Eliazar Mushiringi v Jofarnell Investments (Pvt) Ltd & 2 Ors

### Preamble
1
HCC 43/25
HCCC 119/25
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ELIAZAR MUSHIRINGI

Versus

JOFARNELL INVESTMENTS (PVT) LTD

And

JIANGMEL MINERALS SERVICES (PVT) LTD

And

THE PROVINCIAL MINING DIRECTOR, MIDLANDS N.O

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI, 9 July 2025

Urgent chamber application for an interdict

A. Mutatu, for the applicant

No appearance for the 1st respondent

T. Madondo, for the 2nd respondent

C. Chitekuteku, for the 3rd respondent

MUZOFA J: [1] On the 12th of June 2025 I struck off this application for a provisional matter from the roll of urgency in an extempore judgment. The applicant has requested for the written reasons, which I provide herein.

[2] The applicant is a male adult with capacity to sue and be sued. He appears represented by Lloyd Mutsanya through a special power of attorney. He seeks to interdict the respondents from certain conduct.

[3] The 1st and 2nd respondents are duly registered companies operating in Zimbabwe. The 3rd respondent is cited as a Nominal officio as the regular of mines and other matters incidental to mining operations.

[4] 1st respondent did not file any opposition. The 2nd and 3rd respondents oppose the application.

[5] The applicant, 2nd and 3rd respondents are embroiled in a long-drawn dispute over boundaries of their respective mining locations.

[6] The parties have been in and out of court, including a hearing before the 3rd respondent which is the subject of this applicant.

[7] The dispute has seen parties appearing in the High Court in Harare, Bulawayo and Chinhoyi. The mining locations are in Kwekwe. The tendency to forum shop is discouraged. It has the potential to produce conflicting judgments and confusing the whole litigation process. For all intents and purposes litigants must litigant to resolve disputes rather than recycle the same disputes.

Factual Background

[8] The applicant holds a mining registration certificate number 8217 BM in respect of a claim known as Monty 8 Mine. According to the applicant Monty 8 Mine was first pegged in 1979 by a company known as Prospecting Ventures Limited. In 1996 it was transferred to Falcon Gold Zimbabwe (Pvt) Ptd. He then purchased it from Falcon Gold Zimbabwe (AM4).

[9] The 2nd respondent holds a special grant issued on 29 August 2024 registered under SG 9841. Without digging deep into each party’s precise locations, it suffices to indicate that the applicant and the respondents share some common boundaries. This has resulted in one or the other party encroaching on the other’s mining location.

[10] Aggrieved by a perceived encroachment on his mining location by the 1st and 2nd respondents, the applicant referred the dispute to the 3rd respondent for resolution.

[11] The parties, dutifully appeared before the 3rd respondent. In a letter dated the 1st of April 2025 date stamped on 9 April 2025, the 3rd respondent issued its determination. I reproduce the relevant part only.

“1. From the observations and findings, it is noted that the (SIC) all the claims in dispute are encroaching into each other.

2. according to section 177 (Priority of mining rights) of the Mines and Minerals Act,

i) SG 9841 encroaching into Monty 8 8217 BM (who is the prior pegger) must adjust its beacons.

ii) SG 9841 must also adjust and remove its beacons where it is encroaching into Braganza 17 and 20 ground positions (Prior Pegger).

iii) SG 9841 site must adjust out of Monty.

iv) Braganza 20 ground position is encroaching into Monty 8 (which is the prior pegger) must adjust its beacons out of Monty 8.

3. Jofarnell must maintain its ground position since they have been working and established their operations for a long period of time.

4. See attached diagram labelled determinations positions.

5. Any party not concurring with the above may approach the High Court.”

[12] For the purposes of clarity and enforcement the 3rd respondent issued a second letter to the parties dated 14 April 2025. It reads:

“Following determination of the above dispute on 9 April 2925 each party is directed to engage competent personnel and make adjustments as per the determination directive, erect permanent beacons and then request office surveyors to verify by 30 May 2025.”

[13] None of the parties complied with the order. Since non compliance was detrimental to the applicant, thus he approaches this court for an interdict as already set out.

[14] The 2nd respondent was dissatisfied by the determination and appealed against the 3rd respondent’s decision on 16 April 2025 in the High Court Harare. It also applied for stay of execution.

[15] On the date of hearing, it turned out that both applications though filed had not been served on the applicant.

[16] It appears there is more happening behind the scenes that the court is not privy to. From the documents filed it is apparent that the 2nd respondent is not satisfied by the way the 3rd respondent has handled this case. By letter dated 23 May 2025, the 2nd respondent wrote to the Minister of Mines and Mining Development complaining against 3rd respondent (K Mlangeni)’s conduct. It requested that the applicant’s licence as an approved prospector be cancelled and an investigation of the 3rd respondent. The reasons for the request are well set out in the letter.

The Applicant’s Submissions

[17] On the date of hearing, the court inquired whether the noting of an appeal suspended the order issued by the 3rd respondent.

[18] Mr Matatu submitted that the noting of the appeal did not suspend the order. He referred to s381 (4) and s399 (6) of the Mines and Minerals Act (Chapter 21:05) Act that only an appeal to the Minister suspends the order appealed. In this case the appeal was noted under s361 of the Act. The provision is silent on the effect of the appeal.

[19] Mr Madondo agreed that there is no express mention that an appeal suspends the order. He urged the court to rely on the common law position that an appeal suspends the order appealed as applied in the case of Matenhere v Cornway College SC 16/24.

[20] I decided to proceed with the matter without making a finding on the issue since neither party had raised it and it appears non relies on it.

Preliminary Points

[21] Mr Madondo addressed the court first to motivate the preliminary points raised in the 2nd respondent’s response. Three points were raised, non-urgency, material dispute of facts and lis pendens.

Urgency

[22] For the 2nd respondent it was submitted that the matter lacks urgency. The parties’ dispute stems from way back and the respondents have conducted mining operations since then. The applicant did not approach the court for redress.

[23] A second point not necessarily on urgency but on the propriety of the applicant’s legal representation was taken. It was submitted that the applicant’s legal practitioner was conflicted since he once represented the 2nd respondent in a dispute over the same mining location. I decided to shelf the point taken subject to the outcome of the other preliminary points taken.

[24] The 3rd respondent, also took the preliminary point on non-urgency, that the cause of action arose before 30 May 2025. The respondents have been mining. The applicant was the designated pegger who pegged his mining claims and the 2nd respondent’s claims.

[25] In response the applicant submitted that the cause of action arose from 30 May after the date fixed by the 3rd respondent lapsed and there was non-compliance. The applicant immediately approached the Court; he therefore treated the matter as urgent.

The Law

[26] The law on urgency is trite and both parties properly articulated it. Urgency is primarily a function of time and harm/consequesnces. A matter is urgent if its determination cannot wait when the need to act arises lest by waiting irreparable harm will be occasioned by the party seeking the court’s intervention on an urgent basis. See Dunhuramambo Pvt Ltd t/a Zambezi Cruise & Safari v Avalon Steel Projects and Construction HCC 1/22.

[27] The applicant bears the onus to establish that the matter is urgent by clearly stating the date or period within which the cause of action arose, the harm and the need for the court to intervene to curtail the prejudice. In Mayor Logistics (Pvt) Ltd v Zimbabwe Revenue authority CCZ 7/14 the court said:

“A party favoured with an order for a hearing of the case on an urgent basis gains a considerable advantage over persons whose disputes are being set down for hearing in the normal course of events. A party seeking to be accorded the preferential treatment must set out in the founding affidavit facts that distinguish the case from others to justify the granting of the order for urgent hearing without breach of the principle that similarly situated litigants are entitled to be treated alike”. (Underlining for emphasis)

[28] In the often cited dictum in Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (H) at 193 F-G is instructive, that:

“What constitutes urgency is not only the imminent arrival of the day of reckoning, a matter is urgent if at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules”.

[29] The line of cases on urgency shows that the applicant must make a case for urgency. The founding affidavit must be clear on the issues; it must directly speak to the order sought. Where the order sought is at tangent to the founding affidavit, the matter may be ruled not urgent.

Factual and Legal Analysis

[30] As a starting point the Court inquired if paragraph (b) of the interim relief sought is competent in the circumstances of this case. A concession was made that paragraph (b) is not competent, it was therefore abandoned. What remains for determination is whether the matter is urgent with paragraph (a) only .

[31] The applicant’s cause stems from the letter dated 14 April 2025, failure by the 1st and 2nd respondents to comply with the 3rd respondent’s order. In the interim the applicant seeks a prohibitory interdict, for the 1st and 2nd respondent not to interfere with his efforts to erect beacons and a perimeter fence on Monty 8 Mine.

[32] I have no doubt that the cause of action arose on the 30th of May 2025 contrary to the 2nd and 3rd respondents’ submissions. It is irrelevant that during this protracted dispute the respondents continued with their activities. The cause of action is based on the determination. They were required to comply, albeit by making certain adjustments so that they do not interfere with Monty 8. Consequently, non-compliance could only be deciphered after 30 May 2025. Had the applicant approached the court before 30 May a valid defence would be readily available for the respondents.

[33] The applicant also treated the matter as urgent. Before approaching the court there are indications (although denied by 2nd respondent) that he tried to engage the respondents. The first leg has been satisfied. That cannot be said about the harm.

[34] The harm contemplated is irreparable harm to an existing right. The harm must not be imaginary or some far-fetched event. It must be immediate harm already materialised or imminent.

[35] According to the applicant, the 1st respondent vandalised some perimeter fence and beacons that he erected in compliance with the determination. He was also assaulted by the 1st respondent’s representative. Surprisingly, the applicant had a tiff with the 1st respondent yet the order was clear. The 1st respondent was not required to do anything. It was ordered to remain where it was.

[36] Paragraph 8 – 10 of the applicant’s founding affidavit refers to 1st respondent’s offensive conduct. There is literally nothing alleged about the 2nd respondent’s conduct. The only reference is that 2nd respondent has continued to conduct mining activities.

[37] Two issues arise from that submission, firstly the order by the 3rd respondent does not suspend mining activities by the 2nd respondent. Secondly the order refers to certain identified coordinates. The bare averment does not specifically indicate whether the offensive mining activities are taking place.

[38] In any event , the applicant’s request is to interdict the respondent from interfering with adjustments. In the absence of clear averments on what the 2nd respondent did to interfere with the applicant’s efforts it is difficult to find the matter urgent.

[39] Averments have been made against the 1st respondent. The 1st respondent has not opposed the application. The court asked itself whether this is a matter to deal with the matter on an urgent basis. I took the liberty to consider the circumstances of this case.

[40] The compliance craved by the applicant is based on an order that is subject of an appeal. The 2nd respondent has already applied for stay of execution of the order. In my view this urgent application does not deal with the real issues piting the parties. It is just dealing with a minor issue in the whole matrix.

[41] The application for stay of execution has the potential to deal with the real issue, it will determine whether compliance is necessary pending appeal. In as much as the applicant maybe prejudiced, the prejudice is of its making. Even if this order is granted it simply gives the applicant the right to comply with the order without interference yet the other parties have not been compelled, therefore it does not avert the harm. He has not sought to compel compliance from the respondents.

Disposition

[41] The applicant failed to demonstrate urgency. No valid reasons were given to depart from the time-honoured principle that costs follow the cause.

Accordingly, the matter is struck off the roll of urgent cases with costs.

Matatu & Partners, the applicant’s legal practitioners.

Mandodo Legal Practice, the 2nd respondent’s legal practitioners

Civil Division of the Attorney General’s Office, the 3rd respondent’s legal practitioners