Solomon's Treasure (Pvt) Limited v Mipple Trading Company (Private) Limited and 2 Others

### Preamble
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HH 609- 25
HCH4424/25
SOLOMON’S TREASURE (PVT) LIMITED
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HCH4424/25

SOLOMON’S TREASURE (PVT) LIMITED

Versus

MIPPLE TRADING COMPANY (PRIVATE) LIMITED

And

PROVINCIAL MINING DIRECTOR, MASHONALAND CENTRAL PROVINCE

And

OFFICER COMMANDING ZIMBABWE REPUBLIC POLICE (BINDURA)

HIGH COURT OF ZIMBABWE

CHIRAWU-MUGOMBA J

Harare, 6 and 8 October 2025

S. M. BWANYA, for the applicants

R. B. MADIRO, for the 1st respondent

L. URIRI, for the 2nd respondent

URGENT CHAMBER APPLICATION - PRELIMINARY ISSUE

CHIRAWU-MUGOMBA J

1. This matter was placed before the court as an urgent chamber application wherein the applicants seeks an order in terms of the draft provisional order filed of record. I note that there seems to be confusion relating to the citation of the respondents but I will maintain the one that appears on the draft provisional order.

2. The dispute relates to mining claims called Xmas 6 and 3 and 148/9. The first respondent under case Number MCCB 048/25 sitting at Bindura has resolved the dispute in favour of the second respondent. The applicant has since filed an application for review
 HCH4424/25 in this court under HCH 4401/25 in relation to that decision. The matter is still pending.

3. The first and second respondents oppose the application but for purposes of this matter, the contents of the opposition are not relevant.

4. Before the matter was referred to me, it was handled by another Judge who then recused himself.

5. On record are three orders pertaining to this matter excluding the one that I granted wherein I reserved judgment.

6. The first order is dated the 11th of September 2025 and it reads as follows:
   a. The 2nd respondent to file its notice of opposition and counter claim on or before Friday 12 September 2025.
   b. The applicant to file its answering affidavit and notice of opposition to the counter claim on or before Tuesday 16 September 2025.
   c. The 2nd respondent to file its answering affidavit in the counter application on or before Wednesday 17 September 2025.
   d. Matter be and is hereby set down for hearing on 22 September 2025 at 10:00 hours.
   e. Pending the determination of this matter, parties shall keep peace and desist from any form of interactions at the mining site.
   f. No order as to costs.

7. On the 23rd of September 2025 another order was issued as follows:
   a. Matter be and is hereby postponed to 29 September 2025.


HH4424/25

b. All parties to file their remaining pleadings on or before the 23rd of September 2025.

c. Solomon Treasure Private Limited and Mipple Trading Private Limited to hold any processing of gold ore subject of this case until both applications are finalised.

d. Solomon Treasure Private Limited and Mipple Trading Private Limited to each provide two security guards at any given time to man the gold ore subject to this dispute until the matter is finalized.

e. No order as to costs.

8. The third order is one under which the Judge recused himself.

9. Indeed, the first respondent filed what it terms a counter-application for a mandamus ostensibly in terms of r58 (8) as read with r59 of the High Court rules. The first respondent is an applicant in that application and the relief sought is final in nature. The applicant (now first respondent) opposes the counter court application and has filed a notice of opposition and affidavit. The response is basically a regurgitation of the urgent chamber application.

10. The heads of argument filed relate to both the urgent chamber application and the counter court application. The application was then placed before me as a ‘composite’ one, encompassing all the pleadings filed.

11. Upon perusal of the application, the propriety of combining an urgent chamber application and a counter court application exercised my mind. This in my view raises a serious procedural issue that ought to be examined carefully lest it results in unintended negative consequences.


HH 609-25

HCH4424/25

12. I convened a hearing on the 6th of October 2025 and invited the parties to address me on this question- Can an urgent chamber application be combined with a counter court application and be heard as one composite application?

13. Per Mr Bwanya, it is incompetent to combine an urgent chamber application and a non-urgent application. This is not what r58 (8) envisages. The relief sought in a counter application is final and relief sought in an urgent chamber application is interim pending final if granted. One can file a counter urgent chamber application to an urgent chamber application but not combine an urgent and non-urgent matter. Rules governing the two processes are different. An urgent chamber application is heard in chambers whilst an ordinary court application is heard in open court.

14. Per Ms Madiro, it is not competent to combine an urgent chamber application and a counter court application.

15. Per, Mr Uriri, as a general rule, combining the two is not competent but in casu, this is a result of a case management order.

16. In rebuttal, Mr. Bwanya sought to draw a distinction between a case management and an ordinary court order. He also narrated that parties got to that stage when at the hearing, the first respondents’ legal practitioners submitted that their client had a counter application.

17. In my view, despite the order of the 11th of September 2025, it is not competent to combine an urgent chamber application and a counter court application as one composite application to be heard and disposed of at the same time under one hearing.

18. Counter applications are indeed permissible in terms of the rules as per r58 (8)-(11) -see also Zaranyika vs The Master of the High Court, NO and others, HH-526-19.


Counter application

(8) Where a respondent files a notice of opposition and opposing affidavit, he or she may file, together with those documents, a counter application against the applicant in the form, with the necessary changes, of a court application or a chamber application whichever is appropriate.

(9) This rule shall apply, with the necessary changes, to a counter-application under subrule (8) as though it were a court application or a chamber application, as the case may be, and subject to subrules (10) and (11) it shall be dealt with at the same time as the principal application unless the court or a judge orders otherwise.

(10) If, in any application in which the respondent files a counter-application under subrule (9) the application is stayed, discontinued or dismissed, the counter-application may nevertheless be proceeded with.

(11) The court or a judge may, for good cause shown, order an application and a counter application to be heard separately.

20. My reading of r58 (8) suggests that a counter court application or a counter chamber application can be filed after a notice of opposition and opposing affidavit has been filed. Essentially a counter court application is a court application and it can even stand alone as per r58 (9). I do not read this rule to refer to an urgent chamber application and a counter court application.

21. I am fortified in my view because the remedy provided by a court application and an urgent chamber application are different. Save for an urgent chamber applications where final relief is granted – see *Blue Rangers vs. Muduviri and anor*, 2009(1) ZLR 376 (S), the relief granted is interim in nature should the court be satisfied that a *prima facie* case has been shown- see r 60(9), a provisional order is granted. A judge may even deal with an urgent chamber application without opposing papers having been filed- see proviso to r60 (8) (b).

22. In terms of the proviso to r60 (12), an urgent chamber application can he heard at any place and at any time. This reinforces the submissions by Mr. *Bwanya*.


HH 609-25

HCH4424/25

23. If an application is deemed not to be urgent, it is transferred to the roll of ordinary court applications and it shall not be necessary to file a fresh court application. In my view, a respondent who then files or has filed a notice of opposition and affidavit, may file a counter court application and the procedure set in r58 (8) – (11) applies.

24. I do not agree with the submission by Mr. Bwanya, that a litigant can file a counter urgent chamber application. It is in my view because of the peculiar nature of the application and that it must pass the urgency test first. Indeed there is a plethora of cases dealing with what urgency constitutes – see *Documents Support centre (pvt) Limited vs. Mapuvire*, 2006(2) ZLR 240. I do not see how one’s urgent chamber application can trigger a respondent’s own urgency. At most, they can file a notice of opposition and affidavit and be heard by a Judge in chambers in respect of that opposition.

25. Mr. Bwanya, sought to draw a distinction between a case management order and one that just states, ‘order’. This is one without a difference. They have the same effect. All are orders of the court.

26. Having made the finding that the matters cannot be combined, I now turn to the submission by Mr. Uriri, that the court sanctioned the combining of the matters. I do not perceive anywhere in the order of the 11th of September 2025 that the matters should be heard together and one composite judgment be granted. Indeed it would be absurd to grant an interim provisional order that would actually non-suit the first respondent in the main from proceeding with the counter court application, or vice versa. Conversely, it will be absurd to grant final relief in the counter court application that would non-suit the applicant from pursuing its
 HH4424/25 matter even if it is adjudged as not being urgent. In other words, an urgent chamber application and a counter court application cannot be mixed. They are akin to oil and water.

27. I cannot proffer legal solutions to how the counter court application will proceed. Suffice to state that I will not proceed to hear a composite application. The court can only hear the urgent chamber application and the opposition to it only at a date to be allocated.

28. I will also not make any order as to costs given the fact that this issue was raised *mero motu* by the court.

DISPOSITION

Having found that an urgent chamber application cannot be combined with a counter court application, the following order is made:

1. The composite application is split with the urgent chamber application standing on its own.

2. The court shall proceed to deal with the urgent chamber application as a standalone on a date to be allocated.

3. There will be no order as to costs.

*Jiti Law Chambers*, applicant’s legal practitioners
*Hamunakwadi and Nyandoro Law Chambers*, first respondents’ legal practitioners
*Civil Division of the Attorney General’s Office*, second respondent’s legal practitioners
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