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ETO Electricals & Rewinds (Pvt) Ltd v ZESA Holdings (Pvt) Ltd & Others (HC 5374/15) [2015] ZWHHC 547 (16 June 2015);

1

HH 547-15

HC 5374/15

ETO ELECTRICALS AND REWINDS (PVT) LTD

versus

ZESA HOLDINGS (PVT) LTD

and

THE OFFICER COMMANDING MINERALS UNIT, ZIMBABWE REPUBLIC POLICE, HARARE

and

THE COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE

 

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 11 and 17 June, 2015

 

 

Urgent Chamber Application

 

The court considered an application for an interim interdict preventing the respondents from interfering with the applicant’s business and to remove their security personnel. 

The applicant held a licence to deal in scrap metal, particularly to acquire, sell or deal in copper. Police officers, accompanied by the 1st respondent attended at the applicant’s warehouse and advised of its intention to search for certain materials which were suspected to have been stolen from the 1st respondent. The 1st respondent ensured that security were placed at the premises to guard the warehouse until such time as the warrant had been obtained.

The court stated that the requirements for an interim interdict were: 1) a clear right, 2) a well-grounded apprehension of harm if the relief was not granted, 3) balance of convenience, and 4) absence of any alternative remedy.

The court found that there was an alternative remedy available since dealing in copper was a closely controlled trade and that a holder was obliged to keep proper records of the copper in its possession, thus it should have no difficult in accounting for any loss. 

The court weighed the prejudice to the applicant if the relief was refused against the prejudice to the respondent if granted. It observed that the purpose of placing the security was to ensure that the premises was safe and no items were lost. If relief was granted, this protection would be lost. Thus, the balance of convenience did not favour the applicant. Accordingly,  the application was dismissed.  

S v Moyo (CRB Mt 144/14) [2015] ZWHHC 452 (11 May 2015);

1

HH 452-15

CRB Mt 144/14

The court considered a criminal appeal against the sentence imposed on the accused, who was sentenced to a mandatory 2-year imprisonment for contravening s 368 (1), which dealt with the illegal mining of gold, under the Mines and Minerals Act

Before imposing a mandatory sentence, the court asked the accused if there were any special circumstances relating to the commission of the offence which would result in the requisite sentence not being imposed. 

The accused held that his special circumstances were that he did not have enough money for a bus fare. The court found that this did not constitute a special circumstance as poverty desperation could not be excused for the commission of a crime.

The court found that a special circumstance is within the court’s discretion and thus it should be taken to be any extenuating circumstance. Further, that the court should enquire into all circumstances put forward by an accused to validate the aspect of a special circumstance. 

The court held that a trial court had to ensure that economic situations leading to commission of crimes under economic circumstances at the time did not operate differently for the rich and for the poor. The court found that the court below should have performed a proper enquiry and that the accused should be given the benefit of the doubt. Accordingly, the appeal succeeded.

P Mines (Pvt) Ltd v ZIMRA (FA 02/11) [2015] ZWHHC 244 (12 March 2015);

1

HH 244-15

FA 02/11

 

 

                                                                                                            

The appellant mined and processed platinum group metals in Zimbabwe under a special mining lease issued in terms of the Mines and Minerals Act [Chapter 21:05]. In terms of the Income Tax Act [Chapter 23:06], holders of a special mining lease are subject to a corporate income tax rate of 15% against a general mining corporate tax rate of 25%. In addition, such holders are levied additional profits tax. The taxable income for a holder of a special mining lease is charged under s 22 of the Act, as read with the 22nd Schedule, while additional profits tax is charged in terms of s 33 of the Act and determined in accordance with the provisions of the 23rd Schedule.

The respondent assessed the appellant in July 2009 for additional profits tax for the period 2004 to 2009. The appellant included, as an allowable deduction, the aggregate of the allowable deductions attributable to the special mining lease area. It took the position that assessed losses were allowable deductions against both the income tax liability and the additional profits tax of a holder of a special mining lease. The respondent questioned the appellant on the double deduction of the cumulative assessed losses to June 2005 in both the income tax liability and additional profits tax liability, but passed the double deduction and assessed the appellant for additional profits tax in the amount of some US$23 million for the years 2004 to 2007. The appellant accepted liability and settled the amount in full in 2010. The respondent reassessed the appellant for additional profits tax, and revisited the deduction of the assessed tax losses incurred up to June 2005 in the computation of the 2006 additional profits tax. It issued amended assessments disallowing the deduction of assessed losses from the additional profits tax that had already been deducted from the gross income of the appellant. The effect was to increase the additional profits tax for the appellant by a further US$27 million from the amount previously accepted and paid. After an objection had been disallowed, the issue on appeal was whether or not the assessed loss incurred in the previous year was an “allowable deduction” for purposes of computing net cash receipts in terms of para 2(3)(a)(i) of the 23rd Schedule.

An assessed loss is the negative balance that accrues to the holder of a special mining lease after making all permissible deductions from the income attributed to the holder for the particular year of assessment. For income tax liability under s 22 of the Act, the holder is, by virtue of para 4(5) of the 22nd Schedule, allowed to deduct from the income of the current year any assessed loss incurred by him for the preceding year. The appellant argued that all the deductions allowed under the 22nd Schedule, except for the three that are expressly excluded under para 1(2) of the 23rd Schedule, are also deductible in the computation of net cash receipts under the 23rd Schedule. The respondent contended that the “allowable deductions” contemplated in para 2(3) and “a deduction allowable” envisaged by para 1(1) of the 23rd Schedule are both circumscribed by the deliberate use of the phrase “expenditure incurred”.

Held: the definition of assessed loss clearly demonstrates that it does not constitute expenditure incurred in the year of assessment concerned by the holder of the special mining lease. Rather, it represents a debit balance in the accounts of the holder of the previous year of assessment. The wording of para 2(3) of the 23rd Schedule was clear and unambiguous and did not require the application of the contra fiscum rule.

Section 15(4) of the Act prohibits double deduction of an assessed loss in the same year of assessment. In terms of para 4(5) of the 22nd Schedule, the section applies to such the holder of a special mining lease in calculating his income tax liability. The section is all encompassing and applies to all the provisions of the Act, whether they specifically incorporate it or not. It prohibits the double deduction of any allowable amount under more than one provision of the Act. Accordingly, the deduction of an assessed loss carried forward from the previous year of assessment is not an allowable deduction sanctioned by the provisions of para 2(3)(a)(i) of the 23rd Schedule.

Elements Minerals (Pvt) Ltd v Tashinga Mining Syndicate & Others (HC 2378/15) [2015] ZWHHC 346 (31 March 2015);

1

HH 346-15

HC 2378/15

ELEMENTS MINERALS (PVT) LTD

versus

TASHINGA MINING SYNDICATE

and

ADAM MHLANGA

and

EDMORE DUBE

and

LOVEMORE LUNGA

and

MILTON KANGE

and

SHERPARD CHINOGUREI

and

KILLIAN MANHAMBARA

and

THE ACTING PROVINCIAL MINING DIRECTOR

MASH CENTRAL E.S MAKUMBE

 

 

 

The court considered an application for an interdict to restrain the respondents from interfering with its mining operations. In response the respondents filed a counter-application to stop the applicant from mining on its registered mining claim.

The applicant contended that the respondents illegally encroached on its claims and was effectively stealing ore. The respondents alleged that it was the applicant who, through the shafts which were registered in their name, entered their area of activity and stole ore from them. Both prayed that the court interdict the other from accessing the claim and interfering with their mining activities.

The court in considering both applications, held that for an interdict to be granted, the right which was the subject matter of the main action and which was to be protected by means of interim relief must be clear or prima facie established. The court stated that if the right was only prima facie established, there should be a well-grounded apprehension of irreparable harm if the interdict was not granted and that proof of harm ultimately succeeded in establishing the right.

The court found that the applicant led no evidence to show that it suffered any harm let alone irreparable harm. The respondents on the other hand, satisfied the court that the disputed claim was registered in its name. The court, therefore, found that the applicant had no clear right to the claim. Accordingly, the application was dismissed with costs and the counter-application was upheld.

Chiroswa Minerals (Pvt) Ltd & Another v Min. of Mines & Others (HC 801/09) [2011] ZWHHC 261 (14 November 2011);

HH 261-2011

HC 801/09

 

CHIROSWA MINERALS (PRIVATE) LIMITED

and

BASE MINERALS (PRIVATE) LIMITED

versus

MINISTER OF MINES

and

MORRIS TENDAYI NYAKUDYA

and

VAMBO MILLS (PRIVATE) LIMITED

 

HIGH COURT OF ZIMBABWE

PATEL J

 

Civil Trial

 

HARARE, 16 June 2011 and 15 November 2011

 

F.M. Katsande, for the plaintiffs

The first plaintiff concluded a tribute agreement with the second and third defendants that was to last for ten years. The Mining Commissioner rejected this agreement since it was not registrable. This agreement was replaced by a three-year tribute agreement. When this agreement expired, the first plaintiff entered into another agreement with the second plaintiff and they sought an order registering this agreement and the eviction of the second and third defendant. The eviction order was opposed on grounds that the first agreement was still valid.

In interpreting s289 and 290 of the Mines and Minerals Act on tribute agreements, the court made a distinction between directory and peremptory provisions. The court noted that it is impossible to lay down any conclusive test to distinguish the two provisions. However, provisions in negative form and containing penal sanctions are to be regarded as peremptory rather than directory. The court also noted that the intention of the legislature is to be considered when distinguishing the two.

The court found that the provisions were couched in negative form and that their contravention was to be visited with penal sanctions, hence peremptory. Additionally, it was found that the approval was meant to protect the interests of the tributor and to avoid premature cessation of mining operations.

Accordingly, the court declared that the first agreement was invalid and unenforceable; and that the second agreement was valid but had expired. Consequently, the second and third defendants were ordered to vacate or be evicted.

Gulmit Investments ( Private) Limited v Ranchville Enterprises (Private) Limited and Others (HH 94-2004) [2004] ZWHHC 94 (13 April 2004);

 

GULMIT INVESTMENTS ( PRIVATE) LIMITED                                     

This was an application seeking an order setting aside the sale of granite blocks to the second respondent. The application also sought to compel the first respondent to offer the blocks to the applicant in terms of a ‘right of first refusal’ agreement between them. The application was filed following reception of information that the first respondent was moving granite after a sale to the second respondent without their knowledge.
The application was brought on an urgent basis by the applicant.

The court had to determine whether the matter was urgent and whether the applicant had a claim against the second respondent for granite sold and whether to interdict further movement of the granite in question.

The court held that at the time of the hearing, the granite had not been removed from Zimbabwe and if the applicant was entitled to protection of its rights, it was the duty of the court to ensure that the matter was determined urgently.

It also held that any claim that the applicant had to the right of first refusal would depend on whether it can show that the second respondent was aware or ought to have been aware of its prior right or claim to the stone. The claim fell away as the conduct of the second respondent did not show any mala fide intention.

The interdict application was thus denied because the applicant had no rights to enforce against the second respondent. 

S v Macmillan (B 595/07) [2007] ZWHHC 11 (23 May 2007);

EWAN ALEXANDER MACMILLAN

versus

THE STATE

 

HIGH COURT OF ZIMBABWE

PATEL J

HARARE,  21, 22, 23 & 24 May 2007

 

Bail Appeal

 

Mr Chikumbirike, for the appellant

Ms Dube, for the respondent

 

 

This was an appeal against the decision of the Magistrates Court, dismissing the appellant’s application for bail. The appellant was arrested for possessing gold without a licence.
At the initial bail hearing, the Magistrate questioned the issue of abscondment and held that the appellant was unlikely to stand trial for various reasons such as him being a “a man of means” who “could use that status to abscond”. The magistrate further held that the stipulated mandatory penalty “could certainly ignite motives of abscondment” and that “the onus was now on the accused to show on a balance of probabilities that his admission to bail would not prejudice the interests of justice”.
The court, therefore, had to decide whether the magistrate’s approach to onus was erroneous in light of the evidence placed before him.
The court held that the magistrate a quo did not misdirect himself as to the approach to follow but had failed to exercise due diligence. He made unfounded allegations which did not indicate whether the appellant was likely to abscond for those reasons. He had also left a lot of issues open ended such as the severity of the penalty, the issue of passports and had ultimately failed to assess the strength of the evidence forwarded by the appellant.
Therefore, the magistrate a quo misdirected himself his evaluation of the likelihood of abscondment by the appellant and the evidence did not indicate that the appellant would abscond. Accordingly, his decision to decline bail was set aside.

Core Mining And Minerals Resources (Pvt) Ltd v Zimbabwe Mining Development Corporation and Others (HC 8410/10) [2011] ZWHHC 280 (04 January 2011);

                                                                                              

This case concerned a preliminary point raised that the first and second respondents’ legal practitioner should be prohibited from appearing on their behalf. The applicant contended that the legal practitioner who was present at a meeting where the Mining Development Board discussed the shareholding of the respondents, was intimately interested in the subject matter of the proceedings. The applicant further contended that the same legal practitioner should not be allowed to appear for the fifth respondent, the minister of mines and mining development, who ought to be represented only by the Attorney-General as the principal legal advisor to the Government. 

In response, the practitioner contended that there was no evidence to determine the depth of his alleged involvement in the matters referred to and that the allegations were based on speculation. He further submitted that he had authority to represent the Attorney-General. 

The court had to determine whether it was proper for the legal practitioner to appear for the first, second and fifth respondents.

The court observed that it was important that a legal practitioner should at all times retain his independence in relation to his client and the litigation. On account of the practitioner’s previous involvements with the first and second respondents, the court determined that he could not be allowed to serve as their legal practitioner.

With regard to the representation of the fifth respondent, the court did not make any pronouncement on the basis that it lacked sufficient information. Accordingly, the court upheld the preliminary objection.

Cafca Limited v Reserve Bank of Zimbabwe (HC 3945/08) [2010] ZWHHC 186 (14 September 2010);

 

CAFCA LIMITED

versus

RESERVE BANK OF ZIMBABWE

 

 

HIGH COURT OF ZIMBABWE

MTSHIYA J

HARARE, 26 May 2010, 8 June 2010 and 15 September 2010

 

 

AdvMorris, for the plaintiff

T. Chitapi, for the defendant

 

 

            MTSHIYA J:   On 29 July 2008 the plaintiff issued summons against the defendant for the following relief:-

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