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.  

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.

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.