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Judgment

2 HH 450/25 HCH 2969/25 MARIMBA RESIDENTIAL PROPERTIES versus BEABLE INVESTMENTS (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE MANDAZA J HARARE, 27 JUNE and 29 JULY 2025 Urgent Chamber Application for an Interdict K. Kachambwa, for the applicant. E. Mubaiwa with E.R. Samukange, for the respondent. MANDAZA J: The applicant approached this court by way of an urgent chamber application seeking interdictory relief. The parties filed all the requisite papers, and the matter was fully ventilated on the papers before me. Upon a careful and thorough consideration of the affidavits and annexures placed on record, I was satisfied that the application was meritorious. Consequently, I granted the interdict. What follows are the reasons for the decision. FACTUAL BACKGROUND The applicant is the registered proprietor of a parcel of land situated in the District of Salisbury, known as Subdivision B of the Springs, measuring approximately 671.6177 hectares (“the property”). A title deed in respect of Springs Farm was formally issued on 5 June 2025 and received by the applicant the following day, Friday, 6 June 2025. On 10 June 2025, the applicant, through its legal practitioners, formally notified the respondent of its acquisition of the property. In that correspondence, the applicant sought clarity on whether the respondent’s occupation of the farm was lawful and whether the clay extraction and brick moulding activities being undertaken were sanctioned by law. Subsequently, on 16 June 2025, a meeting was convened at the offices of the Ministry of Local Government and Public Works. At that meeting, the respondent was advised that ownership of Springs Farm had vested in the applicant. The respondent was allowed to submit documentation establishing its lawful authority to remain on the property. In response, it produced two documents purporting to confer such authority. However, the applicant asserts that neither document constituted a valid legal authority for the respondent’s continued occupation or commercial operations on the farm. Following these developments, the applicant extended a conciliatory offer, granting the respondent a period of two to three months within which to wind down its operations and vacate the property. Although the respondent undertook to consider and respond to the offer, no such response was forthcoming. Faced with the respondent’s continued and unlawful exploitation of the land through clay extraction and brick moulding, the applicant found itself with no recourse but to approach this Honourable Court on an urgent basis, seeking relief to halt the respondent’s illegal operations on Springs Farm. The applicant lamented that the respondent’s relentless quarrying and brick-making endeavours have scarred the landscape, causing environmental pollution and degradation, including the loss of vegetation, air pollution, waste generation, soil erosion, land extraction and destruction, demolition of a mountain, land and underground water pollution. To preserve what remains, the applicant implored the Court to interdict the respondent from persisting with these unlawful acts, which threaten to render the land unfit for its envisioned transformation into an urban haven. Applicant’s Submissions The applicant submitted that it stands to suffer irreparable harm should the respondent’s operations be permitted to continue unchecked. This apprehension, it argued, is not conjectural but is grounded in the respondent’s own acknowledgements, as recorded in the Executive Summary of its Environmental Impact Assessment report. In that report, the respondent concedes that its clay extraction and brick moulding activities result in extensive environmental degradation, including the loss of vegetation, air pollution, waste generation, soil erosion, land destruction, the demolition of a mountain, and contamination of underground water sources. The applicant further submitted that these activities entail deep excavation and the removal of large quantities of clay and soil, leaving open pits that cannot be rehabilitated. The damage, it contended, is not only severe but permanent, particularly as the clay being extracted forms part of a mountain, a geological feature whose destruction is irreversible. In addition, the applicant advanced that the respondent’s operations are not only environmentally harmful but also unlawful, amounting to a flagrant breach of at least six statutory provisions, including those enshrined in the Environmental Management Act [Chapter 20:27], the Mines and Minerals Act [Chapter 21:05], the Land Commission Act [Chapter 20:29], and the Regional, Town and Country Planning Act [Chapter 29:12]. In these circumstances, it was argued, the respondent’s continued disregard of the law cannot be sanctioned, let alone tolerated. Respondent’s Submissions The respondent opposed the application, raising at the outset four preliminary objections, which will be addressed in due course. On the merits, it largely denied the applicant’s assertion that irreparable harm would result, anchoring its defence on the premise that it holds a lawful entitlement to occupy and utilise the property. Notably, however, the respondent conceded that all scheduled operations of the nature in question inevitably carry with them a degree of environmental impact, including pollution and degradation. It was for this reason, the respondent acknowledged, that the law mandates the issuance of an Environmental Impact Assessment (EIA) certificate before the commencement of such activities, so that any licence granted is accompanied by enforceable conditions aimed at managing, mitigating, and, where possible, remediating such environmental consequences. The respondent asserted that by the time the applicant acquired title on 5 June 2025, it already held an agreement with the State entitling it to occupy the land. On that basis, it contended that the applicant’s title was invalid. In any event, the respondent argued that the applicant’s title constitutes no more than prima facie proof of ownership, evidence which, it maintained, is open to challenge and capable of being rebutted. DETERMINATION OF THE PRELIMINARY POINTS At the hearing, Mr Mubaiwa, appearing for the respondent, raised four preliminary objections, the first of which concerned the certificate of urgency. He contended that the certificate was invalid, arguing that it ventures improperly into the merits of the case, merely replicates substantial portions of the founding affidavit, and thus betrays a lack of independent thought on the part of the certifier. Furthermore, he criticised the document for failing to account for the applicant’s delay of eighteen days after acquiring the title before approaching the Court. Mr Kachambwa submitted that the certificate of urgency is not invalid as the legal practitioner applied her mind independently and set out reasons why, in her belief, the matter was urgent. It is not a copy-and-paste job. Having carefully considered the certificate of urgency alongside the founding papers, I am satisfied that the certificate adequately captures the essence of urgency in this matter. It articulates; with sufficient clarity, the cause of action and the imminent prejudice the applicant stands to suffer should the court decline to intervene without delay. The document contains the requisite hallmarks of a proper certificate of urgency, namely, a reasoned assessment of the time-sensitive nature of the harm alleged and a clear justification for why the matter warrants immediate judicial attention. It does not merely echo the applicant’s concerns, but reflects a considered and independent appreciation of the urgency at hand. Incidentally, given that the matter before this Court was brought as an urgent chamber application, it is trite that the strength of the application lies wholly in its founding affidavit. See: Chironga and Anor v Minister of Justice Legal and Parliament Affairs and Ors CCZ 14- 20 at p 8. The founding affidavit is the cornerstone upon which the edifice of urgency must be constructed; it is the vessel through which the applicant sets out the facts and advances its primal arguments. Closely linked, yet conceptually distinct, is the certificate of urgency, a procedural instrument executed by a legal practitioner who, after applying their mind, affirms that the matter warrants the Court’s immediate attention. In Mayor Logistics (Pvt) Ltd v Zimbabwe Revenue Authority 2014 (2) ZLR 78 (C) at 88D, the Constitutional Court succinctly captured the essence of urgency proceedings, observing: “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. The certificate of urgency should show that the legal practitioner carefully examined the founding affidavit and documents filed in support of the urgent application for facts which support the allegation that a delay in having the case heard on an urgent basis would render the eventual relief ineffectual.” Its function is not to supplant the founding affidavit, but rather to support it by justifying the matter’s place on the urgent roll. While the filing of a certificate of urgency is a necessary procedural requirement in urgent motion proceedings, it remains ancillary, a procedural gateway rather than the substantive voice of the applicant. Reference to the founding affidavit is not inherently improper; rather, what is required is a considered affirmation that the matter deserves urgent judicial attention. As for the alleged delay, the certificate need not account for every nuance. Such an enquiry falls within the province of the founding affidavit, where the applicant has addressed the circumstances giving rise to the timing of the application. The absence of such detail in the certificate does not vitiate its validity, particularly where, as here, there has been substantial compliance with the principles laid down in Mayor Logistics (supra). Read in conjunction with the founding papers, the certificate of urgency meets the threshold of procedural sufficiency. The objection raised by the respondent is, therefore, unsustainable and falls to be dismissed. The second point in limine raised by the respondent relates to the timing of the application. The respondent contends that the applicant had been aware of the circumstances giving rise to this dispute as early as March 2025, yet delayed in approaching the court even after being granted or acquiring title. On this basis, the respondent argues that the applicant, having failed to act with promptitude, ought not to be permitted to jump the queue. The respondent therefore called for the matter to be struck off the roll with punitive costs. Mr Kachambwa submitted that prior to receiving title on the 6th of June 2025, the applicant had no locus standi to approach the court or demand that the respondent provide documentation because it was not yet the owner of Springs Farm. The need to act could not have commenced prior to the applicant receiving real rights in the property. Further, even after receiving the title, the applicant had to write to people occupying the farm for them to provide information on whether they were lawfully occupying the farm and lawfully conducting business operations thereon. The applicant could not just rush to court without giving the occupants an opportunity to prove their lawful occupation and business operations. The respondents requested a meeting on Wednesday, 18 June 2025, where they presented two documents which did not prove lawful occupation or business operations. He further submitted that the respondent cannot argue for unreasonable delay when it was engaging the applicant all along to provide the requested documents and endeavour to find an amicable solution. This argument unravels in the face of the applicant’s measured and reasonable explanation. Upon receiving the title, the applicant did not impulsively rush to court, but instead acted with a sense of fairness and procedural propriety. It sought first to engage those found occupying the land, requesting them to demonstrate the legality of their occupation and business operations. This was not only responsible conduct, but one reflective of a rights- conscious and humane approach to litigation. The applicant, far from acting rashly, considered the rights and dignity of those affected, allowing them an opportunity to account for their presence on the land. This included the respondent itself, which was invited to furnish documentation in support of its alleged right to occupy, an invitation it failed to honour. Additionally, the delay complained of spans a mere 18 days. This hardly qualifies as unreasonable or inordinate. MATHONSI J (as he then was) in National Prosecuting Authority v Busangabanye and Anor HH 427-15 at p 3 had this to say: “In my view, this issue of self-created urgency has been blown out of proportion. Surely a delay of 22 days cannot be said to be inordinate as to constitute self-created urgency. Quite often in recent history, we are subjected to endless points in limine centred on urgency, which should not be made at all. Courts appreciate that litigants do not eat, move and have their being in filing court process. There are other issues they attend to and where they have managed to bring their matters within a reasonable time they should be accorded audience. It is no good to expect a litigant to drop everything and rush to court even when the subject matter is clearly not a holocaust.” The applicant cannot be faulted for choosing a path of engagement before confrontation. To punish such conduct with punitive costs would not only be unwarranted but would send the wrong message about the spirit in which disputes ought to be approached. The point in limine accordingly is dismissed. The third point in limine concerns an objection to the deponent’s authority to institute the application, the respondent contending that the resolution authorising the proceedings is dated 17 June 2025, whereas the founding affidavit avers that the need to act only arose on 20 June 2025. It is further suggested that this temporal discrepancy renders the resolution invalid and contradicts the sworn assertions made in the founding papers. The affidavit was deposed to under a Board Resolution, which is attached as Annexure 1. The Board Resolution is countersigned by Fernando Menendez Montes, who is a director in the company. Critically, the respondent does not allege that the resolution is forged, fabricated, or otherwise inauthentic. The authority it confers is not challenged, only the sequencing of its date regarding the triggering event. In Mall (Cape) (Pty) Ltd v Merino Ko-opraise Bpk 1957 (2) SA 345 (C), which states: “All the court is required to do is to satisfy itself that enough evidence has been placed before it to show that it is indeed the applicant which is litigating and not an unauthorised person.” The learned judge further states as follows on the same p 3: “Indeed where the deponent of an affidavit has said that she has the authority of the company to represent it, there is no reason for the court to disbelieve her unless it is shown evidence to the contrary and where no such contrary evidence is produced, the omission of a company resolution cannot be fatal to the application. That is as it should be because an affidavit is evidence acceptable in court as it is a statement sworn before a commissioner of oaths … where it states that the deponent has authority, it can only be disbelieved where there exists evidence to the contrary. It is not enough for one to just challenge the existence of authority without more, as the respondent has done.” That the resolution predates the stated cause of urgency does not invalidate it, nor does it diminish the deponent’s capacity to act. It is not uncommon for corporate resolutions to anticipate imminent developments, particularly where action is expected to follow swiftly. In the absence of any assertion that the resolution is fake or improperly procured, the respondent’s objection loses relevance. The Court ought not to be detained by such peripheral technicalities when the core issue, whether the deponent was duly authorised, is not seriously contested. Accordingly, this objection, grounded more in form than in substance, must fail. The fourth point in limine relates to the relief sought, which the respondent alleges is incompetent in that it duplicates both the interim and return dates. Per contra, Mr Kachambwa denied that the interim and final relief sought are akin. The interim relief is merely granted on a prima facie basis, while for a final interdict to succeed, one has to prove a clear right on a balance of probabilities. In casu, the interim relief being sought is interim pending the return date. At this stage, the applicant simply needs to prove a prima facie case, and on the return date, the applicant will obtain the final relief by proving a clear right on a balance of probabilities. The crux of the respondent’s argument is that the interdictory relief sought on an urgent, interim basis mirrors the relief sought on the return date, and that this alleged duplication renders the application fatally defective. The provisional order impugned reads: TERMS OF FINAL ORDER SOUGHT That you show cause to the Honourable Court why a final order should not be made in the following terms - The Application for a final interdict be and is hereby granted.The Respondent be and is hereby interdicted from conducting clay extraction and brick moulding activities on a certain piece of land situate in the District of Salisbury called Subdivision B portion of the Springs measuring 671.6177 hectares without the written consent of the Applicant and without compliance with the law. 3. The Respondent shall pay the Applicant’s costs of suit of this Application. INTERIM RELIEF GRANTED Pending the return date, the Applicant is granted the following interim relief- The Application for an interim interdict be and is hereby granted.The Respondent be and is hereby ordered to suspend and stop its clay extraction and brick moulding activities on a certain piece of land situate in the District of Salisbury called Subdivision B portion of the Springs measuring 671.6177 hectares pending the return date. While the interim and final relief sought in this matter are thematically aligned, they are by no means identical in legal character or effect. At its core, the interim interdict seeks to preserve the status quo pendente lite, that is, to forestall ongoing harm by temporarily restraining the respondent from engaging in activities which the applicant alleges are unlawful, namely, the extraction of clay and the moulding of bricks on the specified land. This measure is not final in nature. By contrast, the final order goes beyond mere restraint. It seeks a definitive and enduring prohibition, granted only after a full hearing on the merits, subject to the rules of evidence and argument, and determined on a balance of probabilities. It is at this stage that the legality of the respondent’s conduct is adjudicated conclusively. At any rate, it is neither novel nor impermissible that interim relief may, by its very nature and effect, resemble or even be identical to the final relief sought. At this juncture, it must be emphasised that the grant of an interim interdict lies squarely within the discretion of the court seized with the matter as aptly affirmed in Mtetwa and Ors v Rungwandi and Rujuwa Legal practitioners and Anor SC 72-23 at p. 9. The exercise of discretion, by its very nature, resists rigid formulae and instead responds to the unique delineations of each dispute. This understanding is reinforced by MAKARAU JA (as she then was) in Nyakutombwa Mugabe Legal Counsel v Mutasa and Ors SC 28-18 at p. 8, where she remarked that: “Matters are heard urgently if in the opinion of the court seized with the matter, the determination of the matter cannot wait the usual allocation of trial dates in terms of the rules of court. Whilst each matter falls to be determined on its own facts, there is a plethora of case authority on the factors that a court must advert to before it makes a finding that a matter warrants to be heard on an urgent basis. In my view, a finding that a matter is urgent simply enables such a matter to go to the head of the queue of the matters that are before that court and thereby demand the urgent attention of the court.” Courts ought to assess the facts of each case within the parameters of its circumstances. Each case must be decided on its own merits. See Mutsure v The State SC 62-21 at p. 18. No two cases are identical in all respects, and while judicial precedent is binding on courts, it does not replace the need for a case-to-case analysis. Where circumstances so dictate, an applicant may legitimately seek interim relief that anticipates the final relief. This brings us back to the present matter. Confronted with compelling evidence of environmental degradation and apparent disregard for statutory safeguards, I was not only entitled, but indeed duty-bound, to intervene decisively. The Constitution of Zimbabwe, 2013 itself, in section 73, enshrines the right of every person to an environment that is not harmful to their health or well-being, and mandates the protection of the environment for the benefit of both present and future generations. It states: 73 Environmental rights Every person has the right— to an environment that is not harmful to their health or well-being; andto have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures that— prevent pollution and ecological degradation;promote conservation; andsecure ecologically sustainable development and use of natural resources while promoting economic and social development.The State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of the rights set out in this section. To have turned a blind eye to the status quo, in the face of allegations that the respondent's operations were proceeding without the requisite authorisations or consent, would have risked rendering any eventual judgment a hollow decree, unable to undo the irreversible harm already occasioned. In these circumstances, to demand that the application be struck off the roll, and with punitive costs, no less, is an overreach entirely disproportionate to the alleged defect. Accordingly, this point in limine too cannot be sustained. It is dismissed, and the path now clears for a consideration of the substantive issues that truly lie at the heart of this matter. ISSUE FOR DETERMINATION The applicant seeks an interdict to restrain the respondent from engaging in allegedly unlawful operations on its property, operations said to be causing irreparable damage to land reserved for urban development. It now falls to the court to consider whether the applicant has made out a case for the relief it seeks. APPLICATION OF THE LAW TO THE FACTS An interdict is a summary order issued upon application, by which a person is ordered either to do something, stop doing something or prevent an infringement of a certain right. This remedy is granted in almost any kind of circumstances where there is a well-grounded apprehension of irreparable harm. It is not available to a litigant who is possessed of another or alternative remedy. See Lola Verlaque and Anor v Chester Mhende and Anor HH 595-23. Its primary purpose is normally to preserve or restore the status quo pending the final determination of the rights of the parties. It does not impact upon or entail the final determination of such rights. The requirements for an interlocutory interdict were formulated in the case of L.F. Boshoff (Pyt) Ltd v Cape Town Municipality 1969 (2) SA 256 (C) as follows: The applicant for such temporary relief must show: That the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear, or if not clear, is established though open to some doubt.That if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing this right.That the balance of convenience favours the granting of interim relief andThat the applicant has no other satisfactory remedy. See also Watson v Gilson Enterprises (Pvt) Ltd 1997 (2) ZLR 318 (H). The principle that the existence of a right is governed by substantive law, while the question of whether that right is clearly or merely prima facie established is one of evidence, is well entrenched in our jurisprudence. It is incumbent upon the applicant to adduce evidence which, on the face of it, demonstrates the existence of a legally protectable right. See Mpezeni v Zimbabwe Electoral Commission and Ors HH 475-18. In casu, the applicant holds title deeds to Springs Farm. The law regarding ownership of titled immovable property in this jurisdiction is fairly straight-forward. In the case of Matewa (In her capacity as Executrix Dative of the estate late Judith Matewa) v City of Harare SC 61- 23, the Supreme Court remarked that a title deed is ex facie proof of ownership. In Ishemunyoro (nee Mandidewa) v Ishemunyoro and Ors SC 14-19 GWAUNZA DCJ also cited with approval the dicta in the case of Fryes (Pty) Ltd v Ries, 1957 (3) SA 575 at 582, where it was held that; “Indeed, the system of land registration was evolved for the very purpose of ensuring that there should not be any doubt as to the ownership of the persons in whose names real rights are registered. Generally speaking, no person can successfully challenge the right of ownership against a particular person whose right is duly and properly registered in the Deeds Office.” HER LADYSHIP went on to emphasise that the right of ownership to immovable property must be registered with the Registrar of Deeds and that a title deed raises the rebuttable presumption that the holder enjoys real rights over the immovable property defined in the deed. The point was further emphasised in the case of CBZ Bank Limited v Moyo and the Deputy Sheriff, Harare, SC 17/18, where it was stated as follows: “A title deed … is therefore prima facie proof of ownership …” In an earlier decision, the Supreme Court in Takafuma v Takafuma 1994 (2) ZLR 103 (S), made the point that the registration of rights in immovable property must be viewed as a matter of substance because it grants real rights to those in whose name(s) the property is registered. Real rights are the preserve of the law of property. They show a person’s right to a thing as well as his ability to enforce that right against the whole world, unless, of course, the person against whom that right is being enforced has some enforceable right against the owner. See Oakland Nominees Limited v Gelaria Mining Investments Co. Limited 1976 (1) SA 441 at 452. In casu, the respondent has no enforceable right against the owner. The owner has unassailable rights over the farm and is entitled to stop anyone from interfering with those rights. The court in the case of Goncalves v Rodrigues HH 19-03 succinctly put the position beyond doubt by holding that: “The registration of rights in immovable property in terms of the Deeds Registry Act is not a mere matter of form. It is a matter of substance: It conveys real rights upon those in whose name the property is registered.” The respondent has failed to produce proof or evidence of ownership of the farm. The respondent is conducting clay extraction and brick moulding operations on the farm. The fact that the applicant has title deeds proves that it is the owner of the farm. In any case, the respondent does not dispute that the applicant has title deeds to the farm. That document (title deeds) proves that the applicant has an interest in the farm. On the question of irreparable harm, the fact that resources are being extracted from the farm means the value of the farm is being depleted, and the respondent, who has no title whatsoever to the land, is benefitting at the expense of the real owner of the farm. Further, the applicant will suffer irreparable harm because of the environmental degradation taking place at the farm. In considering whether or not the balance of convenience favours the granting of the interdict, the court must weigh the harm to the applicant if the interim relief is not granted against the prejudice to the respondents if it is granted. In casu, the financial and environmental harm cannot be under-estimated. The respondent is moulding bricks for sale at the farm. At the same time, sand is being extracted, both to the financial benefit of the respondent, who, I must add, has no title to the farm. The issue of the absence of an alternative remedy must be understood in the context of the remedy which is envisaged by the law. For it to qualify as an alternative remedy, it must be adequate, having regard to the circumstances of the matter, be ordinary and reasonable, be a legal remedy and grant similar protection. See Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa, 5th ed, pp 1467-1468. In casu, there is no other remedy available for the applicant which can satisfy the above- stated requirements without the applicant continuing to suffer financial harm. Interim relief serves to safeguard rights from irreparable harm while the main dispute awaits final resolution. In the present matter, the applicant seeks such protection through the grant of a temporary interdict. The return date affords the court the opportunity to reconsider the matter in full and decide whether to confirm or set aside the order. At this stage, however, the applicant has clearly established a prima facie right deserving of protection. It is both just and equitable that a provisional order be granted. As a result, the provisional order was granted in the following terms: TERMS OF FINAL ORDER SOUGHT That you show cause to this Honourable Court why a final order should not be made in the following terms- The provisional order be and is hereby confirmed.The extraction of clay and brick moulding activities on a certain piece of land situate in the District of Salisbury called Subdivision B portion of the Springs measuring 671.6177 hectares be and is hereby declared unlawful.The Respondent shall pay the Applicant’s costs of suit of this Application. INTERIM RELIEF GRANTED Pending the determination of this matter, the Applicant is granted the following relief- 1. The Respondent be and is hereby interdicted from extracting clay and moulding bricks on a certain piece of land situate in the District of Salisbury called Subdivision B portion of the Springs measuring 671.6177. SERVICE OF PROVISIONAL ORDER The Sheriff or her lawful deputy and or Applicant’s legal practitioners be and are hereby granted leave to effect service of this order on the respondent. MANDAZA J……………………………………. Ahmed and Ziyambi, applicant’s legal practitioners. Samukange Hungwe Attorneys, respondent’s legal practitioners. 2 HH 450/25 HCH 2969/25 2 HH 450/25 HCH 2969/25 2 HH 450/25 HCH 2969/25 MARIMBA RESIDENTIAL PROPERTIES versus BEABLE INVESTMENTS (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE MANDAZA J HARARE, 27 JUNE and 29 JULY 2025 Urgent Chamber Application for an Interdict K. Kachambwa, for the applicant. E. Mubaiwa with E.R. Samukange, for the respondent. MANDAZA J: The applicant approached this court by way of an urgent chamber application seeking interdictory relief. The parties filed all the requisite papers, and the matter was fully ventilated on the papers before me. Upon a careful and thorough consideration of the affidavits and annexures placed on record, I was satisfied that the application was meritorious. Consequently, I granted the interdict. What follows are the reasons for the decision. FACTUAL BACKGROUND The applicant is the registered proprietor of a parcel of land situated in the District of Salisbury, known as Subdivision B of the Springs, measuring approximately 671.6177 hectares (“the property”). A title deed in respect of Springs Farm was formally issued on 5 June 2025 and received by the applicant the following day, Friday, 6 June 2025. On 10 June 2025, the applicant, through its legal practitioners, formally notified the respondent of its acquisition of the property. In that correspondence, the applicant sought clarity on whether the respondent’s occupation of the farm was lawful and whether the clay extraction and brick moulding activities being undertaken were sanctioned by law. Subsequently, on 16 June 2025, a meeting was convened at the offices of the Ministry of Local Government and Public Works. At that meeting, the respondent was advised that MARIMBA RESIDENTIAL PROPERTIES versus BEABLE INVESTMENTS (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE MANDAZA J HARARE, 27 JUNE and 29 JULY 2025 Urgent Chamber Application for an Interdict K. Kachambwa, for the applicant. E. Mubaiwa with E.R. Samukange, for the respondent. MANDAZA J: The applicant approached this court by way of an urgent chamber application seeking interdictory relief. The parties filed all the requisite papers, and the matter was fully ventilated on the papers before me. Upon a careful and thorough consideration of the affidavits and annexures placed on record, I was satisfied that the application was meritorious. Consequently, I granted the interdict. What follows are the reasons for the decision. # MANDAZA J HARARE, 27 JUNE and 29 JULY 2025 Urgent Chamber Application for an Interdict K. Kachambwa, for the applicant. E. Mubaiwa with E.R. Samukange, for the respondent. MANDAZA J: The applicant approached this court by way of an urgent chamber application seeking interdictory relief. The parties filed all the requisite papers, and the matter was fully ventilated on the papers before me. Upon a careful and thorough consideration of the affidavits and annexures placed on record, I was satisfied that the application was meritorious. Consequently, I granted the interdict. What follows are the reasons for the decision. ## Urgent Chamber Application for an Interdict K. Kachambwa, for the applicant. E. Mubaiwa with E.R. Samukange, for the respondent. MANDAZA J: The applicant approached this court by way of an urgent chamber application seeking interdictory relief. The parties filed all the requisite papers, and the matter was fully ventilated on the papers before me. Upon a careful and thorough consideration of the affidavits and annexures placed on record, I was satisfied that the application was meritorious. Consequently, I granted the interdict. What follows are the reasons for the decision. FACTUAL BACKGROUND The applicant is the registered proprietor of a parcel of land situated in the District of Salisbury, known as Subdivision B of the Springs, measuring approximately 671.6177 hectares (“the property”). A title deed in respect of Springs Farm was formally issued on 5 June 2025 and received by the applicant the following day, Friday, 6 June 2025. On 10 June 2025, the applicant, through its legal practitioners, formally notified the respondent of its acquisition of the property. In that correspondence, the applicant sought clarity on whether the respondent’s occupation of the farm was lawful and whether the clay extraction and brick moulding activities being undertaken were sanctioned by law. Subsequently, on 16 June 2025, a meeting was convened at the offices of the Ministry of Local Government and Public Works. At that meeting, the respondent was advised that # FACTUAL BACKGROUND The applicant is the registered proprietor of a parcel of land situated in the District of Salisbury, known as Subdivision B of the Springs, measuring approximately 671.6177 hectares (“the property”). A title deed in respect of Springs Farm was formally issued on 5 June 2025 and received by the applicant the following day, Friday, 6 June 2025. On 10 June 2025, the applicant, through its legal practitioners, formally notified the respondent of its acquisition of the property. In that correspondence, the applicant sought clarity on whether the respondent’s occupation of the farm was lawful and whether the clay extraction and brick moulding activities being undertaken were sanctioned by law. Subsequently, on 16 June 2025, a meeting was convened at the offices of the Ministry of Local Government and Public Works. At that meeting, the respondent was advised that ownership of Springs Farm had vested in the applicant. The respondent was allowed to submit documentation establishing its lawful authority to remain on the property. In response, it produced two documents purporting to confer such authority. However, the applicant asserts that neither document constituted a valid legal authority for the respondent’s continued occupation or commercial operations on the farm. Following these developments, the applicant extended a conciliatory offer, granting the respondent a period of two to three months within which to wind down its operations and vacate the property. Although the respondent undertook to consider and respond to the offer, no such response was forthcoming. Faced with the respondent’s continued and unlawful exploitation of the land through clay extraction and brick moulding, the applicant found itself with no recourse but to approach this Honourable Court on an urgent basis, seeking relief to halt the respondent’s illegal operations on Springs Farm. The applicant lamented that the respondent’s relentless quarrying and brick-making endeavours have scarred the landscape, causing environmental pollution and degradation, including the loss of vegetation, air pollution, waste generation, soil erosion, land extraction and destruction, demolition of a mountain, land and underground water pollution. To preserve what remains, the applicant implored the Court to interdict the respondent from persisting with these unlawful acts, which threaten to render the land unfit for its envisioned transformation into an urban haven. Applicant’s Submissions The applicant submitted that it stands to suffer irreparable harm should the respondent’s operations be permitted to continue unchecked. This apprehension, it argued, is not conjectural but is grounded in the respondent’s own acknowledgements, as recorded in the Executive Summary of its Environmental Impact Assessment report. In that report, the respondent concedes that its clay extraction and brick moulding activities result in extensive environmental degradation, including the loss of vegetation, air pollution, waste generation, soil erosion, land destruction, the demolition of a mountain, and contamination of underground water sources. The applicant further submitted that these activities entail deep excavation and the removal of large quantities of clay and soil, leaving open pits that cannot be rehabilitated. The damage, it contended, is not only severe but permanent, particularly as the clay being extracted forms part of a mountain, a geological feature whose destruction is irreversible. In addition, the applicant advanced that the respondent’s operations are not only environmentally harmful but also unlawful, amounting to a flagrant breach of at least six statutory provisions, including those enshrined in the Environmental Management Act [Chapter 20:27], the Mines and Minerals Act [Chapter 21:05], the Land Commission Act [Chapter 20:29], and the Regional, Town and Country Planning Act [Chapter 29:12]. In these circumstances, it was argued, the respondent’s continued disregard of the law cannot be sanctioned, let alone tolerated. ## Applicant’s Submissions The applicant submitted that it stands to suffer irreparable harm should the respondent’s operations be permitted to continue unchecked. This apprehension, it argued, is not conjectural but is grounded in the respondent’s own acknowledgements, as recorded in the Executive Summary of its Environmental Impact Assessment report. In that report, the respondent concedes that its clay extraction and brick moulding activities result in extensive environmental degradation, including the loss of vegetation, air pollution, waste generation, soil erosion, land destruction, the demolition of a mountain, and contamination of underground water sources. The applicant further submitted that these activities entail deep excavation and the removal of large quantities of clay and soil, leaving open pits that cannot be rehabilitated. The damage, it contended, is not only severe but permanent, particularly as the clay being extracted forms part of a mountain, a geological feature whose destruction is irreversible. In addition, the applicant advanced that the respondent’s operations are not only environmentally harmful but also unlawful, amounting to a flagrant breach of at least six statutory provisions, including those enshrined in the Environmental Management Act [Chapter 20:27], the Mines and Minerals Act [Chapter 21:05], the Land Commission Act [Chapter 20:29], and the Regional, Town and Country Planning Act [Chapter 29:12]. In these circumstances, it was argued, the respondent’s continued disregard of the law cannot be sanctioned, let alone tolerated. Respondent’s Submissions The respondent opposed the application, raising at the outset four preliminary objections, which will be addressed in due course. On the merits, it largely denied the applicant’s assertion that irreparable harm would result, anchoring its defence on the premise that it holds a lawful entitlement to occupy and utilise the property. Notably, however, the respondent conceded that all scheduled operations of the nature in question inevitably carry with them a degree of environmental impact, including pollution and degradation. It was for this reason, the respondent acknowledged, that the law mandates the issuance of an Environmental Impact Assessment (EIA) certificate before the commencement of such activities, so that any licence granted is accompanied by enforceable conditions aimed at managing, mitigating, and, where possible, remediating such environmental consequences. The respondent asserted that by the time the applicant acquired title on 5 June 2025, it already held an agreement with the State entitling it to occupy the land. On that basis, it contended that the applicant’s title was invalid. In any event, the respondent argued that the applicant’s title constitutes no more than prima facie proof of ownership, evidence which, it maintained, is open to challenge and capable of being rebutted. DETERMINATION OF THE PRELIMINARY POINTS At the hearing, Mr Mubaiwa, appearing for the respondent, raised four preliminary objections, the first of which concerned the certificate of urgency. He contended that the certificate was invalid, arguing that it ventures improperly into the merits of the case, merely replicates substantial portions of the founding affidavit, and thus betrays a lack of independent thought on the part of the certifier. Furthermore, he criticised the document for failing to account for the applicant’s delay of eighteen days after acquiring the title before approaching the Court. Mr Kachambwa submitted that the certificate of urgency is not invalid as the legal practitioner applied her mind independently and set out reasons why, in her belief, the matter was urgent. It is not a copy-and-paste job. Having carefully considered the certificate of urgency alongside the founding papers, I am satisfied that the certificate adequately captures the essence of urgency in this matter. It articulates; with sufficient clarity, the cause of action and the imminent prejudice the applicant stands to suffer should the court decline to intervene without delay. The document contains the requisite hallmarks of a proper certificate of urgency, namely, a reasoned assessment of the time-sensitive nature of the harm alleged and a clear justification for why the matter warrants immediate judicial attention. It does not merely echo the applicant’s concerns, but reflects a considered and independent appreciation of the urgency at hand. Incidentally, given that the matter before this Court was brought as an urgent chamber application, it is trite that the strength of the application lies wholly in its founding affidavit. See: Chironga and Anor v Minister of Justice Legal and Parliament Affairs and Ors CCZ 14- 20 at p 8. The founding affidavit is the cornerstone upon which the edifice of urgency must be constructed; it is the vessel through which the applicant sets out the facts and advances its primal arguments. Closely linked, yet conceptually distinct, is the certificate of urgency, a procedural instrument executed by a legal practitioner who, after applying their mind, affirms that the matter warrants the Court’s immediate attention. In Mayor Logistics (Pvt) Ltd v Zimbabwe Revenue Authority 2014 (2) ZLR 78 (C) at 88D, the Constitutional Court succinctly captured the essence of urgency proceedings, observing: “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. The certificate of urgency should show that the legal practitioner carefully examined the founding affidavit and documents filed in support of the urgent application for facts which support the allegation that a delay in having the case heard on an urgent basis would render the eventual relief ineffectual.” Its function is not to supplant the founding affidavit, but rather to support it by justifying the matter’s place on the urgent roll. While the filing of a certificate of urgency is a necessary procedural requirement in urgent motion proceedings, it remains ancillary, a procedural gateway rather than the substantive voice of the applicant. Reference to the founding affidavit is not inherently improper; rather, what is required is a considered affirmation that the matter deserves urgent judicial attention. As for the alleged delay, the certificate need not account for every nuance. Such an enquiry falls within the province of the founding affidavit, where the applicant has addressed the circumstances giving rise to the timing of the application. The absence of such detail in the certificate does not vitiate its validity, particularly where, as here, there has been substantial compliance with the principles laid down in Mayor Logistics (supra). Read in conjunction with the founding papers, the certificate of urgency meets the threshold of procedural sufficiency. The objection raised by the respondent is, therefore, unsustainable and falls to be dismissed. The second point in limine raised by the respondent relates to the timing of the application. The respondent contends that the applicant had been aware of the circumstances giving rise to this dispute as early as March 2025, yet delayed in approaching the court even after being granted or acquiring title. On this basis, the respondent argues that the applicant, having failed to act with promptitude, ought not to be permitted to jump the queue. The respondent therefore called for the matter to be struck off the roll with punitive costs. Mr Kachambwa submitted that prior to receiving title on the 6th of June 2025, the applicant had no locus standi to approach the court or demand that the respondent provide documentation because it was not yet the owner of Springs Farm. The need to act could not have commenced prior to the applicant receiving real rights in the property. Further, even after receiving the title, the applicant had to write to people occupying the farm for them to provide information on whether they were lawfully occupying the farm and lawfully conducting business operations thereon. The applicant could not just rush to court without giving the occupants an opportunity to prove their lawful occupation and business operations. The respondents requested a meeting on Wednesday, 18 June 2025, where they presented two documents which did not prove lawful occupation or business operations. He further submitted that the respondent cannot argue for unreasonable delay when it was engaging the applicant all along to provide the requested documents and endeavour to find an amicable solution. This argument unravels in the face of the applicant’s measured and reasonable explanation. Upon receiving the title, the applicant did not impulsively rush to court, but instead acted with a sense of fairness and procedural propriety. It sought first to engage those found occupying the land, requesting them to demonstrate the legality of their occupation and business operations. This was not only responsible conduct, but one reflective of a rights- conscious and humane approach to litigation. The applicant, far from acting rashly, considered the rights and dignity of those affected, allowing them an opportunity to account for their presence on the land. This included the respondent itself, which was invited to furnish documentation in support of its alleged right to occupy, an invitation it failed to honour. Additionally, the delay complained of spans a mere 18 days. This hardly qualifies as unreasonable or inordinate. MATHONSI J (as he then was) in National Prosecuting Authority v Busangabanye and Anor HH 427-15 at p 3 had this to say: “In my view, this issue of self-created urgency has been blown out of proportion. Surely a delay of 22 days cannot be said to be inordinate as to constitute self-created urgency. Quite often in recent history, we are subjected to endless points in limine centred on urgency, which should not be made at all. Courts appreciate that litigants do not eat, move and have their being in filing court process. There are other issues they attend to and where they have managed to bring their matters within a reasonable time they should be accorded audience. It is no good to expect a litigant to drop everything and rush to court even when the subject matter is clearly not a holocaust.” The applicant cannot be faulted for choosing a path of engagement before confrontation. To punish such conduct with punitive costs would not only be unwarranted but would send the wrong message about the spirit in which disputes ought to be approached. The point in limine accordingly is dismissed. The third point in limine concerns an objection to the deponent’s authority to institute the application, the respondent contending that the resolution authorising the proceedings is dated 17 June 2025, whereas the founding affidavit avers that the need to act only arose on 20 June 2025. It is further suggested that this temporal discrepancy renders the resolution invalid and contradicts the sworn assertions made in the founding papers. The affidavit was deposed to under a Board Resolution, which is attached as Annexure 1. The Board Resolution is countersigned by Fernando Menendez Montes, who is a director in the company. Critically, the respondent does not allege that the resolution is forged, fabricated, or otherwise inauthentic. The authority it confers is not challenged, only the sequencing of its date regarding the triggering event. In Mall (Cape) (Pty) Ltd v Merino Ko-opraise Bpk 1957 (2) SA 345 (C), which states: “All the court is required to do is to satisfy itself that enough evidence has been placed before it to show that it is indeed the applicant which is litigating and not an unauthorised person.” The learned judge further states as follows on the same p 3: “Indeed where the deponent of an affidavit has said that she has the authority of the company to represent it, there is no reason for the court to disbelieve her unless it is shown evidence to the contrary and where no such contrary evidence is produced, the omission of a company resolution cannot be fatal to the application. That is as it should be because an affidavit is evidence acceptable in court as it is a statement sworn before a commissioner of oaths … where it states that the deponent has authority, it can only be disbelieved where there exists evidence to the contrary. It is not enough for one to just challenge the existence of authority without more, as the respondent has done.” That the resolution predates the stated cause of urgency does not invalidate it, nor does it diminish the deponent’s capacity to act. It is not uncommon for corporate resolutions to anticipate imminent developments, particularly where action is expected to follow swiftly. In the absence of any assertion that the resolution is fake or improperly procured, the respondent’s objection loses relevance. The Court ought not to be detained by such peripheral technicalities when the core issue, whether the deponent was duly authorised, is not seriously contested. Accordingly, this objection, grounded more in form than in substance, must fail. The fourth point in limine relates to the relief sought, which the respondent alleges is incompetent in that it duplicates both the interim and return dates. Per contra, Mr Kachambwa denied that the interim and final relief sought are akin. The interim relief is merely granted on a prima facie basis, while for a final interdict to succeed, one has to prove a clear right on a balance of probabilities. In casu, the interim relief being sought is interim pending the return date. At this stage, the applicant simply needs to prove a prima facie case, and on the return date, the applicant will obtain the final relief by proving a clear right on a balance of probabilities. The crux of the respondent’s argument is that the interdictory relief sought on an urgent, interim basis mirrors the relief sought on the return date, and that this alleged duplication renders the application fatally defective. The provisional order impugned reads: TERMS OF FINAL ORDER SOUGHT That you show cause to the Honourable Court why a final order should not be made in the following terms - The Application for a final interdict be and is hereby granted.The Respondent be and is hereby interdicted from conducting clay extraction and brick moulding activities on a certain piece of land situate in the District of Salisbury called Subdivision B portion of the Springs measuring 671.6177 hectares without the written consent of the Applicant and without compliance with the law. 3. The Respondent shall pay the Applicant’s costs of suit of this Application. INTERIM RELIEF GRANTED Pending the return date, the Applicant is granted the following interim relief- The Application for an interim interdict be and is hereby granted.The Respondent be and is hereby ordered to suspend and stop its clay extraction and brick moulding activities on a certain piece of land situate in the District of Salisbury called Subdivision B portion of the Springs measuring 671.6177 hectares pending the return date. While the interim and final relief sought in this matter are thematically aligned, they are by no means identical in legal character or effect. At its core, the interim interdict seeks to preserve the status quo pendente lite, that is, to forestall ongoing harm by temporarily restraining the respondent from engaging in activities which the applicant alleges are unlawful, namely, the extraction of clay and the moulding of bricks on the specified land. This measure is not final in nature. By contrast, the final order goes beyond mere restraint. It seeks a definitive and enduring prohibition, granted only after a full hearing on the merits, subject to the rules of evidence and argument, and determined on a balance of probabilities. It is at this stage that the legality of the respondent’s conduct is adjudicated conclusively. At any rate, it is neither novel nor impermissible that interim relief may, by its very nature and effect, resemble or even be identical to the final relief sought. At this juncture, it must be emphasised that the grant of an interim interdict lies squarely within the discretion of the court seized with the matter as aptly affirmed in Mtetwa and Ors v Rungwandi and Rujuwa Legal practitioners and Anor SC 72-23 at p. 9. The exercise of discretion, by its very nature, resists rigid formulae and instead responds to the unique delineations of each dispute. This understanding is reinforced by MAKARAU JA (as she then was) in Nyakutombwa Mugabe Legal Counsel v Mutasa and Ors SC 28-18 at p. 8, where she remarked that: “Matters are heard urgently if in the opinion of the court seized with the matter, the determination of the matter cannot wait the usual allocation of trial dates in terms of the rules of court. Whilst each matter falls to be determined on its own facts, there is a plethora of case authority on the factors that a court must advert to before it makes a finding that a matter warrants to be heard on an urgent basis. In my view, a finding that a matter is urgent simply enables such a matter to go to the head of the queue of the matters that are before that court and thereby demand the urgent attention of the court.” Courts ought to assess the facts of each case within the parameters of its circumstances. Each case must be decided on its own merits. See Mutsure v The State SC 62-21 at p. 18. No two cases are identical in all respects, and while judicial precedent is binding on courts, it does not replace the need for a case-to-case analysis. Where circumstances so dictate, an applicant may legitimately seek interim relief that anticipates the final relief. This brings us back to the present matter. Confronted with compelling evidence of environmental degradation and apparent disregard for statutory safeguards, I was not only entitled, but indeed duty-bound, to intervene decisively. The Constitution of Zimbabwe, 2013 itself, in section 73, enshrines the right of every person to an environment that is not harmful to their health or well-being, and mandates the protection of the environment for the benefit of both present and future generations. It states: 73 Environmental rights Every person has the right— to an environment that is not harmful to their health or well-being; andto have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures that— prevent pollution and ecological degradation;promote conservation; andsecure ecologically sustainable development and use of natural resources while promoting economic and social development.The State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of the rights set out in this section. To have turned a blind eye to the status quo, in the face of allegations that the respondent's operations were proceeding without the requisite authorisations or consent, would have risked rendering any eventual judgment a hollow decree, unable to undo the irreversible harm already occasioned. In these circumstances, to demand that the application be struck off the roll, and with punitive costs, no less, is an overreach entirely disproportionate to the alleged defect. Accordingly, this point in limine too cannot be sustained. It is dismissed, and the path now clears for a consideration of the substantive issues that truly lie at the heart of this matter. ISSUE FOR DETERMINATION The applicant seeks an interdict to restrain the respondent from engaging in allegedly unlawful operations on its property, operations said to be causing irreparable damage to land reserved for urban development. It now falls to the court to consider whether the applicant has made out a case for the relief it seeks. APPLICATION OF THE LAW TO THE FACTS An interdict is a summary order issued upon application, by which a person is ordered either to do something, stop doing something or prevent an infringement of a certain right. This remedy is granted in almost any kind of circumstances where there is a well-grounded apprehension of irreparable harm. It is not available to a litigant who is possessed of another or alternative remedy. See Lola Verlaque and Anor v Chester Mhende and Anor HH 595-23. Its primary purpose is normally to preserve or restore the status quo pending the final determination of the rights of the parties. It does not impact upon or entail the final determination of such rights. The requirements for an interlocutory interdict were formulated in the case of L.F. Boshoff (Pyt) Ltd v Cape Town Municipality 1969 (2) SA 256 (C) as follows: The applicant for such temporary relief must show: That the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear, or if not clear, is established though open to some doubt.That if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing this right.That the balance of convenience favours the granting of interim relief andThat the applicant has no other satisfactory remedy. See also Watson v Gilson Enterprises (Pvt) Ltd 1997 (2) ZLR 318 (H). The principle that the existence of a right is governed by substantive law, while the question of whether that right is clearly or merely prima facie established is one of evidence, is well entrenched in our jurisprudence. It is incumbent upon the applicant to adduce evidence which, on the face of it, demonstrates the existence of a legally protectable right. See Mpezeni v Zimbabwe Electoral Commission and Ors HH 475-18. In casu, the applicant holds title deeds to Springs Farm. The law regarding ownership of titled immovable property in this jurisdiction is fairly straight-forward. In the case of Matewa (In her capacity as Executrix Dative of the estate late Judith Matewa) v City of Harare SC 61- 23, the Supreme Court remarked that a title deed is ex facie proof of ownership. In Ishemunyoro (nee Mandidewa) v Ishemunyoro and Ors SC 14-19 GWAUNZA DCJ also cited with approval the dicta in the case of Fryes (Pty) Ltd v Ries, 1957 (3) SA 575 at 582, where it was held that; “Indeed, the system of land registration was evolved for the very purpose of ensuring that there should not be any doubt as to the ownership of the persons in whose names real rights are registered. Generally speaking, no person can successfully challenge the right of ownership against a particular person whose right is duly and properly registered in the Deeds Office.” HER LADYSHIP went on to emphasise that the right of ownership to immovable property must be registered with the Registrar of Deeds and that a title deed raises the rebuttable presumption that the holder enjoys real rights over the immovable property defined in the deed. The point was further emphasised in the case of CBZ Bank Limited v Moyo and the Deputy Sheriff, Harare, SC 17/18, where it was stated as follows: “A title deed … is therefore prima facie proof of ownership …” In an earlier decision, the Supreme Court in Takafuma v Takafuma 1994 (2) ZLR 103 (S), made the point that the registration of rights in immovable property must be viewed as a matter of substance because it grants real rights to those in whose name(s) the property is registered. Real rights are the preserve of the law of property. They show a person’s right to a thing as well as his ability to enforce that right against the whole world, unless, of course, the person against whom that right is being enforced has some enforceable right against the owner. See Oakland Nominees Limited v Gelaria Mining Investments Co. Limited 1976 (1) SA 441 at 452. In casu, the respondent has no enforceable right against the owner. The owner has unassailable rights over the farm and is entitled to stop anyone from interfering with those rights. The court in the case of Goncalves v Rodrigues HH 19-03 succinctly put the position beyond doubt by holding that: “The registration of rights in immovable property in terms of the Deeds Registry Act is not a mere matter of form. It is a matter of substance: It conveys real rights upon those in whose name the property is registered.” The respondent has failed to produce proof or evidence of ownership of the farm. The respondent is conducting clay extraction and brick moulding operations on the farm. The fact that the applicant has title deeds proves that it is the owner of the farm. In any case, the respondent does not dispute that the applicant has title deeds to the farm. That document (title deeds) proves that the applicant has an interest in the farm. On the question of irreparable harm, the fact that resources are being extracted from the farm means the value of the farm is being depleted, and the respondent, who has no title whatsoever to the land, is benefitting at the expense of the real owner of the farm. Further, the applicant will suffer irreparable harm because of the environmental degradation taking place at the farm. In considering whether or not the balance of convenience favours the granting of the interdict, the court must weigh the harm to the applicant if the interim relief is not granted against the prejudice to the respondents if it is granted. In casu, the financial and environmental harm cannot be under-estimated. The respondent is moulding bricks for sale at the farm. At the same time, sand is being extracted, both to the financial benefit of the respondent, who, I must add, has no title to the farm. The issue of the absence of an alternative remedy must be understood in the context of the remedy which is envisaged by the law. For it to qualify as an alternative remedy, it must be adequate, having regard to the circumstances of the matter, be ordinary and reasonable, be a legal remedy and grant similar protection. See Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa, 5th ed, pp 1467-1468. In casu, there is no other remedy available for the applicant which can satisfy the above- stated requirements without the applicant continuing to suffer financial harm. Interim relief serves to safeguard rights from irreparable harm while the main dispute awaits final resolution. In the present matter, the applicant seeks such protection through the grant of a temporary interdict. The return date affords the court the opportunity to reconsider the matter in full and decide whether to confirm or set aside the order. At this stage, however, the applicant has clearly established a prima facie right deserving of protection. It is both just and equitable that a provisional order be granted. As a result, the provisional order was granted in the following terms: TERMS OF FINAL ORDER SOUGHT That you show cause to this Honourable Court why a final order should not be made in the following terms- The provisional order be and is hereby confirmed.The extraction of clay and brick moulding activities on a certain piece of land situate in the District of Salisbury called Subdivision B portion of the Springs measuring 671.6177 hectares be and is hereby declared unlawful.The Respondent shall pay the Applicant’s costs of suit of this Application. INTERIM RELIEF GRANTED Pending the determination of this matter, the Applicant is granted the following relief- 1. The Respondent be and is hereby interdicted from extracting clay and moulding bricks on a certain piece of land situate in the District of Salisbury called Subdivision B portion of the Springs measuring 671.6177. SERVICE OF PROVISIONAL ORDER The Sheriff or her lawful deputy and or Applicant’s legal practitioners be and are hereby granted leave to effect service of this order on the respondent. MANDAZA J……………………………………. Ahmed and Ziyambi, applicant’s legal practitioners. Samukange Hungwe Attorneys, respondent’s legal practitioners. ## Respondent’s Submissions The respondent opposed the application, raising at the outset four preliminary objections, which will be addressed in due course. On the merits, it largely denied the applicant’s assertion that irreparable harm would result, anchoring its defence on the premise that it holds a lawful entitlement to occupy and utilise the property. Notably, however, the respondent conceded that all scheduled operations of the nature in question inevitably carry with them a degree of environmental impact, including pollution and degradation. It was for this reason, the respondent acknowledged, that the law mandates the issuance of an Environmental Impact Assessment (EIA) certificate before the commencement of such activities, so that any licence granted is accompanied by enforceable conditions aimed at managing, mitigating, and, where possible, remediating such environmental consequences. The respondent asserted that by the time the applicant acquired title on 5 June 2025, it already held an agreement with the State entitling it to occupy the land. On that basis, it contended that the applicant’s title was invalid. In any event, the respondent argued that the applicant’s title constitutes no more than prima facie proof of ownership, evidence which, it maintained, is open to challenge and capable of being rebutted. DETERMINATION OF THE PRELIMINARY POINTS At the hearing, Mr Mubaiwa, appearing for the respondent, raised four preliminary objections, the first of which concerned the certificate of urgency. He contended that the certificate was invalid, arguing that it ventures improperly into the merits of the case, merely replicates substantial portions of the founding affidavit, and thus betrays a lack of independent thought on the part of the certifier. Furthermore, he criticised the document for failing to account for the applicant’s delay of eighteen days after acquiring the title before approaching the Court. Mr Kachambwa submitted that the certificate of urgency is not invalid as the legal practitioner applied her mind independently and set out reasons why, in her belief, the matter was urgent. It is not a copy-and-paste job. Having carefully considered the certificate of urgency alongside the founding papers, I am satisfied that the certificate adequately captures the essence of urgency in this matter. It articulates; with sufficient clarity, the cause of action and the imminent prejudice the applicant stands to suffer should the court decline to intervene without delay. The document contains the requisite hallmarks of a proper certificate of urgency, namely, a reasoned assessment of the time-sensitive nature of the harm alleged and a clear justification for why the matter warrants immediate judicial attention. It does not merely echo the applicant’s concerns, but reflects a considered and independent appreciation of the urgency at hand. Incidentally, given that the matter before this Court was brought as an urgent chamber application, it is trite that the strength of the application lies wholly in its founding affidavit. See: Chironga and Anor v Minister of Justice Legal and Parliament Affairs and Ors CCZ 14- 20 at p 8. The founding affidavit is the cornerstone upon which the edifice of urgency must be constructed; it is the vessel through which the applicant sets out the facts and advances its primal arguments. Closely linked, yet conceptually distinct, is the certificate of urgency, a procedural instrument executed by a legal practitioner who, after applying their mind, affirms that the matter warrants the Court’s immediate attention. In Mayor Logistics (Pvt) Ltd v Zimbabwe Revenue Authority 2014 (2) ZLR 78 (C) at 88D, the Constitutional Court succinctly captured the essence of urgency proceedings, observing: “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. The certificate of urgency should show that the legal practitioner carefully examined the founding affidavit and documents filed in support of the urgent application for facts which support the allegation that a delay in having the case heard on an urgent basis would render the eventual relief ineffectual.” Its function is not to supplant the founding affidavit, but rather to support it by justifying the matter’s place on the urgent roll. While the filing of a certificate of urgency is a necessary procedural requirement in urgent motion proceedings, it remains ancillary, a procedural gateway rather than the substantive voice of the applicant. Reference to the founding affidavit is not inherently improper; rather, what is required is a considered affirmation that the matter deserves urgent judicial attention. As for the alleged delay, the certificate need not account for every nuance. Such an enquiry falls within the province of the founding affidavit, where the applicant has addressed the circumstances giving rise to the timing of the application. The absence of such detail in the certificate does not vitiate its validity, particularly where, as here, there has been substantial compliance with the principles laid down in Mayor Logistics (supra). Read in conjunction with the founding papers, the certificate of urgency meets the threshold of procedural sufficiency. The objection raised by the respondent is, therefore, unsustainable and falls to be dismissed. The second point in limine raised by the respondent relates to the timing of the application. The respondent contends that the applicant had been aware of the circumstances giving rise to this dispute as early as March 2025, yet delayed in approaching the court even after being granted or acquiring title. On this basis, the respondent argues that the applicant, having failed to act with promptitude, ought not to be permitted to jump the queue. The respondent therefore called for the matter to be struck off the roll with punitive costs. Mr Kachambwa submitted that prior to receiving title on the 6th of June 2025, the applicant had no locus standi to approach the court or demand that the respondent provide documentation because it was not yet the owner of Springs Farm. The need to act could not have commenced prior to the applicant receiving real rights in the property. Further, even after receiving the title, the applicant had to write to people occupying the farm for them to provide information on whether they were lawfully occupying the farm and lawfully conducting business operations thereon. The applicant could not just rush to court without giving the occupants an opportunity to prove their lawful occupation and business operations. The respondents requested a meeting on Wednesday, 18 June 2025, where they presented two documents which did not prove lawful occupation or business operations. He further submitted that the respondent cannot argue for unreasonable delay when it was engaging the applicant all along to provide the requested documents and endeavour to find an amicable solution. This argument unravels in the face of the applicant’s measured and reasonable explanation. Upon receiving the title, the applicant did not impulsively rush to court, but instead acted with a sense of fairness and procedural propriety. It sought first to engage those found occupying the land, requesting them to demonstrate the legality of their occupation and business operations. This was not only responsible conduct, but one reflective of a rights- conscious and humane approach to litigation. The applicant, far from acting rashly, considered the rights and dignity of those affected, allowing them an opportunity to account for their presence on the land. This included the respondent itself, which was invited to furnish documentation in support of its alleged right to occupy, an invitation it failed to honour. Additionally, the delay complained of spans a mere 18 days. This hardly qualifies as unreasonable or inordinate. MATHONSI J (as he then was) in National Prosecuting Authority v Busangabanye and Anor HH 427-15 at p 3 had this to say: “In my view, this issue of self-created urgency has been blown out of proportion. Surely a delay of 22 days cannot be said to be inordinate as to constitute self-created urgency. Quite often in recent history, we are subjected to endless points in limine centred on urgency, which should not be made at all. Courts appreciate that litigants do not eat, move and have their being in filing court process. There are other issues they attend to and where they have managed to bring their matters within a reasonable time they should be accorded audience. It is no good to expect a litigant to drop everything and rush to court even when the subject matter is clearly not a holocaust.” The applicant cannot be faulted for choosing a path of engagement before confrontation. To punish such conduct with punitive costs would not only be unwarranted but would send the wrong message about the spirit in which disputes ought to be approached. The point in limine accordingly is dismissed. The third point in limine concerns an objection to the deponent’s authority to institute the application, the respondent contending that the resolution authorising the proceedings is dated 17 June 2025, whereas the founding affidavit avers that the need to act only arose on 20 June 2025. It is further suggested that this temporal discrepancy renders the resolution invalid and contradicts the sworn assertions made in the founding papers. The affidavit was deposed to under a Board Resolution, which is attached as Annexure 1. The Board Resolution is countersigned by Fernando Menendez Montes, who is a director in the company. Critically, the respondent does not allege that the resolution is forged, fabricated, or otherwise inauthentic. The authority it confers is not challenged, only the sequencing of its date regarding the triggering event. In Mall (Cape) (Pty) Ltd v Merino Ko-opraise Bpk 1957 (2) SA 345 (C), which states: “All the court is required to do is to satisfy itself that enough evidence has been placed before it to show that it is indeed the applicant which is litigating and not an unauthorised person.” The learned judge further states as follows on the same p 3: “Indeed where the deponent of an affidavit has said that she has the authority of the company to represent it, there is no reason for the court to disbelieve her unless it is shown evidence to the contrary and where no such contrary evidence is produced, the omission of a company resolution cannot be fatal to the application. That is as it should be because an affidavit is evidence acceptable in court as it is a statement sworn before a commissioner of oaths … where it states that the deponent has authority, it can only be disbelieved where there exists evidence to the contrary. It is not enough for one to just challenge the existence of authority without more, as the respondent has done.” That the resolution predates the stated cause of urgency does not invalidate it, nor does it diminish the deponent’s capacity to act. It is not uncommon for corporate resolutions to anticipate imminent developments, particularly where action is expected to follow swiftly. In the absence of any assertion that the resolution is fake or improperly procured, the respondent’s objection loses relevance. The Court ought not to be detained by such peripheral technicalities when the core issue, whether the deponent was duly authorised, is not seriously contested. Accordingly, this objection, grounded more in form than in substance, must fail. The fourth point in limine relates to the relief sought, which the respondent alleges is incompetent in that it duplicates both the interim and return dates. Per contra, Mr Kachambwa denied that the interim and final relief sought are akin. The interim relief is merely granted on a prima facie basis, while for a final interdict to succeed, one has to prove a clear right on a balance of probabilities. In casu, the interim relief being sought is interim pending the return date. At this stage, the applicant simply needs to prove a prima facie case, and on the return date, the applicant will obtain the final relief by proving a clear right on a balance of probabilities. The crux of the respondent’s argument is that the interdictory relief sought on an urgent, interim basis mirrors the relief sought on the return date, and that this alleged duplication renders the application fatally defective. The provisional order impugned reads: # DETERMINATION OF THE PRELIMINARY POINTS At the hearing, Mr Mubaiwa, appearing for the respondent, raised four preliminary objections, the first of which concerned the certificate of urgency. He contended that the certificate was invalid, arguing that it ventures improperly into the merits of the case, merely replicates substantial portions of the founding affidavit, and thus betrays a lack of independent thought on the part of the certifier. Furthermore, he criticised the document for failing to account for the applicant’s delay of eighteen days after acquiring the title before approaching the Court. Mr Kachambwa submitted that the certificate of urgency is not invalid as the legal practitioner applied her mind independently and set out reasons why, in her belief, the matter was urgent. It is not a copy-and-paste job. Having carefully considered the certificate of urgency alongside the founding papers, I am satisfied that the certificate adequately captures the essence of urgency in this matter. It articulates; with sufficient clarity, the cause of action and the imminent prejudice the applicant stands to suffer should the court decline to intervene without delay. The document contains the requisite hallmarks of a proper certificate of urgency, namely, a reasoned assessment of the time-sensitive nature of the harm alleged and a clear justification for why the matter warrants immediate judicial attention. It does not merely echo the applicant’s concerns, but reflects a considered and independent appreciation of the urgency at hand. Incidentally, given that the matter before this Court was brought as an urgent chamber application, it is trite that the strength of the application lies wholly in its founding affidavit. See: Chironga and Anor v Minister of Justice Legal and Parliament Affairs and Ors CCZ 14- 20 at p 8. The founding affidavit is the cornerstone upon which the edifice of urgency must be constructed; it is the vessel through which the applicant sets out the facts and advances its primal arguments. Closely linked, yet conceptually distinct, is the certificate of urgency, a procedural instrument executed by a legal practitioner who, after applying their mind, affirms that the matter warrants the Court’s immediate attention. In Mayor Logistics (Pvt) Ltd v Zimbabwe Revenue Authority 2014 (2) ZLR 78 (C) at 88D, the Constitutional Court succinctly captured the essence of urgency proceedings, observing: “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. The certificate of urgency should show that the legal practitioner carefully examined the founding affidavit and documents filed in support of the urgent application for facts which support the allegation that a delay in having the case heard on an urgent basis would render the eventual relief ineffectual.” Its function is not to supplant the founding affidavit, but rather to support it by justifying the matter’s place on the urgent roll. While the filing of a certificate of urgency is a necessary procedural requirement in urgent motion proceedings, it remains ancillary, a procedural gateway rather than the substantive voice of the applicant. Reference to the founding affidavit is not inherently improper; rather, what is required is a considered affirmation that the matter deserves urgent judicial attention. As for the alleged delay, the certificate need not account for every nuance. Such an enquiry falls within the province of the founding affidavit, where the applicant has addressed the circumstances giving rise to the timing of the application. The absence of such detail in the certificate does not vitiate its validity, particularly where, as here, there has been substantial compliance with the principles laid down in Mayor Logistics (supra). Read in conjunction with the founding papers, the certificate of urgency meets the threshold of procedural sufficiency. The objection raised by the respondent is, therefore, unsustainable and falls to be dismissed. The second point in limine raised by the respondent relates to the timing of the application. The respondent contends that the applicant had been aware of the circumstances giving rise to this dispute as early as March 2025, yet delayed in approaching the court even after being granted or acquiring title. On this basis, the respondent argues that the applicant, having failed to act with promptitude, ought not to be permitted to jump the queue. The respondent therefore called for the matter to be struck off the roll with punitive costs. Mr Kachambwa submitted that prior to receiving title on the 6th of June 2025, the applicant had no locus standi to approach the court or demand that the respondent provide documentation because it was not yet the owner of Springs Farm. The need to act could not have commenced prior to the applicant receiving real rights in the property. Further, even after receiving the title, the applicant had to write to people occupying the farm for them to provide information on whether they were lawfully occupying the farm and lawfully conducting business operations thereon. The applicant could not just rush to court without giving the occupants an opportunity to prove their lawful occupation and business operations. The respondents requested a meeting on Wednesday, 18 June 2025, where they presented two documents which did not prove lawful occupation or business operations. He further submitted that the respondent cannot argue for unreasonable delay when it was engaging the applicant all along to provide the requested documents and endeavour to find an amicable solution. This argument unravels in the face of the applicant’s measured and reasonable explanation. Upon receiving the title, the applicant did not impulsively rush to court, but instead acted with a sense of fairness and procedural propriety. It sought first to engage those found occupying the land, requesting them to demonstrate the legality of their occupation and business operations. This was not only responsible conduct, but one reflective of a rights- conscious and humane approach to litigation. The applicant, far from acting rashly, considered the rights and dignity of those affected, allowing them an opportunity to account for their presence on the land. This included the respondent itself, which was invited to furnish documentation in support of its alleged right to occupy, an invitation it failed to honour. Additionally, the delay complained of spans a mere 18 days. This hardly qualifies as unreasonable or inordinate. MATHONSI J (as he then was) in National Prosecuting Authority v Busangabanye and Anor HH 427-15 at p 3 had this to say: “In my view, this issue of self-created urgency has been blown out of proportion. Surely a delay of 22 days cannot be said to be inordinate as to constitute self-created urgency. Quite often in recent history, we are subjected to endless points in limine centred on urgency, which should not be made at all. Courts appreciate that litigants do not eat, move and have their being in filing court process. There are other issues they attend to and where they have managed to bring their matters within a reasonable time they should be accorded audience. It is no good to expect a litigant to drop everything and rush to court even when the subject matter is clearly not a holocaust.” The applicant cannot be faulted for choosing a path of engagement before confrontation. To punish such conduct with punitive costs would not only be unwarranted but would send the wrong message about the spirit in which disputes ought to be approached. The point in limine accordingly is dismissed. The third point in limine concerns an objection to the deponent’s authority to institute the application, the respondent contending that the resolution authorising the proceedings is dated 17 June 2025, whereas the founding affidavit avers that the need to act only arose on 20 June 2025. It is further suggested that this temporal discrepancy renders the resolution invalid and contradicts the sworn assertions made in the founding papers. The affidavit was deposed to under a Board Resolution, which is attached as Annexure 1. The Board Resolution is countersigned by Fernando Menendez Montes, who is a director in the company. Critically, the respondent does not allege that the resolution is forged, fabricated, or otherwise inauthentic. The authority it confers is not challenged, only the sequencing of its date regarding the triggering event. In Mall (Cape) (Pty) Ltd v Merino Ko-opraise Bpk 1957 (2) SA 345 (C), which states: “All the court is required to do is to satisfy itself that enough evidence has been placed before it to show that it is indeed the applicant which is litigating and not an unauthorised person.” The learned judge further states as follows on the same p 3: “Indeed where the deponent of an affidavit has said that she has the authority of the company to represent it, there is no reason for the court to disbelieve her unless it is shown evidence to the contrary and where no such contrary evidence is produced, the omission of a company resolution cannot be fatal to the application. That is as it should be because an affidavit is evidence acceptable in court as it is a statement sworn before a commissioner of oaths … where it states that the deponent has authority, it can only be disbelieved where there exists evidence to the contrary. It is not enough for one to just challenge the existence of authority without more, as the respondent has done.” That the resolution predates the stated cause of urgency does not invalidate it, nor does it diminish the deponent’s capacity to act. It is not uncommon for corporate resolutions to anticipate imminent developments, particularly where action is expected to follow swiftly. In the absence of any assertion that the resolution is fake or improperly procured, the respondent’s objection loses relevance. The Court ought not to be detained by such peripheral technicalities when the core issue, whether the deponent was duly authorised, is not seriously contested. Accordingly, this objection, grounded more in form than in substance, must fail. The fourth point in limine relates to the relief sought, which the respondent alleges is incompetent in that it duplicates both the interim and return dates. Per contra, Mr Kachambwa denied that the interim and final relief sought are akin. The interim relief is merely granted on a prima facie basis, while for a final interdict to succeed, one has to prove a clear right on a balance of probabilities. In casu, the interim relief being sought is interim pending the return date. At this stage, the applicant simply needs to prove a prima facie case, and on the return date, the applicant will obtain the final relief by proving a clear right on a balance of probabilities. The crux of the respondent’s argument is that the interdictory relief sought on an urgent, interim basis mirrors the relief sought on the return date, and that this alleged duplication renders the application fatally defective. The provisional order impugned reads: TERMS OF FINAL ORDER SOUGHT That you show cause to the Honourable Court why a final order should not be made in the following terms - The Application for a final interdict be and is hereby granted.The Respondent be and is hereby interdicted from conducting clay extraction and brick moulding activities on a certain piece of land situate in the District of Salisbury called Subdivision B portion of the Springs measuring 671.6177 hectares without the written consent of the Applicant and without compliance with the law. 3. The Respondent shall pay the Applicant’s costs of suit of this Application. # TERMS OF FINAL ORDER SOUGHT That you show cause to the Honourable Court why a final order should not be made in the following terms - The Application for a final interdict be and is hereby granted. The Respondent be and is hereby interdicted from conducting clay extraction and brick moulding activities on a certain piece of land situate in the District of Salisbury called Subdivision B portion of the Springs measuring 671.6177 hectares without the written consent of the Applicant and without compliance with the law. 3. The Respondent shall pay the Applicant’s costs of suit of this Application. INTERIM RELIEF GRANTED Pending the return date, the Applicant is granted the following interim relief- The Application for an interim interdict be and is hereby granted.The Respondent be and is hereby ordered to suspend and stop its clay extraction and brick moulding activities on a certain piece of land situate in the District of Salisbury called Subdivision B portion of the Springs measuring 671.6177 hectares pending the return date. While the interim and final relief sought in this matter are thematically aligned, they are by no means identical in legal character or effect. At its core, the interim interdict seeks to preserve the status quo pendente lite, that is, to forestall ongoing harm by temporarily restraining the respondent from engaging in activities which the applicant alleges are unlawful, namely, the extraction of clay and the moulding of bricks on the specified land. This measure is not final in nature. By contrast, the final order goes beyond mere restraint. It seeks a definitive and enduring prohibition, granted only after a full hearing on the merits, subject to the rules of evidence and argument, and determined on a balance of probabilities. It is at this stage that the legality of the respondent’s conduct is adjudicated conclusively. At any rate, it is neither novel nor impermissible that interim relief may, by its very nature and effect, resemble or even be identical to the final relief sought. At this juncture, it must be emphasised that the grant of an interim interdict lies squarely within the discretion of the court seized with the matter as aptly affirmed in Mtetwa and Ors v Rungwandi and Rujuwa Legal practitioners and Anor SC 72-23 at p. 9. The exercise of discretion, by its very nature, resists rigid formulae and instead responds to the unique delineations of each dispute. This understanding is reinforced by MAKARAU JA (as she then was) in Nyakutombwa Mugabe Legal Counsel v Mutasa and Ors SC 28-18 at p. 8, where she remarked that: “Matters are heard urgently if in the opinion of the court seized with the matter, the determination of the matter cannot wait the usual allocation of trial dates in terms of the rules of court. Whilst each matter falls to be determined on its own facts, there is a plethora of case authority on the factors that a court must advert to before it makes a finding that a matter warrants to be heard on an urgent basis. In my view, a finding that a matter is urgent simply enables such a matter to go to the head of the queue of the matters that are before that court and thereby demand the urgent attention of the court.” Courts ought to assess the facts of each case within the parameters of its circumstances. Each case must be decided on its own merits. See Mutsure v The State SC 62-21 at p. 18. No two cases are identical in all respects, and while judicial precedent is binding on courts, it does not replace the need for a case-to-case analysis. Where circumstances so dictate, an applicant may legitimately seek interim relief that anticipates the final relief. This brings us back to the present matter. Confronted with compelling evidence of environmental degradation and apparent disregard for statutory safeguards, I was not only entitled, but indeed duty-bound, to intervene decisively. The Constitution of Zimbabwe, 2013 itself, in section 73, enshrines the right of every person to an environment that is not harmful to their health or well-being, and mandates the protection of the environment for the benefit of both present and future generations. It states: 73 Environmental rights Every person has the right— to an environment that is not harmful to their health or well-being; andto have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures that— prevent pollution and ecological degradation;promote conservation; andsecure ecologically sustainable development and use of natural resources while promoting economic and social development.The State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of the rights set out in this section. To have turned a blind eye to the status quo, in the face of allegations that the respondent's operations were proceeding without the requisite authorisations or consent, would have risked rendering any eventual judgment a hollow decree, unable to undo the irreversible harm already occasioned. In these circumstances, to demand that the application be struck off the roll, and with punitive costs, no less, is an overreach entirely disproportionate to the alleged defect. Accordingly, this point in limine too cannot be sustained. It is dismissed, and the path now clears for a consideration of the substantive issues that truly lie at the heart of this matter. # INTERIM RELIEF GRANTED Pending the return date, the Applicant is granted the following interim relief- The Application for an interim interdict be and is hereby granted. The Respondent be and is hereby ordered to suspend and stop its clay extraction and brick moulding activities on a certain piece of land situate in the District of Salisbury called Subdivision B portion of the Springs measuring 671.6177 hectares pending the return date. While the interim and final relief sought in this matter are thematically aligned, they are by no means identical in legal character or effect. At its core, the interim interdict seeks to preserve the status quo pendente lite, that is, to forestall ongoing harm by temporarily restraining the respondent from engaging in activities which the applicant alleges are unlawful, namely, the extraction of clay and the moulding of bricks on the specified land. This measure is not final in nature. By contrast, the final order goes beyond mere restraint. It seeks a definitive and enduring prohibition, granted only after a full hearing on the merits, subject to the rules of evidence and argument, and determined on a balance of probabilities. It is at this stage that the legality of the respondent’s conduct is adjudicated conclusively. At any rate, it is neither novel nor impermissible that interim relief may, by its very nature and effect, resemble or even be identical to the final relief sought. At this juncture, it must be emphasised that the grant of an interim interdict lies squarely within the discretion of the court seized with the matter as aptly affirmed in Mtetwa and Ors v Rungwandi and Rujuwa Legal practitioners and Anor SC 72-23 at p. 9. The exercise of discretion, by its very nature, resists rigid formulae and instead responds to the unique delineations of each dispute. This understanding is reinforced by MAKARAU JA (as she then was) in Nyakutombwa Mugabe Legal Counsel v Mutasa and Ors SC 28-18 at p. 8, where she remarked that: “Matters are heard urgently if in the opinion of the court seized with the matter, the determination of the matter cannot wait the usual allocation of trial dates in terms of the rules of court. Whilst each matter falls to be determined on its own facts, there is a plethora of case authority on the factors that a court must advert to before it makes a finding that a matter warrants to be heard on an urgent basis. In my view, a finding that a matter is urgent simply enables such a matter to go to the head of the queue of the matters that are before that court and thereby demand the urgent attention of the court.” Courts ought to assess the facts of each case within the parameters of its circumstances. Each case must be decided on its own merits. See Mutsure v The State SC 62-21 at p. 18. No two cases are identical in all respects, and while judicial precedent is binding on courts, it does not replace the need for a case-to-case analysis. Where circumstances so dictate, an applicant may legitimately seek interim relief that anticipates the final relief. This brings us back to the present matter. Confronted with compelling evidence of environmental degradation and apparent disregard for statutory safeguards, I was not only entitled, but indeed duty-bound, to intervene decisively. The Constitution of Zimbabwe, 2013 itself, in section 73, enshrines the right of every person to an environment that is not harmful to their health or well-being, and mandates the protection of the environment for the benefit of both present and future generations. It states: 73 Environmental rights Every person has the right— to an environment that is not harmful to their health or well-being; andto have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures that— prevent pollution and ecological degradation;promote conservation; andsecure ecologically sustainable development and use of natural resources while promoting economic and social development.The State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of the rights set out in this section. To have turned a blind eye to the status quo, in the face of allegations that the respondent's operations were proceeding without the requisite authorisations or consent, would have risked rendering any eventual judgment a hollow decree, unable to undo the irreversible harm already occasioned. In these circumstances, to demand that the application be struck off the roll, and with punitive costs, no less, is an overreach entirely disproportionate to the alleged defect. Accordingly, this point in limine too cannot be sustained. It is dismissed, and the path now clears for a consideration of the substantive issues that truly lie at the heart of this matter. ## 73 Environmental rights Every person has the right— to an environment that is not harmful to their health or well-being; and to have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures that— prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting economic and social development. The State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of the rights set out in this section. To have turned a blind eye to the status quo, in the face of allegations that the respondent's operations were proceeding without the requisite authorisations or consent, would have risked rendering any eventual judgment a hollow decree, unable to undo the irreversible harm already occasioned. In these circumstances, to demand that the application be struck off the roll, and with punitive costs, no less, is an overreach entirely disproportionate to the alleged defect. Accordingly, this point in limine too cannot be sustained. It is dismissed, and the path now clears for a consideration of the substantive issues that truly lie at the heart of this matter. ISSUE FOR DETERMINATION The applicant seeks an interdict to restrain the respondent from engaging in allegedly unlawful operations on its property, operations said to be causing irreparable damage to land reserved for urban development. It now falls to the court to consider whether the applicant has made out a case for the relief it seeks. # ISSUE FOR DETERMINATION The applicant seeks an interdict to restrain the respondent from engaging in allegedly unlawful operations on its property, operations said to be causing irreparable damage to land reserved for urban development. It now falls to the court to consider whether the applicant has made out a case for the relief it seeks. APPLICATION OF THE LAW TO THE FACTS An interdict is a summary order issued upon application, by which a person is ordered either to do something, stop doing something or prevent an infringement of a certain right. This remedy is granted in almost any kind of circumstances where there is a well-grounded apprehension of irreparable harm. It is not available to a litigant who is possessed of another or alternative remedy. See Lola Verlaque and Anor v Chester Mhende and Anor HH 595-23. Its primary purpose is normally to preserve or restore the status quo pending the final determination of the rights of the parties. It does not impact upon or entail the final determination of such rights. The requirements for an interlocutory interdict were formulated in the case of L.F. Boshoff (Pyt) Ltd v Cape Town Municipality 1969 (2) SA 256 (C) as follows: The applicant for such temporary relief must show: That the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear, or if not clear, is established though open to some doubt.That if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing this right.That the balance of convenience favours the granting of interim relief andThat the applicant has no other satisfactory remedy. See also Watson v Gilson Enterprises (Pvt) Ltd 1997 (2) ZLR 318 (H). The principle that the existence of a right is governed by substantive law, while the question of whether that right is clearly or merely prima facie established is one of evidence, is well entrenched in our jurisprudence. It is incumbent upon the applicant to adduce evidence which, on the face of it, demonstrates the existence of a legally protectable right. See Mpezeni v Zimbabwe Electoral Commission and Ors HH 475-18. In casu, the applicant holds title deeds to Springs Farm. The law regarding ownership of titled immovable property in this jurisdiction is fairly straight-forward. In the case of Matewa (In her capacity as Executrix Dative of the estate late Judith Matewa) v City of Harare SC 61- 23, the Supreme Court remarked that a title deed is ex facie proof of ownership. In Ishemunyoro (nee Mandidewa) v Ishemunyoro and Ors SC 14-19 GWAUNZA DCJ also cited with approval the dicta in the case of Fryes (Pty) Ltd v Ries, 1957 (3) SA 575 at 582, where it was held that; “Indeed, the system of land registration was evolved for the very purpose of ensuring that there should not be any doubt as to the ownership of the persons in whose names real rights are registered. Generally speaking, no person can successfully challenge the right of ownership against a particular person whose right is duly and properly registered in the Deeds Office.” HER LADYSHIP went on to emphasise that the right of ownership to immovable property must be registered with the Registrar of Deeds and that a title deed raises the rebuttable presumption that the holder enjoys real rights over the immovable property defined in the deed. The point was further emphasised in the case of CBZ Bank Limited v Moyo and the Deputy Sheriff, Harare, SC 17/18, where it was stated as follows: “A title deed … is therefore prima facie proof of ownership …” In an earlier decision, the Supreme Court in Takafuma v Takafuma 1994 (2) ZLR 103 (S), made the point that the registration of rights in immovable property must be viewed as a matter of substance because it grants real rights to those in whose name(s) the property is registered. Real rights are the preserve of the law of property. They show a person’s right to a thing as well as his ability to enforce that right against the whole world, unless, of course, the person against whom that right is being enforced has some enforceable right against the owner. See Oakland Nominees Limited v Gelaria Mining Investments Co. Limited 1976 (1) SA 441 at 452. In casu, the respondent has no enforceable right against the owner. The owner has unassailable rights over the farm and is entitled to stop anyone from interfering with those rights. The court in the case of Goncalves v Rodrigues HH 19-03 succinctly put the position beyond doubt by holding that: “The registration of rights in immovable property in terms of the Deeds Registry Act is not a mere matter of form. It is a matter of substance: It conveys real rights upon those in whose name the property is registered.” The respondent has failed to produce proof or evidence of ownership of the farm. The respondent is conducting clay extraction and brick moulding operations on the farm. The fact that the applicant has title deeds proves that it is the owner of the farm. In any case, the respondent does not dispute that the applicant has title deeds to the farm. That document (title deeds) proves that the applicant has an interest in the farm. On the question of irreparable harm, the fact that resources are being extracted from the farm means the value of the farm is being depleted, and the respondent, who has no title whatsoever to the land, is benefitting at the expense of the real owner of the farm. Further, the applicant will suffer irreparable harm because of the environmental degradation taking place at the farm. In considering whether or not the balance of convenience favours the granting of the interdict, the court must weigh the harm to the applicant if the interim relief is not granted against the prejudice to the respondents if it is granted. In casu, the financial and environmental harm cannot be under-estimated. The respondent is moulding bricks for sale at the farm. At the same time, sand is being extracted, both to the financial benefit of the respondent, who, I must add, has no title to the farm. The issue of the absence of an alternative remedy must be understood in the context of the remedy which is envisaged by the law. For it to qualify as an alternative remedy, it must be adequate, having regard to the circumstances of the matter, be ordinary and reasonable, be a legal remedy and grant similar protection. See Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa, 5th ed, pp 1467-1468. In casu, there is no other remedy available for the applicant which can satisfy the above- stated requirements without the applicant continuing to suffer financial harm. Interim relief serves to safeguard rights from irreparable harm while the main dispute awaits final resolution. In the present matter, the applicant seeks such protection through the grant of a temporary interdict. The return date affords the court the opportunity to reconsider the matter in full and decide whether to confirm or set aside the order. At this stage, however, the applicant has clearly established a prima facie right deserving of protection. It is both just and equitable that a provisional order be granted. As a result, the provisional order was granted in the following terms: # APPLICATION OF THE LAW TO THE FACTS An interdict is a summary order issued upon application, by which a person is ordered either to do something, stop doing something or prevent an infringement of a certain right. This remedy is granted in almost any kind of circumstances where there is a well-grounded apprehension of irreparable harm. It is not available to a litigant who is possessed of another or alternative remedy. See Lola Verlaque and Anor v Chester Mhende and Anor HH 595-23. Its primary purpose is normally to preserve or restore the status quo pending the final determination of the rights of the parties. It does not impact upon or entail the final determination of such rights. The requirements for an interlocutory interdict were formulated in the case of L.F. Boshoff (Pyt) Ltd v Cape Town Municipality 1969 (2) SA 256 (C) as follows: The applicant for such temporary relief must show: That the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear, or if not clear, is established though open to some doubt. That if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing this right. That the balance of convenience favours the granting of interim relief and That the applicant has no other satisfactory remedy. See also Watson v Gilson Enterprises (Pvt) Ltd 1997 (2) ZLR 318 (H). The principle that the existence of a right is governed by substantive law, while the question of whether that right is clearly or merely prima facie established is one of evidence, is well entrenched in our jurisprudence. It is incumbent upon the applicant to adduce evidence which, on the face of it, demonstrates the existence of a legally protectable right. See Mpezeni v Zimbabwe Electoral Commission and Ors HH 475-18. In casu, the applicant holds title deeds to Springs Farm. The law regarding ownership of titled immovable property in this jurisdiction is fairly straight-forward. In the case of Matewa (In her capacity as Executrix Dative of the estate late Judith Matewa) v City of Harare SC 61- 23, the Supreme Court remarked that a title deed is ex facie proof of ownership. In Ishemunyoro (nee Mandidewa) v Ishemunyoro and Ors SC 14-19 GWAUNZA DCJ also cited with approval the dicta in the case of Fryes (Pty) Ltd v Ries, 1957 (3) SA 575 at 582, where it was held that; “Indeed, the system of land registration was evolved for the very purpose of ensuring that there should not be any doubt as to the ownership of the persons in whose names real rights are registered. Generally speaking, no person can successfully challenge the right of ownership against a particular person whose right is duly and properly registered in the Deeds Office.” HER LADYSHIP went on to emphasise that the right of ownership to immovable property must be registered with the Registrar of Deeds and that a title deed raises the rebuttable presumption that the holder enjoys real rights over the immovable property defined in the deed. The point was further emphasised in the case of CBZ Bank Limited v Moyo and the Deputy Sheriff, Harare, SC 17/18, where it was stated as follows: “A title deed … is therefore prima facie proof of ownership …” In an earlier decision, the Supreme Court in Takafuma v Takafuma 1994 (2) ZLR 103 (S), made the point that the registration of rights in immovable property must be viewed as a matter of substance because it grants real rights to those in whose name(s) the property is registered. Real rights are the preserve of the law of property. They show a person’s right to a thing as well as his ability to enforce that right against the whole world, unless, of course, the person against whom that right is being enforced has some enforceable right against the owner. See Oakland Nominees Limited v Gelaria Mining Investments Co. Limited 1976 (1) SA 441 at 452. In casu, the respondent has no enforceable right against the owner. The owner has unassailable rights over the farm and is entitled to stop anyone from interfering with those rights. The court in the case of Goncalves v Rodrigues HH 19-03 succinctly put the position beyond doubt by holding that: “The registration of rights in immovable property in terms of the Deeds Registry Act is not a mere matter of form. It is a matter of substance: It conveys real rights upon those in whose name the property is registered.” The respondent has failed to produce proof or evidence of ownership of the farm. The respondent is conducting clay extraction and brick moulding operations on the farm. The fact that the applicant has title deeds proves that it is the owner of the farm. In any case, the respondent does not dispute that the applicant has title deeds to the farm. That document (title deeds) proves that the applicant has an interest in the farm. On the question of irreparable harm, the fact that resources are being extracted from the farm means the value of the farm is being depleted, and the respondent, who has no title whatsoever to the land, is benefitting at the expense of the real owner of the farm. Further, the applicant will suffer irreparable harm because of the environmental degradation taking place at the farm. In considering whether or not the balance of convenience favours the granting of the interdict, the court must weigh the harm to the applicant if the interim relief is not granted against the prejudice to the respondents if it is granted. In casu, the financial and environmental harm cannot be under-estimated. The respondent is moulding bricks for sale at the farm. At the same time, sand is being extracted, both to the financial benefit of the respondent, who, I must add, has no title to the farm. The issue of the absence of an alternative remedy must be understood in the context of the remedy which is envisaged by the law. For it to qualify as an alternative remedy, it must be adequate, having regard to the circumstances of the matter, be ordinary and reasonable, be a legal remedy and grant similar protection. See Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa, 5th ed, pp 1467-1468. In casu, there is no other remedy available for the applicant which can satisfy the above- stated requirements without the applicant continuing to suffer financial harm. Interim relief serves to safeguard rights from irreparable harm while the main dispute awaits final resolution. In the present matter, the applicant seeks such protection through the grant of a temporary interdict. The return date affords the court the opportunity to reconsider the matter in full and decide whether to confirm or set aside the order. At this stage, however, the applicant has clearly established a prima facie right deserving of protection. It is both just and equitable that a provisional order be granted. As a result, the provisional order was granted in the following terms: TERMS OF FINAL ORDER SOUGHT That you show cause to this Honourable Court why a final order should not be made in the following terms- The provisional order be and is hereby confirmed.The extraction of clay and brick moulding activities on a certain piece of land situate in the District of Salisbury called Subdivision B portion of the Springs measuring 671.6177 hectares be and is hereby declared unlawful.The Respondent shall pay the Applicant’s costs of suit of this Application. # TERMS OF FINAL ORDER SOUGHT That you show cause to this Honourable Court why a final order should not be made in the following terms- The provisional order be and is hereby confirmed. The extraction of clay and brick moulding activities on a certain piece of land situate in the District of Salisbury called Subdivision B portion of the Springs measuring 671.6177 hectares be and is hereby declared unlawful. The Respondent shall pay the Applicant’s costs of suit of this Application. INTERIM RELIEF GRANTED Pending the determination of this matter, the Applicant is granted the following relief- 1. The Respondent be and is hereby interdicted from extracting clay and moulding bricks on a certain piece of land situate in the District of Salisbury called Subdivision B portion of the Springs measuring 671.6177. # INTERIM RELIEF GRANTED Pending the determination of this matter, the Applicant is granted the following relief- 1. The Respondent be and is hereby interdicted from extracting clay and moulding bricks on a certain piece of land situate in the District of Salisbury called Subdivision B portion of the Springs measuring 671.6177. SERVICE OF PROVISIONAL ORDER The Sheriff or her lawful deputy and or Applicant’s legal practitioners be and are hereby granted leave to effect service of this order on the respondent. MANDAZA J……………………………………. Ahmed and Ziyambi, applicant’s legal practitioners. Samukange Hungwe Attorneys, respondent’s legal practitioners. # SERVICE OF PROVISIONAL ORDER The Sheriff or her lawful deputy and or Applicant’s legal practitioners be and are hereby granted leave to effect service of this order on the respondent. MANDAZA J……………………………………. Ahmed and Ziyambi, applicant’s legal practitioners. Samukange Hungwe Attorneys, respondent’s legal practitioners.

Judgment

MARIMBA RESIDENTIAL PROPERTIES v BEABLE INVESTMENTS (PRIVATE) LIMITED (450 of 2025) [2025] ZWHHC 450 (29 July 2025)

Headnotes

Judgment

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Discussion

MARIMBA RESIDENTIAL PROPERTIES v BEABLE INVESTMENTS (PRIVATE) LIMITED (450 of 2025) [2025] ZWHHC 450 (29 July 2025)

Headnotes

Judgment

Similar Cases

Discussion