Zvishavane-Mberengwa Mining Association v Zimbabwe Miners Federation

On 21 March 2019, Moyo J handed down judgment under case number HB-37-19, confirming a provisional order granted on 14 June 2018. The learned judge found that the notice of opposition and opposing affidavit were not properly before the court, and the deponent to the opposing affidavit was not authorized. The respondent (Zimbabwe Miners Federation) noted an appeal against the whole judgment on 4 April 2019 at the Supreme Court. The notice of appeal was served on the applicant's legal practitioners on 8 April 2019. The applicant then brought an urgent application seeking to execute the judgment pending appeal. The relief sought in the draft order related to declaring null and void a decision by the respondent's General Council on 11 April 2019 to endorse Henrietta Rushwaya and associates as the National Executive, and interdicting the respondent from mandating that executive to represent its affairs outside Zimbabwe.

• Whether the relief sought was consistent with the facts pleaded in the founding affidavit
• Whether the application was truly urgent
• Whether the court could grant an interdict against persons not cited as parties in the original judgment
• Whether the application constituted an abuse of court process

Application dismissed with costs on an attorney and client scale

1. An application for leave to execute pending appeal must be consistent with the facts pleaded in the founding affidavit and cannot be used as a vehicle to obtain fresh relief not contemplated in the original judgment. 2. A court cannot grant orders against persons not cited as parties and not afforded the right to be heard, as this violates the basic tenets of justice and fairness. 3. The filing of an appeal suspends the operation of the judgment appealed against. 4. For an application to be considered urgent, the applicant must act immediately upon the event giving rise to urgency and must explain any delay. 5. Abuse of court process, including attempting to relitigate matters already on appeal, will be discouraged and may result in punitive costs orders.

The court observed that not much thought was put into preparing and filing the application, noting that the applicant's counsel sought during submissions to argue that the application for leave to execute pending appeal was not being pursued and only the interdict relief was sought. The court commented that such conduct "smacks of abuse of court process" and "borders on dishonest conduct," indicating judicial disapproval of the manner in which the application was brought and prosecuted.

This case reinforces important principles regarding urgent applications and applications for leave to execute pending appeal in Zimbabwean law. It demonstrates that courts will scrutinize whether relief sought corresponds with the facts pleaded, will strictly apply urgency requirements, and will protect parties' rights to be heard. The case also illustrates judicial intolerance of abuse of court process, particularly attempts to relitigate matters already on appeal through disguised applications seeking different relief. The award of attorney-client costs signals the seriousness with which courts view such conduct.