the interim relief

1. Pending the return date, the execution of the writ of eviction under HC 1430/17 issued on 2nd December 2021 by the Registrar of the High Court be and is hereby stayed. 2. The 2nd respondent be and is hereby interdicted from ejecting the applicant from remaining extent Lot "B" Lower Rangemore, Umguza as per the notice of removal dated 7th December 2021.

1. A withdrawal of an application before a court makes a definitive determination does not preclude the filing of a fresh application addressing the issues raised. 2. Where an applicant meets all the requirements for an interim interdict (prima facie right, irreparable harm, no alternative remedy, and balance of convenience in their favour), the court may grant interim relief staying execution of an existing court order pending determination of supervening circumstances that may affect the enforceability of that order. 3. An application is urgent where the applicant acts promptly upon becoming aware of the need to seek relief, and failure to grant relief would result in irreversible prejudice.

The court noted that a judicial query raised under Rule 60(15) of the High Court Rules does not constitute a determination or order of the court. The court observed that eviction by its very nature is disruptive and may result in damage to property. The court also noted with apparent disapproval that the respondent had not sought to execute the HC 1430/17 judgment for over a year but only did so after receiving notice that the applicant had obtained lawful mining authority, suggesting the respondent's sudden urgency to execute may have been tactical rather than genuine.

This case addresses the important intersection between mining rights and land ownership in Zimbabwe, and the circumstances under which execution of an existing court order may be stayed based on supervening events. It demonstrates that where a party obtains lawful authority to occupy land (through mining rights) after a judgment ordering eviction was granted on the basis of lack of such authority, the court may exercise its discretion to stay execution pending determination of the validity of the new authority. The judgment also clarifies procedural matters regarding withdrawal of applications before determination and the effect of judicial queries raised under Rule 60(15) of the High Court Rules.