Zimbabwe Nickel Exploration Company (Private) Limited v Raiz-El Nickel Processing Company (Private) Limited and Others

The applicant was the registered owner of Welcomeback 18 Mine. On 29 September 2020, the applicant and first respondent entered into an agreement of sale whereby the applicant sold slag and slag dump located at Welcomeback 18 Mine to the first respondent for US$2,500,000, payable in instalments. The parties also entered into a tribute agreement giving mining rights over slag and slag dump to the first respondent, approved by the second respondent on 2 August 2021. The first respondent paid US$10,000 upon signature but did not pay the balance. Disputes arose regarding: (1) where processing was to occur (applicant claimed at Welcomeback 18; first respondent claimed at Vizier mines); (2) whether rental payments were due; (3) whether the purchase price balance and royalties were paid; (4) whether either party breached the agreements. The applicant alleged the first respondent breached by failing to pay rentals, purchase price balance, and royalties, and was stealing slag. The first respondent counter-alleged that: (1) the applicant failed to provide banking details for royalty payments; (2) the applicant failed to have the tribute agreement ratified timeously; (3) the applicant engaged other illegal miners at the site in breach of the agreement; and (4) operations were suspended by the second respondent from 27 August to 11 November 2021 due to illegal mining. The applicant filed HC 7367-21 seeking confirmation of cancellation of the agreement of sale, then filed this urgent application on 23 December 2021 (seven days after discovering slag removal on 16 December 2021) seeking an interim interdict to prevent the first respondent from conducting mining operations pending finalization of HC 7367-21.

• Whether the matter was urgent and filed timeously
• Whether the applicant established a prima facie case for interim interdict
• Whether the applicant would suffer irreparable harm
• Whether alternative remedies were available
• Whether the balance of convenience favoured the applicant
• Whether the requirements for a temporary/interim interdict were satisfied
• Whether costs should be awarded on an attorney-client scale or ordinary scale

The urgent application was dismissed with costs on an ordinary scale in favour of the first respondent.

An applicant seeking an interim interdict must satisfy four requirements: (1) a prima facie case, though open to doubt; (2) irreparable harm actually committed or reasonably apprehended; (3) absence of any other remedy by which the applicant can be protected with the same result; and (4) that the balance of convenience favours the applicant. Where there are serious disputes of fact and counter-allegations regarding breach of contract that go to the heart of the applicant's case, the doubt exceeds what is permissible for establishing a prima facie case. A court should not determine the merits of a pending main application (such as whether breach of contract occurred) when considering an application for interim interdict, as doing so would be premature and would improperly deal with issues reserved for the main matter. Where it is unclear whether a breach of contract has occurred due to serious disputes, an applicant cannot establish irreparable harm or show that alternative remedies are unavailable. The best remedy in such circumstances is to have the issue of breach determined first in the main application before seeking interim relief.

The court noted that costs on an attorney-client scale (higher scale) should only be awarded in exceptional cases where the degree of irregularities, bad behaviour, and vexatious proceedings necessitate such an award. Merely mounting a hopeless case is insufficient justification for costs on a higher scale. The court observed that the applicant should be punished through costs on an ordinary scale for prematurely instituting the matter and misrepresenting certain facts, but this did not rise to the level requiring exceptional costs. The court also noted that what constitutes urgency is not only the imminent arrival of a deadline - a matter is urgent if at the time the need to act arises, the matter cannot wait. However, urgency stemming from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules (citing Kuvarega v Registrar General). The court observed that a delay of seven days in filing an urgent application does not amount to inordinate delay.

This case is a Zimbabwean High Court decision, not a South African case. However, it demonstrates important principles applicable in South African law regarding: (1) the requirements for urgent applications and what constitutes acceptable delay; (2) the four-part test for interim/temporary interdicts (prima facie case, irreparable harm, absence of alternative remedy, balance of convenience); (3) the principle that courts should not determine the merits of a main application when granting interim relief; (4) the standard that a prima facie case may be open to doubt, but not to serious or high magnitude doubt involving fundamental factual disputes; (5) that counter-allegations and serious disputes regarding breach of contract can defeat a prima facie case for interdict; (6) the requirement for proper authority when representatives purport to cancel contracts on behalf of companies; and (7) the circumstances warranting costs on a higher scale, which require exceptional circumstances such as vexatious proceedings or serious irregularities, not merely mounting a hopeless case.