SIDE ELECTRICAL (PVT) LTD T/A BOTHA GOLD MINE versus DETECTIVE ASSISTANT INSPECTOR LISITA NO and OFFICER IN CHARGE CID BINDURA NO and THE COMMISSIONER GENERAL OF POLICE NO and THE PROVINCIAL MAGISTRATE and THE PROVINCIAL MINING DIRECTOR MASHONALAND CENTRAL PROVINCE (HCH50/26) [2026] ZWHHC 30 (26 January 2026)

4 HH 65-26 HCH 50/26 SIDE ELECTRICAL (PVT) LTD T/A BOTHA GOLD MINE versus DETECTIVE ASSISTANT INSPECTOR LISITA NO and OFFICER IN CHARGE CID BINDURA NO and THE COMMISSIONER GENERAL OF POLICE NO and THE PROVINCIAL MAGISTRATE and THE PROVINCIAL MINING DIRECTOR MASHONALAND CENTRAL PROVINCE HIGH COURT OF ZIMBABWE **DEME J** HARARE, 12, 19, 23 and 26 January 2026 **Urgent Chamber Application** _B Maunze with M. Nzarayapenga and Z. Kajokoto_ for the applicant _F Chimunoko_ for the 1st -3rd respondents. No appearance for the 4th-5th Respondents. **DEME J:** The Applicant approached this court seeking an order for interdict against the Respondents. The Applicant seeks, among other things, an order that the Respondents be interdicted from executing the warrant of search and seizure issued by the 4th Respondent. More specifically, the Applicant seeks the following relief: “Terms of the final relief That you show cause to this Honourable Court why a final order should not be made in the following terms: 1. The Provisional order be and is hereby confirmed pending finalization of the application for review in case number HC (sic). 2. Each party to bear its own costs. Terms of the interim relief granted Pending the determination of this matter on the return date, the applicant is granted the following relief: 1. Pending the determination of the matter on the return date, the respondents be and is hereby interdicted from executing and acting upon the warrant of search and seizure issued by the 4th respondent at Bindura Magistrates Court on the 18th of December 2025, which warrant has been applied for by the 1st respondent on the 18th of December 2025. 2. In the vent that the warrant has been executed already before the granting of this order, the respondents and all other interested parties and intended users of the information, documents and reports obtained in pursuance of the said warrant are (sic) should not distribute, publish or use the said information in any manner whatsoever without the leave of the court. Service of the Provisional Order 1. The applicant/applicant’s legal practitioner and/or employees be and are hereby permitted to serve copies of this provisional order on the respondents or their legal practitioners/employees.” The parties specified on the face of the application are different from the ones outlined in the founding affidavit. In the founding affidavit, the 4th Respondent is cited as the Provincial Magistrate. Reference is made to paragraph 7 of the founding affidavit. The Provincial Mining Director for Mashonaland Central is cited as the 5th Respondent according to paragraph 8 of the founding affidavit. The 4th Respondent is not appearing on the face of the application. The application to regularise the irregularity made by the counsel for the Applicant was not resisted by the counsel for the 1st -3rd Respondents (hereinafter called “the Respondents”). Consequently, this judgment captures the Provincial Magistrate as the 4th Respondent to the present proceedings. On the initial hearing of this matter, I granted the interim relief pending the determination of the interim relief in this matter. In particular, paragraph 2 of my order is as follows: “Pending determination of the interim relief in this matter, the Respondents and all those interested parties and intended users of the information, documents and reports obtained in pursuance of the Warrant of Search and Seizure issued on 18 December 2025 by the Bindura Magistrates Court at the request of and application by the 1st Respondent should not, use the said information in any manner whatsoever without the leave of the court.” The order was issued upon application by the Applicant following revelations that the warrant had already been executed. There was no resistance from Mr. Chimunoko. Hence the order was subsequently granted. The present application was opposed by the 1st-3rd Respondents who raised four points _in limine_. Firstly, the Respondents argued that the Applicant ought to have joined McPern (Pvt) Ltd and Freda Rebecca which have interest in the present application. Secondly, the Respondents contended that the present application does not meet the requirements of an application for interdict. In their third point _in limine_ , the Respondents claimed that the Applicant is approaching the court with dirty hands having failed to comply with the judgment handed down in HCH5835/25. Lastly, the Respondents maintained that the matter was overtaken by events as the warrant being challenged has already been executed. I will not necessarily follow the order of the points _in_ limine in my determination. I will start by making a determination on whether the present application meets the essential requirements of application for interdict. Arguing on behalf of the Respondents, Mr. Chimunoko claimed that the present application does not meet the requisite threshold of the application for interdict. He argued that there is no harm likely to be suffered demonstrated by the Applicant. Adv Maunze vehemently opposed the submission and insisted that the Applicant will seriously be prejudiced by execution of the warrant with the unknown origin. He argued that the issuing authority must append his or her name on the warrant for public accountability purposes. Allowing execution of such a warrant will result in incurable prejudice according to Adv Maunze. I attempted to establish from Adv Maunze whether an application for interdict may be the appropriate remedy against the warrant which is still extant. Adv Maunze prayed for amendment of the interim relief so that the word “interdict” may be construed to be “stay”. This application was not resisted. I further inquired from Adv Maunze whether the application for interdict and the application for stay of execution are similar. Adv Maunze submitted that the two applications have the same requirements. He referred me to paragraph 28 of the founding affidavit, which provides that: “It is on that basis that execution of the Warrant should be stayed for want of compliance with the legal requirements of the law to do with warrants of search and seizure. Nothing in pursuance of this illegal warrant should stand.” Mr. Chimunoko did not agree that the requirements of the two applications are the same requirements. He argued that there is a reason why the two applications are named differently. There is need for me to determine whether application for interdict and application for stay of execution are the same. The Applicant used the word “interdict” in paragraphs 9, 10(iii) and 23 of the founding affidavit. The word “stay” was only used once in paragraph 28 of the founding affidavit. In the provisional order sought, the Applicant used the word “interdict” in paragraph 1 of the interim relief sought. The heading of the application on the face of the application suggests that the present application is for interdict. Paragraph C of the grounds for the urgent chamber application appearing on the face of the present application also reflects that the present application is an application for interdict. The impression that one gets when one peruses the application, without doubt, is that the present application is an application for interdict. Paragraph 9 of the founding affidavit introduces the nature of the application. This application provides that this application is an application for interdict. Paragraph 9 is very key in introducing the Applicant’s cause of action. There is overwhelming evidence that the present application is an application for interdict. The Applicant cannot purport to rebrand the present application in paragraph 28 which is towards the end of the founding affidavit. Doing so will confuse every interested stakeholder. I do not agree that a single paragraph can cure this defect complained of. Paragraph 28 of the founding affidavit is inconsistent with the rest of the founding affidavit. The application stands or falls on the basis of the averments made in the founding affidavit. Reference is made to the case of _Chironga and Anor_ v _Minister of Justice, Legal and Parliamentary Affairs and Ors_ 1, where Hlatshwayo JCC held that: “It is trite that an application stands or falls on the averments made in the founding affidavit. See _Herbstein & van Winsen the Civil Practice of the Superior Courts in South Africa 3rd ed (_hereinafter ‘Herbstein &Van Winsen or the Authors’ _)_ p 80 where the authors stated that: “The general rule, however, which has been laid down repeatedly is that an applicant must stand or fall by his founding affidavit and the facts alleged therein, and that although sometimes it is permissible to supplement the allegations contained in that affidavit, still the main foundation of the application is the allegation of facts stated therein, because these are the facts which the respondent is called upon either to affirm or deny. If the applicant merely sets out a skeleton case in his supporting affidavits any fortifying paragraphs in his replying affidavits will be struck out.” The Applicant has approached this court based on a wrong cause of action in my view. The need to have correct cause of action has been widely emphasized in our jurisdiction. Reference is made to the case of _Bushu_ v _GMB and Ors_ _2_ _,_ where Chitapi J remarked as follows: “The application filed by the applicants’ legal practitioner is hopelessly inadequate in form and substance. I deal with the inadequacies in the application hereunder. Firstly, the application does not indicate the provisions of the law under which it is made. I will accept that form 29 of the High Court rules does not specifically provide that the applicant relying on a provision of the law should cite the rule under which the application is made. However, in practice, any astute legal practitioner making an application in terms of a statutory provision including a rule of court is expected to indicate the rule or provision concerned. The need to cite the relevant provision of the law under which the application is made, where applicable of course, cannot be overemphasized. The citation of the correct and relevant provision attunes the court to its jurisdiction and the judge or court as the case may be immediately opens up to the provision and if need be researches on the provision if it is not one that immediately comes to mind. Notwithstanding that form 29 does not provide for the rule or statutory provision citation, it should be accepted as a basic rule and pre-requisite in any application grounded on a statutory provision or rule of court that the provision or rule be cited. If not cited in the heading “court application….” then the founding affidavit should at least contain a statement by the applicant that he or she is making an application in terms of the specific provision or rule. It should not be left to the judge to have to go through all the papers filed in the application in order to determine the nature of the application. I have indeed dealt with countless applications where the provision or rule if applicable has been cited. This is as it should be. It is a matter of common sense and logic. It is to me no different from the need for a party to provide a citation for a legal case authority intended to be relied upon in heads of argument. The case citation is indicated as a matter of common-sense practice and logic because the party citing the case wants the judge to read the case. A statutory or rule specific application should using the same logic specify the statute or rule. I would extend my reasoning to non-statutory or and non rule specific application. If the application is grounded in the common law, it should state so. After all Order 1 r 4 (2) is clear that the forms in the first schedule to the rules should not be used with slavish adherence, but be altered to suit the circumstances of the matter at hand.” Adv Maunze argued that the requirements of the application for interdict are similar to the requirements of application of stay of execution. In my view, this is not the correct position of our law. If the two applications are similar, then the phrases “application for interdict” and “application for stay of execution” ought to be interchangeably used whenever one of the two applications is before the court. I do agree with Mr. Chimunoko’s submission that there is a special reason why the two applications are named differently. What is clear in our jurisdiction is that the Applicant for interdict must seek to arrest an unlawful state of affairs. The Applicant for stay of execution must not seek to stop an illegal act. The Applicant will simply seek to stay certain proceedings or process pending the occurrence of a particular event contemplated in the application. Reference is made to the case of _Magaya v Zimbabwe Gender Commission_ , where the Supreme Court held that: “It is pertinent to point out that for every law that is gazetted there is a presumption of validity and appropriate legal mechanisms have been put in place in terms of the law where one intends to challenge the validity of a legal instrument. Until it has been set aside, the General Notice has the force of law and anything done under it is presumed to be lawful and valid. An application for an interdict is not and cannot by any stretch of the imagination be considered as one of those mechanisms. _In casu_ , a case has not been made for the granting of the relief sought for the following reasons. The appellant has not yet successfully impugned the legal status of the General Notice. That can only be determined after the review is decided. Clearly, in such circumstances, the legality of the notice itself is not in issue. It still stands as law. In _Mayor Logistics_ (_supra_), the court said: “The applicant seeks an order suspending the statutory obligation to pay the amount of the tax it was assessed to be liable to pay to the Fiscus, pending the hearing and finalization of the appeal in the Fiscal Appeal Court. It is in the heads of argument that the applicant reveals that the relief sought is an interim interdict. There is need to have regard to the substance and not the form of the relief sought. The fact that the applicant calls the order sought, an interim interdict does not make it one. The subject of the application is not the kind of subject matter an interdict, as a remedy, was designed to deal with. An interdict is ordinarily granted to prevent continuing or future conduct which is harmful to a _prima facie_ right, pending final determination of that right by a court of law. Its object is to avoid a situation in which, by the time the right is finally determined in favour of the applicant, it has been injured to the extent that the harm cannot be repaired by the grant of the right. It is axiomatic that the interdict is for the protection of an existing right. There has to be proof of the existence of a _prima facie_ right. It is also axiomatic that the _prima facie_ right is protected from unlawful conduct which is about to infringe it. An interdict cannot be granted against past invasions of a right nor can there be an interdict against lawful conduct. _Airfield investments (Pvt) Ltd v Minister of Lands & Ors_ 2004(1) ZLR 511(S); _Stauffer Chemicals v Monsato Company_ 1988(1) SA 895; _Rudolph & Anor v Commissioner for Inland Revenue & Ors_ 1994(3) SA 771.” The view I take is that the lawfulness of the intended investigation is established by the General Notice. It is a legislative instrument with the force and effect of law. As noted above, a General Notice has the force and effect of law, therefore, there is always a presumption of validity on that Notice and the validity thereof cannot be questioned through an application for an interdict. The appellant cannot seek to interdict lawful conduct.” In _casu_ , the warrant which was issued by the 4th Respondent is presumed to be valid until set aside through a lawful process. The allegation by the Applicant that the warrant was irregularly, illegally and unprocedurally granted remains as such in the absence of an order of the court invalidating such process. What the Applicant seeks to do is similar to the situation where the Applicant seeks to interdict the execution of the judgment of the court which has not been set aside. Such an act fails to recognize and respect the legality of process lawfully issued or concluded. Hence, the application for interdict is not the appropriate application to stop the execution of the warrant. In light of this, the application for stay of execution and application for interdict cannot be treated as the same applications. Further, the Applicant for stay of execution must demonstrate that the principles of real and substantial justice require the stay of a particular process. Reference is made to the case of _Chingwena_ v _SMM Holdings (Pvt) Ltd and Ors_ 3, where the court held that: “It is trite that the power to grant stay of execution is a common law exercise of the power that inheres in the court. This discretion is very wide but the main guiding principle for the court in determining such an application is to grant stay where real and substantial justice requires such a stay or conversely where injustice would otherwise be done –see _Mungwambi_ v _Ajanta Properties (Pvt) Ltd_ HH 771/08.” In _casu_ , the Applicant did not plead that it is motivated by principles of real and substantial justice which is a key element of the application for stay of execution. By failing to plead distinctive requirements of application for stay of execution, the present application becomes fatally defective. In the circumstances, it is apparent that the two applications are different. The requirements of the two applications are not similar as submitted by Adv Maunze. Although there seems to be a convergence point for certain requirements for the two applications, this, in my view, does not mean that the two applications must be regarded as Siamese or identical twins. The exact application before the court must be correctly stated in the pleadings failing which the application will be improperly before the court. For this reason, I am of the view that there is no application before the court. Consequently, the application must be struck from the roll. Having reached a conclusion that there is no application before me, it would be an exercise in futility to deal with the remaining points _in limine_. It serves no purpose for me to do so. The interim relief which I granted after the initial hearing of this matter will fall away by operation of law since its existence was dependent upon the determination of the interim relief in this matter. Costs ordinarily follow the outcome. An order for costs on an ordinary scale is reasonably sufficient in my view. Accordingly, it is ordered as follows: The application be and is hereby struck from the roll with costs. DEME J. ………………………………………….. _Takaindisa Law Chambers_ , applicant’s legal practitioners _Civil Division of the Attorney General_ , 1st -3rd respondents’ legal practitioners 1 CCZ14/20. 2 HH 326/17 3 HB97/18.