One High Court Judge Cannot Overturn Another, Court Rules in Simbi Mining Case

Masvingo — It was a legal gamble that ended in a stinging courtroom defeat.
Hoping to erase a previous High Court ruling that favoured a mining syndicate, husband and wife Zodwa and Charles Simbi instead found themselves on the receiving end of one of the judiciary's sharpest condemnations, with the High Court branding their application "frivolous," "vexatious," "thoughtless beyond measure" and an outright abuse of the court process.

In a strongly worded judgment, Justice Christopher Dube-Banda drew a firm constitutional line, declaring that no High Court judge has the authority to overturn or invalidate the judgment of another judge of the same court.

"The applicants are approaching this court, contending that a judge of this court must find that a judge who granted the order in the main matter was wrong," Justice Dube-Banda said.

"This is novel. It is startling. It has no precedent in this jurisdiction," he said.

The ruling is comes as a forceful reminder of the hierarchy of Zimbabwe's courts and the limits of judicial power.

The concerned mining dispute stretches back to 27 May 2024, when New Generation Mining Syndicate approached the High Court seeking a declaration that its Fletcher 986 mining claim was not situated on Plot 42 Kanuck Farm.

The company also sought protection from what it described as interference by the Simbi couple with its mining operations.

Months later, on 12 November 2024, Justice Sunsley Zisengwe granted a default judgment after the couple failed to successfully oppose the application.

The court declared that Fletcher 986 was not located under Plot 42 Kanuck Farm, ruled that the Simbi couple's interference with the mining activities was unlawful and ordered them to pay legal costs.

For most litigants, that would have marked the end of the road unless they successfully pursued rescission or appealed through the proper legal channels.

Instead, the Simbi couple returned to court with a different strategy.

A bold legal challenge in fresh proceedings filed under HCMSC618/25, the couple argued that the earlier proceedings were legally flawed from the beginning.

They claimed the mining syndicate had relied on the wrong legislation by invoking provisions of the Administrative Justice Act to obtain declaratory relief.

They also argued that the Minister responsible for Lands had not been cited in the proceedings and that domestic remedies before the Zimbabwe Land Commission had not been exhausted before the matter reached the High Court.

According to the couple, those alleged defects rendered not only the application itself, but also the judgment that followed, a legal nullity.

But the court was unconvinced. Justice Dube-Banda said deciding those arguments would inevitably require him to determine whether another High Court judge had been correct or incorrect in granting the earlier order.

That, he ruled, is something the High Court cannot do.

"As a judge of the High Court I have neither power nor competence to engage in such an inquiry," he said.

He warned that granting the application would amount to "straying into the lane of the Supreme Court," the only court with authority to overturn decisions of the High Court on appeal.

The judgment also revealed that this was not the Simbi couple's first attempt to reverse the default judgment.

Before filing the nullity application, they had lodged an application for rescission of the judgment but failed to prosecute it.

The application was subsequently deemed abandoned and dismissed by the Registrar.

Justice Dube-Banda found that the new application amounted to an improper attempt to re-litigate the same dispute through a legal route unknown to the law.

In some of the strongest language contained in the judgment, the judge said the application was so lacking in merit that he struggled to understand how it had been conceived.

"It is an abuse of the process of this court. It is so thoughtless beyond measure," he said.

The High Court upheld a preliminary objection raised by New Generation Mining Syndicate, ruling that the application was fundamentally defective because it sought relief that the High Court had no jurisdiction to grant.

Without considering the merits of the arguments, the court struck the matter off the roll.

Justice Dube-Banda then imposed civil litigation sanctions, ordering Zodwa and Charles Simbi to pay the mining syndicate's legal costs on the punitive attorney-and-client scale, jointly and severally.