Twin Castle Resources (Pvt) Ltd v Paari Mining Syndicate

Twin Castle Resources (the applicant) was the registered owner of mining location Snipe B46 Odzi with pending registration notices. The first respondent, Paari Mining Syndicate, was denying the applicant's employees entry to the mining locations despite a ruling by the Minister of Mines on 15 February 2021 that the applicant had stronger rights to the mining locations, having been the first to peg there. The first respondent continued extracting gold ore and unlawfully secured the mining site using armed guards. The applicant initially filed an urgent chamber application under HC 129/21 for an interdict. The court directed that the matter would be dealt with on papers and respondents were to serve notices of opposition by 25 February 2021. The first respondent did not file any opposing papers despite being served. A provisional order was granted on 2 March 2021 interdicting the first respondent from mining and providing for alternative relief if an appeal was filed to the Minister. The first respondent subsequently filed an appeal to the Supreme Court on 15 March 2021 and to the Minister on 16 March 2021, despite not having opposed the provisional order. The applicant then filed this urgent application seeking execution of the specific clause from the earlier provisional order to stop all mining by both parties pending the appeal.

• Whether the provisional order granted in default should be suspended by the appeal to the Supreme Court
• Whether the affidavits filed by the first respondent in opposition were defective and invalid
• Whether the applicant was entitled to an order compelling both parties to cease mining pending the appeal
• Whether the first respondent's appeal was merely dilatory given it failed to oppose the initial application
• Whether an urgent anti-dissipation interdict was appropriate in the circumstances

The provisional order was granted in the following terms: (1) Execution of the judgment in HC 129/21 granted pending final determination of the appeal to the Supreme Court in SC 28/21; (2) All parties ordered to stop mining operations at Snipe B46 and areas covered by pending registrations 019994AA and 019995AA; (3) Each party ordered to secure the disputed mining area through services of three guards from a registered security company pending determination of appeal to the 3rd Respondent; (4) The order shall not be suspended by any appeal and shall remain in force notwithstanding such appeal; (5) In the event of non-compliance, the Deputy Sheriff with assistance of 4th Respondent is authorized to ensure compliance. The final order sought was to confirm the provisional order and order the first and fourth respondents to pay costs on an attorney-client scale.

An affidavit is only valid if properly attested by a commissioner of oaths who must endorse the date on which the oath was administered, and these acts must occur contemporaneously. An affidavit lacking proper attestation or the date of oath administration is defective and will not be considered valid opposition. Where a party fails to file opposition papers as directed and a provisional order is granted in default, the proper remedy is to apply for rescission or oppose confirmation of the final order, not to appeal to a higher court. In urgent applications involving finite resources such as minerals, the court has discretion to order that both parties cease operations pending appeal and to direct that the order shall not be suspended by any appeal.

The court observed that the first respondent's appeal appeared to be merely dilatory in nature, given that it failed to comply with the directive to file papers of opposition by the stipulated date despite being properly served. The court noted that the first respondent had viable alternatives available (rescission or opposing confirmation) which were not pursued. The court also commented on the appropriateness of legal representatives proceeding with urgent applications even when counsel of choice is unavailable, emphasizing that urgent applications must be heard expeditiously and are not dictated by availability of advocates.

This case is significant in Zimbabwean civil procedure for establishing standards regarding: (1) the validity requirements for affidavits in opposition, particularly the necessity for proper attestation by commissioners of oaths including dates of administration; (2) the consequences of failing to oppose a provisional order as directed and then seeking to appeal; (3) the principle that anti-dissipation orders may be appropriate in mining disputes where resources are finite; (4) the court's discretion to order that its judgment not be suspended by appeal in appropriate circumstances; and (5) the procedural adaptations necessary during COVID-19 lockdown restrictions, including hearing urgent applications on papers filed.