Grant of interdict https://old.zimlii.org/taxonomy/term/10677/all en Diamond Bird Services (Pvt) Ltd And Anor v Massbreed Investments (Pvt) Ltd And Anor (Judgment No. HH 413-21, HC 4045/21 Ref Case No. HC 3072/20) [2021] ZWHHC 413 (11 August 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/413 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 413-21</p> <p>HC 4045/21</p> <p>Ref Case No. HC 3072/20</p> <p>DIAMOND BIRD SERVICES [PRIVATE] LIMITED</p> <p>and</p> <p>TRUSTEES OF ZIMNAT VALUE PRESERVATION PROFESSIONAL TRUST FUND</p> <p>versus</p> <p>MASSBREED INVESTMENTS [PRIVATE] LIMITED</p> <p>and</p> <p>CITY OF HARARE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J</p> <p>HARARE</p> <p> </p> <p> </p> <p>Date of written judgment: 11 August 2021</p> <p> </p> <p> </p> <p><strong>Urgent chamber application</strong></p> <p> </p> <p>On the papers</p> <p> </p> <p>MAFUSIRE J</p> <p>[1]        This is an urgent chamber application for an interim interdict. Due to the lockdown measures currently in place to check the spread of the covid-19 world pandemic and in terms of which the courts have virtually shut down, except for bail and remand matters, this application is being decided on the papers and thus, without the benefit of oral argument.</p> <p>[2]        The draft provisional order is improperly crafted. In terms of it, for interim relief, the applicants call upon the respondents to show cause why a final order should not be made directing the respondents to immediately cease developing, or in any way dealing with a certain piece of land in Alexandria Park, Harare, described as Stand 3189 Salisbury Township [“<strong><em>the property</em></strong>”]. This formulation is not in the nature of an interim relief. It is in the nature of a final order. It is a rule <em>nisi</em> seeking final relief. Yet a proper rule <em>nisi</em> is a provisional order of court that comes into force at a future date, unless certain conditions are met to prevent it from becoming absolute.</p> <p>[3]        As final relief, the applicants want that the rights and obligations accruing to the respondents in terms of a certain agreement of sale between them in respect of the property be suspended until the finalisation of certain proceedings which are pending before this court under the case reference no HC 3072/21 [“<strong><em>the main application</em></strong>”]. That seems to be the interim relief. I wonder whether the applicants’ legal practitioners have simply mixed up the headings for the types of orders intended, or whether the arrangement is purposeful. Certainly, such formulation is not in accordance with Form No 29C, which is prescribed by r 247[1][a] of the old High Court Rules. Nonetheless, in the adjudication of disputes, the courts try and avoid being unnecessarily fastidious. They go to the nub of the matter and hope to solve the real dispute between the parties. Sometimes form has to defer to substance. What is clear in this case is that the applicants want the respondents interdicted from carrying out any form of development on the property pending the final determination of the main application which pits them and the respondents.</p> <p>[4]        Despite my reservations about the draft order, I do not see any prejudice in construing it in the manner I have done above. That enables me to deal with the real substance of the dispute. I note that in its heads of argument, the first respondent has taken the point that the draft order is defective in that the interim relief sought is final in both form and substance, allegedly in that there is no averment as to when this order will be discharged. However, this particular argument, which has not been presented as an objection <em>in limine</em>, whilst well taken, does not detract from dealing with the matter, either on the points <em>in limine</em> or, if need be, the merits. This is because a draft order is merely the mould into which the actual order of court will be cast, if the application is granted. An order of court must be efficacious. If an applicant succeeds, simple variations to the draft order, which do no violence to the substance of the remedy sought, or cause any injustice to the respondents, can be effected in terms of r 240[1] of the old Rules.</p> <p>[5]        The facts of this matter are straightforward. The applicants, both of them juristic entities, are owners of pieces of land adjacent to the property. It is on this basis that they claim <em>locus standi</em>. The property is owned by the second respondent, a local authority for the purposes of the Urban Councils Act [<em>Chapter 29:15</em>]. The property is designated for recreational use. The second respondent sold the property to the first respondent, a private company, in terms of an agreement of sale signed by the parties in November and December 2019. The applicants are objecting to the sale. They filed the main application in June 2021. In it, they seek a declaratory order in the following terms:</p> <ul> <li>that the process leading to the agreement of sale [between the respondents] should be declared unlawful, and</li> </ul> <p> </p> <ul> <li>that the written agreement of sale between the respondents pursuant to the impeached process be declared null and void.</li> </ul> <p>[6]        In the main application, the applicants allege that the processes undertaken by the second respondent prior to the agreement of sale was defective for want of compliance with the Urban Councils Act, more particularly in that:</p> <ul> <li>in the advertisement, the property was described as Stand 3189 Harare Township, yet this is not the stand sold to the first respondent, and also it is not the [correct] description of the property;</li> </ul> <p> </p> <ul> <li>the sale was only published once in a newspaper, as opposed to twice;</li> </ul> <p> </p> <ul> <li>the publication lacked the requisite details;</li> </ul> <p> </p> <ul> <li>no proof of the notice required to be posted at the second respondent’s office has been produced.</li> </ul> <p>[7]        The respondents are opposing the main application. Distilled, their main grounds of opposition are that the applicants are being frivolous and vexatious in that the sale was properly advertised and the property properly described. The requirements of the Urban Councils Act were complied with. The applicants failed to lodge objections timeously when the intended sale was advertised and are now seeking to do so improperly in this court, instead of eating humble pie and seeking condonation from the Administrative Court.  </p> <p>[8]        In the present application, the applicants allege that the respondents are behaving as if there are no proceedings pending before the court because they have done all the preparatory work to carry out construction work on the property. They have drilled a borehole on site; ten thousand bricks have been ferried; two cabins have been erected, and some water pumping equipment is being installed. If not stopped, the applicants will suffer irreparable harm in that, among other things, buildings will be put up; underground water will be depleted; the recreation park will disappear. They allege that the main application will be rendered academic, and any order issued by the court afterwards, if the applications succeed, will be a <em>brutum fulmen</em>.</p> <p>[9]        The respondents also oppose this application. The grounds are essentially the same as those in the main application. They have taken two points <em>in limine</em>. The first is that there is no valid application before the court because the purported certificate of urgency, which is an integral part of the application, and is the <em>sine qua non</em> for any matter being heard on an urgent basis, is incurably defective in that it was executed well ahead of the founding affidavits whose contents it purports to vouch for as establishing urgency.</p> <p>[10]      As a matter of fact, the certificate of urgency is dated 22 July 2021. The founding affidavits by the applicants are both dated 23 July 2021. It is trite that a certificate of urgency cannot vouch for anything said in the founding affidavit that was not there when the certificate was itself executed. A certificate of urgency must show, <em>ex facie</em>, that the legal practitioner who executes it, carefully examined the founding affidavit for facts which support the belief that the matter is indeed urgent: see <em>General Transport &amp; Engineering [Pvt] Ltd &amp; Ors </em>v <em>Zimbabwe Banking Corporation [Pvt] Ltd</em> 1998 (2) ZLR 301 [H] and <em>Chidawu &amp; Ors </em>v <em>Shah &amp; Ors</em> 2013 [1] ZLR 260 [S]. That an urgent application is incurably defective if the certificate of urgency purports to vouch for facts which were non-existent at the time the certificate was itself executed is trite: see for example, <em>Condurago Investments [Pvt] Ltd t/a Mbada Diamonds v Mutual Finance [Pvt] Ltd</em> HH 630-15.</p> <p>[11]      In the present matter, and on the face of it, the respondents’ objection is well taken. But it cannot succeed. The first applicant, in an answering affidavit, attaches two affidavits: one by its legal practitioner of record, and the other by the lawyer who executed the certificate of urgency. It is alleged in these affidavits that the date on the certificate of urgency suggesting that it was executed a day before the founding affidavits was a mistake. They swear that the certificate of urgency was indeed signed on the same day as those affidavits. It is stated that the lawyer certifying the matter as urgent had the founding affidavits with her when she executed the certificate. On his part, the legal practitioner of record attaches some contemporaneous e-mails between himself and the applicants to support the point that under no circumstances could the certificate of urgency have come into existence any day prior to 23 July 2021 because by then he had not yet been given final instructions to proceed with the urgent chamber application.</p> <p>[12]      I accept that predating the certificate of urgency to the founding affidavit was just a mistake. Such mistakes are not uncommon with legal practitioners, especially in the rush to prepare and file documents urgently. That is not to say they are acceptable. They are merely understandable. I adopt the same approach as I did in <em>Zimbabwe Lawyers for Human Rights v Minister of Transport &amp; Ors</em> 2014 [2] ZLR 44 [H]. Sometimes such minor mistakes must be allowed to stand in the interests of pragmatism and practicality, especially when there is no discernible prejudice.</p> <p>[13]      Furthermore, whilst two wrongs do not make a right, I cannot help but notice the respondents’ own clumsiness, or that of their lawyers in preparing the opposing affidavits. The one affidavit is a mere reproduction of the other, almost word for word, mistakes, warts and all. The nadir is para 18 of the second respondent’s opposing affidavit. It regurgitates para 18 of the first respondent’s affidavit. In its para 18, the first respondent, as buyer, says, “<em>The land was sold <strong>to me</strong> as recreational land</em>...”  The second respondent, the seller, also says in its own para 18, “<em>The land was sold <strong>to me</strong> as recreational land …!</em>” These are supposed to be serious documents prepared in a serious matter for serious consideration by a serious court and for which serious money has probably been paid. That is why earlier on, I alluded to the fact that in the adjudication of disputes, the courts sometimes simply pay a blind eye to maladroit presentations in order to dispense justice. At any rate, the respondents, particularly in their heads of argument, do not at all comment on the affidavits by the applicants’ lawyers, or argue why I should not take their word at face value, especially as they are officers of the court. Accordingly, the respondents’ first objection <em>in limine</em> is hereby dismissed.</p> <p>[14]      The respondents’ second objection <em>in limine</em> is that the matter is not urgent. This objection is predicted on the observation that the order sought in the main application is merely declaratory the efficacy of which, if the applicants succeed, cannot be affected by anything done, or being done by the respondents in the interim. It is argued that what is sought in the main application is merely the nullification of the agreement of sale between the respondents. The order sought is not to declare the property as such an area as cannot be sold and transferred; or to prohibit the construction of any buildings on it; or to maintain the land in its current state; or to prevent the abstraction of underground water through a borehole. As such, the argument concludes, there is no imminent danger to any perceived rights of the applicants. At any rate, the applicants have not shown that there is no alternative remedy, especially given that damages are generally an alternative remedy, unless shown to be unsuitable.</p> <p> [15]     However, I rule that the matter is urgent. The respondents’ second ground of objection is properly dealt with under the merits of the dispute. The arguments are not acceptable as preliminary objections if the effect of them is to non-suit the applicants, right at the outset. Whether the nature of the remedy sought in the main application is merely declaratory, and not substantive, is a question that is properly decided under the merits of the dispute. It is also the same with regards the question whether the applicants have an alternative remedy. The applicants allege that the respondents, with the full knowledge that the main application is pending, have proceeded to carry out developments on the property. The applicants got to know about this on 21 July 2021. On 23 July 2021, a mere two days later, they filed the urgent chamber application. The respondents’ second objection <em>in limine</em> is hereby dismissed. That paves the way for the determination of the matter on the merits.</p> <p>[16]      On the merits, it is always necessary to lay out the requirements for an interim interdict. Doing so, is akin to setting up a directional compass to navigate the course on the merits. These requirements are now so well-known as to require no citation of authorities beyond the <em>locus</em> <em>classicus Setlogelo v Setlogelo</em> 1914 AD 221. An applicant must show a <em>prima facie</em> right having been infringed, or about to be infringed, even if it be open to some doubt; an apprehension of an irreparable harm if the interdict is not granted; a balance of convenience favouring the granting of the interdict; the prospects of success on the merits, and the absence of any other satisfactory remedy. But legal principles are not an exact science like mathematics where, for instance, one plus one is always equals to two. These factors are considered objectively, cumulatively and in the context of the facts. One or other of them may be more important in some cases than they may be in others.</p> <p>[17]      The basis upon which the applicants claim <em>locus standi</em> has not been properly laid out. All that they say is that they are owners of premises adjacent to the property. It is not clarified by what law, whether common law, statute, or otherwise, such circumstances grant them the requisite <em>locus standi in judicio</em>. Except for a fleeting reference to s 152 of the Urban Councils Act in the main application, the court has not been invited to take judicial notice of any circumstances or legal provisions as would establish <em>locus standi</em> for persons in the position of the applicants. However, since the respondents do not challenge the applicants’ <em>locus standi</em>, I hold that having shown that there are legal proceedings pending before this court which pit the same parties and in which the same or kindred remedies are being sought, the applicants would have the right to ensure that those proceedings are not undermined by anything done by the respondents in the interim. On the face of it, they have the right to demand that the <em>status quo ante</em> be preserved until final determination of the main matter. On the face of it, they have the right to ensure that the main application is not negated. That right may be open to some doubt, as is self-evident from my concerns regarding <em>locus standi</em>. However, all that is in the nature of an interim interdict, and is therefore tolerable at this stage. The applicants only need to establish a <em>prima facie</em> right. But that hardly is the end of the enquiry.</p> <p>[18]      It is on the second requirement for an interim interdict that the application flounders, namely, an apprehension of an irreparable harm if the interdict is not granted. As the respondents argue, all that the applicants seek in the main application is a declaration of invalidity of the process leading to the agreement of sale between the respondents in respect of the property. Concomitantly, they also seek the setting aside of that agreement. Demonstrably, the main application shall not declare the property as one not open to a sale and transfer by the second respondent to any interested buyer, including the first respondent. It shall not lead to an impeachment of the second respondent’s power to dispose of the property. It shall not lead to a prohibition against the construction of any buildings on it or the abstraction of any water from it. It shall not lead to an order maintaining the property in its current state for all time, or preserving it exclusively as a recreational park for use by the respondents alone or other persons in their class or similar situation.</p> <p>[19]      The applicants argue that all those disparate remedies above are implied in the declaratory order, or are consequential to it. They maintain that the developments that are now happening at the property stem from the impugned agreement of sale. That cannot be correct. At the very most, if the applicants succeed in the main application, the respondents will simply have to go back to the drawing board. If their agreement of sale is nullified, it will not mean that the second respondent will no longer be able to correct whatever mistake it might have committed and proceed to dispose of the property, if it will still be so minded. In other words, it may well be that a court has the power to stop the second respondent from disposing the property in any way, or prevent it from changing its character from recreational to something else. But this will not be possible in the main application. I have looked at the pleadings. Not only have they been made part of this application, but also the whole record has been placed before me. There is no chance of the court going beyond the four corners of the <em>declaratur</em> being sought therein, or its precincts.</p> <p>[20]      In the circumstances, I reject the applicants’ argument that the efficacy of the main application stands compromised by what the respondents are alleged to be doing, or that the order of the court in that application will be negated, or will be a <em>brutum fulmen</em> if the interdict sought in this interim period is not granted. It follows from this that the balance of convenience weighs in favour of not granting the interdict. It seems a substantial amount of money has already been laid out in the purchase of the property and the commencement of development. The agreement of sale in question expressly ensures that the property remains recreational. Any buildings to be erected shall be designed for recreational purposes to the satisfaction of the second respondent.  The purchase price was above RTGS$1.89 million. The applicants say this was too little and that this is evidence of bias or favouritism. However, this is just a nude allegation which takes no one anywhere. There is no information why it is alleged that the amount was too little. Thus, there seems to be no justification for the court to intervene at this stage.</p> <p>[21]      It is always dicey to comment on the prospects of success of the main application without having had the benefit of argument, worse still when pleadings are apparently still being filed. However, it is a task that must necessarily be embarked upon in an application of this nature. Therefore, I proceed to do so. It is my considered view, albeit <em>prima facie</em>, that the applicants’ case is limping. For example, it seems that the bulwark of their attack against the agreement of sale, or the process preceding it, is the alleged misdescription of the property. But it is doubtful that a description that says “<em>Harare Township</em>”, instead of “<em>Salisbury Township</em>”, will be found to be 1800 off the mark. Furthermore, it is doubtful that on the papers currently on record, a conclusion will be reached that there was non-compliance with the pre-disposal obligations in respect of urban council land as set out in s 152 of the Urban Councils Act. Still further, the reason why the applicants lodged no objection timeously when the property was advertised for sale, shall probably weigh heavily against them.     </p> <p>[22]      It is upon a consideration of the more relevant factors for an interim interdict that I have come to the conclusion that the present application cannot succeed. Accordingly, it is hereby dismissed with costs.</p> <p> </p> <p>11 August 2021</p> <p><em>Gill, Godlonton &amp; Gerrans, </em>legal practitioners for the applicant</p> <p><em>Manase &amp; Manase, </em>legal practitioners for the first respondent</p> <p><em>Gambe Law Group</em>, legal practitioners for the second respondent</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/413/2021-zwhhc-413.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=73809">2021-zwhhc-413.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/413/2021-zwhhc-413.pdf" type="application/pdf; length=588820">2021-zwhhc-413.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/locus-standi-judicio">Locus standi in judicio</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/certificate-urgency">certificate of urgency</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2013/12">Chidawu &amp; Others v Shah &amp; Others (293/11) [2013] ZWSC 12 (17 March 2013);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/630">Condurago Inv. (Pvt) Ltd v Mutual Finance (Pvt) Ltd (HC 4019/15) [2015] ZWHHC 630 (21 July 2015);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2014/353">ZLHR v Minister of Transport, Communication &amp; Infrastructure Develeopment N.O &amp; 2 Ors (HH 353-14, HC 5708/14) [2014] ZWHHC 353 (14 July 2014);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2001/222001">Urban Councils Act, 2015 [Chapter 29:15]</a></div></div></div> Tue, 17 Aug 2021 10:24:10 +0000 Sandra 10097 at https://old.zimlii.org Muchenurwa v Double M Prospects And Anor (Judgment No. HB 147/21) [2021] ZWBHC 147 (30 July 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/147 <span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interdict-sought-provisional-relief-urgent-application">interdict sought as provisional relief (Urgent Application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1961/38">Mines and Minerals Act [Chapter 21:05]</a></div></div></div> Thu, 12 Aug 2021 06:34:10 +0000 Sandra 10090 at https://old.zimlii.org Fidelity Life Assurance Company of Zimbabwe v CF Holdings Ltd (HH 220-21, HC 1158/21) [2021] ZWHHC 220 (29 April 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/220 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>FIDELITY LIFE ASSURANCE COMPANY OF ZIMBABWE LIMITED </p> <p>versus</p> <p>CFI HOLDINGS LIMITED </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>FOROMA J</p> <p>HARARE, 16  &amp; 29 April 2021</p> <p> </p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p> </p> <p><em>D. Tivadar</em>, for the applicant </p> <p><em>T. Mpofu with R Mabwe, </em>for the respondent</p> <p> </p> <p>            FOROMA J: This is an urgent chamber application in terms of which the applicant Fidelity Life Assurance of Zimbabwe Limited hereinafter referred to as Fidelity seeks a provisional order whose terms of the final order sought and interim relief granted are as follows:</p> <p>            “TERMS OF THE FINAL ORDER SOUGHT</p> <p>            That you show cause to the Honourable Court why a final order should not be made in the following             terms:</p> <p>            1.         That a final interdict barring respondent from carrying out developments and construction                activities on the property being a certain piece of land situate in the District of Salisbury                               being the remaining extent of Langford measuring 2061,7256 acres and held under Deed                             of Transfer number 212/63 be and is hereby granted.</p> <p>            2.         That the respondent shall pay the costs of suit on the higher scale of legal practitioner and                client</p> <p>            INTERIM RELIEF GRANTED</p> <p> </p> <p>            Pending determination of this matter the applicant is granted the following relief:</p> <p> </p> <p>            1.         An order of spoliation be and is hereby granted against the respondent</p> <p>            2.         Applicant shall have its possession and all access restored in respect of the property being                a certain piece of land situate in the district of Salisbury being the remaining extent of                                  Langford measuring 2061,7256 acres and held under deed of Transfer number 212/63                                 within 24 hours of the service of this order.</p> <p>            3.         In the event of non-compliance with the order under paragraph 2 above the Sheriff of the                            High Court of Zimbabwe is ordered to enforce this interim order to allow applicant to                                   regain possession of the property being a certain piece of land situate in the District of                                  Salisbury being the remaining extent of Langford measuring 2061,7256 acres and held                                 under deed of Transfer number 212/63</p> <p>            4.         That the respondent be and is hereby interdicted from carrying out developments and                                   construction activities on the property being a certain piece of land situate in the District                               of Salisbury being the remaining extent of Longford measuring 2061,7256 acres and held                under deed of transfer number 2121/63 pending the determination of the dispute between                            the applicant and the respondent in relation to their shareholding in Langford estates (1962)             Private Limited.</p> <p>            5.         Costs be costs in the cause</p> <p> </p> <p>            Service of the Provisional Order</p> <p>             This provisional order shall be served upon the respondent by the applicant’s legal practitioners.”</p> <p> </p> <p>            The brief background to this urgent application according to the applicant’s papers is that the parties are shareholders in a company called Langford Estates 1962 (Private) Limited (hereinafter referred to as Langford) wherein applicant holds 80,77 percent issued share capital. Langford is the owner of a property described as a certain piece of land situate in the District of Salisbury being the remaining extent of Langford measuring 2061,7256 acres and held under deed of Transfer number 212/63 (hereinafter referred to as the property).</p> <p>            Applicant acquired the 80,77 percent issued share capital in Langford on 30 June 2015 in a sale of shares agreement with respondent occasioned by some financial fix that respondent found itself in together with Langford and Crest Poultry Group (Private) Limited. The sale of shares agreement was entered into to assist the respondent raise finances to the settle financial fix aforesaid.</p> <p>            Applicant claims that after the conclusion of the transaction (share sale agreement) it was granted possession and control of the property as the majority shareholder. Applicant  also claims that on 17 March 2021 applicant’s employee one Evas Chitute was forcibly and unlawfully barred from entering into the property by armed personnel contracted by respondent despite having duly identified himself as a person in applicant’s employ.</p> <p>            Applicant thus brought this application as it considered that respondent had despoiled it. Respondent strongly opposed the applicant’s application and in its opposing affidavit raised the following points in <em>limine:</em></p> <p>            (a)        Must pay costs</p> <p>            (b)        matter not urgent</p> <p>            (c)        invalid relief sought</p> <p>            (d)       interim and final relief</p> <p>            (e)        no cause of action and</p> <p>            (f)        disputes of fact and sought the dismissal of the application with costs on the higher                       scale</p> <p>            This matter initially came before Tsanga J who dismissed the matter on the technical ground that applicant had not used the correct form as provided in the rules of the court. Applicant immediately returned to court still on an urgent basis having removed the cause of the technical objection.</p> <p>            At the hearing of this application respondent which was represented by <em>Advocate T Mpofu</em> took up all the points in l<em>imine</em> except for (a) which though not expressly abandoned was not addressed in arguments.</p> <p>            I can only assume that the respondent did not find its prospects on this point in <em>limine</em> to be reasonable after considering applicant’s response to it in the answering affidavit.</p> <p>            I deal with the argument addressed by each party in respect of the remaining points in <em>limine</em> taken seriatim.</p> <p>(b)        Matter not urgent</p> <p>            The respondent considered that the matter was not urgent as the situation prevailing at the property had so prevailed even before the putative and now challenged agreements purportedly concluded in 2015. In addition respondent argued that it has at all times had management rights and applicant has never taken any occupation as indeed the applicant as a shareholder is entitled to no occupation. As indicated before, Applicant claimed under oath that its employee had been barred from entry. <em>Prima facie</em> the court without having to resolve the disputed legal rights associated with the substantive claim of spoliation must accept the applicant’s assertion under oath that it was forcibly barred from entry onto the property. Despoiling can either take the form of forcible ejection from premises or forcible exclusion from entry. Respondent did not dispute that applicant’s employee was forcibly excluded from entry on 12 March 2021. I therefore find that the matter is urgent on account of the events of 12 March 2021 as deposed to by the applicant’s employee under oath.</p> <p>(c)        Invalid Relief Sought</p> <p>            Respondent’s argument is that applicant has applied for spoliatory relief as interim relief based on a provisional order which order is obtainable on proof of a <em>prima facie</em> case. An order <em>mandamen van spolie</em> is a final order which can only be obtained on proof of a case on the normal standard of proof in civil matters i.e proof on a balance of probabilities. Applicant whilst accepting the legal position that a spoliation order is a final order argued that the applicant did not seek an interim order in respect of spoliation but in respect of an interim interdict. A consideration of the terms of the final order sought by applicant reveals that no reference is made to the interim order of spoliation suggesting that the spoliation order was intended to be a final order. However seeking or obtaining a final order as a provisional order is contradictory in terms. In paragraph 3 of the interim relief of the provisional order applicant worded the relief sought as follows:</p> <p>            “In the event of non compliance with the order under paragraphs 2 below, the Sheriff of the High    Court of Zimbabwe is ordered to enforce this interim order to allow applicant to regain possession             of the property…” (underlining for emphasis)</p> <p> </p> <p>            It is clear that applicant sought an order of spoliation as interim relief under a provisional order contrary to the law. See <em>Blue Rangers Estates P/L</em> v <em>Muduvuri and Anor</em> 2009 (1) ZLR 368 (S). Applicant did not help its situation in the answering affidavit when it averred as follows:</p> <p>            “6.1     It is denied that the relief sought is invalid. Whilst spoliatory relief is final in nature the                                 same can only be in the provisional order being sought.”</p> <p> </p> <p>             Clearly the respondent is on firm ground in its argument that the relief sought is invalid.</p> <p> </p> <p>(d)       Interim and final relief</p> <p>            The respondent also argued that the application is also invalid on account of the substantive similarity in the terms of the interim and final relief sought in so far as the interim interdict is concerned. Citing the case of <em>Rolland Electro Engineering P/L</em> v <em>Zimbank</em> 2003 (1) ZLR 226 <em>Advocate Mpofu</em> submitted that the reason for the prohibition of the similarity is clear and it is to prevent a party from securing final relief on proof of a <em>prima facie</em> case. Applicant readily acceded this point in <em>limine</em>.</p> <p>(e)        No cause of Action</p> <p>            This was premised on the fact that applicant while claiming to be a major shareholder acknowledged that the owner of the property was Langford in which he held shares and it (applicant qua shareholder) could not enforce the right of possession which belonged to an owner. Applicant sought to argue that by reason of its being the majority shareholder more than 80 percent it was granted the right of control of the property.  Respondent strongly disputed applicant’s claim in this regard. This issue is so inter linked to the last point in <em>limine</em> (disputes of fact) it is not possible to resolve it on the papers least of all in an urgent chamber application</p> <p>(f)        Disputes of Fact</p> <p>            The applicant conceded that although there were material disputes of fact the relevant one being whether or not applicant was in physical control of the property prior to the alleged despoiling, this could be resolved by the judge taking a robust view of the evidence. Applicant’s counsel accepted that the parties’ positions were so diametrically opposed one of them must have lied under oath. Asked who between the deponents the judge should believe Mr <em>Tivadar</em> (counsel for the applicant) urged the court to believe the applicant on the basis that it (applicant) had placed before the court evidence of activity on the property which was consistent with control of the property against respondent who made bare denials under oath. The respondent disputed that correspondence allegedly showing activity was addressed to applicant. Respondent’s counsel argued that the only way to resolve material dispute of fact in the circumstances is by hearing evidence which entailed the court making findings on credibility which cannot be done in an urgent chamber application. Applicant ought to have appreciated this real and material dispute of fact when the issue was raised at the time the matter appeared before TSANGA J and should not have insisted on bringing back the matter as an urgent chamber application but as an urgent court application-<em>Andrew John Pascoe</em> v <em>Ministry of Lands and Rural Resettlement</em> <em>and W Bungu and the Attorney General </em>HH 391/17</p> <p>COSTS</p> <p>            Respondent urged the court to dismiss applicant’s application and award it costs on the higher scale of legal practitioner and client. Counsel for respondent argued that applicant did not argue why such order should not follow in view of the same points in <em>limine</em> having been raised about 3 weeks earlier before Tsanga J. Applicant succeeded on the issue of urgency. It however lost in respect of the other points in <em>limine</em> raised not because they persisted on a hopeless argument. For example the concession on the substantially similar relief in the final order sought and interim relief granted was a proper one. Applicant’s argument on invalidity of relief sought was one that arose from the documents filed even though it did not succeed on it. In the circumstances I do not find costs on the higher scale to be justified.</p> <p> </p> <p>DISPOSITION</p> <p>            It is ordered that for the foregoing reasons applicant’s application be and is hereby dismissed with costs.</p> <p><em>Mawere Sibanda Commercial Lawyers</em>, applicant’s legal practitioners</p> <p><em>Nyawo Ruzive</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/220/2021-zwhhc-220.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22701">2021-zwhhc-220.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/220/2021-zwhhc-220.pdf" type="application/pdf; length=332965">2021-zwhhc-220.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/company">COMPANY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/shareholder">Shareholder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/shares">Shares</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/final-interdict">Final interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/action-practice-and-procedure">Action (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cause-action">cause of action</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-spoliation-order">application for spoliation order</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/certificate-urgency">certificate of urgency</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interdict-sought-provisional-relief-urgent-application">interdict sought as provisional relief (Urgent Application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-spoliation">What is (SPOLIATION)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/11">Pascoe v Ministry, Lands and Rural Resettlement &amp; Others (HH 11-17 , HC 12511/16) [2017] ZWHHC 11 (11 January 2017);</a></div></div></div> Mon, 17 May 2021 08:28:11 +0000 Sandra 10002 at https://old.zimlii.org Kagandi v Muzunze N.O & Anor (HMA 63-20, HC 283/20 Ref Case No. HC 263/20) [2020] ZWMSVHC 63 (06 November 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/63 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p> </p> <p>ROBERT KAGANDI</p> <p>versus</p> <p>DENIES MUZUNZE (N.O.) </p> <p>(In his official capacity as Executor Dative of Estate late EPHRAIM TICHAONA MUZUNZE)</p> <p>And</p> <p>THE MASTER OF THE HIGH COURT (N.O.)</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>WAMAMBO J</p> <p>MASVINGO, 23 OCTOBER, 2020 and 6 NOVEMBER, 2020</p> <p> </p> <p> </p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p> </p> <p> </p> <p><em>T. Tabana</em>for the applicant</p> <p><em>R.C. Chakauya</em>for 1strespondent</p> <p>No appearance for 2ndrespondent </p> <p> </p> <p> </p> <p> </p> <p>WAMAMBO J:          The applicant seeks the following Order. </p> <p>“<strong><em>TERMS OF THE FINAL ORDER SOUGHT</em></strong></p> <p><em>That you show cause to this Honourable Court, if any, why a final order should not be made in the following terms;</em></p> <ol> <li><em>That the first respondent or any person acting on his behalf for the purpose of furthering the interests of the first respondent be and are hereby ordered to refrain from in any way interfering with the applicant’s possession or occupation of Coronation 2 situated approximately party (sic) on Bruceham Farm (6 Hectares) party (sic) on Victoria Park Farm (1 Hectare) approximately 137m North of Coronation School and approximately 500m north east of trig Beacon 475/1 RE Pegs 4697 &amp; 4718 Masvingo and shall be so interdicted and/or restrained from any such future interference save (sic) may be authorized by a binding and operational order of competent jurisdiction.</em></li> </ol> <p> </p> <ol> <li><em>The first respondent shall pay costs of suit if he opposes the application.</em></li> </ol> <p> </p> <p><strong><em>TERMS OF INTERIM RELIEF GRANTED</em></strong></p> <p> </p> <p><em>That pending the finalisation of this matter the first respondent is restrained and interdicted as follows:-</em></p> <p> </p> <p><em>Pending the determination of the applicant’s application for a declaratory order of case number HC 263/20, the first respondent or any other person(s) acting on his behalf be and are hereby interdicted and restrained from doing any acts likely to interfere with the applicants’ mining operations, peaceful possession and/or occupation of Coronation 2 Mine, Masvingo”</em></p> <p> </p> <p>The background is pieced together by the applicant as follows. The applicant is a member of Enfield Syndicate and thus a joint holder of rights emanating from Certificate of Registration Number 5244 in respect of a mining location styled Coronation 2 Mine.</p> <p>On 12 October, 2020 first respondent visited Coronation 2 Mine and threatened applicant’s employees for mining at the said mine. First respondent instructed certain persons to enter the mine and also removed ore produce from applicant’s a shaft and sold the same. </p> <p>First respondent threatened to continue visiting Coronation 2 Mine daily to disturb applicant’s mining operations announcing that he has the sole rights to mine at the said mine.</p> <p>This Urgent Chamber Application was filed with the Registrar of this court on 21stOctober, 2020. </p> <p>The first respondent opposes the application and avers as follows:-</p> <p>He is the Executor Dative in his late father Ephraim Tichaona Muzunze’s Estate. Coronation 2 Mine has always been under the sole control of his late father. There is no partnership agreement or certificate of transferor and transferee culminating in the formation of Enfield Syndicate.  </p> <p>Applicant should have produced a Certificate of Registration after transfer reflecting that after the registration of Coronation 2 there was transfer of rights to applicant. A Certificate of Registration after transfer of Enfield Syndicate’s name with a transfer number and not a registration number should have been produced. The Certificate of Registration is irregular. A lot is alleged on alleged irregularity of the Certificate of Registration. </p> <p>First respondent also avers that applicant has no direct and substantial interest in Coronation 2.</p> <p>First respondent also avers that he has never seen applicant at the mine and that the workers thereat used to work for Sarah Mutema. He further avers that he has never removed gold ore from Coronation 2 Mine.</p> <p>The second respondent submitted a report. It confirms that Ephraim Tichaona Muzunze’s Estate was registered with their office in September 2017 under DRMS 219/17. Coronation 2 Gold Mine Registration No. 5244 is listed on the preliminary inventory among other assets of deceased.</p> <p>The second respondent avers that her office is not privy to the percentage of the gold claim owned by deceased since the Executor is yet to file the Executor’s Inventory in terms of Section 38 of the Administration of Estate, Act [<em>Chapter 6:01</em>]. The estate is yet to be finalised.</p> <p>The first respondent however raised a point <em>in limine</em>to the effect that the matter is not urgent. The reasons given are that his alleged interference at the mine happened on 12 to 13 October, 2020 yet this application was lodged on 21 October, 2020, which is an unreasonable delay.</p> <p>It is further alleged that this application is brought so that applicant can have access to Coronation 2 Mine and extract as much gold ore as possible to the extent of depleting the gold ore. </p> <p>It is further alleged that applicant seeks through this application to extract gold from Coronation 2 Mine pending the hearing of the matter wherein he applies for a declaratory order (HC 263/20).</p> <p><em>Mr Tabana</em>was of the view that it has become fashionable that points <em>in limine</em>are raised in Urgent Chamber Applications. He argued that an 8 day delay was not inordinate. He gave an account of how applicant had to brief a Harare based legal practitioner, the preparation of papers and filing them at Masvingo High Court.</p> <p>I need not be detained by this point <em>in limine</em>. I am not convinced an 8 day period amounts to an inordinate delay in the circumstances of this case. I have considered the distances between Masvingo and Harare and the need for communication between applicant lawyers and movement of documents to be lodged at Masvingo High Court. In exercising my discretion I find in the circumstances that the 8 day delay in filing the application has been satisfactorily explained. See <em>Econet Wireless (Pvt) Ltd</em>v <em>Trustco Mobile (Proprietary) Ltd</em>(2) <em>Trustco Group International</em>(<em>Proprietary) Ltd</em>SC 43/13 at page 14. </p> <p>I then turn to the merits of the matter. Effectively the applicant seeks an interdict against the first respondent.</p> <p>It becomes necessary to probe the requirements of an interdict and apply the same to the circumstances of the instant matter.</p> <p>The requirements of an interdict have long been settled and they are as follows:-</p> <ol> <li>a clear or <em>prima facie</em>right</li> <li>a well-grounded apprehension of irreparable harm if the interim relief is not granted</li> <li>that the balance of convenience favours the granting of an interim interdict and</li> <li>that the applicant has no other satisfactory remedy</li> </ol> <p>Applicant avers that a <em>prima facie</em>right was established in that he proved that he is a joint owner of Enfield Coronation 2 Mine.</p> <p>A Certificate of Registration was produced by the applicant. It bears a registration and licence number. It reflects that Enfield Syndicate is the registered holder of 7 hectares of gold dump claims named Coronation 2.</p> <p>The record reflects a second page which has the names Ephraim Tichaona Muzunze and Robert Kagandi as members. Because of the spirited arguments raised suggesting that the Certificate of Registration was irregular. I requested for the original copy of the said Certificate of Registration. I observed on the original copy that the names of the members of the syndicate are endorsed at the back of the said certificate.</p> <p>The handwriting endorsing the said names appears on the face of it to be similar to the handwriting on the front of the said document. As mentioned earlier, there were spirited efforts by <em>Ms Chakauya</em>for the 1strespondent to point at irregularities on the Certificate of Registration (RK1). The document (RK1) is in Form M.M.8 under the Mines and Minerals Act. It bears an official stamp and a signature under the portion of Mining Commissioner. If the said document is as irregular as was pointed out surely the authorities who on the face of it authored it should have been approached by 1strespondent and adduced an affidavit disowning the same. The fact that Enfield Syndicate is the registered holder of mining rights at Coronation 2 Mine, with nothing more would hardly mean much in favour of 1strespondent. It is the endorsement of the late Ephraim Tichaona Muzunze and applicant’s names at the back of the said document that I consider decisive. Why would applicant’s name find itself on an official government document. The answer would be because he is connected to the Syndicate. 1strespondent has alleged that the document is irregular and has not given sufficient and cogent reasons for so saying.</p> <p>RK6 is a letter emanating from the Ministry of Mines and Mining Development under the hand of M. Muzira the Acting Provincial Mining Director for Masvingo. The letter dated 3 June, 2020 details the history concerning the ownership of Coronation 2 Mine. In a nutshell the letter   (it seem that the middle name was misspelt) and Robert Kagandi.</p> <p>By virtue of the two documents read together and other ancillary documents namely RK2 – RK5, I find that applicant has established a <em>prima facie</em>right that is to say by being a member of Enfield Syndicate he has a substantial interest in the mining operations, extraction and sale of gold  at Coronation 2 Mine.</p> <p>Applicant avers that 1strespondent has already listed Coronation 2 as belonging to the Estate of his late father, when the said mine is jointly owned. He avers that he may lose his joint ownership permanently if the said Estate is wound up. Further that he stands to lose financially if the interdict is not granted. Flowing therefrom is that 1strespondent may continue to benefit from the gold ore alone to the exclusion of applicant. He avers that he has no other remedy in the circumstances and avers that 1strespondent has no respect for due process as he has taken the law into his own hands. Applicant argues that the balance of convenience favours him as he has always been mining in a defined area.</p> <p>He further argues that the case he has filed under HC 263/20 will make a final determination on whether or not applicant is a registered joint owner of Coronation 2 Mine.</p> <p>Specifically because HC 263/20 is endorsed as a reference case on the application and is again cited in the draft order, I requested for the file and perused it. HC 263/20 is a pending matter wherein applicant is applying for a declaratory order as aforementioned.</p> <p>The respondents in that case are 1strespondent in this case as the 1strespondent. 2ndrespondent in this case is also 2ndrespondent, 3rdrespondent is Marshall Muzira N.O, 4threspondent is the Minister of Mines and Mining Development N.O., 5threspondent is the Chief Mining Commissioner N.O. and 6THrespondent is the Secretary, Mines and Mining Development N.O.</p> <p>I note in passing that 4thto 6threspondents have already filed a preliminary response to the application. In the case of her submissions <em>Ms Chakauya</em>mentioned that there was a syndicate but quickly withdrew the remark. I am sure there was a reason why that remark was made. <em>Mr Tabana</em>made a meal out of the remark. For the fact that it was withdrawn I will consider it as a neutral remark. In other words I will not find that <em>Ms Chakauya</em>conceded the existence of a syndicate nor refuted its existence.</p> <p><em>Ms Chakauya</em>was however of the opinion that mining operations should be stopped for both parties. She seemed to emphasise and concentrate on the requirement of a <em>prima facie</em>right.</p> <p>In the circumstances I find that applicant may suffer financial irreparable harm. If 1strespondent persists with disturbing applicant’s operations. The balance of convenience is defined in <em>Tornbridge Assets Limited and Cut Rag Processors (Private) Limited</em>v <em>Livera Trading (Private)</em><em>Limited and 3 Others</em>HH 122-17 at page 7 as follows:-</p> <p>“<em>The balance of convenience is determined by weighing the prejudice to the applicants if the interim relief is refused against the prejudice to the respondent if it is granted</em>.”</p> <p> </p> <p> See <em>Nyambi &amp; Ors</em>v <em>Minister of Local Government &amp; Anor</em>2012(1) ZLR 559 (H).</p> <p>In this case if the interim relief is refused applicant will continue to be disturbed in his mining operations to his prejudice, financially and otherwise. On the other hand if 1strespondent stays within his rights he will not be prejudiced for he is the one I have found to be transgressing on applicant’s <em>prima facie</em>right to mine at Coronation 2.</p> <p>The pending matter HC 263/20 will bring finality to the wrangle on who owns Coronation 2 Mine.</p> <p><em>Ms Chakauya’s</em>suggestion that both parties should desist from mining operations is not justified. The application is brought to interdict 1strespondent from interfering with applicants mining operations.</p> <p>I find that applicant has made out their case and deserve the relief sought.</p> <p>In the circumstances I order as follows:-</p> <p>The application is granted as per the draft order.</p> <p> </p> <p><em>Rubaya and Chatambudza</em>, applicant’s legal practitioners </p> <p><em>Muzenda and Chitsama Attorneys</em>, 1strespondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/63/2020-zwmsvhc-63.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24793">2020-zwmsvhc-63.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/63/2020-zwmsvhc-63.pdf" type="application/pdf; length=142547">2020-zwmsvhc-63.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/m">M</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2013/43">ECONET Wireless v TRUSTCO Mobile Ltd &amp; Another (Civil Appeal No SC 171/11) [2013] ZWSC 43 (25 September 2013);</a></div><div class="field-item odd"><a href="/zw/judgment/constitutional-court-zimbabwe/2016/13">Livera Trading (Pvt) Ltd &amp; Others v Tornbridge Assets Ltd. &amp; Others (CCZ 13/2016 Chamber Application No CCZ 62/16) [2016] ZWCC 13 (17 October 2016);</a></div></div></div> Fri, 27 Nov 2020 08:05:13 +0000 Sandra 9956 at https://old.zimlii.org ZESA Holdings (Private) Limited v Gata (HH 554-20, HC 4078/20) [2020] ZWHHC 554 (10 September 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/554 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ZESA HOLDINGS (PRIVATE) LIMITED</p> <p>versus</p> <p>SYDNEY ZIKUZO GATA</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI  J</p> <p>HARARE, 6 August 2020, 12 August 2020 and 28 August 2020</p> <p> </p> <p> </p> <p><strong>Urgent Application for an interdict</strong></p> <p> </p> <p> </p> <p><em>M Banda </em>with <em>M Sinyoro</em>, for the applicant</p> <p><em>L Madhuku</em>, for the respondent </p> <p> </p> <p> </p> <p>            CHITAPI J: The applicant is Zesa Holdings (Private) Ltd a company duly incorporated and registered in accordance with the laws of Zimbabwe. The respondent Sydney Gata is the applicant’s Executive Chairman. The applicant is a wholly owned Government of Zimbabwe company. The Government appoints the applicant’s board of directors and also appointed the respondent in his capacity as aforesaid. The employment contract of the respondent as Executive Chairman was executed between the respondent and the Minister of Energy and Power Development representing Government. The employment contract was executed by the parties aforesaid on 27 February 2019. I will revisit the contract later in this judgment. The dispute I must deal with is therefore one involving the company and its Executive Chairman.</p> <p>            The applicant filed this urgent application for a provisional order which reads as follows in draft:</p> <p>            TERMS OF FINAL RELIEF SOUGHT</p> <p>            That you show cause to the Honourable Court why a final order should not be made in the             following terms:-</p> <p>            1.         Pending finalization of investigations into his conduct, respondent be and is hereby                       interdicted from accessing the applicant’s premises wherever situate in Zimbabwe              including access to its employees and platforms housing Applicant’s documents                                 and/or information.</p> <p>            2.         That the costs shall be borne by the respondent on the scale of legal practitioners                            and client</p> <p>            INTRIM RELIEF GRANTED</p> <p>            Pending the determination of this matter the applicant is granted the following relief</p> <p>            1.         Pending finalization of investigations into his conduct, respondent be and is hereby                       interdicted from:</p> <p>                        1.1       Holding himself out as Chief Executive Officer and Chairperson of the                                          Applicant and calling for meetings in that capacity;</p> <p>                        1.2       Accessing the applicant premises wherever situate in Zimbabwe including                                      access to its employees and virtual platforms housing applicant’s                                                     documents and/or information</p> <p>            SERVICE OF THE PROVISIONAL ORDER</p> <p>            This provisional order be served on the respondent by Sheriff of this Honourable Court.</p> <p>            The respondent opposed the application strenuously on various grounds. The respondent raised several points in <em>limine</em> which I dismissed after submissions by the parties’ counsel. I indicated that I would provide my reasons for the dismissal in the main judgment. The points in l<em>imine</em> were stated as follows:</p> <p>            (a)        the applicant is not properly before the court as the deponent has no authority                                whatsoever to bring it before a court nor can the applicant be brought to court at the                      instance of the persons that purportedly authorized the deponent.</p> <p>            (b)        the relief sought is not competent as both the interim and final reliefs are the same.</p> <p>            (c)        there are material disputes of fact relating to the respondent’s position that cannot                                     be resolved on the papers</p> <p>            (d)       on the deponent’s averments, this court has no jurisdiction</p> <p>            I deal with the points in <em>limine</em> in turn. In regard to point (a) the respondent submitted through his counsel that he was appointed to the position of Executive Chairman of the applicant by his Excellence, the President of the Republic of Zimbabwe, E.D. Mnangagwa. It was averred that his position of Executive Chairman was special in as much it was made in extra-ordinary circumstances. The respondent attached two copies of what he presented as his letters of appointment. He averred that the “letters were signed by the Minister of Energy and Power Development as directed by his Excellency.”</p> <p>            The first letter was dated 18 November, 2019 and was written by the then Minister of Energy and Power Development (hereinafter called Minister for brevity) Fortune Chasi (MP). In the letter it is stated that the Government had identified the respondent as the person to lead the applicant in the capacity of Executive Chairman. It was further stated therein that the respondent would be expected as the Executive Chairman of the board, to adopt a hands on approach and attend to issues on the operations of the applicant so that the power situation in the country is urgently resolved. It was further stated that the applicant would be provided with a detailed mandate regarding his board’s tasks at the institution. The applicant was invited to sign the letter if he accepted the appointment. He did so on the same date that the letter was written, which was on 18 November, 2019.</p> <p>            The second letter was dated 18 December, 2019. It was again addressed to the respondent by the Minister. The Minister confirmed therein that it was the Government’s wish that the applicant should be chaired by an Executive Chairman. The Minister set out the circumstances which had moved the Government to opt to appoint an Executive Chairman as opposed to a non executive Board Chairman. It was stated that the exigencies of the situation required that there be an Executive Chairman who would be hands on in managing the applicant. In paras 5 and 6 of the letter it was stated:</p> <p>            “5.       Given the foregoing, it is necessary that your Board sits to consider how best to implement               this position by Government.</p> <p>            6.         The appointment of an Executive Chairman does not absolve the Board from its fiduciary                duty to properly run the Zesa Holdings (Pvt) Ltd efficiently in keeping with good corporate             governance practices.”</p> <p> </p> <p>            It was noted by the Minister in the letter that a Chief Operating Officer be appointed to deal with areas of potential conflict. It was also further noted that the appointment of the respondent was envisaged to be for a short period and not permanent as the need for the Executive Chairman would fall away once the power supply situation in the country had been stabilized.</p> <p>            In the course of the hearing, I directed that the employment contract proper which was said to have been executed between the applicant and the Minister should be availed. A copy thereof was filed in the answering affidavit whose filing I authorized. I propose to deal with the contents of the contract to the extent of its relevance to the points in <em>limine </em>raised. The employment contract which was headed service contract was executed on 27 February, 2019 by the Minister and the respondent. A reading of the contract clearly shows that it created a work relationship between the applicant, described in the contract as “the company” and the respondent. For example in para 2.1 of the contract the respondent was required to agree with the company on where the respondent would be based. In para 3.1 of the contract, it was stated:</p> <p>            “3.1     ……This fixed term contract of engagement supersedes any representations and                                           undertakings made between the Executive Chairman and the company or the                                                Shareholders.”</p> <p> </p> <p>            The effect of this clause was therefore to displace the letters of 18 November 2019 and 28 December, 2018.</p> <p>            Clause 3.2 of the contract is also of importance. It provides as follows:</p> <p>            “3.2.    Should the Executive Chairman have performed his services to the satisfaction of the                                   company in terms of reasonable criteria and targets determined by the company from time               to time in consultation with the Minister, then, on expiry of appointment Period and subject              to the company’s business needs, the company may offer to the Executive Chairman a                              further contract, which contract:</p> <p>                        3.2.1    shall endure for a period to be agreed to by the parties;</p> <p>                        3.2.2    shall remunerate him at a level not lower than that which the Executive Chairman                             was earning at the termination Date.”</p> <p> </p> <p>            Further clause 6 of the contract provided as follows:</p> <p>            “6.       In addition to the Executive Chairman’s performance to be set out as above, the Executive               Chairman shall:</p> <p>                        6.1       carry out, in the capacity for which he is employed, such duties as are determined                            from time to time by the company’s directors; the Minister or anyone authorized                                           by them;</p> <p>                        6.2       comply with reasonable directions given to him from time to time by the                                                       company’s Directors; the Minister or anyone authorized by them;</p> <p>                        6.3       …..</p> <p>                        6.4       comply with all the company rules, regulations policies; practices and procedures                             laid down from time to time for the economic, efficient and harmonious operations                          of the company’s business</p> <p>                        6.5       …..</p> <p>                        6.6       accurately, completely and with due diligence furnish the company’s Directors,                                            orally or in writing as the Directors may require, with any explanations or                                          information which the directors may require from time to time..</p> <p>                        6.7       without prior written consent of the Board, not to incur on behalf of the company                                         or any company in the Group any capital expenditure in excess of such limited as                            he may be authorized from time to time or enter into, on behalf of the company or                           any company in the group, any commitment, contract or arrangement or otherwise                            than in the normal course of business or outside the scope of his normal duties or                                                 of an unusual onerous or long term nature.”</p> <p> </p> <p>            It was noted that the contract provided for a remuneration package to be paid to the respondent by the company. The details of the remuneration were outlined. However, the same was to remain confidential between the company which had the obligation to pay the package and the respondent. The details shall remain undisclosed in this judgment because the issues for determination do not require disclosure of the package and indeed other matters considered irrelevant for purposes of this application.</p> <p>            The applicant in the answering affidavit denied that the respondent was a Presidential appointee. It averred that albeit his contract of service having been executed by the Minister, the respondent was an employee of the applicant and was remunerated his salary and benefits by the applicant. Applicant also noted that the respondent was obliged to report to the applicant in the discharge of his duties. The respondent was also obliged to account to the applicant’s Board which was also mandated to assign him duties to carry out apart from meeting performance indicators set by the Minister representing the shareholders (Government). It was also the applicant’s deposition that the contract was clear on who the respondent’s employer  was and that it was the applicant. Applicant again averred that the applicant had a board of directors of which the respondent was part, as Executive Board Chairman.</p> <p>            Having considered the applicant’s founding affidavit, the opposing affidavit, the answering affidavit, applicant’s heads of argument applicant’s service contract and arguments presented by counsel I am satisfied that the respondent is an employee of the applicant. The contract of employment executed by the Minister and the respondent shows that although the respondent was headhunted to be appointed as Executive Chairman of the applicant he remained answerable to the applicant through its board of directors and was required to comply with directives given by the company Directors, or by the Minister, including directions given by any person authorised by the Directors or the Minister. The respondent simply occupied the unique position of doubling up as the Chief Executive and board Chairman of the applicant, a situation which is not ideal because the respondent would chair the same Board which overseas the applicant’s operations instead of being subordinate to it. The ideal situation would be to have an independent chaired board with management and respondent as Chief Executive being <em>ex officio</em> members where desirable. The Minister in his letters of appointment described the set up as unusual but noted that the move had been deliberately adopted to ensure that the Board Chairman becomes involved with operations of the applicant at the shop floor level so that he is hands on with the goings on.</p> <p>            It follows that there is no merit in the respondents’ objection that the applicant does not have authority over the respondent nor to bring the respondents to court in the manner that the applicant did. The argument by the respondent’s counsel that only the Minister as the other party to the contact and/or his Excellency The President of Zimbabwe are the only persons who can sue the respondent on matters arising out of the contract is not tenable. It is a construction of the contract which neither the Minister nor the respondent ever contemplated because it is absurd and illogical to give such a construction to the contract. In my view, if  one considers the commercial context in which the service contract was entered into, it is without doubt that the Minister entered into the contract tying up the applicant and the respondent with the applicant being the employer and the respondent, the servant or employee. The applicant’s powers over the respondent are laid out in the contract. The substance and not the form of the contract determines the nature of the contract and the relationships, obligations and powers of parties who feature in the contract.</p> <p>            In regard to the point in <em>limine</em> (b) the respondent submitted that the applicant was a company <em>sui generies</em> because all its shares are held on behalf of the State by persons approved by the President. It was argued that the applicant is not run in the same manner as those companies established exclusively in terms of the Companies and other Business Entities Act, [<em>Chapter 24:31</em>]. The main reason put forward was that the company was being run under a phase determined by the President which saw the appointment of the respondent in the form of an executive chairman. In paras 9 and 10 of the opposing affidavit, the respondent stated, thus—</p> <p>“9.       This takes me to my role as Executive Chairman. Under the mandate given to me as executive chairman, meetings can only be convened with my approval and/or authorization. Under no circumstances can meetings be held without my knowledge or behind my back.</p> <p>10.       Further, only the Executive Chairman or persons authorized by him may institute proceedings for or on behalf of the applicant.”</p> <p> </p> <p>The applicant in answer stated in the answering affidavit that s 137 of the applicants Articles of Association provided for the holding of a Board Meeting at the request of any director of the company. I considered the articles of association attached to the answering affidavit and noted the correctness of the applicant’s interpretation of Article 137. I considered the employment or service contract as alluded to herein. I did not find any clause that gives the respondent powers, let alone exclusive powers as he stated in paras 9 and 10 of his opposing affidavit as quoted, to call for or convene Board Meetings and to “institute” proceedings for and on behalf of the applicant.” Curiously though, the respondent spoke to his powers to institute proceedings but did not allude to powers to defend proceedings against the applicant which is absurd. The respondent impugned the Board Meeting which made a resolution to send him on mandatory leave on the basis that the meeting was convened without his approval. During the hearing, the respondent threw in another argument through his counsel arguing that he was not given notice of the meeting as required by the articles of association. The respondent was clutching at straw. The applicant averred that the respondent had on 27 July 2020 presided over an Extra-Ordinary Board Meeting at which allegations of impropriety by the respondent were discussed to which the respondent responded denying them. The respondent excused himself from the meeting. The Board later in the day received a letter from the Minister directing the Board to carry out an investigation of the allegations levelled against the respondent. The letter was copied to the respondent. All hell broke loose as the Board took steps to implement the Minister’s directive, moves which the respondent resisted culminating in this application. The respondent it will be noted did not himself call for a Board meeting which he could have done. It is therefore ruled that the second point <em>in limine</em> had no substance and it was dismissed. The Board and the deponent to the founding affidavit had <em>locus standi</em> based on valid authority to represent the applicant and on the part of the Deputy Chairperson of the Board, to depose to the founding affidavit.</p> <p>The third point <em>in limine </em>was a procedural one. The respondent’s counsel argued that it is incompetent in an urgent application to seek interim relief which is similar to the final relief. It was submitted by respondent’s counsel that the effect of couching the interim relief in the same terms as the final relief results in the matter ceasing to be urgent. I do no agree. A draft provisional order is exactly that. It is a draft and does not bind the court ot judge. It is just like a draft order in any other application. Rule 246 (2) of the High Court CAIVIL Rules 1971, reads as follows:</p> <p>“246 (2) where in an application for a provisional order, the judge is satisfied that the papers establish a <em>prima facie</em> case he shall grant a provisional order either in terms of the draft filed or as varied.”</p> <p> </p> <p>Therefore, whilst the terms of the final relief sought will not be tempered with at the stage of determining whether to grant a provisional order, the interim relief to be granted will be either as sought or as varied. It must follow that the fact that the interim relief sought is the same as the final relief does not remove the urgency of the application. It is within the judge’s discretion to adjudge the application as urgent and to grant such appropriate interim relief informed by the facts as will provide equitable temporary relief and regulate the subject matter dispute and how the parties should relate with the subject matter and with each other pending the return date. There have been several judgments of the Superior Courts to the effect that the interim relief sought should not be the same as the final relief intended to be sought on the return date. I have no issues with that. My view is that when considering the draft provisional order, the judge must keep in my mind that what the applicant proposes is a draft order. The nature, content and form of the provisional order to grant where a <em>prima facie </em>case is made out on the papers is one which the judge considers to be just and equitable in the circumstance of the case. I do not agree that a faulty interim draft order is justiciable as a ground to dismiss an applicant’s urgent application. The judge is not bound by the draft and should where a <em>prima facie</em> case for the relief sought is demonstrated grant a varied interim order as would regulate the dispute and parties pending the return date. The nature of the relief to be granted is therefore a function of the judge. It follows that, the proposition by the respondent’s counsel that a matter ceases to be urgent where the interim and final reliefs are couched in similar wording in a draft provisional order is an incorrect expression of the law. What is urgent is the matter and not the order, the latter being in the domain of the court, the draft order being the applicant’s suggested order which may be granted as couched or as varied.</p> <p>The fourth point <em>in limine </em>to the effect that there are disputes of facts which cannot be resolved on the papers does not have merit. The  alleged significant dispute of fact averred is that the applicant holds that the respondent is its employee whilst the respondent avers that he is not an employee of the applicant but “an office holder operating under specific terms and responsibilities.” In para 16 of the opposing affidavit it is stated—</p> <p>“16.     More fundamentally, I am at work for all the 24 hours in a day. These are my conditions of appointment. I am daily accountable to the President and the Minister, on a daily basis, for the electricity supply situation in the country. Only the President through the Minister may send me on leave or approve my leave.”</p> <p> </p> <p>I do not consider it necessary to interrogate this point <em>in limine</em> in any  greater detail than I have already done in that I determined that the respondent is an employee of the applicant and that he is under the authority and works under the direction of and reports to the Board and to the Minister in circumstances where the Minister has given directions on any issue which the respondent is required to attend on. The respondent’s averment that he is not an employee of the applicant lacks merit. This point <em>in limime</em> is deservedly dismissed.</p> <p>The respondent raised a jurisdictional issue and submitted that, assuming that it is determined that he is an employee of the applicant, the court should decline jurisdiction on the basis that this is a labour dispute which should be dealt with by the Labour Court. It was argued that the applicant did not advance any good reasons for preferring this court to the Labour Court. There has been a lot of legal debate on the jurisdiction argument of the powers and jurisdiction of this court in labour matters in the face of the existence of a specialized Labour Court created specifically to deal with labour matters. I do not intend to detain this judgment on this issue. The applicant’s counsel referred me to the Supreme Court decision in the case of <em>Chris Stylainon &amp; Ors</em> v <em>Moses Mubita &amp; Ors</em> SC 7/17. In that judgment GWAUNZA JA (as she then was) had to answer the question whether or not the Labour Court has jurisdiction to grant an interdict or a declaratory order. The learned judge had this to say on p 8 of the cyclostyled judgment</p> <p>“The question that this order raises is whether or not the Labour Court has the jurisdiction to grant an interdict. Whenever the powers of the Labour Court came into question, it must always be borne in mind that it is a creature of statute (<em>Dombodzvuku </em>v <em>CMED) (Pvt) Ltd</em> SC 31/12; <em>Nyahora</em> v <em>CFI Holdings (Pvt) Ltd</em> SC 81/14 and thereafter can only exercise those powers that are given to it by the Labour Act, its enabling statute.”</p> <p> </p> <p>The learned judge then relying on the judgment of ZIYAMBI JA in <em>National Railways of</em> <em>Zimbabwe</em> v <em>Zimbabwe Railways Artisans Union &amp; Others</em> SC 8/05 to the effect that the Labour Court can only entertain applications provided for under the Labour Act, then held that to the extent that an application for an interdict was not provided for under the Labour Act, the Labour Court had no power or jurisdiction to grant an interdict.</p> <p>It follows that the jurisdictional point <em>in limine</em> is not well taken and must be dismissed. The issue at play here is not really the general exercise of the jurisdiction of this court in labour matters. The issue is whether the Labour Court is empowered to grant an interdict. It does not enjoy such power. The applicant was therefore properly advised to seek the relief of an interdict in this court.</p> <p>The next issue to consider is whether the applicant has made a case for the grant of the interdict sought. The background to the application is set out in the applicant’s founding affidavit deposed to by Tsitsi Makovah, the Deputy Board Chairperson of the Board of Directors of the applicant, duly authorized by a Board resolution passed on 30 July 2020. In summary, on 27 July 2020, the Minister wrote a letter addressed to the Board of Directors with copy to various state entities. Copy of the letter was directed to the respondent. The Minister mandated the Board to investigate various listed serious allegations of corruption levelled against the respondent. It is well to capture para 5 of the letter wherein it is stated—</p> <p>“In this regard, you are directed, as the Board to immediately institute investigations in the    allegations against Dr Gata and take the necessary steps in terms of all the relevant laws. In        particular, the Ministry requires information on—</p> <ul> <li>the lawsuits between Dr Gata and ZESA Holdings and whether or not they were declared to the Board, as the Ministry is not aware of any such declaration.</li> <li>the allegation of five company vehicles for Dr Gata’s personal use.</li> <li>the alleged interference in a disciplinary hearing involving Mrs Norah Tsomondo.</li> <li>the alleged transactions involving Tuli and a trust, whose registration and ownership is unknown to the Ministry.</li> <li>the issue concerning the four consultants for whom (Cabinet Authority was sought to travel to South Africa for a study tour at Eskom. There is need to establish whether or not these individuals are on ZESA’s payroll and if not, the basis upon which they were engaged;</li> <li>any other conduct that the Board finds appropriate to investigate.</li> </ul> <p>The allegations appearing in the press are of a serious nature, which do not only put ZESA Holdings             in bad light, but the entire Government and the Ministry in particular.</p> <p>You are therefore instructed to give this matter all the urgency it deserves to ensure that it is resolved within the shortest time possible to allow the Board to concentrate on its key mandate,          that is ensuring availability of power.</p> <p>In all deliberations and investigations, the Board should ensure that the Executive Chairperson is             accorded all his legal rights.”</p> <p> </p> <p>In a nutshell, the applicant’s Board of Directors was simply directed by the Minister to investigate allegations of misconduct made against the respondent. The office of the President and Cabinet also wrote a letter dated 27 July 2020 to the Secretary of Energy and Power Development expressing the concern of that office over the allegations made against the respondent. The office recommended that the allegations should be investigated so that transparency is observed.</p> <p>The allegations aforesaid were not only a matter of concern to the Minister and Office of the President and Cabinet, but to the applicant’s Board because the Board had on 24 July 2020 raised the issues circulating in the press and other media with the respondent. On 27 July 2020 the respondent rubbished the allegations made against him at another Board Meeting at which he later excused himself. The Board scheduled another Board Meeting on 29 July 2020 which was aborted after the Board members were denied access to the venue allegedly on instructions from the respondent. The Board then met on 30 July 2020 in the Boardroom of the Ministry of Energy and Power Development having looked for an alternative venue. The meeting discussed the allegations again the respondent and further considered the Ministers’ directive and other stake holders’ concerns.  Apart from authorizing the deponent of the founding affidavit to represent the appellant in any civil proceedings connected to the allegations and appointing another board member to be acting Chief Executive Officer for the appellant, the meeting resolved as follows:</p> <p>“RESOLVED THAT in order to facilitate proper investigations into the allegations and allow due process to take place, Mr S.Z. Gata, as Chief Executive Officer be and is hereby ordered to proceed on mandatory leave to facilitate investigations with immediate effect.</p> <p>It was RESOLVED FURTHER THAT the leave shall be for an initial period of 90 days and with full pay and benefits.”</p> <p> </p> <p>            On 30 July 2020, the respondent acknowledged the letter written to him by the Board Vice Chairperson directing that the respondent should proceed on mandatory leave.  Although the Board Resolution had resolved that the respondent’s leave be for 90 days, in the letter the period was cut down to an initial 60 days.  In the letter the Board Vice Chairperson indicated that the Board needed to carry out the Minister’s directive to investigate allegations against the respondent. In addition, it stated as follows in the letter:</p> <p>“…further, and as the Board and accounting authority, the Board has the power and mandate to investigate on its own accord, any misconduct that has come to its attention within organization particularly for executive management.  Therefore, to facilitate the said investigations, the Board sees it appropriate to send you on mandatory leave for an initial period of 60 days from the date of this letter…”</p> <p> </p> <p>            The respondent trashed the letter aforesaid in an  emotive response dated 30 July 2020 addressed to Board members.  He described the letter as “null and void.” It is a nullity.  It is nothing”.  He accused the Board of committing an act of misconduct and warned it on its actions.  The respondent argued that the resolutions of the Board were not binding because the meeting at which they passed was illegal as he had not called the meeting.  He threatened that going forward</p> <p>            “not a single meeting of the Board or Board Committee shall be convened without my express             authority.  I have also suspended sub-committee meeting until I receive the value, frequency and     cost including detraction of the few remaining staff available.”</p> <p> </p> <p>There was therefore a standoff between the respondent and the rest of the Board. The respondent declared that he had to authorize all Board meetings single handedly.  He unilaterally suspended Board sub-committee meetings until he individually was satisfied as to their value.  In other words, as far as the Board’s existence and function was concerned, only him would call the tune.  Everything would start and end with him. The respondent declared his omnipotence regarding the management of the applicant.  He declared a one center of power position in relation to exercising control over the applicant. It was more like treating the applicant as the personal property of the applicant.  The standoff is what gave birth to the urgent application in <em>casu</em>. </p> <p>            In disposing of the matter, I have to consider whether the applicant has made out a case for an interim or temporary interdict.  In this regard, ZIYAMBI JA in<em> ZESA Staff Pension Fund </em>v <em>Mushambadzi </em>SC 57/2002 stated as follows on p 4 of the cyclostyled judgement-:</p> <p>“Secondly, the remedy sought by the respondent in the court <em>a quo</em> was an interdict.  It is trite that   the requirements for a final interdict are:</p> <ol> <li>A clear right which must be established on a balance of probabilities.</li> <li>Irreparable injury actually committed or reasonably apprehended; and</li> <li>Absence of a similar protection by any other remedy.</li> </ol> <p>See <em>Setlogelo </em>v <em>Setlogelo </em>1914 AD 221 at 227<em>; Flame Lily Investment company (Private) Limited    &amp; Anor </em>1980 ZLR 378<em>; Sanachem (Pvt) Ltd </em>v<em> Farmers Agricare (Pvt) Ltd </em>1995 (2) SA78/A at 789      B.  With regards to a temporary interdict, the following must be established:</p> <ol> <li>A right which though <em>prima facie</em> established, is open to some doubt.</li> <li>A wall grounded apprehension of irreparable injury.</li> <li>The absence of any other remedy.</li> <li>The balance of convenience favors the applicant.”</li> </ol> <p> </p> <p>The applicant averred that it was necessary to carry out the investigations already referred to herein without impediments including interference from the respondent.  In this regard, I must take note that from correspondence to the other members of the Board written by the respondent, the respondent showed scant regard for the Board and took the position that he had absolute power over it to the extent of banning it from conducting meetings. He purported to suspend Board sub committees.  He considers himself to be above the Board’s control and that he is only answerable to the President acting through the Minister and to the Minister. The respondent openly defied the Board which directed him to take mandatory paid leave to facilitate investigations of serious misconduct on his part.  The respondent has clearly shown that he will impede the Board in the carrying out of the investigations which centre on the respondent.  The respondent has resolved to flex  his muscles in a clear case of abuse of authority to trash and impede the Board’s ability to carry out a lawful mandate.  It is very disturbing that the Board Chairperson would confront and threaten other Board members instead of cooperating with his colleagues on the Board to clear the serious allegations made against him.</p> <p>In the opposing affidavit, the respondent in addressing the merits averred that the applicant did not have a <em>prime facie</em> right because it had no “powers whatsoever” over him and could not send him on mandatory leave since he was not an employee.   I have made determinations that the respondent is an employee and that the Board has power over him. The Board would therefore be acting within its powers to send him on mandatory leave. The respondent’s objection is thus resolved against him.</p> <p>The applicant argued that there was no irreparable harm to be suffered by the applicant because investigations could be carried out without sending the respondent on mandatory leave. He also averred that “from the nature of the allegations, there is nothing to destroy or interfere with”. This view is too simplistic given the poisoned relationship between the respondent and the Board, such standoff being caused by the respondent who has undermined the Board and its authority over him as well as the applicants authority as employer. Whether or not the harm to be suffered by the applicant is irreparable or not is a matter of fact. The circumstances of each case are considered to come to a decision on the nature and extent of the harm. The applicant had a duty to safeguard the interests of the applicant  which is an artificial juristic person. The wellbeing and success of the applicant in its operations can only be fully realized if it is shepherded or steered as a ship by men and women of honour, unimpeachable character who are also knowledgeable in the management and operations of the company. The company at play in this matter is a public interest company which is responsible for production and supply of electrical power. The need for a reliable and constant supply of power is a given. There is irreparable harm if there is no resolution of the matters at play in this matter in that a successful organization cannot be allowed to be headed by functionaries and operatives who are corrupt where such corruption has been established. It is important for the company therefore to clean its house. Irreparable harm in this case may not necessarily be financial prejudice. The corporate image of the company must be safeguarded and continue to be built on. Again the issues at stake have not only aroused public interest generally but that of the Executive as evidenced by the letter from the Office of the President and Cabinet. In such circumstances the company must be protected in every aspect of its well being given the applicant’s strategic nature, the damage it has suffered and continues to suffer by reason of the existence of the unresolved allegations of corruptions against its top operative is sufficient to amount to irreparable harm because the company continues to be damaged in its image and operation including human capital morale.</p> <p>The respondent has also submitted that there is an alternative remedy of resolving the matter through mediation involving other stakeholders (President and Minister). I considered the service or employment contract and as already discussed, the Minister can give directives that the respondent is required to abide by and implement. The Minister directed that the Board should hold an enquiry into allegations made against the respondent. The respondent took issue that the Minister did not direct the directive to him as Chairperson of the Board. The respondent’s reaction  was petty and self centred.  Addressing a communication to “the Board of Directors as opposed to the “Chairperson of the Board” does not invalidate the communication since it can still be referred to the Chairperson. The directive can be lawfully and competently carried out by the Board. There is no justification to import an alternative dispute resolution mechanism in the enquiry directed by the Minister. In fact, it is the respondent who raised the issues in this matter to the level of a dispute requesting resolutions by mediation or other dispute resolution mechanism. A dispute requiring mediation arises after the completion of an enquiry depending on the results of the enquiry. The respondent is jumping the gun. There is no suitable alternative remedy provided for in the service contract or applicant’s policy, principle and procedure manual which the applicant can follow especially so, given the respondent’s belligerent and hostile but misplaced attitude that he is above the Board. In any event the alternative remedy proposed is not tenable because internally the issues at play can be dealt with effectively.</p> <p>The respondent averred that the balance of convenience favoured that he should be allowed to continue attending to his work to ensure the availability of electrical and power. He argued that his removal would sow seeds of confusion and instability. The opposite would appear to me to be the most convenient remedy in that the balance of convenience favours the granting of the interdict. The situation obtaining is that the applicant as employer of the respondent intends to enquire into allegations of impropriety by the respondent, the allegations being related to or ensuing from the respondent’s discharge of duty. The applicant without prejudicing the respondent of his salary and benefits had asked the respondent to go on mandatory leave for a defined period to facilitate investigations without interference by the respondent. Not only is such a course eminently proper but it is desirable and accords with corporate governance normatives. The balance of convenience cannot be served by keeping the respondent at the workplace. In the respondent’s case, he had in any event expressly told the applicant’s Board off and does not evince any intention to co-operate with it. He did not state anywhere in his opposing paper that he intends to have a change of heart and work with and within the Board and directive given by the Minister. He has through and through shown that in relation to the issue at play herein, he is a loose canon who is not subservient to the applicant but to the Minister and the President. It would therefore be inconvenient to the applicant and the holding of the enquiries into allegations of the respondents acts of misconduct to allow the respondent to perform his duties during the holding of the enquiry.</p> <p>            Before I conclude, I must briefly discuss an intervening issue which arose in the course of hearing.  At the close of submissions by the parties’ legal practitioners I exercised the powers of the Judge provided for in r 246 (1) (a) of the High Court Rules in terms whereof the Judge may require a deponent to any affidavit filed in the application or any other person who in the Judges opinion can assist in the resolution of the matter to appear before the Judge and provide such information, on oath or otherwise as the Judge may consider necessary.  I indicated to the parties that I required the attendance of the Minister of Energy and Power Development to give input on the import of the contract of service which he executed on one part with respondent as the other party.</p> <p>The Minister Honourable Fortune Chasi (MP) was subpoenaed to attend before me on 14 August 2020 in the forenoon at 2:30 pm.  The Minister obliged.  However, before resuming the hearing the parties’ legal practitioners and the Minister requested for a pre-hearing consultative meeting with me. In the meeting the Minister advised that he had been relieved of his position of Minister by appointing authority, His Excellence, the President, some two hours back.  Discussion then revolved on whether it would be proper for him to give evidence as Minister when he was no longer Minister.  I ruled that the ex-Minister could no longer speak to issues to do with the Ministry and that the incumbent Minister who had been simultaneously appointed at the time Honourable Chasi was relieved of his duties would be the one who could speak to official records in the Ministry to include the correspondence relating to this matter as were generated by the ex-Minister in his official capacity as Minister.   In order not to further prolong the disposal of the application, and being satisfied that I could still determine the matter without input from the Minister, I dispensed with the need for such evidence and excused the ex-Minister from further attendance.</p> <p>I was then advised of another development relating to the applicant. Counsel for the applicant advised that both the respondent and the current Board of Directors of the applicant had been suspended from their duties by His Excellency the President. It was submitted by the respondent’s counsel that the application had become moot or academic since the Board which had made a directive to place the applicant on mandatory leave had been suspended and would consequently not be in a position to investigate the allegations against the second respondent.  The applicant’s counsel disagreed and submitted that the application was not moot because another Board could be appointed.   I agree with the applicant’s counsel.  The Minister directive was given at a time that he was in office and empowered to issue the directive for the investigation of the respondent.  The respondent was also in office at the time the directive to suspend him was made.  The directive of the Minister for the Board to carry out the investigation was not suspended by the suspensions made by the Presidential order.  The execution of the Ministers directive is an internal matter to be dealt with by the Board of Directors of the applicant. The applicant filed this application through the Board before the Board’s suspension from office.   The suspension did not mean that there would be no Board forever to oversee the operations of the applicant.  It becomes an internal matter for the applicant to grapple with. The applicant would obviously have other issues requiring the attention of the Board.  What becomes of such matters as require Board actioning including this matter is an internal issue for applicant?  Even the fact that His Excellence the President directed the Zimbabwe Anti-Corruption Commission (ZACC) to investigate the same issues raised by the Minister does not render this application moot.  The investigations ordered by His Excellency to be carried out by ZACC do not substitute the investigations which the applicant’s Board had commenced to do because the two should not be conflated.  I was therefore not persuaded that the application had become moot by reason of a parallel process initiated by order of His Excellency, The President. The applicant is not the initiator of the Presidential generated suspensions nor the beneficiary or receiver of the results of the investigations to be carried out by ZACC.  The process involved in this application is lawful, desirable and in line with sound principles of corporate governance.</p> <p>In my judgment therefore the applicant has made out a <em>prima facie</em> for the grant of a temporary interdict to give effect to the placement of the respondent on mandatory leave in line with the company’s procedure and policies manual.  I already indicated that in an urgent application for a provisional order the Judge may issue an interim order as prayed for or as varied.  In this case the interdict sought is to enable the smooth investigation of the matters raised by the Minister as observed by the Board of the applicant.  I will grant an interim order which ensures that the investigations to be carried out by the applicant’s Board of Directors are smoothly executed without interference.</p> <p>Accordingly, the following interim relief is granted:</p> <p>Pending the determination of this matter the applicant is granted the following relief:</p> <ul> <li>The respondent is ordered to comply with the directive given to him by letter dated 30 July 2020 written by the applicant’s Board of Directors’ Vice Chairperson placing the respondent on mandatory leave on conditions set out therein which are that;</li> </ul> <ul> <li>The mandatory leave will be for an initial 60 days.</li> <li>During the mandatory leave period the respondent will be entitled to full pay and benefits.</li> <li>The respondent shall not be allowed access to his office and to any other offices and places of operation of the applicant wherever situate in Zimbabwe unless by authority of the applicant.</li> <li>The period of mandatory leave shall be reckoned from the date of this judgment.</li> </ul> <p> </p> <p><em>Sinyoro and Partners</em>, applicant’s legal practitioners</p> <p><em>Lovemore Madhuku Lawyers</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/554/2020-zwhhc-554.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40141">2020-zwhhc-554.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/554/2020-zwhhc-554.pdf" type="application/pdf; length=304348">2020-zwhhc-554.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/provisional-order">Provisional order</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2016/7">Styllianou &amp; Others v Mubita &amp; 25 Others (SC 7/17 Civil Appeal No. SC 117/11) [2017] ZWSC 7 (29 March 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2002/57">Zesa Staff Pension Fund v Mushambadzi ( 278/2001) (( 278/2001)) [2002] ZWSC 57 (07 August 2002);</a></div></div></div> Thu, 10 Sep 2020 12:50:10 +0000 Sandra 9855 at https://old.zimlii.org Divine Aid Trust Company (Pvt) LTD & Anor v Luna Estates (Pvt) Ltd (HH 415-20, HC 2837/20) [2020] ZWHHC 415 (22 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/415 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>DIVINE AID TRUST COMPANY (PVT) LTD</p> <p>and</p> <p>MISHECK KAENDEZA</p> <p>versus</p> <p>LUNA ESTATES (PVT) LTD</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZOFA J</p> <p>HARARE, 10,11 &amp; 22 June 2020</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p><em>Mswelanto with TP Jonasi</em>, for the applicant</p> <p><em>GR Sithole</em>, for the respondent</p> <p> </p> <p>MUZOFA J: In this urgent chamber application, the applicants seek a provisional order in the following terms:</p> <p><strong>‘</strong>TERMS OF FINAL ORDER SOUGHT<strong>:</strong></p> <p>That you show cause to this Honourable Court why a final order should not be made on the following terms,</p> <ol> <li>Respondent and all those claiming occupation through it be and are hereby interdicted from unlawfully occupying and/or interfering with operations at <strong>LOT 5 of Paarl measuring 2,0711 hectares, LOT 7 of Paarl measuring 1,7604 hectares, LOT 9 of Paarl measuring 1,7878 hectares, LOT 19 of Paarl measuring 1,8503 hectares, and LOT 20 of Paarl measuring 1,6960 hectares. </strong></li> <li>Respondent and all those claiming occupation through it be and are hereby interdicted from unlawfully occupying and/or interfering with operations at <strong>LOT 11 of Paarl measuring 1,6188 hectares.</strong></li> <li>That the Respondent pay costs of this application on an attorney-client scale.</li> </ol> <p>INTERIM RELIEF GRANTED</p> <p>Pending the determination of this matter, the Applicants are granted the following relief;</p> <ol> <li>Respondent be and is hereby ordered to give access, and restore possession of <strong>LOT 5 of Paarl measuring 2,0711 hectares, LOT 7 of Paarl measuring 1,7604 hectares, LOT 9 of Paarl measuring 1,7878 hectares, LOT 19 of Paarl measuring 1,8503 hectares, and LOT 20 of Paarl measuring 1,6960 hectares </strong>to the 1st Applicant</li> <li>Respondent be and is hereby ordered to give access, and restore possession of <strong>LOT 11 of Paarl measuring 1,6188 hectares</strong> to the 2nd Applicant.”</li> </ol> <p> </p> <p>The application is opposed. Both parties raised preliminary points. I directed parties to make submissions on both the preliminary points and on the merits for convenience in the disposal of the matter.</p> <p>A point <em>in limine</em> was taken for the applicants that there is no opposition before the court since the deponent to the respondent’s notice of opposition did not attach the board resolution authorizing him to represent the company. Reference was made to relevant authorities in this regard<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>. In response Mr<em> Sithole</em> submitted that the court has to satisfy itself whether it is the company that is litigating. Where there is evidence that parties have litigated before and the deponent represented the company, the Court should accept that it is the company that is litigating. He relied extensively on the judgment by retired Justice chinhengo in this regard<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a> . In this case, it was further submitted that the parties entered into an agreement of sale and the deponent to the opposing affidavit represented the respondent and they have been to court and the deponent has represented the company. That evidence should be enough to show that the deponent is acting on behalf of the respondent.</p> <p>It is trite that a company can only litigate through a representative appointed by way of a board resolution as indicated in the <em>Zvarivadz</em>a case (<em>supra</em>).It would seem our courts have accepted that this is a matter of evidence which is the thrust in the <em>Air Zimbabwe Corporation</em> case. This gives credence to the approaches taken in the cases relied upon by the respondent. In any event in the <em>Zvarivadza</em> case the court did not make a determination on  whether evidence <em>aliunde</em> can be considered in this regard. The proposition that there is no opposition before the court is untenable for the sole reason that in an urgent application the respondent can oppose the matter and make oral submissions. In this case the respondent’s legal practitioner appeared before the court and made the requisite submissions. To that extent there is valid opposition and l am prepared to accept the opposition affidavit for the reason that parties have litigated before and the deponent to the respondent’s opposing affidavit represented the respondent. A reading of the <em>Zvarivadza c</em>ase shows that the remedy is not to dismiss the matter but to order that the deponent produce the board resolution. The preliminary point has no merit and it is dismissed.</p> <p>The respondent’s preliminary point is that the matter is not urgent. It avers that both the legal practitioner who prepared the certificate of urgency and the applicants do not address the issue of urgency and emphasized the point that there is no indication of when the harm is alleged to have occurred and how it occurred. It also indicates that the applicants became aware of the interference in December 2019 but did not do anything about it. In February and March 2020 respectively there was communication between the parties on the interference but the applicants did not take any action to protect its rights if it had any.<em> Mr Sithole</em> for the respondent argued that even if the interference took place on 22 May 2020 there was an unexplained delay from 22 May to 8 June 2020 when the application was filed. In my view the delay alluded to is not long enough to lead to an adverse inference of inaction considering the circumstances of this case.</p> <p><em>Mr Mswelanto</em> was at pains to demonstrate to the court when the first applicant’s rights were interfered with and how they were interfered. He emphasised that the applicants’ rights were interfered with on 22 May 2020 and they immediately took action. The first applicant’s founding affidavit is set out in very general terms except in the case of the second applicant. </p> <p>A certificate of urgency is meant to direct the Registrar to refer the matter to a judge in chambers as a matter of urgency. In considering the application the judge is at large to consider the certificate of urgency together with the founding affidavit. In <em>casu, Mr Mswelanto</em> who prepared the certificate of urgency set out the reasons why he believed the matter to be urgent. Whether the belief is correct or not is not the issue. The certificate of urgency is silent on the dates when the first applicants’ rights were interfered with. Similarly the first applicant’s founding affidavit is mum on the dates. The respondent referred to the some incidents in December 2019 and correspondence between the parties in February and March 2020 but all this was not substantiated. The only correspondences in the record are dated after 22 May 2020. Had there been any telephonic communications, I am certain these could have been referred to in the written correspondences.</p> <p>It is difficult for this court to agree with submissions made for the first applicant. The certificate of urgency just refers to some several attempts to repossess, disturb and evict the applicants from the plots. There is no indication when these attempts were made on the individual plots and how the attempts to repossess the plots were done. <em>Mr Mswelanto</em> referred the court to paragraph 7 of the first applicant’s founding affidavit as the basis of the urgency. I reproduce it hereunder to demonstrate the point l make,</p> <p><strong>‘Grievance</strong></p> <p>7.1 The respondent has been making several attempts to repossess and evict the applicants from the above mentioned plots without any notice to cancel the agreements of sale or any court order.</p> <p>7.2 The respondent without a legal basis through its employees has been harassing the applicants and denying them peaceful enjoyment of their pieces of land without legal justification.’</p> <p>A reading of those paragraphs shows that the violations of the rights is not specifically outlined in respect of each plot. The first applicant seeks to protect its rights in five plots but it does not state how they were harassed. However it seems the respondent does not deny that it has taken occupation of the plots as it alleges that the plots have been sold to third parties that have built on the plots. Thus it alleges that the second applicant was denied access in December 2019. I am satisfied that there was some interference at the plots but it is unclear when this took place. Time lines as to when this happened assists the court to make a determination on urgency. Since the first applicant did not state when the respondent interfered with its rights in the five plots I am unable to make a finding that the matter is urgent. It is only the second applicant that has shown that his rights were interfered with on 22 May 2020 and this date cannot be stretched to apply to all the applicants.</p> <p>Mr<em> Sithole </em>also vehemently opposed the granting of the order on the basis that it is fatally defective in that the interim interdict sought is more of an order for spoliation. I do not find any defect in the interim order, the applicant is seeking a mandatory interdict to compel the respondent to give the applicants access to his plot. It must be borne in mind that the purpose of a mandatory interdict is to remedy the effects of unlawful action already taken<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a>.  Mr<em> Sithole</em> based his argument on the use of “restore possession” to my mind that should not defeat this application .I comment in passing  that  the interim order could have been  couched in better terms. It was also raised that the second applicant has no rights to protect since the first applicant acquired personal rights from the respondent it cannot sell those rights. The second applicant therefore did not acquire any rights. This submission is not relevant at this stage of the application. It is trite that an interim order is meant to preserve the <em>status quo ante</em> pending the determination of the parties’ rights on the return date. I am satisfied that the first applicant bought the plots from the respondent as evidenced by the agreements of sale attached to the application. I am also satisfied that the second applicant bought Plot 11 from the first applicant as evidenced by the agreement of sale attached to the application.</p> <p>After disposing of the preliminary points l deal with the merits of the case only in respect of the second applicant. The requirements of an interim interdict are trite. The applicant must establish:</p> <ol> <li>A <em>prima facie</em> right even if it is open to doubt,</li> <li>An infringement of such right or a reasonable apprehension of irreparable and imminent harm to the right if an interim interdict is not granted’</li> <li>A balance of convenience favouring the grant of the interdict and</li> <li> The absence of any other remedy<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4">[4]</a></li> </ol> <p>The applicants and the respondent made extensive submissions on issues that are best resolved on the return date. I shall not consider those submissions as they tend to cloud the issues for determination in this application.</p> <p>Mr <em>Mswelanto</em> submitted that the respondent sold certain properties known as Lot 5 of Paarl measuring 2, 0711 hectares, Lot 7 of Paarl measuring 1, 7604 hectares, Lot 9 of Paarl measuring 1, 7878 hectares, Lot 19 of Paarl measuring 1, 8503 hectares and Lot 11 of Paarl Farm measuring 1,6188 hectares  and Lot 20 of Paarl measuring 1,6960 hectares to the first applicant. The first applicant in turn sold plot 11 to the second applicant. The agreements of sale were attached to the application. From those submissions the first applicants acquired personal rights and these were passed on to the second applicant. At this stage it is unnecessary to make a determination whether the first applicant could pass personal rights to the second applicant.</p> <p>The respondent did not deny entering into this agreement. However it raised issues to cloud the application that the first applicant did not fulfill the terms of the agreement, that the agreement of sale was not an agreement of sale and that the development agreement which gave rise to the agreements of sale was cancelled .The applicants therefore have no rights to claim. None of the submissions can succeed. If indeed the first applicant breached the terms of the agreement of sale it was for the respondent to make sure that the agreements of sale are cancelled in terms of the law. As matters stand the agreements of sale are still extant. The respondent cannot expect this court to sanitize its conduct. The respondent’s conduct to cancel the agreements and deny the second applicant access to his plot without a court order was unlawful. There is no merit in the argument that what the parties entered into was not an agreement of sale. It was an agreement of sale. The second applicant managed to establish that he has a <em>prima facie</em> right. The second applicant has shown that the right has been interfered with and this has not been denied by the respondent. He was denied access his plot and this was not denied.</p> <p>            <em>Mr Sithole</em> for the respondent submitted that the applicants have an alternative remedy in the form of a claim for damages since the plots have been sold to third parties. The court was urged to dismiss the application because there are third parties who are likely to be prejudiced and that the order may not be capable of execution. I agree with counsel for the applicant. The interim order is the suitable remedy available to the applicant. The applicants were surprised to hear in court that the plots were disposed to third parties. Infact I am unable to accept the submission that the plots were sold to third parties because no evidence was placed before the court to substantiate the alleged sales. Secondly the respondent’s submission urges this court to protect third parties that are not before the court. It also urges this court to uphold the respondent’s conduct to cancel a sale agreement, repossess the plots and dispose them without a court order. The courts cannot be used to further an unlawful conduct it cannot sanitize the respondent’s conduct which is tainted with illegalities. There is no alternative remedy in this case. The balance of convenience favors the granting of the odder since the applicant stands to be prejudiced by the respondent’s conduct.</p> <p>From the foregoing the provisional order shall be granted in respect of plot 11 only. Accordingly the following order is made,</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>INTERIM RELIEF GRANTED</p> <p>Pending the determination of this matter, the second applicant is granted the following relief;</p> <ol> <li>Respondent be and is hereby ordered to give access, and restore possession of <strong>LOT 11 of Paarl measuring 1,6188 hectares</strong> to the 2nd Applicant.”</li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Hamunakwadi &amp; Nyandoro</em>, applicant’s legal practitioners</p> <p><em>Muza &amp; Nyapadi</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> Madzivire and others v Zvarivadza and others 2006(1) ZLR 514(S) :   First Mutual Investment (Pvt) Ltd v Roussaland Enterprises (Pvt) (Ltd) t/a Third World Bazzar and Others HH301/17</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> Air Zimbabwe Corporation v The Zimbabwe Revenue Authority HH   96/03</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> Herbstein and Van Winsen , The Civil Practice of the High Courts of South Africa, 5th Ed  Vol 2</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> Telecel Zimbabwe Private Limited and others 2015(1) ZLR 651.</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/415/2020-zwhhc-415.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27082">2020-zwhhc-415.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/415/2020-zwhhc-415.pdf" type="application/pdf; length=429199">2020-zwhhc-415.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/final-interdict">Final interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/301">First Mutual Inv. (Pvt) Ltd. v Roussaland Ent. (Pvt) Ltd. &amp; Others (HH 301-17 HC 6475/16) [2017] ZWHHC 301 (15 May 2017);</a></div></div></div> Mon, 29 Jun 2020 09:46:39 +0000 Sandra 9723 at https://old.zimlii.org Kasongo & 3 Ors v Murowa Diamonds & 2 Ors (HMA 12-20, HC 365/19) [2020] ZWMSVHC 12 (20 May 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/12 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>MAGRET KASONGO</p> <p>And</p> <p>NETSAI MUKWATURI</p> <p>And</p> <p>MACHAKARI MASHAMANDA</p> <p>And</p> <p>FRADRECK NYIKA</p> <p> </p> <p>Versus</p> <p> </p> <p>MUROWA DIAMONDS (PVT) LTD</p> <p>And</p> <p>MINISTER OF MINES &amp; MINING DEVELOPMENT</p> <p>And</p> <p>MINISTER OF PRIMARY &amp; SECONDARY EDUCATION</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZISENGWE J</p> <p>MASVINGO, 12 March 2020 and 20 May 2020</p> <p> </p> <p><strong>Opposed Application: Interdict</strong></p> <p> </p> <p><em>M. Mureri,</em> for the applicants</p> <p><em>T. Zhuwarara,</em> for 1st respondent</p> <p><em>T. Undenge</em>, for 2nd respondent</p> <p> </p> <p> </p> <p> </p> <p><strong>ZISENGWE J</strong>:  This is an application for an interdict wherein the applicants seek in the main an order barring the 1st respondent from continuing with their mineral prospecting activities on a certain piece of land situate in the Chivi communal lands.   The four applicants are all parents or guardians of leaners at two schools (Danhamombe Secondary school and St Simon Zhara primary school) on whose premises part of the prospecting is taking place. I briefly pause here to observe that the parties used the term "exploration" to refer to the 1st respondent’s prospecting activities.</p> <p>The 1st respondent is a company duly incorporated in terms of the laws of Zimbabwe.   It would appear from the papers filed of record that its main business is prospecting for minerals and mining and, hence the prospecting earlier stated.</p> <p>The 2nd respondent on the other hand is the Minister of Mines and Mining development.  He heads the ministry responsible for the regulation and superintendence of mining activities in the country.</p> <p>The 3rd respondent is the Minister of Primary and secondary education.   He was cited as a respondent because the dispute in question relates to alleged infringements by the 1st respondent on school and educational activities.</p> <p>In brief the background to this application is as follows. The 1st respondent which is a subsidiary of RIOZIM (private) Limited has been conducting prospecting work in the area on or adjacent to the premises of the schools referred to above.  They do so in the basis of what the 2nd respondent describes as “286 registered [diamond] mining blocks in the Chibi and Mshawasha communal lands” registered with it (i.e. 2nd respondent) between 2000 and 2001”.</p> <p> According to the applicants, the 1st respondent’s prospecting activities generate unbearable noise incompatible with a proper learning environment. As if that is not bad enough, so the applicants aver, the exploration activities of the 1st respondent have resulted in considerable damage to some critical school infrastructure such as water pipes.</p> <p>The applicants further aver that efforts to resolve the issue amicably with 1st respondent have proved fruitless leaving them as parents and guardians of some of the affected students with virtually no other option but to approach the courts and seek relief in the form of an interdict.</p> <p>Initially the applicants launched a two -pronged attack on the 1st respondent’s mineral exploration activities in or near the premises of the schools in question; the first leg being the noise complaint as alluded above.  The second leg of the application was that the 1st respondent had neither sought nor obtained the consent of the authority responsible for either school something it was required to do before the commencement of its prospecting activities as required by section 31 of mines and minerals Act, <em>[chapter 21:05] </em>(the Act). It would also appear that the applicants are alleging that the 2nd and 3rd respondents are complicit in permitting the alleged transgressions at the two schools and want them ordered to stop being so permissive.</p> <p>The applicants therefore sought an order in the following terms:</p> <p>"wherefore, after hearing counsel and reading the document filed of record</p> <p>It is hereby ordered that:</p> <ol> <li>The first respondent is interdicted and restrained from carrying out mining activities at St.Simon Zhara Primary school and Danhamombe Secondary School premises and grounds.</li> <li>The first respondent removes its machinery and move out of the school premises and grounds.</li> <li>The first respond [is] interdicted and restrained from using school property including premises, ground and infrastructure</li> <li>The second and third respondents and/or any employees of their ministries are interdicted and restrained from assisting the first respondent to do any of the restrained activities above or allowing the first respondent to use the school premises, grounds and infrastructure or do mining activities at these schools.</li> <li>The second and third respondents are hereby interdicted and compelled and take active measures to protect the pupils, school resources, property and infrastructure from abuse by the 1st respondent.</li> <li>The respondents to pay jointly and severally the applicant’s costs.</li> </ol> <p> </p> <p>In a nutshell, therefore, what the applicants initially sought was as amalgam of a prohibitory interdict and a mandatory interdict.   Prohibitory in the sense that they sought an order prohibiting the 1st respondent from carrying out its prospecting activities (which were erroneously referred to as “mining” activities) in and around the premises of two schools.  Additionally they sought an order prohibiting the 2nd and 3rd respondents from aiding the 1st respondent in whatever way in carrying out its prospecting activities in and around the premises of the two schools. It is also mandatory in part in the sense that the applicant wants the 1st respondent to be compelled to immediately remove its prospecting equipment and related paraphernalia from the schools’ premises.</p> <p>However, in the course of these proceedings counsel for the applicants, in view of the provisions of sections 31 and 32 of the Act, abandoned the attack related to the alleged absence of consent on the part of the 1st respondent to prospect on that piece of land.   This effectively left the sole issue for determination being whether the interdict sought should be granted on the basis of the noise complaint.</p> <p>            The 1st and 2nd respondents opposed the application and in this regard the 1st respondent raised three interrelated issues to confront the noise complaint. These issues can be summarised as follows;</p> <p>            Firstly that the applicants do not have the mandate of the generality of the learners at the school to bring this application and in the absence of such a mandate this application should fail.</p> <p>            Secondly, the 1st respondent contended that the issues at hand are replete with factual disputes rendering it incapable of resolution via application proceedings. They therefore argue that the choice of application proceedings by the applicants constitutes what should be an ill-fated misadventure on their part.</p> <p>            Thirdly and perhaps most importantly 1st respondent avers that in the absence of empirical data on the noise levels complained of, the court  is hardly in a position to conclude that the noise output of the 1st respondent’s prospecting activities exceeds legally permissible levels.</p> <p>From the above the issues for determination may be crisply put thus:</p> <ol> <li>Do the applicants have the requisite mandate to bring the application?</li> <li>Does the dispute lend itself to resolution on the papers and if not what are the consequences attendant thereto?</li> <li>Have the applicants managed to sufficiently establish a noise infringement warranting inference from the courts?</li> </ol> <p>It suffices however to observe that these issues are not (as is almost invariably the case) discrete and separate.   There are several areas of convergence and overlap.</p> <p>The first two issues are preliminary in nature and need to be addressed before embarking (should that be necessary) on a resolution of the third, the latter constituting as it does the main substance of this application.</p> <p> </p> <p><strong>Mandate</strong></p> <p>Right from the outset, counsel for the applicants conceded, rightly so, that in the absence of a clear mandate from the generality of the student population of the affected schools, the applicants cannot purport to represent same.   There was a half-hearted attempt to seek refuge in section 85 (1) (b) of the Constitution which empowers a person to approach the court on behalf of another person who cannot act for themselves.  However, this provision will not avail the applicant for the simple reason that it has not been shown that the parents of the affected students cannot act on behalf of those other students.  The applicants cannot arrogate unto themselves the power to act on behalf of all the students from the two schools without first establishing that those students have an interest in the order sought and secondly that their own parents or guardians are incapacitated form instituting such an application.</p> <p>At best the applicants can only represent their own children or dependants and the application should be allowed to proceed on that basis.   There was some apparent blurring and even conflation on the part of the 1st respondent of the concepts “mandate” and locus standi. Be that as it may, to the extent that the applicants are permitted to represent their children who are allegedly affected by the noise infringement, the applicants do have direct and substantial interest in the matter. They do therefore have the requisite locus standi to bring this application. What they cannot do, however, is purport to represent the interests of the generality of the learners at the two schools in question.</p> <p> </p> <p><strong>The question of the alleged use of the wrong procedure</strong></p> <p>            As stated earlier, it was s argued on behalf of the 1st respondent that the dispute is ridden with factual disputes rendering it incapable of resolution on the papers.  It was further contended in this regard that the appropriate procedure would have been for the applicants to proceed by way of action proceedings.   In the main the argument is that there is an intractable dispute regarding the level of noise occasioned by the 1st respondent’s prospecting activities and its impact on the teaching and learning environment. The first question therefore is whether there are material disputes of fact.</p> <p>In <em>Supa Plant Investment (Pvt) Ltd v Edgar Chidavaenzi </em>2009 (2) ZRL 132 (H) at 136 MAKARAU J (as she then was) described a material dispute of fact in the following terms;</p> <p>"A material dispute of facts its arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence"</p> <p>  </p> <p>            In <em>Room Hire co. v Jeppe street Mansions</em> 1949 (3) SA 1155 it was held that for a respondent to allege that there was a material dispute of fact he must establish and real issue of fact which cannot be satisfactorily determined without the aid of oral evidence.  He must not make a bare denial or merely allege a dispute.</p> <p>            In the present matter I find the argument by 1st respondent that there exist material disputes of fact meritorious.  There being sharp contestation as between the applicant and 1st respondent regarding nature, level, extent and impact of the noise emitted from the latter’s prospecting activities it is virtually impossible for the court to make a proper determination regarding the same on the papers.</p> <p>            This is particularly so in light of the fact that neither submitted scientific reports on the actual noise emitted.  The nature of the noise would of necessity need to be ascertained from those that produce and those that endure it.  Similarly, the frequency or regularity of same would equally need to be established.   Its alleged disruptive impact would likewise need to be proved.  The 1st respondent averred without producing proof, that it has constantly recorded noise levels in the region of 68 decibels over a 50 metre radius; well below the acceptable guidelines of 90 decibels and further that the natural dissipation of sound as distance from source increases.</p> <p>            Given the diametrically opposite assertions by the applicants and the 1st respondent, regarding this all important issue, it would be too presumptive of this court to conclude either way without the leading of proper evidence – oral or otherwise.</p> <p>            What remains to be decided is the course of action to take.  The 1st respondent urged the court to dismiss the application on the basis that the applicants consciously took the risk by persisting with the matter as an application despite realising the inevitability of disputes of fact arising.</p> <p>            In <em>Musevenzo v Beji and Another</em> HH 268/13 MAFUSIRE J synthesized the various options available to the court in such situations, namely, (a) to take a robust view  of the facts and resolve the dispute on the  papers, or (b)  permit or require any person to give oral evidence in terms of  r229B of the rules of it is in the interests of justice  to hear such  evidence or (iii) refer the matter to trial with  the application standing as the summons or the papers already filed of record standing as pleadings or (iv)  dismiss the application altogether if the applicant  should have realised the dispute when launching the application.</p> <p>            In view of the fact that the answer to this question in the present matter dovetails with the third and final issue for determination, it will be deferred accordingly.</p> <p><strong>Whether or not the requirements for an interdict have been satisfied.</strong></p> <p>            For a final interdict to succeed the following pre-requisite have to be satisfied (see <em>Flame Lily Investment Company (Private) Limited v Zimbabwe Salvage (Private) Limited and Anor </em>1980 ZLR 378; <em>Setlogelo v Setlogelo</em> 1914 AD 221)</p> <ol> <li>a clear right on the part of the applicant</li> <li>actual or reasonably apprehended injury, and;</li> <li>absence of any other remedy by which applicant can be protected with the same result.</li> </ol> <p>Each of these will be applied to the facts of this matter in turn.</p> <p><strong>Clear right</strong></p> <p>            This term has been interpreted to mean <em>"a right clearly established at law."</em>   In Erasmus <em>"Superior court Practice,"</em> 2nd edition at D6-12-13 following is stated:</p> <p>“It is submitted that what is meant by the phrase (clear right) is a right clearly established.  Whether the applicant has a right is a matter of substantive law, whether that right is clearly established is a matter of evidence.  In order to establish a clear right the applicant has to prove on a balance of probability the right which he seeks to protect."</p> <p>In <em>Plascon – Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd </em>1984 (3) SA 623 (A) the test as enunciated as follows;</p> <p> </p> <p>"That the interdict sought can be granted only if the facts as stated by the respondents, together with the admitted facts in the applicants affidavit, justify the granting thereof"</p> <p>            It is pertinent to note, as was stated in <em>Flame Lily investment Pvt Ltd v Zimbabwe salvage (Pvt) Ltd and Anor </em>(Supra) that a clear right need not be incontrovertible but definite.</p> <p>            Against the above stated principles, can it be said that in the present case the applicants have managed it establish a clear right against the respondents? Can it be said that the test formulated in the <em>Plascon-Evans Paints</em> case (Supra) has been satisfied? In other words do facts clearly justify the granting of the order sought?   I think not.   Here is why:  first and foremost it is not disputed that the 1st respondent is legally entitled to carry out prospecting activities in the geographical area in question from the papers filed of record, particularly the affidavit filed by 2nd respondent. The 1st respondent enjoys the unequivocal support of the Ministry of Mines and Mining development being the government organ mandated with the responsibility of regulating mining activities in the country.   That being the case how can the applicants claim to have a right to have 1st respondent ejected from that area?</p> <p>            Further it is clear that 1st respondent enjoys the support of the various strata of the education authorities as amply demonstrated by the minutes of various consultative meetings held in connection with the 1st respondents prospecting activities in the area.   The headmasters of the two schools supposedly affected by the noise lend their support to the prospecting activities of the 1st respondent. All this is borne out from the minutes of those consultative meetings.</p> <p>            Thirdly, the 1st respondent, from various documents filed of record including the minutes of the meetings referred to above, enjoys the unreserved support of other government organs (such as the Ministry of Local Government) all of whom participated in the said meetings.  The traditional leaders of the community in question also evidently support the venture undertaken by the 1st respondent.</p> <p>            Strangely the applicants seek not the abatement of the noise created by prospecting but the ejectment of the 1st respondent from the area in question.</p> <p>            It must be stressed that the right claimed by the applicant should not be viewed in the abstract but against other compelling rights enjoyed by the respondents.   Ordering the ejection of the 1st respondent will amount to a negation of the 1st respondent’s rights to conduct prospecting operations in the area in question. In <em>Natural Stone Export Co (Pvt) Ltd &amp; Anor v Dir, National Parks &amp; Ors </em>1997 (2) 215 (H) a dispute arose regarding whether or not the Parks and wildlife authority could impose restrictions on the mining activities of the applicant who was the holder of a mining licence authorising it to mine within a safari area. The court stated as follows:</p> <p>“I agree that it is the function and duty of Director and minister to control, manage and maintain Safari areas for the specified purposes but they cannot deprive prospectors and miners of rights conferred on them by Chapter 21:05 unless specifically authorised by Chapter 20:14 to do so. There is no such authority conferred by Chapter 20:14.” (Emphasis added)</p> <p> In the same vein, in the present case applicants cannot purport to hold such rights as to oust the rights held by 1st respondent to conduct prospecting activities in the area in question.</p> <p><strong>ACTUAL OR REASONBLY APPREHENDED INJURY</strong></p> <p>The applicants aver that the noise produced by or from the 1st respondent’s prospecting activities does not conduce to a proper teaching and learning environment or to the proper administration of examinations. The 1st respondent on the other hand relying on a passage from the case of <em>Wright v Pomona Stone Quarries (Pvt) Ltd</em> 1988 (2) ZLR 144(5) contend that there simply isn’t sufficient evidence to support that allegation.</p> <p>In that case as, in the present one, the nuisance complained of was noise generated by some excavation or quarrying activities undertaken by the respondents at a location adjacent to the suburb of Pomona where the applicant resided.</p> <p>The court stated as follows:</p> <p>“She (Applicant) says the noise level is now sufficiently greater and more intrusive than at any time during 1950 to 1979.  She does not say how she measures the noise level.</p> <p>The level of noise complained of is a matter of fact and opinion.  More so it is a matter of common sense.   But it must be measured for the court to give value judgement Miller J in <em>de Charmoy v Day star  Hatchery (Pvt) Ltd</em> 1967 (4) SA 188 (D) at 192 E-F, puts the test as follows: "the test moreover, is an objective  one in the sense that not the individual reaction of  a delicate or highly  sensitive person who truthfully complains that the finds the noise intolerable is to be decisive, but the reaction  of the reasonable man- one who, according to ordinary standards  of comfort and convenience, and without any peculiar sensitivity  to the particular noise, would find it, if not  quite intolerable a serious impediment to the reasonable enjoyment of his property <em>(cf Hilland v Scott 2 EDL at 324, Graham  v Dittman and Son 1917 TPT 288 at 290-1, Leith v Port Elizabeth  Museum Trustees 1934 EDL 211 at 213-4, Ferreira v Grant 1941 WLD 186 at 188-9, Prinsloo v Shaw 1938 Ad 570 at 575)."</em></p> <p> </p> <p>In applying the above test one finds that the application suffered from a paucity of evidence to sustain it.  Unlike the <em>Wright v Pomona Quarries</em> case (Supra) where the noise complained of was described in   great detailed, here we have only generalised averments to the effect that 1st respondent’s prospecting activities are disturbing classes and examination due to the noise produced thereby.</p> <p>Secondly there was no empirical evidence to demonstrate the extent of noise produced.  Such a measurement in decibels would probably have assisted the applicants’ cause.  I must however hasten to point out that the <em>Wright v Pomona Quarries</em> matter was not necessarily decided on the production of scientific data on the quantum of noise produced but upon a sufficiently descriptive account thereof something which is woefully lacking in the present matter.</p> <p>The third shortcoming is the absence of supporting affidavits from any of the affected learners.   What we have are averments by persons who have not personally experienced the noise. Such affidavits would have enabled the court to gauge the nature, extent and frequency of the noise nuisance and its impact on learning related activities. Affidavits by the school children supposedly affected by the noise would perhaps have assisted the applicants.</p> <p> </p> <p>I have already alluded to the fact that the 1st respondent’s prospecting activities enjoy wide spread support as evidenced by the minutes of the various consultative meetings filed of record.  This casts serious doubt on the truthfulness of the applicant’s averments that the noise produced by the prospecting activities of the 1st respondent are very highly disruptive to normal teaching/learning activities at the two schools. How probable is that the persons mandated with the proper administration of the schools (the school heads, Education inspectors etc.) would ignore or otherwise condone an infringement such as the one the applicants seek to portray? Put differently it is strange that this application is not backed by supporting affidavits deposed to by any of the other persons naturally expected to be adversely affected by the alleged noise nuisance, namely the teachers, the school headmasters and members of the school development committee. </p> <p> </p> <p>The danger, therefore, is to grant this application on the basis of unsubstantiated complaints by only four disgruntled students and their parents. Sight must not be lost of the objective nature of the test. I am of the view that it has not been established on an objective basis that the noise complained of is of such a nature as to justify the granting of the interdict sought. In other words the applicants have not managed to prove injury/harm actually suffered or reasonably apprehended.</p> <p>Earlier I reserved the question of whether to dismiss the application or refer it to trial or to lead evidence given the material disputes of facts present.  Having thus dealt with the patent absence of evidence to support the applicant’s case as demonstrated above, I believe that this is a case where the application ought to be dismissed as opposed to any of the other available options.  The applicants must have realised from the respondent’s notice opposition and accompanying opposing affidavits of the inevitability of material disputes of fact arising.  Ultimately therefore, for the reasons outlined above, I find that the application lacks merit and should be dismissed.</p> <p> </p> <p>Accordingly, I make the following order:</p> <ol> <li>The application is hereby dismissed.</li> <li>The applicants to pay costs of suit</li> </ol> <p> </p> <p> </p> <p><em>Matutu &amp; Mureri</em>, Applicants’ Legal practitioners</p> <p><em>Coghlan Welsh &amp; Guest</em>, 1st Respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney General</em>, 2nd respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>MAGRET KASONGO</p> <p>And</p> <p>NETSAI MUKWATURI</p> <p>And</p> <p>MACHAKARI MASHAMANDA</p> <p>And</p> <p>FRADRECK NYIKA</p> <p> </p> <p>Versus</p> <p> </p> <p>MUROWA DIAMONDS (PVT) LTD</p> <p>And</p> <p>MINISTER OF MINES &amp; MINING DEVELOPMENT</p> <p>And</p> <p>MINISTER OF PRIMARY &amp; SECONDARY EDUCATION</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZISENGWE J</p> <p>MASVINGO, 12 March 2020 and 20 May 2020</p> <p> </p> <p><strong>Opposed Application: Interdict</strong></p> <p> </p> <p><em>M. Mureri,</em> for the applicants</p> <p><em>T. Zhuwarara,</em> for 1st respondent</p> <p><em>T. Undenge</em>, for 2nd respondent</p> <p> </p> <p> </p> <p> </p> <p><strong>ZISENGWE J</strong>:  This is an application for an interdict wherein the applicants seek in the main an order barring the 1st respondent from continuing with their mineral prospecting activities on a certain piece of land situate in the Chivi communal lands.   The four applicants are all parents or guardians of leaners at two schools (Danhamombe Secondary school and St Simon Zhara primary school) on whose premises part of the prospecting is taking place. I briefly pause here to observe that the parties used the term "exploration" to refer to the 1st respondent’s prospecting activities.</p> <p>The 1st respondent is a company duly incorporated in terms of the laws of Zimbabwe.   It would appear from the papers filed of record that its main business is prospecting for minerals and mining and, hence the prospecting earlier stated.</p> <p>The 2nd respondent on the other hand is the Minister of Mines and Mining development.  He heads the ministry responsible for the regulation and superintendence of mining activities in the country.</p> <p>The 3rd respondent is the Minister of Primary and secondary education.   He was cited as a respondent because the dispute in question relates to alleged infringements by the 1st respondent on school and educational activities.</p> <p>In brief the background to this application is as follows. The 1st respondent which is a subsidiary of RIOZIM (private) Limited has been conducting prospecting work in the area on or adjacent to the premises of the schools referred to above.  They do so in the basis of what the 2nd respondent describes as “286 registered [diamond] mining blocks in the Chibi and Mshawasha communal lands” registered with it (i.e. 2nd respondent) between 2000 and 2001”.</p> <p> According to the applicants, the 1st respondent’s prospecting activities generate unbearable noise incompatible with a proper learning environment. As if that is not bad enough, so the applicants aver, the exploration activities of the 1st respondent have resulted in considerable damage to some critical school infrastructure such as water pipes.</p> <p>The applicants further aver that efforts to resolve the issue amicably with 1st respondent have proved fruitless leaving them as parents and guardians of some of the affected students with virtually no other option but to approach the courts and seek relief in the form of an interdict.</p> <p>Initially the applicants launched a two -pronged attack on the 1st respondent’s mineral exploration activities in or near the premises of the schools in question; the first leg being the noise complaint as alluded above.  The second leg of the application was that the 1st respondent had neither sought nor obtained the consent of the authority responsible for either school something it was required to do before the commencement of its prospecting activities as required by section 31 of mines and minerals Act, <em>[chapter 21:05] </em>(the Act). It would also appear that the applicants are alleging that the 2nd and 3rd respondents are complicit in permitting the alleged transgressions at the two schools and want them ordered to stop being so permissive.</p> <p>The applicants therefore sought an order in the following terms:</p> <p>"wherefore, after hearing counsel and reading the document filed of record</p> <p>It is hereby ordered that:</p> <ol> <li>The first respondent is interdicted and restrained from carrying out mining activities at St.Simon Zhara Primary school and Danhamombe Secondary School premises and grounds.</li> <li>The first respondent removes its machinery and move out of the school premises and grounds.</li> <li>The first respond [is] interdicted and restrained from using school property including premises, ground and infrastructure</li> <li>The second and third respondents and/or any employees of their ministries are interdicted and restrained from assisting the first respondent to do any of the restrained activities above or allowing the first respondent to use the school premises, grounds and infrastructure or do mining activities at these schools.</li> <li>The second and third respondents are hereby interdicted and compelled and take active measures to protect the pupils, school resources, property and infrastructure from abuse by the 1st respondent.</li> <li>The respondents to pay jointly and severally the applicant’s costs.</li> </ol> <p> </p> <p>In a nutshell, therefore, what the applicants initially sought was as amalgam of a prohibitory interdict and a mandatory interdict.   Prohibitory in the sense that they sought an order prohibiting the 1st respondent from carrying out its prospecting activities (which were erroneously referred to as “mining” activities) in and around the premises of two schools.  Additionally they sought an order prohibiting the 2nd and 3rd respondents from aiding the 1st respondent in whatever way in carrying out its prospecting activities in and around the premises of the two schools. It is also mandatory in part in the sense that the applicant wants the 1st respondent to be compelled to immediately remove its prospecting equipment and related paraphernalia from the schools’ premises.</p> <p>However, in the course of these proceedings counsel for the applicants, in view of the provisions of sections 31 and 32 of the Act, abandoned the attack related to the alleged absence of consent on the part of the 1st respondent to prospect on that piece of land.   This effectively left the sole issue for determination being whether the interdict sought should be granted on the basis of the noise complaint.</p> <p>            The 1st and 2nd respondents opposed the application and in this regard the 1st respondent raised three interrelated issues to confront the noise complaint. These issues can be summarised as follows;</p> <p>            Firstly that the applicants do not have the mandate of the generality of the learners at the school to bring this application and in the absence of such a mandate this application should fail.</p> <p>            Secondly, the 1st respondent contended that the issues at hand are replete with factual disputes rendering it incapable of resolution via application proceedings. They therefore argue that the choice of application proceedings by the applicants constitutes what should be an ill-fated misadventure on their part.</p> <p>            Thirdly and perhaps most importantly 1st respondent avers that in the absence of empirical data on the noise levels complained of, the court  is hardly in a position to conclude that the noise output of the 1st respondent’s prospecting activities exceeds legally permissible levels.</p> <p>From the above the issues for determination may be crisply put thus:</p> <ol> <li>Do the applicants have the requisite mandate to bring the application?</li> <li>Does the dispute lend itself to resolution on the papers and if not what are the consequences attendant thereto?</li> <li>Have the applicants managed to sufficiently establish a noise infringement warranting inference from the courts?</li> </ol> <p>It suffices however to observe that these issues are not (as is almost invariably the case) discrete and separate.   There are several areas of convergence and overlap.</p> <p>The first two issues are preliminary in nature and need to be addressed before embarking (should that be necessary) on a resolution of the third, the latter constituting as it does the main substance of this application.</p> <p> </p> <p><strong>Mandate</strong></p> <p>Right from the outset, counsel for the applicants conceded, rightly so, that in the absence of a clear mandate from the generality of the student population of the affected schools, the applicants cannot purport to represent same.   There was a half-hearted attempt to seek refuge in section 85 (1) (b) of the Constitution which empowers a person to approach the court on behalf of another person who cannot act for themselves.  However, this provision will not avail the applicant for the simple reason that it has not been shown that the parents of the affected students cannot act on behalf of those other students.  The applicants cannot arrogate unto themselves the power to act on behalf of all the students from the two schools without first establishing that those students have an interest in the order sought and secondly that their own parents or guardians are incapacitated form instituting such an application.</p> <p>At best the applicants can only represent their own children or dependants and the application should be allowed to proceed on that basis.   There was some apparent blurring and even conflation on the part of the 1st respondent of the concepts “mandate” and locus standi. Be that as it may, to the extent that the applicants are permitted to represent their children who are allegedly affected by the noise infringement, the applicants do have direct and substantial interest in the matter. They do therefore have the requisite locus standi to bring this application. What they cannot do, however, is purport to represent the interests of the generality of the learners at the two schools in question.</p> <p> </p> <p><strong>The question of the alleged use of the wrong procedure</strong></p> <p>            As stated earlier, it was s argued on behalf of the 1st respondent that the dispute is ridden with factual disputes rendering it incapable of resolution on the papers.  It was further contended in this regard that the appropriate procedure would have been for the applicants to proceed by way of action proceedings.   In the main the argument is that there is an intractable dispute regarding the level of noise occasioned by the 1st respondent’s prospecting activities and its impact on the teaching and learning environment. The first question therefore is whether there are material disputes of fact.</p> <p>In <em>Supa Plant Investment (Pvt) Ltd v Edgar Chidavaenzi </em>2009 (2) ZRL 132 (H) at 136 MAKARAU J (as she then was) described a material dispute of fact in the following terms;</p> <p>"A material dispute of facts its arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence"</p> <p>  </p> <p>            In <em>Room Hire co. v Jeppe street Mansions</em> 1949 (3) SA 1155 it was held that for a respondent to allege that there was a material dispute of fact he must establish and real issue of fact which cannot be satisfactorily determined without the aid of oral evidence.  He must not make a bare denial or merely allege a dispute.</p> <p>            In the present matter I find the argument by 1st respondent that there exist material disputes of fact meritorious.  There being sharp contestation as between the applicant and 1st respondent regarding nature, level, extent and impact of the noise emitted from the latter’s prospecting activities it is virtually impossible for the court to make a proper determination regarding the same on the papers.</p> <p>            This is particularly so in light of the fact that neither submitted scientific reports on the actual noise emitted.  The nature of the noise would of necessity need to be ascertained from those that produce and those that endure it.  Similarly, the frequency or regularity of same would equally need to be established.   Its alleged disruptive impact would likewise need to be proved.  The 1st respondent averred without producing proof, that it has constantly recorded noise levels in the region of 68 decibels over a 50 metre radius; well below the acceptable guidelines of 90 decibels and further that the natural dissipation of sound as distance from source increases.</p> <p>            Given the diametrically opposite assertions by the applicants and the 1st respondent, regarding this all important issue, it would be too presumptive of this court to conclude either way without the leading of proper evidence – oral or otherwise.</p> <p>            What remains to be decided is the course of action to take.  The 1st respondent urged the court to dismiss the application on the basis that the applicants consciously took the risk by persisting with the matter as an application despite realising the inevitability of disputes of fact arising.</p> <p>            In <em>Musevenzo v Beji and Another</em> HH 268/13 MAFUSIRE J synthesized the various options available to the court in such situations, namely, (a) to take a robust view  of the facts and resolve the dispute on the  papers, or (b)  permit or require any person to give oral evidence in terms of  r229B of the rules of it is in the interests of justice  to hear such  evidence or (iii) refer the matter to trial with  the application standing as the summons or the papers already filed of record standing as pleadings or (iv)  dismiss the application altogether if the applicant  should have realised the dispute when launching the application.</p> <p>            In view of the fact that the answer to this question in the present matter dovetails with the third and final issue for determination, it will be deferred accordingly.</p> <p><strong>Whether or not the requirements for an interdict have been satisfied.</strong></p> <p>            For a final interdict to succeed the following pre-requisite have to be satisfied (see <em>Flame Lily Investment Company (Private) Limited v Zimbabwe Salvage (Private) Limited and Anor </em>1980 ZLR 378; <em>Setlogelo v Setlogelo</em> 1914 AD 221)</p> <ol> <li>a clear right on the part of the applicant</li> <li>actual or reasonably apprehended injury, and;</li> <li>absence of any other remedy by which applicant can be protected with the same result.</li> </ol> <p>Each of these will be applied to the facts of this matter in turn.</p> <p><strong>Clear right</strong></p> <p>            This term has been interpreted to mean <em>"a right clearly established at law."</em>   In Erasmus <em>"Superior court Practice,"</em> 2nd edition at D6-12-13 following is stated:</p> <p>“It is submitted that what is meant by the phrase (clear right) is a right clearly established.  Whether the applicant has a right is a matter of substantive law, whether that right is clearly established is a matter of evidence.  In order to establish a clear right the applicant has to prove on a balance of probability the right which he seeks to protect."</p> <p>In <em>Plascon – Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd </em>1984 (3) SA 623 (A) the test as enunciated as follows;</p> <p> </p> <p>"That the interdict sought can be granted only if the facts as stated by the respondents, together with the admitted facts in the applicants affidavit, justify the granting thereof"</p> <p>            It is pertinent to note, as was stated in <em>Flame Lily investment Pvt Ltd v Zimbabwe salvage (Pvt) Ltd and Anor </em>(Supra) that a clear right need not be incontrovertible but definite.</p> <p>            Against the above stated principles, can it be said that in the present case the applicants have managed it establish a clear right against the respondents? Can it be said that the test formulated in the <em>Plascon-Evans Paints</em> case (Supra) has been satisfied? In other words do facts clearly justify the granting of the order sought?   I think not.   Here is why:  first and foremost it is not disputed that the 1st respondent is legally entitled to carry out prospecting activities in the geographical area in question from the papers filed of record, particularly the affidavit filed by 2nd respondent. The 1st respondent enjoys the unequivocal support of the Ministry of Mines and Mining development being the government organ mandated with the responsibility of regulating mining activities in the country.   That being the case how can the applicants claim to have a right to have 1st respondent ejected from that area?</p> <p>            Further it is clear that 1st respondent enjoys the support of the various strata of the education authorities as amply demonstrated by the minutes of various consultative meetings held in connection with the 1st respondents prospecting activities in the area.   The headmasters of the two schools supposedly affected by the noise lend their support to the prospecting activities of the 1st respondent. All this is borne out from the minutes of those consultative meetings.</p> <p>            Thirdly, the 1st respondent, from various documents filed of record including the minutes of the meetings referred to above, enjoys the unreserved support of other government organs (such as the Ministry of Local Government) all of whom participated in the said meetings.  The traditional leaders of the community in question also evidently support the venture undertaken by the 1st respondent.</p> <p>            Strangely the applicants seek not the abatement of the noise created by prospecting but the ejectment of the 1st respondent from the area in question.</p> <p>            It must be stressed that the right claimed by the applicant should not be viewed in the abstract but against other compelling rights enjoyed by the respondents.   Ordering the ejection of the 1st respondent will amount to a negation of the 1st respondent’s rights to conduct prospecting operations in the area in question. In <em>Natural Stone Export Co (Pvt) Ltd &amp; Anor v Dir, National Parks &amp; Ors </em>1997 (2) 215 (H) a dispute arose regarding whether or not the Parks and wildlife authority could impose restrictions on the mining activities of the applicant who was the holder of a mining licence authorising it to mine within a safari area. The court stated as follows:</p> <p>“I agree that it is the function and duty of Director and minister to control, manage and maintain Safari areas for the specified purposes but they cannot deprive prospectors and miners of rights conferred on them by Chapter 21:05 unless specifically authorised by Chapter 20:14 to do so. There is no such authority conferred by Chapter 20:14.” (Emphasis added)</p> <p> In the same vein, in the present case applicants cannot purport to hold such rights as to oust the rights held by 1st respondent to conduct prospecting activities in the area in question.</p> <p><strong>ACTUAL OR REASONBLY APPREHENDED INJURY</strong></p> <p>The applicants aver that the noise produced by or from the 1st respondent’s prospecting activities does not conduce to a proper teaching and learning environment or to the proper administration of examinations. The 1st respondent on the other hand relying on a passage from the case of <em>Wright v Pomona Stone Quarries (Pvt) Ltd</em> 1988 (2) ZLR 144(5) contend that there simply isn’t sufficient evidence to support that allegation.</p> <p>In that case as, in the present one, the nuisance complained of was noise generated by some excavation or quarrying activities undertaken by the respondents at a location adjacent to the suburb of Pomona where the applicant resided.</p> <p>The court stated as follows:</p> <p>“She (Applicant) says the noise level is now sufficiently greater and more intrusive than at any time during 1950 to 1979.  She does not say how she measures the noise level.</p> <p>The level of noise complained of is a matter of fact and opinion.  More so it is a matter of common sense.   But it must be measured for the court to give value judgement Miller J in <em>de Charmoy v Day star  Hatchery (Pvt) Ltd</em> 1967 (4) SA 188 (D) at 192 E-F, puts the test as follows: "the test moreover, is an objective  one in the sense that not the individual reaction of  a delicate or highly  sensitive person who truthfully complains that the finds the noise intolerable is to be decisive, but the reaction  of the reasonable man- one who, according to ordinary standards  of comfort and convenience, and without any peculiar sensitivity  to the particular noise, would find it, if not  quite intolerable a serious impediment to the reasonable enjoyment of his property <em>(cf Hilland v Scott 2 EDL at 324, Graham  v Dittman and Son 1917 TPT 288 at 290-1, Leith v Port Elizabeth  Museum Trustees 1934 EDL 211 at 213-4, Ferreira v Grant 1941 WLD 186 at 188-9, Prinsloo v Shaw 1938 Ad 570 at 575)."</em></p> <p> </p> <p>In applying the above test one finds that the application suffered from a paucity of evidence to sustain it.  Unlike the <em>Wright v Pomona Quarries</em> case (Supra) where the noise complained of was described in   great detailed, here we have only generalised averments to the effect that 1st respondent’s prospecting activities are disturbing classes and examination due to the noise produced thereby.</p> <p>Secondly there was no empirical evidence to demonstrate the extent of noise produced.  Such a measurement in decibels would probably have assisted the applicants’ cause.  I must however hasten to point out that the <em>Wright v Pomona Quarries</em> matter was not necessarily decided on the production of scientific data on the quantum of noise produced but upon a sufficiently descriptive account thereof something which is woefully lacking in the present matter.</p> <p>The third shortcoming is the absence of supporting affidavits from any of the affected learners.   What we have are averments by persons who have not personally experienced the noise. Such affidavits would have enabled the court to gauge the nature, extent and frequency of the noise nuisance and its impact on learning related activities. Affidavits by the school children supposedly affected by the noise would perhaps have assisted the applicants.</p> <p> </p> <p>I have already alluded to the fact that the 1st respondent’s prospecting activities enjoy wide spread support as evidenced by the minutes of the various consultative meetings filed of record.  This casts serious doubt on the truthfulness of the applicant’s averments that the noise produced by the prospecting activities of the 1st respondent are very highly disruptive to normal teaching/learning activities at the two schools. How probable is that the persons mandated with the proper administration of the schools (the school heads, Education inspectors etc.) would ignore or otherwise condone an infringement such as the one the applicants seek to portray? Put differently it is strange that this application is not backed by supporting affidavits deposed to by any of the other persons naturally expected to be adversely affected by the alleged noise nuisance, namely the teachers, the school headmasters and members of the school development committee. </p> <p> </p> <p>The danger, therefore, is to grant this application on the basis of unsubstantiated complaints by only four disgruntled students and their parents. Sight must not be lost of the objective nature of the test. I am of the view that it has not been established on an objective basis that the noise complained of is of such a nature as to justify the granting of the interdict sought. In other words the applicants have not managed to prove injury/harm actually suffered or reasonably apprehended.</p> <p>Earlier I reserved the question of whether to dismiss the application or refer it to trial or to lead evidence given the material disputes of facts present.  Having thus dealt with the patent absence of evidence to support the applicant’s case as demonstrated above, I believe that this is a case where the application ought to be dismissed as opposed to any of the other available options.  The applicants must have realised from the respondent’s notice opposition and accompanying opposing affidavits of the inevitability of material disputes of fact arising.  Ultimately therefore, for the reasons outlined above, I find that the application lacks merit and should be dismissed.</p> <p> </p> <p>Accordingly, I make the following order:</p> <ol> <li>The application is hereby dismissed.</li> <li>The applicants to pay costs of suit</li> </ol> <p> </p> <p> </p> <p><em>Matutu &amp; Mureri</em>, Applicants’ Legal practitioners</p> <p><em>Coghlan Welsh &amp; Guest</em>, 1st Respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney General</em>, 2nd respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/class-action">Class action</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/representative-class-action">representative (Class action)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/who-may-bring-class-action">who may bring class action</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1961/38">Mines and Minerals Act [Chapter 21:05]</a></div></div></div> Fri, 26 Jun 2020 10:27:39 +0000 Sandra 9715 at https://old.zimlii.org Balwearie Holdings (Private) Limited v Jofris & 2 Ors (HH 403-20, HC 2529/20) [2020] ZWHHC 403 (16 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/403 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>BALWEARIE HOLDINGS (PRIVATE) LIMITED</p> <p>versus</p> <p>NEVER JOFRIS                   </p> <p>and</p> <p>ZEBEDIAH PHIRI</p> <p>and</p> <p>JOHN GWISALU</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSITHU J</p> <p>HARARE, 28 May 2020; 5 June; 10 June &amp; 16 June 2020</p> <p> </p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p> </p> <p><em>Advocate A Saunyama and Ms G Chitsaka, </em>for the applicants</p> <p><em>Mr V Mhungu</em>, for the respondents</p> <p> </p> <p>            MUSITHU J: On 22 May 2020 applicant filed this urgent chamber application seeking relief set out in the draft provisional order as follows:</p> <p>“TERMS OF THE FINAL ORDER </p> <p>               </p> <ol> <li>Respondents be and are hereby interdicted and barred from visiting Applicant’s immovable property namely the Remainder of Westhey of Sabonabon Estate Kadoma.</li> <li>Respondents be and are hereby prohibited from disposing Applicant’s agro Plots situated at the Reminder of Westhey of Sabonabon Estate Kadoma.</li> <li>Respondents to pay costs of suit.  </li> </ol> <p> </p> <p>INTERIM RELIEF GRANTED</p> <p>Pending the finalization of this matter Applicant be and is hereby granted the following interim relief.</p> <ol> <li>Respondents be and are hereby barred and interdicted from entering any part of Applicant’s premises known as the Reminder of Westhey of Sabonabon Estate Kadoma.</li> <li>Respondents be and are hereby barred and interdicted from selling Plots belonging to Applicant situate at the Reminder of Westhey of Sabonabon Estate Kadoma and presenting themselves as employees of Balwearie Holding (Private) Limited….”</li> </ol> <p> </p> <p>The application was placed before me on 26 May 2020 and I proceeded to set down for hearing on 28 May 2020. On the day of the hearing, a Mr <em>Magodora </em>appeared in court and advised that he was representing clients who had an interest in the matter though they were not cited in the application. They wished to be joined in the application as respondents. His clients had just received evictions summons from applicant in connection with the same piece of land which is at the centre of the dispute between applicant and the cited respondents. With the consent of the parties’ lawyers, I postponed the matter to 5 June 2020 to allow for engagement between the parties. The postponement was also meant to afford Mr <em>Magodora</em> an opportunity to make an informed position on behalf of his clients after studying the application. To that end, I directed him to update the court and the other parties herein of his clients’ position on or before 3 June 2020.  </p> <p>            On 5 June 2020, and a few minutes before the commencement of the hearing, I received from Mr <em>Magodora,</em> a 50 paged notice of opposition (inclusive of supporting affidavits and annexures), prepared on behalf of 72 respondents. At commencement of the hearing, Ms <em>Saunyama</em> appearing for the applicant objected to the filing of the notice of opposition by the 72 respondents, before their joinder to the application in terms of <em>order 13 rule 85</em>. In reply, Mr <em>Magodora </em>conceded that the 72 respondents were not cited in the urgent chamber application, and neither had they been joined to the proceedings. They were improperly before the court and they could not be heard. I excused Mr <em>Magodora</em> from taking further part in the proceedings.</p> <p>            A notice of opposition was filed on behalf of the cited respondents on 28 May 2020. Only first respondent deposed to an opposing affidavit. The affidavit does not state whether he also speaks on behalf of second and third respondents. The opposing affidavit, raises the following points <em>in limine</em>. Absence of authority to depose to the founding affidavit; defective certificate of urgency; absence of urgency and defective draft order. The opposing affidavit does not address the merits of the application, except to state that <em>“save for admissions expressly made above, I deny each and every averment made by the Applicant and put it to the strictest of proof”</em>. Towards end of day on 4 June 2020, a day before the hearing on 5 June 2020, I received in chambers a supplementary affidavit filed by first respondent. It came at the same time as the applicant’s answering affidavit. The supplementary affidavit introduced a new ground of objection. The absence of <em>locus standi</em> on the part of applicant. I shall revert to these matters latter in the judgment after a brief exposition of the background facts.</p> <p><strong>BACKGROUND FACTS</strong></p> <p>            Believe Guta deposed to the applicant’s founding affidavit in his capacity as applicant’s company secretary. Applicant claims that sometime in 1992 it purchased a piece of land known as the Remainder of Westhey of Sabonabon Estate Kadoma (the property). The property measures 97,0653 hectares and is situated in the city of Kadoma. Applicant was granted permission by the Municipality of Kadoma to subdivide the property through permit number TP/SUB/1/97. The effect of the subdivision was to create further pieces of land called stands 4497 – 4674 Kadoma Township and R/E of Westhey of Sabonabon Estate. In his capacity as company secretary, Guta asserts that he makes regular visits to the property to check on progress being made by surveyors and engineers engaged in the servicing of the stands. The last such visit was on 29 March 2020, a day before the COVID 19 National Lockdown commenced.</p> <p>            On 17 May 2020, Guta claims to have visited the property to check on progress as aforementioned. He met Agenia Muzanenhamo, a resident at the property. Muzanenhamo informed Guta that during the lockdown, respondents made several visits to the property during which time they presented themselves as having the mandate to sell the subdivided stands on applicant’s behalf. The trio offered to regularize Muzanenhamo’s stay at the property if she paid them a US$1000.00 deposit, as well as sign an agreement of sale. The respondents also frequented one Mrs Manjera’s residence during their visits. Guta claims that Mrs Manjera is an illegal occupant of one of the stands. Muzanenhamo attached a supporting affidavit which essentially corroborates Guta’s account. She adds that when respondents offered to regularize her stay at the property, she informed them that she did not have the required deposit.  On their subsequent visits, respondents would enquire if she had managed to raise the required deposit. She still did not have the money. Respondents also came with prospective buyers who wanted to view some of the stands.  </p> <p>            A visit by Guta to Manjera’s property revealed that she was related to second respondent. She also confirmed that respondents had visited her residence on numerous occasions during the lockdown. They presented themselves as employees of applicant. Guta claims he then called first respondent on a mobile number supplied by Muzanenhamo, demanding to know who had authorized him to sell applicant’s stands. First respondent was hostile and allegedly threatened Guta on the phone. All the respondents are unknown to applicant. Applicant believes that if they are not restrained, they will swindle unsuspecting buyers of their cash through the unlawful sale of applicant’s stands. Guta reported respondents at Eiffel Flats Police station on 19 May 2020. </p> <p>            Applicant seeks an interdict barring respondents from disposing of its stands, in order to preserve its property as well as protect innocent buyers. Applicant also wants respondents barred from visiting the property.</p> <p>            The application was accompanied by a certificate of urgency from Angela Matarutso. She certified the urgency of the matter as follows:</p> <p>“I have read the Applicant’s founding affidavit, the supporting affidavit and annexures and I certify that the matter is urgent for the following reasons;</p> <ol> <li>Applicant is the registered owner of a certain piece of land known as Remainder of Westhey of Sabonabon Estate Kadoma.</li> <li>Respondents who are not employees or agents of Applicant took advantage of Applicant absence from the immovable property during the initial phase of the COVID 19 lockdown period and attempted to sell Applicants agro plots.</li> <li>Applicant only became aware of the Respondent’s activities at the immovable property when its employees visited the property on the 17th of May 2020 and immediately took action to protect Applicant’s interests.</li> <li>The only way that Applicant can adequately protect its interest in the immovable property and protect unsuspecting members of the public is through an urgent interdict prohibiting Respondents from visiting Applicants immovable property and disposing Applicants plots.</li> <li>If this matter is not allowed to jump the queue of other matters awaiting hearing on the ordinary roll Applicant and unsuspecting members of the public stands to suffer irreparable harm and prejudice and the relief that Applicant currently prays for will no longer be available.</li> <li>For the above reasons I certify this matter to be urgent…..”</li> </ol> <p> </p> <p>For convenience, I asked counsel to address me on the points <em>in limine</em> and the merits at the same time. The matter would be disposed of on the basis of the preliminary points if I found them meritorious.</p> <p><strong>POINTS <em>IN LIMINE </em></strong></p> <p><strong><em>Absence of Locus Standi</em></strong></p> <p>As already stated, first respondent’s supplementary affidavit introduces a new ground of objection. It challenges applicant’s <em>locus standi</em>. First respondent submits he established that applicant was registered in 2020 under company number 1898/2020. Apparently at the time of applicant’s registration, there was already another entity with a similar name registered under company number 45/1977. The position was confirmed by the Registrar of Companies in a letter attached to the supplementary affidavit. The letter of 2 June 2020 reads as follows:</p> <p>           </p> <p> </p> <p> </p> <p> </p> <p>“……………</p> <p>Kindly be advised that</p> <ol> <li>There are two different companies registered under the name Balwearie Holdings (Private) Limited, that is 1898/2020 and 45/1977.</li> <li>There was an error in the registration of Balwearie Holdings (Private) Limited 1898/2020 due to the fact that there was already an existing company using the same name.</li> <li>The re-registration process has not yet commenced as required by the New Companies and Other Business Entities Act Chapter 24:31.</li> <li>Companies registered under company numbers 45/1977 and 1898/2020 are completely different companies</li> </ol> <p>…………………………..” (Underlining for emphasis).</p> <p> </p> <p>Mr <em>Mhungu</em> submitted that a company incorporated in 2020 could not have acquired land in 1992. He further submitted that the property was owned by Balwearie Holdings (Pvt) Ltd registered under company registration 45/1977 (hereinafter referred to as Balwearie 1977), and not the applicant. Applicant was trying to reap where it did not sow. The registration of applicant under 1898/2020 was a deliberate ploy to assume ownership of the property unlawfully. In paragraph 9 of the supplementary affidavit, first respondent claims to be an employee of Balwearie 1977, and that he is authorized in that capacity to represent this entity. Nothing was attached to the supplementary affidavit to back up these claims.</p> <p>            In reply Ms <em>Saunyama</em> argued that the supplementary affidavit was not properly before the court. Supplementary affidavits are permitted in very exceptional circumstances, all the more when they are tendered after an answering affidavit has been filed. A party that seeks to file such affidavit must provide a satisfactory explanation that negatives bad faith or deliberate failure to act timeously. The court must also be satisfied that no prejudice will be occasioned to the opposing party through its filing. The manner in which first respondent acted violated the procedure on concatenation of affidavits.  There is no room for the filing of a supplementary affidavit without the leave of court. The effect of this additional affidavit was to introduce a fresh line of defence and an entirely new matter which did not afford applicant adequate opportunity to refute that submission. Ms <em>Saunyama</em> further submitted that the supplementary affidavit was intended to cause unnecessary confusion as well as cure defects in the opposing affidavit in which first respondent had sorely committed to four grounds of objection. First respondent had not even explained the capacity in which he was employed by Balwearie 1977.</p> <p>            In the answering affidavit, applicant explains the fate of Balwearie 1977 as follows. The company was deregistered in terms of section 283 of the then <em>Companies Act</em><a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a><em>, </em>sometime in 1981. As proof of deregistration, applicant attached an extract of the Government Gazette of 18 December 1981, which contains General Notice 1178 of 1981. The notice carries a list of companies to be struck off the register of companies. The relevant part reads as follows:</p> <p>“IT is hereby notified in terms of section 283 of the Companies Act, [Chapter 190], that at the expiration of three months from the date of publication of this notice, the names of the companies set out in the Schedule will, unless cause is shown to the contrary, be struck off the register, and the said companies will thereby be dissolved”</p> <p> </p> <p>Balwearie 1977 is one of the companies listed in the notice. Its date of registration is stated as 14 February 1977. What is however not clear is what befell the company after the expiration of the three months’ notice. Contrary to applicant’s submission, the gazette of 18 December 1981 is no proof of deregistration. It merely called upon the companies listed to show cause why they should not be struck off the register after the expiry of three months’ notice. Applicant avers that first respondent is manipulating the papers of Balwearie 1977 to give an impression that the company still exists yet it was deregistered. First respondent denies that Balwearie 1977 was deregistered, and points to the letter of 2 June 2020 from the Registrar of Companies.</p> <p>            In order to explain the acquisition of the property by applicant 1992, Ms <em>Saunyama</em> applied to tender a memorandum of agreement of sale between Gatooma Development Corporation (Private) Limited and William Guta  (acting as a promoter of a company about to be formed “Balwearie Holdings (Private) Limited”). She also applied to tender applicant’s memorandum and articles of association. Mr <em>Mhungu </em>vehemently opposed the tendering of the agreement of sale between Gatooma Development Corporation (Private) Limited and William Guta (the agreement of sale) and the memorandum and articles of association. While justifying the tendering of the supplementary affidavit on the basis that it raised a point of law which can be advanced at any stage of proceedings in line with the <em>dictum</em> in <em>Muchakata v Netherburn Mine<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2"><strong>[2]</strong></a></em>, Mr <em>Mhungu</em> argued that the same could not be said of the agreement of sale. He submitted that the agreement ought to have been disclosed in the founding affidavit in order to explain how a company formed in 2020 acquired a property in 1992.</p> <p>In the exercise of my discretion in terms of <em>Order</em> 32 <em>Rule</em> 246 (1)(a)<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a>, I allowed the production of the supplementary affidavit, applicant’s memorandum and articles of association and the agreement of sale, to form part of the evidence before me. The agreement of sale and applicant’s memorandum and articles of association speak to matters raised in first respondent’s supplementary affidavit. The agreement of sale is concerned with the purchase of the property by applicant represented by William Guta acting as promoter of the company still to be formed. Such contracts are permissible under section 47 of the old <em>Companies Act<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4"><strong>[4]</strong></a></em>. In <em>Ian Spence Gray &amp; Another v The Registrar of Deeds<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5"><strong>[5]</strong></a></em>, GOWORA J (as she then was), stated the position of the law on pre-incorporation contracts as follows: </p> <p>“The issue has received attention from the learned authors Nkala and Nyapadi in their book Company Law in Zimbabwe 1995 Edition. The view of the learned authors is that a company can adopt contracts made on its behalf before incorporation provided that it (the company) meets the following five conditions- viz; that the contract is in writing; the person making the contract on behalf of the company to be formed, irrespective of how he describes himself must at least profess to act as agent for the company; the memorandum and articles of association must contain at the time of incorporation the contract as one of its objects; the contract must be delivered to the registrar simultaneously with the memorandum and articles of association and the contract must be legally enforceable. This view expressed on pp55-59 is in accord with the provisions of the Act”</p> <p> </p> <p><em>Clause ‘q’</em> of applicant’s memorandum of association states as one of applicant’s objects:</p> <p>“To manage land, buildings and other property whether belonging to the company or not, …………Also to adopt pre-incorporation contract in respect of a property known as the remainder of Westhey of Sabonabon Estate. Deed No. 4110/92”  (Underlining for emphasis)</p> <p> </p> <p>The agreement of sale ties in with the deed of transfer of the property attached to the applicant’s founding affidavit. I must state that at this stage I am not required to interrogate the competing claims in these two companies, or put differently which of the two Balwearies is the legitimate one, and concomitantly the lawful title holder of the property. That is a matter for the return day or for another forum. All that is required of me at this stage is to determine whether applicant has established a <em>prima facie</em> case that entitles it to the remedy it seeks. The papers that have been placed before me show that applicant’s name corresponds with the name on the title of the property. The memorandum and articles of association authorized applicant to adopt the pre-incorporation contract in respect of the same property once it was incorporated. Accordingly, I find that applicant has <em>locus standi</em> to institute these proceedings. The point <em>in limine</em> is accordingly dismissed.</p> <p><strong><em>Absence of authority to depose to the founding affidavit</em></strong></p> <p>            In his opposing affidavit first respondent submits that Believe Guta’s founding affidavit is defective as he is not applicant’s company secretary. He claims that applicant’s company secretary is Sabre Services (Private) Limited. To buttress his point, he attached a Form CR14 date stamped 9 January 2009 by the Registrar of Companies. It was presented for filing by Sabre Services (Pvt) Ltd (Sabre). It cites the company number as 45/77. The directors of the company (Balwearie 1977) are listed as Zane Patrick HEYNS and Lorraine Elizabeth HEYNS. As at 24 July 2008, their residential address/business address is stated as Balwearie Farm, Chegutu. Further, first respondent asserts that the board resolution attached to the founding affidavit is fraudulent. The two directors did not participate at the meeting which gave birth to the attached resolution, and neither did they sign the extract of the minutes of the said meeting. Consequently, the application was not sanctioned by the applicant.</p> <p>In reply, applicant averred that Sabre is unknown to it. It claims that Sabre is a creation of the respondents. Applicant also approached the Registrar of Companies seeking the constitutive documents for Balwearie Holdings (Private) Limited. The same registrar who was approached by first respondent furnished applicant with the following documents. Form CR14 which cites 1898/2020 as the company number. The directors are listed as Believe Guta and Christabel Mafirakurewa all of No 675 Victory Park, Kadoma. The company secretary is cited as Believe Guta. Also attached is a certificate of incorporation issued on 21 January 2020. Ms <em>Saunyama</em> submitted that first respondent did not have the standing to speak on behalf of Balwearie 1977, if at all it existed. He did not attach any document to assert his employment status with the company. Nothing connects him to Balwearie 1977. If the directors of the company existed as per the CR14 attached to his affidavit then they were expected to confirm first respondent’s allegations. He appeared to be on a frolic of his own. That raised questions about his interest in this matter.</p> <p>I find the submission persuasive. I have already intimated that there is a dispute regarding the status of the two companies that share the same name, and lay claim to the same property. Guta’s authority to represent applicant cannot be impugned on the basis of protestations by first respondent whose own association with Balwearie 1977 is questionable. In any event, the letter of 2 June 2020 from the Registrar of Companies attached to first respondent’s supplementary affidavit suggests that applicant and Balwearie 1977 are completely different companies. If they are different then first respondent cannot claim to speak on behalf of both entities. The objection is without merit and is dismissed.</p> <p><strong><em>Urgency </em></strong></p> <p>Mr <em>Mhungu</em> submitted that the subject matter of the application is land. It is not a fungible. No irreparable harm can be suffered by applicant if the matter joins the queue of ordinary applications. In reply Ms <em>Saunyama</em> insisted the matter is urgent. Respondents were selling applicant’s stands claiming to be doing so on behalf of applicant. They did not have authority to represent applicant. There was also potential for material and reputational harm to applicant. Third parties could be misled by respondent’s conduct. There was no point in waiting and watching respondents persist with an illegality or self-help, and then approach the court when damage had been done.  In any case, commercial interests constituted a valid ground for seeking relief on an urgent basis. The court was referred to the case of <em>Silver’s Trucks (Pvt) Ltd &amp; Anor </em>v <em>Director of Customs and Excise<a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6"><strong>[6]</strong></a>. </em>Whether or not a matter is urgent is an issue for exercise of discretion by the presiding judge. In <em>Econet Wireless (Pvt) Limited v Trustco Mobile (Proprietary) Limited &amp; Another</em><a href="#_ftn7" name="_ftnref7" title="" id="_ftnref7">[7]</a><em>, </em>GARWE JA made the following point on urgency:</p> <p>“It is clear that in terms of Rules 244 and 246 of the High Court Rules the decision whether to hear an application on the basis of urgency is that of a judge.  The decision is one therefore that involves the exercise of a discretion….”</p> <p> </p> <p>I am satisfied that the matter is urgent. In any case, the essence of first respondent’s objection is not so much about a delay in the launching of the application by applicant. It is about the nature of the property in dispute. I am satisfied that applicant did not have to remain idle while its rights in the property were being violated. That the subject matter of the dispute is land does not disqualify an interested party from approaching the court on an urgent basis to forestall the alleged self-help. The preliminary point is without merit and is accordingly dismissed.</p> <p>            First respondent had in his affidavit averred that the certificate of urgency is defective. Mr <em>Mhungu </em>did not pursue the point in his oral address. I considered the objection abandoned.</p> <p><strong><em>Non Joinder of the Registrar of Companies and Balwearie 1977</em></strong></p> <p>Mr <em>Mhungu</em> submitted that the matter cannot be resolved without submissions from the Registrar of Companies. There was also need to cite Balwearie 1977 since the Government Gazette did not explain whether it was subsequently deregistered or not. The Registrar of Companies would articulate the correct position regarding the two companies. Ms <em>Saunyama </em>on the other hand argued that Balwearie became defunct after 1981. In any event, the Registrar of Companies would not have registered the applicant if Balwearie 1977 still existed.  </p> <p>I am not persuaded by the submission that Balwearie 1977 ceased to exist in 1981, for reasons that I have already stated. There is clearly a dispute pertaining to the status of the two companies and their ownership. That is an argument for the return day. I am however not convinced that the failure to cite both the registrar of companies and Balwearie 1977 is fatal to the application. At this stage I am not required to decide which of the two entities is legitimate, and consequently the rightful owner of the property. The Registrar of Companies has already articulated his position on the issue by suggesting the two entities are different. First respondent has been far from convincing in expressing his association with Balwearie 1977. In any case, if first respondent was genuinely authorized to represent Balwearie 1977, then he ought to have sought its joinder in these proceedings. He cannot expect applicant to do so when the same applicant claims Balwearie 1977 does not exist. There is no merit in this objection and it is accordingly dismissed.</p> <p><strong><em>Defective Draft Order </em></strong></p> <p>Mr <em>Mhungu</em> submitted that the application is defective for want of a proper draft order. The interim relief sought is essentially similar to the terms of the final order sought. The application was therefore dismissible on that basis alone. The court was referred to the judgment by CHINAMORA J in <em>Ecocash Zimbabwe (Private) Limited v Reserve Bank of Zimbabwe<a href="#_ftn8" name="_ftnref8" title="" id="_ftnref8"><strong>[8]</strong></a></em>, as authority for the proposition that such defect renders the application dismissible. Ms <em>Saunyama </em>argued that such defect is not fatal but is remediable through an amendment which the court has discretion to accept or reject. She applied that the terms of the final order be amended by the repeal of paragraphs 1 and 2 and their substitution with <em>“First, second and third respondents are prohibited from transferring title in any part of the remainder of Westhey of Sabonabon Estate Kadoma.”</em> Paragraph 3 would remain as it is.</p> <p>            First respondent’s objection brings to the fore the significance of <em>Order </em>32 <em>Rule</em> 246 (2). It reads:</p> <p>“Where in an application for a provisional order the judge is satisfied that the papers establish a <em>prima facie</em> case he shall grant a provisional order either in terms of the draft filed or as varied”</p> <p> </p> <p>From a reading of <em>rule </em>246 (2), a judge needs to be satisfied that the papers before him/her establish a <em>prima facie</em> case. That is the primary consideration. The structure of the draft order is not the paramount consideration. After all as the appellation implies, the order accompanying the application comes in draft form. The order to be granted at the end of the day is an order of the court. That explains why in my view <em>rule </em>246(2) allows the judge to make modifications to the order. The judge must grant an order which will serve a purpose at the end of the day. I do not believe that the observations by CHINAMORA J in <em>Ecocash Zimbabwe (Private) Limited</em> matter should be construed as laying a firm foundation that similarities between the interim relief and final relief sought render an application dismissible. On page 10 of the judgment, my brother judge remarked as follows:</p> <p>“It requires no second guessing that the temporary order sought is final in nature. Equally evident <em>ex facie</em> the provisional order is that the relief sought in the interim order is the same or substantially the same as in the final order. The impropriety of such an approach has received ample emphasis in this jurisdiction……”</p> <p> </p> <p>The honourable judge found that the interim relief sought by applicant in that case was final in nature, in addition to it being similar to the final order sought. That may not have been proper in the circumstances of the case before him, as he went on to observe on page 11 of the judgment:</p> <p>“There is no difference in effect between this order and the orders sought in paragraphs 1 and 2 of the interim relief. The result is to unfreeze and allow the concerned agents access to their accounts. The question that I pose is: is there anything remaining to incentivize the applicant to come back to court on the return day when the accounts have already been unfrozen and access gained to the ecocash platform? The answer is obvious. In other words, the appellant can gleefully sit back since it would have achieved through the provisional order what it required by way of final order on the return day”</p> <p> </p> <p>What makes the <em>Ecocash Zimbabwe (Private) Limited</em> case distinguishable from the present case is that <em>in casu,</em> it has not been alleged that the interim relief sought is final in nature. It is certainly not final in the mold of the one in <em>Ecocash Zimbabwe</em>. The only blemish is that the relief sought though interim in nature, is similar to the final relief sought. That in my respectful view, does not make the relief sought defective or rather make the application susceptible to dismissal or striking off. I believe this is the kind of scenario contemplated by <em>rule </em>246 (2). Once a judge is satisfied that a <em>prima facie</em> case has been established, he cannot decline the relief sought on the basis that the interim relief sought is similar to the terms of the final relief sought. I am fortified in this regard by the views of MAFUSIRE J in <em>Amalgamated Rural Teachers Union of Zimbabwe &amp; Another v Zimbabwe African National Union [Patriotic Front] &amp; Another<a href="#_ftn9" name="_ftnref9" title="" id="_ftnref9"><strong>[9]</strong></a>. </em>He said:</p> <p>“<em>In casu, </em>it is true that the interim relief sought in the original draft order was almost identical to the final order sought on the return day. In essence this relief was the interdict to restrain the respondents from continuing with the activities complained of. But my view is that the principle or requirement that the interim relief in an urgent chamber application should not be the same as the final relief to be sought on the return day is not cast in stone. Every case depends on its own facts. In appropriate situations it may be that the relief sought in the interim may be all that an applicant was concerned with yesterday, today and tomorrow. He may want it today on an urgent basis. That does not stop him from wanting it again on a permanent basis on the return day. If it is granted today on an interim basis, all he may want on the return day is its confirmation. All he shows in the interim, among other things, is an actual or perceived infringement of a <em>prima facie right</em>, even if that right be open to some doubt. On the return day he must prove, <em>on a balance of probabilities</em>, an actual or perceived infringement of a clear right. It is not altogether uncommon for the court to grant interim relief, only to discharge it on the return day. Thus, I found the first respondent’s objection a moot point and lacking in merit”</p> <p> </p> <p>I fully associate myself with these observations. Once a judge is satisfied that a <em>prima facie</em> case has been established, then he must in my view grant the interim relief sought. Errors in the construction of the draft order, and in turn the interim relief sought are remediable<a href="#_ftn10" name="_ftnref10" title="" id="_ftnref10">[10]</a>. It is for this reason that <em>rule</em> 246(2) endures<a href="#_ftn11" name="_ftnref11" title="" id="_ftnref11">[11]</a>. In the exercise of my discretion, I allowed the proposed amendment to the terms of the final order sought by applicant, although it is not the only matter that the court should contend with on the return day. The parties require the court to determine the statuses of applicant and Balwearie 1977, and their competing claims to the property. The entity so determined to be the lawful holder of title in the property can deal with the property as it wishes. Accordingly I find that the objection lacks merit and is accordingly dismissed.</p> <p><strong>MERITS</strong></p> <p>The requirements for the granting of interim interdict were set out in <em>Airfield Investments (Pvt) Ltd v Minister of Lands, Agriculture and Rural Resettlement &amp; Ors.<a href="#_ftn12" name="_ftnref12" title="" id="_ftnref12"><strong>[12]</strong></a> </em>MALABA JA (as he then was said):</p> <p>“It must be borne in mind that an interim interdict is an extraordinary remedy, the granting of which is at the discretion of the court hearing the application for the relief. There are, however, requirements which an applicant for interim relief must satisfy before it can be granted. In <em>L F Boshoff Investments (Pty) Ltd v Cape Town Municipality </em>1969 (2) SA 256 (C) at 267 A-F, CORBETT J (as he then was) said an applicant for such temporary relief must show:</p> <p>“(a) 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 <em>prima facie </em>established though open to some doubt;</p> <p>(b) that, if the right is only <em>prima facie </em>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 his right;</p> <p>(c) that the balance of convenience favours the granting of interim relief; and</p> <p>(d) that the applicant has no other satisfactory remedy.”</p> <p>I now turn to consider these requirements in detail.</p> <p><strong><em>Prima facie</em></strong><strong> right</strong></p> <p>Ms <em>Saunyama</em> submitted that the founding affidavit sets out the factual premise on which interim relief is sought. The annexures attached to the founding affidavit, and the other documents tendered during oral submissions all connect applicant to the property. Mr <em>Mhungu</em> submitted that the question whether an applicant has a right is a matter of substantive law. Whether that right has been established is a question of evidence. Once it is established that no right exists then the question of harm does not arise. Mr <em>Mhungu </em>argued that even if it were to be accepted that applicant acquired rights in the property through a pre-incorporation contract, it was improbable that it could have obtained title before incorporation. In all probability the applicant only ratified the alleged pre-incorporation contract in 2020 on registration. It could not have obtained title before ratification of the contract. Mr <em>Mhungu</em> further submitted that in view of the letter of 2 June 2020 from the Registrar of Companies, applicant’s registration violated the law. I have already expressed my position on the statuses of the applicant and Balwearie 1977. The question of the legitimacy of the two entities is not a matter that arises for consideration at this stage. It’s a matter for the return day. That is certainly desirable if this dispute is to be resolved.</p> <p>What complicates respondents’ case at this stage is that first respondent, who seeks to assert rights on behalf of Balwearie 1977 does not appear to have the authority to do so. I am not persuaded by the submission that he speaks as an employee of the company. That would have been the easiest of things to prove, considering he filed a supplementary affidavit in an attempt to discredit the status of the applicant. As was pointed by MAFUSIRE J<a href="#_ftn13" name="_ftnref13" title="" id="_ftnref13">[13]</a>, all the applicant needs to show at this stage is a <em>prima facie</em> right, <em>“…even if this be open to some doubt”.</em> I am satisfied that applicant has established a <em>prima facie</em> right, even though on the papers before me it is open to some doubt. I say so because of the potentiality of a claim by Balwearie 1977, if it is eventually proved to exist.</p> <p><strong><em>Well-grounded apprehension of irreparable harm to the applicant</em></strong></p> <p>Ms <em>Saunyama</em> submitted that the irreparable harm that may arise is too ghastly to contemplate if respondents are not restrained. It means third parties will be transacting with respondents and officials of applicant at the same time. That would have disastrous consequences. Applicant did not have to wait for harm to occur before approaching the court. Mr <em>Mhungu </em>argued that the kind of harm contemplated by the law is that which cannot be compensated by an award of damages. I am not persuaded by this submission. I note that first respondent’s affidavit does not respond to the merits of the application in detail. First respondent did not deny that he is culpable of the conduct that applicant seeks to impugn. His contention that he is an employee of Balwearie 1977 is not supportable by the facts or evidence before me. That makes his position insecure. I am persuaded that there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted.</p> <p><strong><em>Balance of convenience </em></strong></p> <p>Ms <em>Saunyama</em> argued that the balance of convenience favoured the granting of the interim relief. She submitted that if Balwearie 1977 genuinely existed, then it ought to have been joined to these proceedings. The court could not rely on the evidence of first respondent whose association with Balwearie 1977 was suspicious. Mr <em>Mhungu</em> on the other hand submitted that it was unsafe to grant the interim relief on the backdrop of the letter from the Registrar of Companies suggesting Balwearie 1977 still existed. He submitted that there were glaring deficiencies in the applicant’s account, which made it highly improbable. He also pointed to material disputes of fact inherent in the dispute. I have already stated that at this stage all that is expected of applicant is to establish a <em>prima facie</em> right, which may still be open to some doubt. The parties competing claims and the alleged material disputes are not matters for consideration at this stage. I accordingly find that on a balance of probabilities, the balance of convenience favours the granting of the interim relief.</p> <p><strong><em>Absence of other satisfactory remedy</em></strong></p> <p>Ms <em>Saunyama</em> drew the court’s attention to paragraph 5.2 of the first respondent’s opposing affidavit, which reads, <em>“if it were to be assumed that there is any truth to the deponent’s averments, it still remains a truism that the relief of rei vindicatio is available to the applicant”</em>. The import of the submission is that a party in the position of applicant cannot assert rights or seek protection through a prohibitory interdict as long as it can also assert those rights through the <em>rei vindicatio</em>. Counsel submitted that such proposition offends the spirit of a prohibitory interdict which should be available to any party who satisfies its requirements.</p> <p>Mr <em>Mhungu</em> on the other hand submitted that this requirement was not addressed in the founding affidavit, an indication that it was not established. In any case, applicant indicated that it made a police report, which showed it had an alternative remedy. I am not persuaded by this submission. The requirements of an interdict are as set out in case law. They are part of the common law. The fact that a party may not have canvassed them in the papers does not mean they do not exist in that particular case. In an urgent chamber application, legal and factual submissions can be made from the bar. The procedure is not cast in stone. I am satisfied, that if applicant has established a <em>prima facie</em> right to the property, then it need not wait to assert those rights through a <em>rei vindicatio</em> claim while respondents continue selling the stands. Respondents did not deny that they acted in the manner complained of.  Further a police report, being criminal in nature, is no bar to the institution of these proceedings.</p> <p>In the final analysis, I am satisfied that the application meets all the requirements for the granting of an interim interdict.  The situation on the ground needs to be arrested to avoid chaos. As things stand, respondents may continue offering and advertising the stands for sale presumably under the banner of Balwearie 1977. On the other hand, applicant will also continue advertising and selling the stands under its own name. That will obviously confuse prospective buyers and regulatory authorities alike. That cannot be allowed to happen. Courts of law cannot condone, let alone allow lawlessness to prevail. In my view, it follows that on the return day the court is enjoined to consider, not only the confirmation or discharge of the provisional order, but the statuses of applicant and Balwearie 1977, and which one of them holds title in the property.</p> <p><strong>Accordingly it is ordered that:  </strong></p> <p>Pending determination of this matter, the Applicant is granted the following interim relief:</p> <ol> <li>First, second and third respondents be and are hereby barred and interdicted from entering applicant’s property known as the Remainder of Westhey of Sabonabon Estate Kadoma.</li> <li>First, second and third respondents be and are hereby barred and interdicted from selling applicant’s stands situate at the Remainder of Westhey of Sabonabon Estate Kadoma and presenting themselves as employees of the applicant.  </li> </ol> <p> </p> <p><em>Bherebhende Law Chambers</em>, applicant’s legal practitioners</p> <p><em>Mlotshwa &amp; Maguwudze Legal Practitioners, </em>respondents’ legal practitioners</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> Chapter 190</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> 1996 (1) ZLR 153 (SC) at 157A, korsah JA said:</p> <p> “Provided it is not one which is required by a definitive law to be specially pleaded, a point of law, which goes to the root of the matter, may be raised at any time, even for the first time on appeal, if its consideration involves no unfairness to the party against whom it is directed: <em>Morobane</em> v<em> Bateman</em> 1918 AD 460; <em>Paddock Motors (Pty) Ltd </em>v<em> Igesund</em> 1976 (3) SA 16 (A) at 23D-G.”[2]     </p> <p> </p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> Rule 246 (1) states:</p> <ol> <li>A judge to whom papers are submitted in terms of rule 244 or 245 may –</li> </ol> <ol> <li>Require the applicant or the deponent of any affidavit or any other person who may, in his opinion, be able to assist in the resolution of the matter to appear before him in chambers or in court as may to him seem convenient and provide, on oath or otherwise as the judge may consider necessary, such further information as the judge may require</li> </ol> <p> </p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> [<em>Chapter 24:03</em>]</p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a> HH-114/10 at page 4 of the cyclostyled judgment</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a> 1999 (1) ZLR 490 where SMITH J held that-</p> <p>“The court has the power to hear an application as a matter of urgency not only where there is serious threat to life or liberty but also where the urgency arises out of the need to protect commercial interests”.</p> <p><a href="#_ftnref7" name="_ftn7" title="" id="_ftn7">[7]</a> SC-43/13 at page 14 of the judgment.</p> <p><a href="#_ftnref8" name="_ftn8" title="" id="_ftn8">[8]</a> HH 333/20</p> <p><a href="#_ftnref9" name="_ftn9" title="" id="_ftn9">[9]</a> HMA 36/18</p> <p><a href="#_ftnref10" name="_ftn10" title="" id="_ftn10">[10]</a> See Qingsham Investments (Private) Limited v Zimbabwe Revenue Authority HH 207/17 at page 2</p> <p><a href="#_ftnref11" name="_ftn11" title="" id="_ftn11">[11]</a> See also <em>Phillip Chiyangwa v Interfin Bank Limited (In Liquidation) &amp; Another</em> HH 982/15 at page 2 of the judgment</p> <p><a href="#_ftnref12" name="_ftn12" title="" id="_ftn12">[12]</a> <em>2004 (1) ZLR 511 (S) </em>at 517 C-E</p> <p><a href="#_ftnref13" name="_ftn13" title="" id="_ftn13">[13]</a> <em>Supra </em>at page 10 paragraph 27 of the judgment</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/403/2020-zwhhc-403.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=53385">2020-zwhhc-403.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/403/2020-zwhhc-403.pdf" type="application/pdf; length=692471">2020-zwhhc-403.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-and-immovable-property">Rights in and to immovable property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/final-interdict">Final interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/land-0">LAND</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/ownership">Ownership</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/joinder-parties">Joinder of parties</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/non-joinder">non-joinder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-joinder-parties">principles (Joinder of parties)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-ordered-joinder-parties">when may be ordered (Joinder of parties)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/locus-standi-0">Locus standi</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/ownership-0">Ownership</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/actio-rei-vindication">actio rei vindication</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2010/114">Gray and Another v Registrar of Deeds (HC 2537/09) [2010] ZWHHC 114 (29 June 2010);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2013/43">ECONET Wireless v TRUSTCO Mobile Ltd &amp; Another (Civil Appeal No SC 171/11) [2013] ZWSC 43 (25 September 2013);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2020/333">ECOCASH Zimbabwe (Pvt) Ltd. vs RBZ (HH 333-20, HC 3007/20) [2020] ZWHC 333 (26 May 2020);</a></div><div class="field-item odd"><a href="/zw/judgment/masvingo-high-court/2018/36">Amalgamated Rural Teachers Union of Zimbabwe &amp; Another v ZANU PF &amp; Another (HMA 36-18, HC 263/18) [2018] ZWMSVHC 36 (28 June 2018);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2004/36">Airfield Investments (Pvt) Ltd. v Minister of Lands Agriculture and Rural Resettlement and Others (64/03) ((Pvt)) [2004] ZWSC 36 (02 June 2004);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1952/471951">Companies Act [Chapter 24:03]</a></div></div></div> Wed, 24 Jun 2020 14:52:54 +0000 Sandra 9699 at https://old.zimlii.org Timveos & Anor v Mwonzora & 5 Others (HH370-20, HC2527/20) [2020] ZWHHC 370 (08 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/370 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/370/2020-zwhhc-370.pdf" type="application/pdf; length=7812754">2020-zwhhc-370.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/associations">ASSOCIATIONS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/voluntary-association">Voluntary association</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/constitutional-law">CONSTITUTIONAL LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/parliament">Parliament</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/separation-powers">Separation of powers</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/elections-0">ELECTIONS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/electoral-act-chapter-201">Electoral Act [Chapter 2:01]</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/zimbabwe-electoral-commission">Zimbabwe Electoral Commission</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/final-interdict">Final interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/certificate-urgency">certificate of urgency</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/good-faith-and-full-disclosure-all-material-facts-urgent-application">good faith and full disclosure of all material facts (Urgent Application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/137">Chidawu &amp; Others v Shah &amp; Others (HC 6590/12) [2015] ZWHHC 137 (10 February 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/masvingo-high-court/2017/17">Main Road Motors v Commissioner General, ZIMRA AND Choruwa v Commissioner General, ZIMRA (HMA 17-17 Case No HC 42/17 And Case No HC 43/17) [2017] ZWMSVH 17 (17 March 2017);</a></div><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2015/8-0">Madzimure &amp; Others v Senate President &amp; Others AND Holland &amp; Others v Senate President &amp; Others (CCZ 8/19 , Constitutional Application No. CCZ 19/15, Constitutional Application No.CCZ 20/15) [2019] ZWCC 08 (14 April 2015);</a></div><div class="field-item odd"><a href="/node/8450">Icon Alloys (Pvt) Ltd. &amp; Another v Gwaradzimba N.O. &amp; Others (HMA 30 -17 , HC 73/17) [2017] ZWMSVHC 30 (20 June 2017);</a></div><div class="field-item even"><a href="/zw/judgment/masvingo-high-court/2017/12">Cawood v Madzingira &amp; Another (HMA 12 -17 Case No HC 44/17) [2017] ZWMSVH 12 (06 March 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2017/68">JSC v Zibani &amp; Others (68/2017 , Civil Appeal No. SC 763/16) [2017] ZWSC 68 (13 February 2017);</a></div><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2016/98">Hlalo v MDC-T &amp; Others (HB 98-16 HC 573-16 XREF HC 2371-14 XREF HC 2377-14) [2016] ZWBHC 98 (31 March 2016);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1932/7">State Liabilities Act [Chapter 8:14]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/25">Electoral Act [Chapter 2:13]</a></div><div class="field-item even"><a href="/zw/legislation/act/2001/4">Political Parties (Finance) Act [Chapter 2:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Tue, 09 Jun 2020 08:31:41 +0000 Sandra 9650 at https://old.zimlii.org Zimano v Zimre Property Investments Limited (HH 357-20, HC 3001/20 Ref Case No. 6387/19) [2020] ZWHHC 357 (03 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/357 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>                                                                                                                                                                                                                                                 SIMELINKOSI ZIMANO</p> <p>versus</p> <p> </p> <p>ZIMRE PROPERTY INVESTMENTS LIMITED</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHINAMORA J</p> <p>HARARE, 11, 12 May 2020 &amp; 3 June 2020</p> <p> </p> <p> </p> <p><strong>Opposed urgent chamber application</strong></p> <p> </p> <p> </p> <p><em>T M Chagonda</em>, for the applicant</p> <p><em>B Diza,</em> for the respondent</p> <p> </p> <p> </p> <p> </p> <p>CHINAMORA J: <strong>Introduction</strong>: The dispute before me concerns the sale of a piece of land, namely, Stand 27288 Ruwa Township, in Goromonzi, measuring 800 square metres “the property”. On 26 January 2018, the respondent sold the property to the applicant for a purchase price of US$26,800-00 in terms of a written instalment sale agreement. A deposit of US$16,000-00 was paid upon signing the agreement, with the balance of US$10,800-00 payable in 18 monthly instalments of US$600-00 each. In clause 3, the agreement stipulated that:</p> <p> </p> <p>“All payments due in terms of this agreement shall be paid to Zimre Property Investments Limited, through their bankers: CABS PLATINUM BRANCH, Account No. 1003604110, or at any other address that may be nominated in writing by the seller”.</p> <p> </p> <p> The applicant contended that she duly paid the purchase price in terms of the agreement of sale. However, on 22 April 2020, the applicant discovered that her account had been credited by a payment from the respondent in the sum of ZW$8,900-00. Enquiries revealed that the purchase price had been returned to her on the basis that the payment should have been made in cash in United States currency. The amount was tendered to the respondent by the applicant’s legal practitioners.</p> <p>As the parties failed to agree, on 1 August 2019, the applicant filed an application in this court under HC 6387/19 for a declaratory order, which was granted by DUBE J on 30 January 2020, in the following terms:</p> <p> </p> <p>“IT IS ORDERED THAT:</p> <p> </p> <ol> <li>The payment of the purchase price by the applicant into the respondent’s Cabs Platinum Account be and is hereby declared valid and in compliance with the terms of the agreement of sale between the parties.</li> </ol> <p> </p> <ol> <li>The applicant be and is hereby declared to have performed her obligation to pay the purchase price.</li> </ol> <p> </p> <ol> <li>The respondent shall pay the applicant’s legal costs”.   </li> </ol> <p> </p> <p><strong>The urgent chamber application</strong></p> <p>Although not appealed and remaining extant, the order granted by DUBE J did not end the dispute between the parties. On 5 May 2020, the applicant filed an urgent chamber application, in which the provisional order is couched as follows:</p> <p> </p> <p>            “INTERIM RELIEF SOUGHT</p> <p>Pending confirmation or discharge of this provisional order, the applicant is granted the following interim relief:</p> <ol> <li>That the respondent be and is hereby interdicted from effecting transfer of Stand 27288 Ruwa Township situated in the district of Goromonzi measuring 800 square meres to any other person pending the return date.</li> </ol> <p> </p> <p>TERMS OF FINAL ORDER SOUGHT</p> <p>That you show cause why a final order should not be made in the following terms:</p> <p> </p> <ol> <li>The respondent’s cancellation of the agreement of sale executed on 26 January 2018 be and is hereby declared unlawful and therefore null and void.</li> </ol> <p> </p> <ol> <li>The respondent shall take all necessary steps to effect transfer of the property, namely, Stand 27288 Ruwa Township situated in the district of Goromonzi measuring 800 square metres to the applicant within 30 days of the date of this order.</li> </ol> <p> </p> <ol> <li>In the event that the respondent fails to effect transfer in terms of clause 2 above within a reasonable practicable time, the Sheriff or his lawful deputy be and is hereby authorized to sign all documents and take all steps to effect transfer of the property to the applicant.</li> </ol> <p> </p> <ol> <li>The respondent shall pay costs of suit on a legal practitioner and client scale”.</li> </ol> <p> </p> <p>The applicant avers that, on 3 February 2020, she asked the respondent to effect transfer to her and tendered payment of all costs required for transfer. She asserted that by letter dated 25 March 2020, the respondent purported to cancel the agreement of sale, and had returned the purchase price less cancellation costs on 24 March 2020. The applicant averred that, acting on the advice of her legal practitioners, the applicant returned the payment as there was no basis for the refund. While the respondent had suggested that the dispute could be settled if the applicant made an additional payment, the applicant’s response to the proposal appears in her lawyers’ letter dated 26 February 2020. The relevant parts of that letter read:</p> <p>“Messrs Mhishi Nkomo</p> <p>Legal Practice</p> <p>HARARE</p> <p> </p> <p>Dear Sirs</p> <p> </p> <p><strong>RE: SIMELINKOSI ZIMANO vs ZIMRE PROPERTY INVESTMENTS LTD HC 6387/19</strong></p> <p> </p> <p>We refer to the above matter and to your letter dated 13 February 2020.</p> <p> </p> <p>The court order dated 30 January 2020, per Dube J, declares our client to have performed her obligation to pay the purchase price. It is contemptuous for your client to insist that ours pay an additional amount, over and above the purchase price, before yours can effect transfer. Clause 4 of the agreement of sale between the parties provides, in unambiguous terms, to the effect that your client shall tender transfer of the property upon payment of the purchase price.</p> <p> </p> <p>We are totally appalled by the attitude which your client, a very respectable corporate citizen, has taken. Your client must understand and appreciate that our client in an ordinary struggling citizen who has exhausted all her savings so that she can build a shelter above her head. The suggestion by your client for an additional payment in flagrant disregard of the law and the court order smacks of clear corporate indiscipline.</p> <p> </p> <p>In the circumstances and sadly, an application to compel transfer is inevitable. Should your client insist with its demands, we shall have be left with no option than to make that application and seek costs on a punitive scale.</p> <p> </p> <p>--- ---</p> <p> </p> <p>Yours faithfully</p> <p> </p> <p>ARTHERSTONE &amp; COOK”</p> <p> </p> <p>The reply to the above letter was given by the respondent by way of a letter from her legal practitioners dated 25 March 2020, whose contents I reproduce below:</p> <p>           </p> <p>            “Atherstone &amp; Cook</p> <p>            Praetor House</p> <p>            119 J Chinamano Ave</p> <p>            Harare</p> <p> </p> <p>            Dear Sir,</p> <p> </p> <p>            <strong>RE: S. ZIMANO vs ZIMRE PROPERTY INVESTMENTS LIMITED – HC 6387/19</strong></p> <p> </p> <p>            The above matter refers.</p> <p> </p> <p>We have been advised that our client has taken the decision to cancel the agreement and has since returned the full purchase price, less cancellation costs, to your client. Kindly find attached hereto the proof of payment.</p> <p> </p> <p>Further to the above, our client has since dealt with the property as it deemed fit.</p> <p> </p> <p>Yours faithfully</p> <p> </p> <p>MHISHI NKOMO LEGAL PRACTICE”</p> <p>In his supporting affidavit, Mr Sympathy Muzondiwa of Atherstone &amp; Cook law firm, deposed that he was the legal practitioner dealing with the applicant’s matter. He stated that he was on leave from 26 March to 31 March 2020, and that on 28 April 2020, the applicant advised him that she had received an email from the respondent to which was attached only saw the letter of 25 March 2020. The legal practitioners further said that he could not travel back to Harare from Mvuma due to the nationwide Covid-19 lockdown. Their offices were closed as the legal sector was then not exempted as an essential service until the relaxation of the lockdown to level 2. Mr Muzondiwa averred in his affidavit he only returned to the office on 4 May 2020 and saw the respondent’s letter dated 25 May 2020. The lawyer submitted that the application I am seized with was then drafted and filed on 5 May 2020.</p> <p>The respondent opposed the application. It raised two points <em>in limine</em>, namely, that the matter was not urgent, that the application is patently defective as the interim relief was not predicated on pending litigation. I will come back to this. In relation to the merits, the respondent argued that the applicant was not entitled to the relief sought as the purchase price had been refunded. Additionally, the respondent submitted that it had alienated the property to a third party who was not part of the proceedings before the court. Neither the details of the third party, nor the agreement of sale are given by the respondent. It invited the applicant to <em>“pursue any other remedies it deems available to it, but the property is no longer available”</em>. In relation to DUBE J’s order, the respondent averred as follows:</p> <p> </p> <p>“It is disputed that the court order by Dube J defined any rights. It merely made a finding that payment had been done. If it defined any rights the applicant would not be back in court. She would be simply enforcing those rights. There was nothing to be gained from appealing the order”.</p> <p> </p> <p>Finally, the respondent contended that the applicant could not suffer irreparable harm because the full purchase price had been reimbursed. At the hearing, I asked the parties to file heads of argument and postponed the matter to 12 May 2020. To protect the integrity of the proceedings before me, I granted an interim order in the following terms:</p> <p>“Pending the final determination of this urgent chamber application, the respondent be and is hereby interdicted from doing any act or signing any papers to transfer the property known as Stand 27288 Ruwa Township, in the district of Goromonzi, measuring 800 square metres”.</p> <p>I move to examine the points <em>in limine</em>.</p> <p><strong>Points <em>in limine</em></strong></p> <p>As observed earlier, two preliminary points were raised the respondent, <em>viz</em>:- that the matter is not urgency; and that the application is fatally defective as the interim relief is not predicated on pending litigation. I will now examine the first objection.</p> <p><strong>Urgency issue</strong></p> <p>The respondent argued that the need to act when the agreement of sale was cancelled on 26 March 2020, yet the urgent chamber application was filed on 5 March 2020. As no action was not taken for some 40 days, it was submitted that the matter was not treated as urgent, and so was not urgent. In this respect, the respondent argued that the explanation for the failure to act timeously should not be believed as the letter of cancellation was delivered before the lockdown was imposed. As such, the High Court was still open to deal with urgent matters.</p> <p>I have before me an affidavit by Mr Muzondiwa in which he explained that he was handling the applicant’s brief, and that he did not see the letter of 25 March 2020 until 4 March 2020. He is an officer of this court and I have no reason to disbelieve him in the absence of anything that adversely impinges on his professional or ethical integrity. The averments that Mr Muzondiwa travelled to Mvuma on 25 March 2020 and that he was on leave from 26 to 31 March 2020 were not seriously challenged. I also judicial notice of the fact that the first phase of the Covid-19 lockdown did not include the legal sector as an essential service. If Mr Muzondiwa did not see the letter of 25 March 2020, he could not have related to the urgency of the plight facing his client (the applicant). The fact that Practice Directive No. 1 of 2020 allowed the High Court to deal with urgent matters is irrelevant if the lawyer concerned was not aware of the letter which triggered the issue of urgency. Accordingly, I find that the need to act arose on 4 May 2020, being the date Mr Muzondiwa first saw the letter cancelling his client’s agreement of sale. The present application was filed the following day, on 5 May 2020, confirming that the matter was dealt with swiftly. I am therefore prepared to treat this application as urgent. Thus, the point <em>in limine</em> based on lack of urgency has no merit and is dismissed.</p> <p> </p> <p> </p> <p><strong>Whether application is defective</strong></p> <p>I was urged to dismiss the application on the ground that, as it was not predicated on a matter seeking to resolve the dispute between the parties, it was fatally defective. The question I have to ask is: does the absence of pending litigation <em>ipso facto</em> render the application defective? The answer was sufficiently provided in <em>Chiswa v Maxess Marketing (Pvt) Ltd &amp; Ors</em> HH 116-20, where KWENDA J, quite instructively, said:</p> <p>“This court has the power to amend a draft provisional order where it does not properly capture the appropriate remedy merited and articulated in the founding affidavit. (See r240 0f the High Court Rules, 1971).</p> <p>… …</p> <p>I have already alluded to rule 240 of the High Court of Zimbabwe rules, 1971 which empowers the court to grant any order it deems fit in any application, including a provisional order, whether or not other relief has been asked for. My understanding is that the final wording of any court order (whether final or provisional) is the prerogative of the court as long as the order resolves the dispute(s) before the court. The draft provisional order submitted by the applicant with the application remains a proposal. Indeed, there are instances when the draft order (provisional or final) may be so wrong that the court cannot correct it without stepping into the shoes of a litigant (applicant)”.</p> <p> </p> <p>Mr Blessing <em>Diza</em>, for the respondent sought to argue that r240 does not apply to chamber applications since the rule refers to the court and not judge. However, such an argument is invalidated by r246 (2) which allows a judge, if satisfied that the papers establish a <em>prima facie</em> case, to grant a provisional order in terms of the draft order or as varied. Counsel for the respondent conceded the point. He submitted, on the authority of <em>Nzara &amp; Ors v Kashumba N.O. &amp; Ors </em>SC 18-18, that the court cannot vary an order, and relied on the following dicta of UCHENA JA:</p> <p>“This position has become settled in our law. Each party places before the court a prayer he or she wants the court to grant in its favour. The rules of court require that such an order be specified in the prayer and the draft order. These requirements of procedural law seek to ensure that the court is merely determining issues before it by the parties and not going on a frolic of its own”.</p> <p>I have read the judgment of my brother UCHENA JA, and it is obvious that his remarks were taken out of context. The learned judge of appeal correctly captured the issue before him as:<em> whether or not a court can grant an order not sought by the parties?</em> Of course, the answer is in the negative. Granting an order the parties did not ask for is different from saying that a court can amend a draft order where it does not properly capture the appropriate remedy merited and articulated in the founding affidavit. Even KWENDA J in <em>Chiswa v Maxess Marketing (Pvt) Ltd &amp; Ors supra </em>was aware that it is not in every instance that orders can be corrected or amended without stepping into the shoes of a litigant. It is clear that the case which confronted UCHENA J had nothing to do with the situation contemplated by either r240 or r246 (2). That this is so comes out clearly from the Namibian case cited with approval in <em>Nzara &amp; Ors v Kashumba N.O. &amp; Ors supra</em>. In this respect, in <em>Kauesa v Minister of Home Affairs &amp; Ors</em> 1996 (4) 955 (NmS) at 973H to 974C, DUMBUTSHENA AJA observed:</p> <p><strong>“<strong>It would be wrong for judicial officers to rely for their decisions on matters not put before them by litigants either in evidence or in oral or written submissions. Now and again a judge comes across a point not argued before him by counsel but which he thinks material to the resolution of the case. It is his duty in such a circumstance to inform counsel on both sides and invite them to submit arguments either for or against the judge’s point. It is undesirable for a court to deliver a judgment with a substantial portion containing issues never canvassed or relied on by counsel.</strong></strong></p> <p> </p> <p>The above case was simply stating what is elementary. Of course, a judge should decide a case on the basis of evidence which has not been put before him. I therefore find that the link that counsel for the respondent sought to make between the decision in <em>Nzara &amp; Ors v Kashumba N.O. &amp; Ors supra </em>and the argument that r240 as read with r246 (2) of the High Court Rules,1971, does not allow a judge or court to vary an order is a tenuous one. Quite apparent is that <em>Nzara &amp; Ors v Kashumba N.O. &amp; Ors supra</em> does not support the proposition proffered by the respondent. Nothing precludes a judge or court from amending a draft order if such a variation is necessary to succinctly reflect the relief established by a litigant’s papers. In fact, a contrary interpretation cannot be supported in light of <em>Econet Wireless (Pvt) Ltd</em> v <em>Trustco Mobile (Pty) Ltd &amp; Anor</em> S 43-13, where GARWE JA confirmed that r240 permits a court, after hearing argument, to vary an order sought. Indeed, my brother judge of appeal underlined that the power in r240 enables a court to grant an order which is consistent with the facts, so that final relief is not granted by way of a provisional order. Accordingly, the point <em>in limine</em> has no merit, and is dismissed. I proceed to examine the merits of the application.</p> <p> </p> <p><strong>On the merits</strong></p> <p>The requirements for an interim interdict are trite. (See <em>Setlogelo v Setlogelo</em> 1914 AD 221). For a litigant to succeed, he/she/it must establish the following:</p> <p> </p> <ol> <li>a <em>prima facie</em> right, even if it is open to some doubt; </li> <li>a well-grounded apprehension of irreparable harm if the relief is not granted;</li> <li>the balance of convenience;</li> <li>the prospects of success in the main matter; and</li> <li>no other satisfactory remedy.</li> </ol> <p> </p> <p>These requirements are considered conjunctively and not disjunctively I will address them in turn.</p> <p> </p> <ol> <li><strong><em>Prima facie</em></strong><strong> right</strong></li> </ol> <p>On the merits, the applicant submitted that she had managed to establish a <em>prima facie</em> right. In <em>casu</em>, the order granted by DUBE J was not appealed and remains extant. It is no answer for the respondent to say that there was no point to be served by appealing. The consequence of not challenging the order is that it confirms that the applicant paid the full purchase price in terms of the agreement of sale. In the words of Mr <em>Innocent Chagonda</em>, the order granted by DUBE J declared the validity of the contract between the parties and, in the absence of an appeal, both parties are obliged to observe the court order. I agree with counsel’s submission. The respondent’s somewhat cynical (if not cavalier) attitude is that it was pointless to appeal. Once that stance was adopted, it is obvious that this court had made a pronouncement that the contract between the parties was <em>perfecta</em>. The inevitable consequence of this legal position is that the applicant is entitled to demand reciprocal performance of the respondent’s obligations. The general rule was stated by PATEL J (as he then was), in <em>River Ranch Ltd v Delta Corporation Ltd </em>HH 1-10, as follows:</p> <p>“Where the sale of immovable property is involved, the purchaser’s obligation to pay the purchase price is ordinarily reciprocated by the seller’s obligations to give occupation and effect transfer. See <em>Pasha v Southern Metropolitan Local Council of the Greater Johannesburg Metropolitan Council</em> 2000 (2) SA 455 (WLD) at 466. The parties’ obligations are reciprocal because they arise from what is essentially a bilateral or synallagmatic contract. See Christie: <em>The Law of Contract in South Africa</em> (3rd ed.) at 467-468”.</p> <p> </p> <p> Consistent with the above <em>dicta</em> and the reality that the order issued by this court in HC 6387/19 is extant, I find that the applicant has established a <em>prima facie</em> right to bring the present application.</p> <p>  </p> <ol> <li><strong>Apprehension of irreparable harm</strong></li> </ol> <p>The applicant submitted that she has a well-grounded apprehension of irreparable harm occurring if the order sought is not granted. In its opposing affidavit, the respondent has repeatedly asserted that it has alienated the property to a third party. Assuming such an alienation has taken place, it is clear that the property has not yet been transferred to such third party. The interim relief seeks to interdict the respondent from effecting transfer to any third party. If the property is transferred to a third party who acquires real (as opposed to personal) rights in it, the applicant stands to suffer irreparable harm. The legal implications of transfer of title were lucidly spelt out in <em>Takafuma v Takafuma</em> 1994 (2) ZLR 103 (S) at 105H to 106A, and require no further elaboration.</p> <p>In response, the respondent argued that it had refunded the purchase price which was held in a trust account on the applicant’s behalf. To demonstrate the irreparable his client would suffer, Mr <em>Diza</em> submitted that, it granted, the interim relief would affect the rights of a third party who was not before the court. There are a number of things that are glaringly curious. Firstly, the respondent did not take me into its confidence and disclosed the said third party. Secondly, no document in the form of an agreement of sale between the respondent and a third party purchaser was placed before the court. Thirdly, no supporting affidavit by the third party was filed with the opposing papers. Finally, and crucially, no application was made for the joinder of the said third party to the proceedings. The provisions of r87 (2) (b) of the High Court Rules are pertinent. In this respect, I note that the respondent filed its notice of opposition on 11 May 2020. There is no reason why the agreement of sale, if it existed, was not filed with the opposing affidavit. Such a document could also have been produced at the hearing. The net effect of these omissions is that I am unable to consider in the abstract the interests of a nameless third party. I decline the invitation to do so.</p> <p> </p> <ol> <li><strong>Balance of convenience</strong></li> </ol> <p>It was submitted on applicant’s behalf that the balance of convenience favours her. It was submitted that the respondent has a shown a blatant disregard for an extant court order. The applicant submitted that the interdict would secure the protection of the rights that flow from the order granted by DUBE J. Mr Chagonda contended that the applicant had complied with its obligations in terms of the agreement of sale and ought to receive transfer. He further argued that, despite paying the bulk of the purchase price in United States currency, the purported refund was made in Zimbabwean currency. Thus, the applicant urged me to find that the balance of convenience favoured preventing a transfer to a third party that would effectively aid breaching an order of this court. On the other hand, the respondent submitted that the convenience of the court favours the dismissal of the application. I am not persuaded by this argument, more so, coming from a party that has elected not to appeal a court order adverse to its interests, and decided to ignore it. It worth remembering that in <em>Associated Newspapers of Zimbabwe (Pvt) Ltd </em>v<em> Minister of State for Information and Publicity &amp; Ors </em>2004 (1) ZLR 538 (S), CHIDYAUSIKU CJ was on point when he remarked:</p> <p>“This is a court of law and, as such, cannot connive at or condone the applicant’s open defiance of the law. Citizens are obliged to obey the law of the land and argue afterwards.”</p> <p> </p> <p>I endorse the late Chief Justice’s eminently sensible statement of the law. In my view, the balance of is tilted in favour of the applicant, who has done nothing but to abide by the law in meeting her contractual obligations and in respecting an order of this court.</p> <p> </p> <ol> <li><strong>Prospects of success</strong></li> </ol> <p>Given the existence of an extant order of this court, the chances of the applicant’s case to interdict transfer of the property to a third party are good. The case she has made in the papers before me is that she fulfilled her obligations in terms of the agreement of sale. That position was confirmed by a declaratory order granted by this court. That order was not appealed. On the other side of the coin, the respondent’s argument was that the payment of the balance, although made in terms of the law, did not make economic sense. Mr <em>Diza</em> stated that the instructions from his client are that it would rather repudiate the agreement than agree to effect transfer to the applicant. Mr <em>Chagonda</em> submitted that the effect of Mr<em> Diza’s</em> submission was that his client (Zimre) was not acting in accordance with its lawyer’s advice. He submitted that an officer of the court should not act in a manner that endorsed his client’s contempt of court, and that if he accepts the binding nature of that court order a legal practitioner should not act in a way that undermined the court order. I associate myself with Mr Chagonda’s submissions. Let me add that a legal practitioner who continues to act for a client whose instructions contradict an order of this court effectively makes himself an accessory to an act of contempt of court. I am at pains to appreciate the prudence of such foolhardiness. In these proceedings, I will not make any findings on Mr <em>Diza</em>’s professional integrity. Suffice to comment, however, that I find it undesirable and beyond conscience for a legal practitioner who finds himself in the invidious position of acting for a client who is steering perilously close to unethical conduct to continue with the brief.</p> <ol> <li><strong>No other satisfactory remedy</strong></li> </ol> <p>The respondent’s contention is that, to the extent that it has reimbursed, the purchase price a remedy already exists. It is worth turning to <em>Magarita v Munyuki &amp; Ors</em> HMA 44-18 where MAFUSIRE made some useful remarks on what constitutes satisfactory remedy:</p> <p>“However, the remedy that is envisaged by the law is not just any other remedy. It has to be one that is effective. What an effective remedy is can never be defined with any degree of precision. It has to be considered on a case by case basis. At any rate, and as already been pointed out, these individual requirements for an in interdict are all taken together to help the court dispense real and substantial justice in the <em>Cohen v Cohen</em> [1979 (3) SA 420 (R)] sense”. </p> <p> </p> <p>In this case, the dispute to be resolved boils down to who of the competing parties should, in the final analysis, retain the property. My view is that, with the galloping inflation, monetary compensation does not present as an effective remedy to a purchaser who has paid the purchase price and is entitled to take transfer. The appropriateness of damages as a satisfactory remedy was considered by MAFUSIRE J in <em>Northern Farming (Pvt) Ltd v Vegra Merchants (Pvt) Ltd</em> HH 328-13, where <em>Knox D’Arcy Ltd and Others v Jamieson and Others </em>1996 (4) SA 348 (A) at 372-373 the following passage appears:</p> <p>“It is often said that an interdict will not be granted if there is another satisfactory remedy available to the applicant. In that context a claim for damages is often contrasted with a claim for an interdict. The question is asked: should the respondent be interdicted from committing the unlawful conduct complained of, or should he be permitted to continue with such conduct, leaving the applicant to recover any damages he may suffer? … There is no suggestion that it could be replaced by a claim for an interdict.<strong> <strong>The purpose of the interdict is not to be a substitute for the claim for damages but to reinforce it – to render it more effective”</strong>. [My own emphasis]</strong></p> <p>I endorse the above observations. It simply beggars belief that a party that willingly breaches a court order should be heard to say that a refund of the purchase price is an adequate remedy. Elementary principles of fairness dictate that the respondent’s conduct of seeking to proceed with transfer of the property to the unnamed third party ought to be interdicted. At any rate, our courts invariably uphold the doctrine of sanctity of contracts. In this context, <em>Book v Davidson </em>1988 (1) ZLR at 369F, held that the public interest required agreements freely entered into to be honoured. The granting of interim relief would also protect the integrity of DUBE J’s order and safeguard the efficacy of its consequences.</p> <p> </p> <p><strong>Conclusion</strong></p> <p>I am satisfied that the applicant has established the requirements for interim relief. Having dismissed the points <em>in limine</em>, I am now left to decide on the appropriate interim order that I should grant. Taking a cue from <em>Chiswa v Maxess Marketing (Pvt) Ltd &amp; Ors supra, </em>I accept that as long as the relief I propose to grant is supported by averments and supporting documents in the founding papers I can vary the draft order in terms of r240 as read with r246 (2) of the High Court Rules to give effect to the appropriate relief. In <em>Ecocash Zimbabwe Ltd v Reserve Bank of Zimbabwe Ltd </em>HH 333/20, I observed that the interim relief cannot be considered in isolation of the final order. Bearing this in mind, it is clear from the applicant’s papers that she wishes to prevent the respondent from transferring the property to any party other than herself pending the return date. Thus, on the return date, the applicant will seek a final order interdicting the respondent from doing any act which results in the transfer of the property to a third until such a third party is joined to any proceedings to decide the competing interests in respect of Stand 27288 Ruwa Township, in the district of Goromonzi, measuring 800 square metres.</p> <p> </p> <p><strong>Disposition</strong></p> <p>In the result, I make the following order:</p> <p>            TERMS OF INTERIM ORDER </p> <p>            IT IS ORDERED THAT:</p> <ol> <li>Pending the return day of this application and any order given by the Court on that date:</li> </ol> <p>1.1 The respondent be and is hereby interdicted from effecting transfer of Stand 27288 Ruwa Township situated in the district of Goromonzi measuring 800 square meres to any other person.</p> <p> </p> <ol> <li>The costs shall be in the cause.</li> </ol> <p> </p> <p> </p> <p><em>Atherstone &amp; Cook</em>, applicant’s legal practitioners</p> <p><em>Mhishi Nkomo Legal Practice,</em> respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/357/2020-zwhhc-357.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=59337">2020-zwhhc-357.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/357/2020-zwhhc-357.pdf" type="application/pdf; length=575729">2020-zwhhc-357.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-and-immovable-property">Rights in and to immovable property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2018/18">Nzara &amp; 3 Others v Kashumba N.O. &amp; 3 Others (SC18/18, Civil Appeal No. 137/16) [2018] ZWSC 18 (12 March 2018);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2013/43">ECONET Wireless v TRUSTCO Mobile Ltd &amp; Another (Civil Appeal No SC 171/11) [2013] ZWSC 43 (25 September 2013);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2010/1">River Ranch Limited v Delta Corporation Limited (HC 1730/06) [2008] ZWHHC 1 (25 January 2010);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2003/20">Associated Newspapers of Zimbabwe (Pvt) Ltd. v Minister of State for Information and Publicity in the President&#039;s Office and Others (07/03) ((Pvt)) [2003] ZWSC 20 (10 September 2003);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2020/333">ECOCASH Zimbabwe (Pvt) Ltd. vs RBZ (HH 333-20, HC 3007/20) [2020] ZWHC 333 (26 May 2020);</a></div></div></div> Mon, 08 Jun 2020 08:05:33 +0000 Sandra 9637 at https://old.zimlii.org Zimbabwe Online Content Creators Trust (ZOCC) v Zimbabwe Media Commission (HH 359-20, HC 2534/20) [2020] ZWHHC 359 (03 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/359 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ZIMBABWE ONLINE CONTENT CREATORS TRUST (ZOCC)</p> <p>versus</p> <p>ZIMBABWE MEDIA COMMISSION</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZHOU J</p> <p>HARARE, 29 May &amp; 3 June 2020</p> <p> </p> <p><strong>Urgent chamber application</strong></p> <p> </p> <p><em>C. Mhike </em>for the applicant</p> <p><em>T. L.</em> <em>Dhlakama </em>for the respondent</p> <p> </p> <p>ZHOU J: This is an application for an order interdicting the respondent from proceeding with the accreditation of journalists based on the new categories which were recently introduced by the respondent.  The applicant is a trust duly registered in accordance with the laws of Zimbabwe.  Its sphere of operation is the promotion of freedom of expression and media freedom.  It represents the interests of online content creators as part of its mandate. Its membership includes journalists, bloggers, social media practitioners, online editors, and content creating media houses. </p> <p>The respondent is an independent commission constituted as such in terms of s 248 (1) of the Constitution of Zimbabwe as read with s 38(1) of the Access to Information and Protection of Privacy Act [<em>Chapter 10:27</em>] (hereinafter referred to as “the Act”).  Its functions are detailed in s 249 (1) of the Constitution and s 39(1) of the Act.  These include:</p> <p>                        “(a)      to uphold, promote and develop freedom of the media;</p> <p>                        (b)        to promote and enforce good practices and ethics in the media;</p> <p>                        (c)        . . .</p> <p>                        (d)        . . .</p> <p>                        (e)        . . .</p> <p>(f)        to ensure that the people of Zimbabwe have fair and wide access to information;</p> <p>                        (g)        . . .</p> <p>(h)        to encourage the adoption of new technology in the media and in the dissemination of information;</p> <p>                        (i)         to promote fair competition and diversity in the media; and</p> <p>(j)         to conduct research into issues relating to freedom of the press and of expression, and in that regard to promote reforms in the law.”</p> <p> </p> <p>            On Thursday 21 May 2020 the respondent issued a press statement informing media practitioners about the commencement of the accreditation programme for the year 2020.  The statement, among other things, introduced additional categories for the accreditation of media practitioners.  In the past the respondent issued only two types of accreditation cards.  The one was for local journalists while the other was for foreign journalists.  The statement by the respondent informed that owing to concerns of the industry and the fast developments in the digital media, it had decided to issue different accreditation cards for the six listed categories of media practitioners described as follows:</p> <p>“1.       <strong>Local Journalists: </strong>Journalists working for mainstream media registered or licenced by the ZMC and the Broadcasting Authority of Zimbabwe (BAZ) respectively;</p> <p>2.         <strong>International Media: </strong>Foreign media personnel cleared by the Government through the Ministry of Information, Publicity and Broadcasting Services.</p> <p>                        3.         <strong>Online Media: </strong>Media practitioners running online news channels;</p> <p>4.         <strong>Content Producers: </strong>Media practitioners who produce various media products for online distribution;</p> <p>                        5.         <strong>Photographers: </strong>Media practitioners in photography and videography;</p> <p>                        6.         <strong>Productions: </strong>Media practitioners in the film sector.”</p> <p><strong>                         </strong></p> <p>Some members of the media fraternity expressed concern at the proposed new categories, including the concern that they could lead to discrimination of some journalists and media practitioners.  In particular, one organization in the media industry, the Media Institute of Southern Africa (MISA) engaged the respondent about the new proposals.  The engagement did not result in any consensus being reached between the respondent and MISA.  However, the respondent issued a statement trying to allay the fears of the media profession.</p> <p>Applicant complains that the proposed accreditation, if not stopped, would interfere with media freedom.  Applicant refers to attempts by another organization, MISA-Zimbabwe, to engage the respondent about the proposed accreditation and alleges that the engagement failed to produce results.  Applicant further alleges that the respondent has introduced new accreditation categories which would result in violation of s 61 an s 62 of the Constitution of Zimbabwe.  Applicant alleges that the proposed accreditation seeks to introduce four new categories without changing the legal framework.  Mr <em>Dhlakama </em>for the respondent submitted that only two new categories are set to be introduced.  Nothing turns on this dispute of fact, as the question remains whether the proposed new categories result in contravention of the cited provisions of the Constitution or otherwise violate the law.  The number of additional categories is not material to the determination of the constitutional and other issues raised.  Applicant alleges that if the respondent is not interdicted from proceeding with the proposed accreditation many of its members as well as other media practitioners “would be significantly prejudiced in a variety of ways that infringe of the enshrined rights of freedom of the media and access to information”.</p> <p>The applicant also alleges that the Access to Information and Protection of Privacy Act [<em>Chapter 10:27</em>] which makes provision for accreditation does not provide for the additional categories proposed by the respondent’s Secretariat.  The further grounds for impeaching the proposed accreditation are (1) that the decision by the respondent’s Secretariat is rushed and was reached without consulting the affected stakeholders as required by the Constitution; (2) that the respondent is presently not properly constituted in terms of the Constitution and the applicable Act, such that the impugned decision is that of the Secretariat rather than of the respondent; (3) some members of the applicant would be excluded from the accreditation exercise because of the restricted definition of journalists in the proposed categorization in light of the provision in the Act for “accreditation of journalists only”; and (4) that the proposed manner of accreditation is open to abuse, in that it can discriminate against some categories of journalists.</p> <p>The respondent objected <em>in limine </em>to the determination of the application on the merits on two grounds, namely, (a) that the application is not properly before the court because the applicant has not exhausted the domestic remedies available to it; and (b) that there is no legal basis for the application.  I will deal with the objections <em>in limine </em>first.  In respect of the first ground of objection the respondent’s submission is that the applicant ought to have appealed to the Administrative Court in terms of s 69(2) of the Act.  That section states as follows:</p> <p>“An appeal shall lie to the Administrative Court against any decision made or action taken by the Commission in terms of this section.”</p> <p> </p> <p>The section in question deals with registration of mass media service.  It does not concern the creation of accreditation categories or the accreditation of media practitioners.  Reliance on it is therefore misplaced. </p> <p>There is the further submission that in terms of the Administrative Justice Act the applicant ought to have asked for written reasons regarding the decision of the respondent.  The statement issued by the respondent on 22 May 2020, annexure “C” to the founding affidavit, gives those reasons and shows an intention by the first respondent to proceed as earlier advised.  It would be an exercise in superfluity for the applicant to ask for further reasons when these had already been given albeit in the context of engagements with MISA.</p> <p>The objection <em>in limine </em>based on the failure to exhaust domestic remedies is therefore meritless and is dismissed.    </p> <p>The second ground of objection is incomprehensible.  It makes submissions on the merits of the application.  The respondent argues that in coming up with the contested accreditation categories it was merely exercising its mandate as given by the constitution, the Act and the regulations cited.  The question of whether the exercise of these powers was in accordance with the law or contravened the provisions of the constitution is the precise issue to be determined in the application.  It cannot be a point <em>in limine</em>.  This objection is misconceived and must be dismissed as well.</p> <p>On the merits, the respondent’s case is that the additional accreditation categories were “necessitated by the revolution in the digital media sector, a phenomenon which was not foreseeable when the current AIPPA was promulgated”.  Respondent contends, therefore, that the new system is intended to embrace and include the players in the digital market so that they can be duly accredited.</p> <p>The applicant has alleged violations of s 61 and 62 of the Constitution of Zimbabwe.  Section 61 protects the right to freedom of expression and freedom of the media; s 62 protects the right of access to information.  However, this dispute can be resolved in terms of the subsidiary law available without a resort to the constitutional rules and principles.  This approach commends itself, as it accords with the principle of avoidance.  This principle enjoins a court which is faced with a dispute to first attempt to address it by application of ordinary principles of law before resorting to principles of constitutional law.  Where it is possible to resolve a legal dispute other than by application of the provisions of the constitution, the principle of avoidance demands that the ordinary rules of law be invoked to determine the dispute, the justification being that a resort to constitutional law procedures and remedies must be reserved for serious disputes.  Thus, in the case of <em>National Coalition for Gay and Lesbian Equality v Minister of Home Affairs </em>2000 (2) SA 1(CC), para 21, it was held that: “Where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.” See also <em>Ashwander </em>v<em> Tennessee Valley Authority</em>, 297 US 288 (1936); Iain Currie and J. de Waal (2005) <em>The Bill of Rights Handbook </em>5th ed p. 25; J. A. Barron and C. T. Dienes, <em>Constitutional Law in a Nutshell </em>7th ed. p. 27.  The dispute <em>in casu </em>can be dealt with in the context of the provisions of the Access to Information and Protection of Privacy Act [<em>Chapter 10:</em>27] and the Access to Information and Protection of Privacy (Registration, Accreditation and Levy) Regulations, 2002, which are contained in Statutory Instrument 169C of 2002.</p> <p>It is common ground that the additional accreditation categories which are the subject of challenge in this application are not provided for by law.  Section 79 of the Act only refers to two categories.  These are local journalists (employed by mass media service or news agency, and part-time or freelance journalists), and foreign journalists.  This fact is acknowledged by the respondent in its statement ZMC04/2020, annexure “E” to the founding affidavit, para 2 thereof.  The respondent’s only excuse for including the impugned categories is that the Act is deficient in dealing with the new challenges presented by rapid growth of the digital media and that when the Act was enacted it did not anticipate these changes.  Clearly, therefore, the respondent’s action is not only <em>ultra vires </em>the Act but also illegal insofar as it is attempting to amend the law through a mere press statement.  The respondent being a creature of the Constitution and the Act must found all its acts within the framework of the law.  If the law is deficient as is suggested by the respondent, the option is not to usurp the function of the legislature but to approach parliament with recommendations on how to plug the lacunae in the law.</p> <p>There has been an allegation that the different accreditation cards can be abused to discriminate against some media practitioners.  There seems to be an inadvertent concession that this may be so, implicit in the statement by the respondent that the move is meant to prevent ‘some malignant elements bent on abusing the current system of accreditation, by trespassing into events that clearly do not fit their professed lines of journalism”.  This statement lends credence to the concerns raised by the applicant that the additional categories and the different accreditation cards are an exclusionary tactic.</p> <p>I am mindful that at this stage where a provisional order is sought I need only <em>prima facie</em> evidence to prove the allegations.  In my view there is sufficient evidence to ground a reasonable apprehension of harm.  The applicant’s entitlement to the protection or a right clearly or only <em>prima facie </em>established are not in dispute.  The applicant and its members are the instruments by which the access to information envisioned by the Act can be realized.  They have a right to be protected in the practice of their profession as journalists.  The balance of convenience favours the granting of the interdict sought.  This is so because if the proposed accreditation proceeds on the basis of categories not provided for by law there will be irreparable prejudice to the applicants who may be excluded from certain categories.  On the other hand, the respondent suffers no irremediable prejudice by proceeding in terms of the existing categories.  When the law is changed it can then proceed in the manner proposed.  Finally, I do not believe that there is an adequate alternative remedy available to the applicant which would achieve the result sought through the interdict.  The requirements for an interim interdict have therefore been established.</p> <p>The draft provisional order will be amended to reflect that the interdict pertains only to accreditation based on the new categories as announced by the respondent.  The respondent is at large to proceed with the accreditation based on the existing categories provided for by the legal framework in place.  The reference to the violation of sections 61 and 62 of the Constitution in the terms of the final order sought will also be removed for the reasons outlined above.  Finally, I must point out in relation to the section on service that the Sheriff does not require a specific statement in the order to authorize him to serve the provisional order.  It is the duty of the Sheriff to serve court orders.  If any other person, such as the applicant’s legal practitioner, requires a departure from that position of the law then they can seek that relief, as was done in the instant case.  The reference to the Sheriff will therefore be deleted as well.</p> <p>In the result, the relief is granted in terms of the draft provisional order as amended, in the following terms:</p> <p> </p> <p><strong>TERMS OF FINAL ORDER SOUGHT</strong></p> <p>That you show cause to this Honourable Court why a final order should not be made in the following terms:</p> <ol> <li>The respondent be and is hereby ordered to accredit the applicant’s members on the basis of the accreditation categories provided for in s 79 of the Access to Information and Protection of Privacy Act [<em>Chapter 10:27</em>] as read with the provisions of the Access to Information and Protection of Privacy (Registration, Accreditation and Levy) Regulations, 2002 (Statutory Instrument 169C of 2002).</li> <li>Respondent shall pay the costs of this application.</li> </ol> <p> </p> <p><strong>INTERIM RELIEF GRANTED</strong></p> <p>Pending determination of this matter the applicant is granted the following relief;</p> <ol> <li>That the respondent be interdicted from carrying on or continuing with accreditation of media practitioners represented by the applicant in terms of its constitution and deed of trust on the basis of the new categories introduced through its statement ZMC04/2020.</li> </ol> <p> </p> <p><strong>SERVICE OF PROVISIONAL ORDER</strong></p> <p>The applicant’s legal practitioners are granted leave to serve this provisional order upon the respondent.</p> <p> </p> <p> </p> <p><em>Atherstone &amp; Cook, </em>applicant’s legal practitioners       </p> <p><em>Musunga and Associates</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/359/2020-zwhhc-359.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24334">2020-zwhhc-359.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/359/2020-zwhhc-359.pdf" type="application/pdf; length=338217">2020-zwhhc-359.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/m">M</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/media">MEDIA</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/control-media">Control of media</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2003/5">Access to Information and Protection of Privacy Act [Chapter 10:27]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item even"><a href="/zw/legislation/act/2004/12">Administrative Justice Act [Chapter 10:28]</a></div></div></div> Mon, 08 Jun 2020 07:36:49 +0000 Sandra 9636 at https://old.zimlii.org ECOCASH Zimbabwe (Pvt) Ltd. vs RBZ (HH 333-20, HC 3007/20) [2020] ZWHC 333 (26 May 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/333 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1 </p> <p>HH 333-20 </p> <p>HC 3007/20 </p> <p>                                                                                                                                                                                            </p> <p>ECOCASH ZIMBABWE (PRIVATE) LIMITED </p> <p>versus </p> <p>RESERVE BANK OF ZIMBABWE </p> <p> </p> <p>HIGH COURT OF ZIMBABWE <br /> CHINAMORA J </p> <p>HARARE, 18 May 2020 &amp; 26 May 2020 </p> <p> </p> <p><strong>Opposed urgent chamber application  </strong></p> <p> </p> <p><em>Adv T Mpofu</em>, for the applicant </p> <p>Mr<em> ABC Chinake,</em> for the respondent </p> <p> </p> <p>CHINAMORA J: <strong>Introduction:</strong> The application before me is, firstly, for an interim  interdict and, secondly, for a final interdict on the return day. The relief sought is set out in the  provisional order as follows: </p> <p> </p> <p>“TERMS OF THE INTERIM RELIEF GRANTED </p> <p>Pending the determination of this matter, the applicant is granted the following relief: </p> <p>1.   That a final interdict be and is hereby granted against the respondent prohibiting the enforcement of <br /> the directive issued on 4 May 2020 against the applicant. </p> <p>2.   The applicant be and is hereby authorized to uplift all the restrictions imposed on the accessibility <br /> of the ecocash system by its agents in terms of the directive issued by the respondent on 4 May 2020 <br /> and restore all functionality to the affected agents </p> <p>3.   The respondent shall pay costs of suit”.   </p> <p> </p> <p>TERMS OF THE FINAL ORDER </p> <p>That you show cause to this Honourable Court why a final order should not be made in the following  terms:  </p> <p>1.   That a final interdict be and is hereby granted against the respondent prohibiting the enforcement </p> <p>of the directive issued on 4 May 2020 against the applicant. </p> <p>2.   That it be and is hereby ordered that the respondent does not have authority in terms of section </p> <p>10 of the National Payment Systems Act [Chapter 24:23] to make any directives against the <br /> management and the participants of a mobile money payment system without affording them <br /> the right to be heard. </p> <p>3.   That the directive issued on 4 May 2020 against the applicant by the respondent be and is hereby <br /> declared null and void and is consequentially set aside. </p> <p>4.   That the respondent pays costs of suit.” </p> <p> </p> <p>2 </p> <p>HH 333-20  HC 3007/20 </p> <p>It is important that the background to this application be set out clearly for a proper  appreciation and perspective on the dispute and the relief that the applicant seeks. </p> <p><strong>Background  </strong></p> <p>The facts surrounding the dispute between the parties can be deciphered from the founding  affidavit,  opposing  affidavit,  answering  affidavit  and  annexures  to  these  documents.  The  applicant’s case as appears from the founding affidavit and answering affidavit can be summarized  as follows. </p> <p>The applicant is a company incorporated in terms of the laws of Zimbabwe and operates the  ecocash platform which, <em>inter alia</em>, provides services like cash in and cash out transactions and  airtime sales, and has numerous agents engaged to do so. The respondent is the regulator vested  with the statutory responsibilities to ensure that transactions conducted on the ecocash platform  comply with the law against money laundering, and issues directives from time to time to ensure  compliance. It principally enforces compliance through the Financial Intelligence Unit (FIU). </p> <p>Through a letter dated 4 May 2020 (“the directive”), the Acting Director of the FIU wrote  to the Chief Executive Officer of the applicant (Ms Natalie Jabangwe). The letter in the critical  parts reads as follows: </p> <p> </p> <p>“Dear Ms Jabangwe </p> <p><strong>Suspension and re-registration of all ecocash agent accounts with transaction limits of above</strong><strong>  ZW$100,000-00 per month  </strong></p> <p>1. We refer to our directive of the 21st of April 2020, directing Ecocash (Pvt) Ltd (Ecocash) to effect  a down ward variation of transaction limits of various categories of ecocash agents. </p> <p>2. Analysis of ecocash returns has shown that even the revised limits continue to be abused by many  of the agents. We have noted that in most cases, the value and volume of transactions undertaken  by high-threshold agents are inconsistent, not only with their business profiles and declared line of  business, but also with normal mobile money agent business. </p> <p>3. In order to curtail the abuse, it is necessary that the Know Your Customer principle be enhanced  for all ecocash agents. In this regard, you are directed as follows: </p> <p>4. Subject to the exceptions set out in paragraph (5) below, all agent accounts with a monthly  transaction threshold above ZW$100,000-00 (applicable to SMEs) shall be suspended and their  accounts frozen, with immediate effect. </p> <p>5. Agents falling into the following categories are exempted from the suspension and freezing under  this directive, but shall be subject to ongoing regulatory monitoring; </p> <p>-Bank institutions </p> <p>-Bureaux de change </p> <p>-Listed companies <br /> -International organizations <br /> -Microfinance institutions </p> <p> </p> <p>3 </p> <p>HH 333-20  HC 3007/20 </p> <p> </p> <p>-Government and quasi-governmental institutions </p> <p>6. Any suspended agent wishing to continue with agent business shall apply to Ecocash for re-</p> <p>licencing/re-registration. </p> <p>--- --- </p> <p>--- --- </p> <p>________________ </p> <p>Oliver Chiperesa </p> <p>Acting Director-General <br /> Financial Intelligence Unit” </p> <p>The applicant avers that the decisions had a material and ongoing prejudicial effect on it. In  consequence, it filed the urgent chamber application which was placed before me seeking the relief  captured in the provisional order above. The respondent vehemently opposed the application and  took a number of points <em>in limine.</em> </p> <p><strong>P</strong><strong>oints <em>in limine</em></strong> </p> <p>The preliminary points taken by the respondent are: (a) that the matter is not urgent; (b) that </p> <p>there was a material non-joinder of the director of the respondent’s Financial Intelligence Unit  (FIU); (c) that the applicant has no <em>locus standi</em> to institute this application; (d) that the provisional  order is fatally defective as the interim relief sought is the same as the final order that the applicant  is asking for; and (e) that the applicant cannot interdict an act done by operation of law. I now turn  to examine those preliminary points. </p> <p><strong><em>Whether the matter lacks urgency  </em></strong></p> <p>The respondent averred in its papers that no basis had been set out why this application </p> <p>should be treated on an urgent basis. It asserted that the application was filed on 6 May 2020 and  served on the respondent on 7 May 2020. The respondent further submitted that the applicant, by  letter dated 7 May 2020, confirmed that it had frozen all agents accounts that had transacted for  more than ZW$100,000-00 per months except the categories exempted by the directive. As a result  of this letter, the respondent argued that, since the applicant had complied with the directive, there  was no basis for the interdict. </p> <p>On its part, the applicant persisted that the matter was urgent in that it had acted timeously  to bring the urgent chamber application before the court, following the directive issued on 4 May  2020. It submitted that it had acted swiftly as soon as the need to act arose. As regards consequence,  the applicant contended that the closure of its agents’ accounts had affected a majority of people  who do not have access to bank accounts, most of whom were in rural areas. It asserted that the </p> <p> </p> <p>4 </p> <p>HH 333-20  HC 3007/20 </p> <p>directive hurt “the applicant’s business” and there was reasonable apprehension of financial loss by  11 million Zimbabweans. The applicant also contended that it had taken a period of 9 years to build  the agency business, and that it was an expensive exercise to complete registration of its agents to  enable them to quickly resume operations. Additionally, it argued that the affected agents were not  heard before the directive was issued, and that this breached the Administrative Justice Act  <em>[Chapter 10:28].</em> </p> <p>Relating to the argument that, insofar as it had complied with the directive, it had no case  for an interdict, the applicant submitted that it did not want to fall foul of the “dirty hands” rule.  The decisions in <em>Econet Wireless (Pvt) Ltd </em>v<em> The Minister of Public Service Labour &amp; Social  Welfare &amp; Ors </em>SC 31-16 and <em>Associated Newspapers of Zimbabwe (Pvt) Ltd </em>v<em> Minister of State for  Information and Publicity &amp; Ors </em>2004 (1) ZLR 538 (S) were relied on. The authorities are clear  that a party served with a directive issued in terms of the law is required to comply and then  challenge it. The words of CHIDYAUSIKU CJ in <em>Associated Newspapers of Zimbabwe (Pvt) Ltd </em>v  <em>Minister of State for Information and Publicity &amp; Ors supra, </em>are pertinent: </p> <p> </p> <p>“This is a court of law and, as such, cannot connive at or condone the applicant’s open  defiance of the law. Citizens are obliged to obey the law of the land and argue afterwards.” </p> <p>In light of the authorities proscribing approaching the court with dirty hands, I am not  persuaded to make an adverse finding on the issue of compliance with the directive. Further, given  that the application was filed on 6 May 2020 after the respondent’s directive was issued on 4 May  2020, I am prepared to accept that the matter was urgent in the sense contemplated in <em>Kuvarega v  Registrar General &amp; Anor </em>1998 (1) ZLR 188 (H). Having come to this conclusion, I am satisfied  that this point <em>in limine</em> was ill taken as it lacks merit. </p> <p><strong><em>Non-joinder of Director of the Financial Intelligence Unit  </em></strong></p> <p>The respondent had raised a preliminary point that there was a material non-jointer to the </p> <p>extent that the FIU, a division within the Reserve Bank of Zimbabwe had not been cited. The basis  of the objection was that the Director General of the FIU had issued the directive and, therefore,  should have been joined in the proceedings. Mr <em>Chinake</em>, for the respondent argued that the FIU  had operational independence from the applicant in terms of s6A (2) of the Money Laundering and  Proceeds of Crime Act <em>[Chapter 9:24]</em>, and was not subject of control by the Minister of Finance </p> <p> </p> <p>5 </p> <p>HH 333-20  HC 3007/20 </p> <p>or any other authority. On that premise, it was submitted that the applicant had been improperly  cited. </p> <p>            I will not dwell much on this issue since r87 of the High Court Rules, 1971, provides that a  matter cannot be dismissed for mis-joinder or non-joinder of any interested party. (See <em>Sobuza  Gula-Ndebele v Chinembiri Bhunu N.O</em>. SC 29-11). I am in agreement with Adv <em>Mpofu</em> that the  FIU is not a legal <em>persona</em> and, more relevantly, all correspondence relating to the operation of the  ecocash platform referred to the applicant as the regulating authority. Noteworthy, is the directive  which, in paragraph 6, states that: </p> <p>“Ecocash shall only re-licence /re-register any new agent above the SME category, subject to <br /> approval by the Reserve Bank of Zimbabwe (National Payment Systems) acting in consultation with <br /> the Financial Intelligence Unit” </p> <p>Also relevant is the letter dated 21 April 2020 on the letterhead of the FIU, which states in  the penultimate paragraphs as follows: </p> <p>“The transaction limits set out below, may be revised upwards, upon satisfying the regulators <br /> (Reserve Bank of Zimbabwe and Financial Intelligence Unit) of the adequacy of Ecocash’s <br /> AML/CFT controls.” </p> <p>Finally, in this respect, the notice given by the applicant to its customers and agents, advised  that the directive of 4 May 2020 had been received from the Reserve Bank of Zimbabwe and the  FIU.  Those  correspondence  put  beyond  reproach  that  the  point  <em>in </em> <em>limine</em>  was  unmerited.  I  accordingly, dismiss it.   </p> <p><strong><em>Locus standi  </em></strong></p> <p>The respondent asserted that the applicant does not have standing to seek to enforce the </p> <p>rights of its numerous agents who have not sought to advance their cause before this court. It  submitted that the basis upon which the applicant has brought the application in the interest of the  agents has not been established. Mr <em>Chinake</em> argued that it was simply an attempt by Ecocash to  enforce its own financial interests. </p> <p>On the other hand, Adv <em>Mpofu</em> contended that the applicant had demonstrated sufficient  interest in the matter and its outcome to come before the court. He submitted that the agents were  a key component of the functionality and operation of the ecocash platform. Thus, to the extent that  the accounts of the agents had been closed, the applicant had a right to institute proceedings to </p> <p> </p> <p>6 </p> <p>HH 333-20  HC 3007/20 </p> <p>interdict the actions of the respondent. Additionally, the applicant argued that its agents were  threatening to sue it, hence it had <em>locus standi</em> to protect its rights.     </p> <p>I have to consider whether the applicant had established a sufficient legal interest to clothe  it with standing to apply for the interdict it seeks. It has been held that a court should be circumspect  in affording standing to an applicant purporting to have an interest in the matter, yet it would be  advancing  a  purely  financial  interest.  That  question  was  put  to  rest  in  <em>Zimbabwe </em> <em>Teachers  Association v Minister of Education and Culture </em>1990 (2) ZLR 48 (HC) which decided that: </p> <p> </p> <p>“It is well settled that, in order to justify participation in a suit such as the present, a party such as  the … applicant has to show that it has a direct and substantial interest in the subject matter and  outcome of the application”. </p> <p>In this respect, in CORBETT J in <em>United Diamond Co (Pty) Ltd &amp; Ors v Disa Hotels Ltd &amp;  Anor </em>1972 (4) SA 409 (C) quoted with approval the view expressed in <em>Henri Viljoen (Pty) Ltd </em>v  <em>Awerbuch Brothers</em> 1953 (2) SA 151 (O) that a “direct and substantial interest” connoted: </p> <p> </p> <p>“… an interest in the right which is the subject matter of the litigation and … not thereby a financial  interest which is only an interest in such litigation”. </p> <p> </p> <p>See also, <em>Zimbabwe Stock Exchange v ZIMRA </em>2008 (1) ZLR 181 (S) at 185 </p> <p>More recently, in <em>Dzingirai v Hwende &amp; Ors </em>HH 468-19, this court (per ZHOU J) appositely put  the position as follows: </p> <p> </p> <p>“The personal ego, political idiosyncrasies and financial wishes may be interests but they do not  give the affected person the legal standing to seek recourse through the court procedures irrespective  of how strongly the affected person feels about them”.   </p> <p>I agree with my brother judge’s lucid observation. The fact of the matter is that Ecocash owns the  platform, while the agents enjoy the right of use of the platform as long as the applicant receives its  fee per transaction. In other words, the applicant’s interest is to get its transactional fee arising out  the agent’s participation on its platform. The applicant’s answering affidavit betrays the nature of  the interest it sought to protect. Paragraph 12.2 deserves quoting: </p> <p> </p> <p>“Financial interests are also worthy of protection in terms of our law. It cannot be argued on<em> bona  fide</em> grounds that the suspension of agents will not directly affect the income earning capacity of the  applicant which is worthy of legal protection. Applicant has a contractual relationship with its agents  in terms of which it earns income from the services performed by agents on its behalf”. </p> <p> </p> <p>7 </p> <p>HH 333-20  HC 3007/20 </p> <p>While the applicant might feel passionately about the financial strain occasioned by the directive,  it is not the kind of interest that can found <em>locus standi</em> for the applicant at law.   </p> <p>I have also read the document titled <em>“Ecocash Agent Terms and Conditions”</em> signed  between the applicant and each one of its agents, which is part of the papers before me. There are  terms which I found relevant to my consideration of the issue of <em>locus standi</em>. It is worth quoting  clause 7, which reads: </p> <p> </p> <p>“7. INDEPENDENT CONTRACTOR </p> <p>7.1 The parties acknowledge that, save for the duties and powers of the agent as stated in clause 3  hereof, nothing in this agreement shall be construed to create a relationship of employment or  partnership whatsoever between the parties, whether for tax or any other purpose. </p> <p>7.2 Subject to clause 3 hereof, neither party shall have the right to bind the other to any agreement  with a third party or to incur any obligation or liability on behalf of the other party” </p> <p>The question that arises is: if the agents are independent contractors in their own right, on  what basis does the applicant have standing to litigate on their behalf? I see no lawful reason for  Ecocash to bring the present action to vindicate what essentially are rights which inhere in an  independent contractor, who has not even asserted his/her/its loss, actual or potential, before this  court.  </p> <p>Also interesting is clause 3.11 which is in the following terms: </p> <p>“The agent shall comply, at its own cost and expense, with all laws, license conditions and the <br /> requirements of any legislative body or government, provincial, regional or local authority relating <br /> to any matter contemplated in this agreement.”    </p> <p>In the context of the above clause, I go back to examine the directive issued on 4 May 2020.  Paragraph 3 points out that the limits set by the respondent “continue to be abused by many of the  agents”. Thus, to the extent that the closure of the agents’ accounts was premised on abuse by  agents, which can be inferred to include failure to comply with clause 3.11, the concerned agents  ought to have approached the court. Undoubtedly, it is the agents whose accounts were closed who  have <em>locus standi</em> to apply to the court alleging that the respondent’s action was unjustified since  they have not flouted the law or abused the ecocash platform. In this respect, the applicant’s  founding affidavit fortifies my view. Mr Eddie Chibi (the applicant’s Chief Executive Officer)  asserts, in paragraph 20.9.1, that the directive does not specify any crimes that the agents allegedly  committed. Then in paragraph 20.9.2, he states that the applicant and the agents were not heard </p> <p> </p> <p>8 </p> <p>HH 333-20  HC 3007/20 </p> <p>before any decision was made against them. Finally, in paragraph 20.11, the following averments  are made: </p> <p> </p> <p>“As indicated above, agents perform several functions within the ecocash system. The directive of  4 May 2020 suspends an agent from performing all the functions that an agent is capable of  performing in the ecocash system. That means that in addition to the cash in and cash out  transactions, the agents will not be able to offer services such as airtime sales, prepaid electricity  sales, business to business transactions with merchants and other agents, customer registrations for  ecocash and consumer education on how to perform certain transactions. It is my view that an agent  can only be lawfully suspended from performing all these functions if it can be shown that the agent  is incapable of legally performing all these functions. Naturally, this means that an agent whose  main area of trade is selling airtime and does so without any illegality must be excluded from a  blanket suspension from the ecocash system.” <strong>[My own emphasis]  </strong>  </p> <p> </p> <p>Quite clearly, in the above averments, Mr Chibi did not make any case for the <em>locus standi</em>  of the applicant. Instead, if not paradoxically, he established that it is the agents who had standing.  Even more telling that the applicant lacked <em>locus standi</em> is paragraph 20.6, which reads: </p> <p> </p> <p>“The directive of 4 May 2020 will affect agents such as Transerve, Zuva, Total, N Richards,  Metropeech and Engen amongst others who are driving the Zimbabwean economy but do not fall  under the exemption mentioned in category 5.” </p> <p>What emerges from the applicant’s submissions is that a decision affecting the agents’  interests has been unlawfully taken without affording them a right to be heard, or that the respondent  has adopted a dragnet approach. That may be so, but does that give the applicant a sufficient legal  interest to file an application before the court on behalf of its agents? I think not. If Transerve or  the other juristic entities mentioned by the applicant have a cause of action, I take the view that  nothing precludes them from approaching this court for redress in their own right. Glaringly, the  applicant’s founding papers make it obvious that the affected agents (and not the applicant) should  have instituted this application. Besides disclosing a purely financial interest, nothing in the papers  before me demonstrates applicant’s <em>locus standi</em> to institute this application. I therefore uphold the  respondent’s point <em>in limine</em>. I would have dismissed the application on this basis alone, however,  I prefer to consider the other grounds of objection in case my conclusion is incorrect.   </p> <p> </p> <p><strong><em>Relief sought is fatally defective  </em></strong></p> <p>In respect of the relief sought, the respondent submitted that a final interdict cannot </p> <p>ordinarily be founded on a <em>prima facie</em> case. In this respect, Mr <em>Chinake</em>, for the respondent, drew </p> <p> </p> <p>9 </p> <p>HH 333-20  HC 3007/20 </p> <p>my attention to the similarity between the relief sought on an interim basis and the final relief. The  respondent argued that, the provisional order was therefore fatally defective, and prayed for  dismissal of the application.   </p> <p>Mr <em>Chinake</em> argued that, given the way the draft order was framed, if the interim order  sought was granted, the applicant would have obtained an order which is final in effect, making it  unnecessary for the applicant to come back to court on the return day to have the order confirmed.  More importantly, it was submitted that a final order could not be granted on proof of a <em>prima facie</em>  case. The respondent also contended that the applicant was effectively seeking either a declaratur  or a review of the respondent’s directive by way of an urgent chamber application, which it could  not do. Counsel further argued that the order sought was defective insofar as it was not predicated  on the pendency of either an application for a declaratur or a review application in terms of sections  14 and 26, respectively, of the High Court Act [<em>Chapter 7:06</em>]<em>.</em> </p> <p>In response, Adv <em>Mpofu</em> for the applicant, submitted that the point in <em>limine</em> raised lacked  merit since the draft order could be amended in terms of r 246 (2) which allows a judge, if satisfied  that the papers establish a <em>prima facie</em> case, to grant a provisional order either in terms of the draft  order filed or as varied. Counsel referred me to <em>Balasore Alloys Ltd </em>v<em> Zimbabwe Alloys Ltd &amp; Ors</em>  HH 228-18, where CHITAPI J made the following observation: </p> <p>“In determining whether a <em>prima facie</em> case is established the focus should not be to determine  whether the applicant has provided evidence to establish what the applicant must finally establish.  The approach should be to determine whether the applicant has placed evidence before the judge  from which a court properly directed and applying its mind to the evidence could or might find for  the applicant … In other words, the judge only needs to be satisfied that there is a case made by the  applicant which merits referring to the court for further and fuller argument so that a final  determination is made by the court which still hears full argument.” </p> <p>Counsel’s argument was made to address the submission that the application was an attempt  to obtain final relief through the chamber book process. At the same time, the contention would  confront the objection that it was incompetent to obtain a declaratory order or relief available on  review via an urgent chamber application. Hence, the suggestion that the propriety or otherwise of  the eventual order to be granted on the return day need not be interrogated at the time interim relief  is sought. I do not agree that the grant of an interim order can be considered in isolation from the  final order to be granted on the return day. I will return to this issue. </p> <p> </p> <p>10 <br /> HH 333-20  HC 3007/20 </p> <p>It requires no second guessing that the temporary order sought is final in nature. Equally  evident <em>ex facie</em> the provisional order is that the relief sought in the interim order is the same or  substantially the same as in the final order. The impropriety of such an approach has received ample  emphasis in this jurisdiction. The seminal case is <em>Kuvarega </em>v<em> Registrar General &amp; Anor supra</em>,  where at 193A-C, CHATIKOBO J appositely cautioned: </p> <p>“The practice of seeking interim relief, which is exactly the same as the substantive relief  sued for and which has the same effect, defeats the whole object of interim protection. In  effect, a litigant who seeks relief in this manner obtains final relief without proving his case.  That is so because interim relief is normally granted on the mere showing of a <em>prima  facie</em> case. If the interim relief sought is identical to the main relief and has the same  substantive effect, it means that the applicant is granted the main relief on proof merely of  a <em>prima facie</em> case … if the interim relief were granted in the form in which it is presently  couched, she would get effective protection before she proves her case”. </p> <p> </p> <p>See also <em>Econet Wireless (Pvt) Ltd</em> v <em>Trustco Mobile (Pty) Ltd &amp; Anor</em> S 43-13 </p> <p>The above remarks are even more relevant to the dispute in <em>casu</em>, where the grant of the  relief sought results in the unfreezing of the accounts frozen in terms of the respondent’s directive.  Paragraph 1 of the interim interdict requires me to grant a final interdict prohibiting the enforcement  of the directive issued by the respondent on 4 May 2020. Then paragraph 2 asks me to order the  upliftment of all the restrictions imposed on the accessibility of the ecocash system. Ordinarily,  interim orders become operational or executable upon being granted. The consequence is to allow  the agents to access the unfrozen accounts and start operating them. Yet the perceived abuse of  those accounts is the harm that the directive seeks to prevent pending relicencing of the agents  affected by the directive. To put the issue in a contextual perspective, the directive of 4 May 2020  ordered the closure of accounts of individual agents who were transacting above a monthly  threshold of ZW$100,000-00 on the ecocash platform. Thus, if the relief sought were granted, to  use the language of this court in <em>Kuvarega v Registrar General supra</em>, the applicant would get  effective protection before it proves its case. I have to ask myself whether granting an order which  is final in nature does not presuppose that the applicant has established a clear right. It is beyond  argument that it does. I did not read <em>Balasore Alloys Ltd v Zimbabwe Alloys Ltd</em> <em>supra</em> as authority  for the proposition that a final order can be obtained on proof on a <em>prima facie</em> basis.   </p> <p>I proceed to examine the relief that the applicant desires on the return day. The draft order <br /> is self-explanatory. Firstly, the applicant seeks a final interdict prohibiting the respondent from </p> <p> </p> <p>11 <br /> HH 333-20  HC 3007/20 </p> <p>enforcing the directive issued against it on 4 May 2020. This is the same relief which it has asked  me to grant on a temporary basis. (See paragraph 1 of interim order). Secondly, it would like a  declaratur that the respondent has no authority in terms of section 10 of the National Payment  Systems Act to make directives against the management and the participants of a mobile money  payment system without giving them the right to be heard. Finally, another order is sought declaring  the directive issued on 4 May 2020 null and void and thereby setting it aside. There is no difference  in effect between this order and the orders sought in paragraphs 1 and 2 of the interim relief. The  result is to unfreeze and allow the concerned agents access to their accounts. The question that I  pose is: is there anything remaining to incentivize the applicant to come back to court on the return  day when the accounts have already been unfrozen and access gained to the ecocash platform? The  answer is obvious. In other words, the applicant can gleefully sit back since it would have achieved  through the provisional order what it required by way of final order on the return day.   </p> <p>            I return to the issue of whether consideration of the grant of interim relief can be divorced  from the eventual relief to be granted on the return day. I have expressed the view that it would be  folly to do so, and my view finds support from this court’s approach in <em>Rose v Arnold &amp; Ors</em> 1995  (2) ZLR 17 (H). The case underscores the necessity of a judge seized with an urgent chamber  application to cast his or her eyes on the ultimate order to be confirmed on the return day and  evaluate the competency or otherwise of such relief. In that case, a provisional order had been  granted which, if confirmed, had the effect of affecting the rights of a third party not before the  court. As a result, ROBINSON J (at 21) incisively remarked: </p> <p> </p> <p>“In fact, if I am to be completely frank, I would add that had this application been placed before me  in chambers in the very first place, I would have had no hesitation in declining to grant a provisional  order and in pointing the applicant in the direction of what I consider was the correct path for her to  follow”.    </p> <p>Conscious of what happened in <em>Rose v Arnold &amp; Ors supra</em>, I make the point that a judge  dealing with an urgent application in chambers, must interrogate the propriety or otherwise of the  relief sought on the return day to avoid falling into the conundrum of granting interim relief which  is incapable of confirmation on the return day. Relevantly, r 226 (1) of the High Court Rules, 1971,  distinguishes between a court application and a chamber application. In the context of the applica- tion before me, I note that s14 of the High Court Act, provides for declaratory relief, and lays down  that such relief is obtained by way of an application. An examination of the relief in the provisional </p> <p> </p> <p>12 <br /> HH 333-20  HC 3007/20 </p> <p>order reveals that the applicant is seeking declaratory relief via a chamber application. I have not  found anything in the jurisprudence of this court that justifies such a delinquent approach. </p> <p>On the contrary, the attempt to seek interim relief which has the effect of a final order has  been criticised by this court. In <em>Mike Velah and Ors </em>v<em> the Minister of Primary &amp; Secondary Edu-</em> <em>cation and</em> <em>another</em> HH 124-18, ZHOU J aptly said: </p> <p>“The first insurmountable hurdle for the applicants is the relief which they seek. The relief sought <br /> is final not just in its form and substance but in its effect. This court has in many judgments warned <br /> against the undesirability of seeking final relief through an urgent chamber application under the <br /> guise that it is interim relief. Quite apart from the procedural requirement that this kind of relief <br /> should be sought by way of review as an ordinary court application as required by order 33 r 256, if <br /> the relief was granted as sought its consequences would be irreversible should the provisional order <br /> not be confirmed. The interim relief that the applicants seek is that the decision to withhold the <br /> applicants’ results be set aside, and for the applicants’ results to be confirmed and released. <br /> Mr <em>Chamuka</em> understandably was unable to make any meaningful submission on how that kind of <br /> relief could be granted as interim relief. On that ground alone, the relief which the applicants seek <br /> is incompetent and this court cannot grant it other than with the consent of all the parties to the <br /> dispute. The application thus fails on that basis.” </p> <p>The rationale of this judgment is not open to debate. Without hesitation, I uphold the  preliminary point raised by the respondent. </p> <p><strong><em>Court cannot interdict a lawful act  </em></strong></p> <p>The law is established that an interim interdict will not be granted to a person whose rights  in a thing have already been taken by operation of law at the time he or she makes an application  for interim relief. In <em>Airfield Investments (Pvt) Ltd v The Minister of Lands, Agriculture and Rural  Resettlement &amp; Others </em>2004 (1) ZLR 511 (S) 518 A-B, MALABA JA (as he then was) stated: </p> <p>“The appellant was not in a position to show the existence of a <em>prima facie</em> right of ownership in the <br /> land … because at the time it applied for interim relief all the rights of ownership it had in the land <br /> had been taken by means of an order of acquisition and vested in … [the State] … When the appel-<br /> lant lodged the application for the interim relief before the court <em>a quo</em> the acquisition of the land by <br /> the State was a <em>fait accompli</em>, all rights of ownership having been extinguished on its part …” </p> <p>See also <em>J C Conolly &amp; Sons (Pvt) Ltd v R C Ndhlukula &amp; Anor</em> SC 22-18 </p> <p>In this respect, Mr<em> Chinake</em> contended that granting the relief sought by the applicant on the  draft order, amounts to this court preventing the Reserve Bank from performing its functions in  terms of the law. I am in agreement with the submission. It would be a disjuncture for an executive  functionary to exercise its legitimate statutory mandate, and then have the court undermine that </p> <p> </p> <p>13 <br /> HH 333-20  HC 3007/20 </p> <p>through an interdict. Rather, the applicant should challenge any perceived irregular exercise of  administrative power via an application for a declaratur or review. I find objection that an applicant  cannot interdict an act done by operation of law appealing and uphold the point <em>in limine.</em> My  conclusion in no way means that the applicant cannot approach the court, but that it has selected  the wrong method to vindicate the rights it seeks to protect. Put differently, the applicant has come  through the back door instead of the front door. The review procedure provided in terms of section  26 of the High Court Act is available to the applicant if so minded. Alternatively, the applicant can  utilize section 14 of the High Court Act. Which option to pursue is a matter within its prerogative.      In view of the conclusion I have reached on the issue of <em>locus standi</em>, the fatal defect in the  provisional order and that it is incompetent to interdict something done by operation of law, it is  unnecessary for me to delve into the merits of the case. In relation to costs, the respondent has asked  for costs on an attorney and client scale in the event the application failed. Even though I have  upheld preliminary points which are dispositive of the matter, I believe that the applicant has  litigated in good faith. In the circumstances, I am in agreement with the position taken by CHITAPI  J in <em>Netone Cellular (Pvt) Ltd </em>v<em> Reward Kangai</em> HH 441-19, that a party should not be penalized  with punitive costs for holding a contrary legal position, since opposing arguments on the law  enhance our jurisprudence. Therefore, in the exercise of my discretion I will award costs on the  ordinary scale. </p> <p>In the result, I make the following order: </p> <p>1.  The application is dismissed. </p> <p>2.  The applicant shall pay costs of suit </p> <p> </p> <p><em>Mtetwa &amp; Nyambirai</em>, applicant’s legal practitioners  <em>Kantor &amp; Immerman,</em> respondent’s legal practitioners </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.oasis.opendocument.text" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/333/2020-zwhc-333.odt" type="application/vnd.oasis.opendocument.text; length=32618">2020-zwhc-333.odt</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/333/2020-zwhc-333.pdf" type="application/pdf; length=490221">2020-zwhc-333.pdf</a></span></div><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/333/2020-zwhc-333.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=376076">2020-zwhc-333.docx</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/locus-standi-0">Locus standi</a></li></ul></span> Tue, 26 May 2020 17:51:08 +0000 takudzwa 9619 at https://old.zimlii.org Assistant Inspector Bere & Anor v Commissioner Makodza & Another (HH 206-20, HC 1333/10) [2020] ZWHHC 206 (05 March 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/206 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ASSISTANT INSPECTOR BERE A 985652K</p> <p>and</p> <p>CONSTABLE ZHOU L 989491H               </p> <p>versus</p> <p>COMMISSIONER ERASMUS MAKODZA</p> <p>(OFFICER COMMANDING-MASHONALAND EAST)</p> <p>and</p> <p>COMMISSIONER GENERAL OF POLICE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSITHU J</p> <p>HARARE, 28 February 2020 &amp; 5 March 2020</p> <p> </p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p> </p> <p><em>Mr N. Mugiya, </em>for the applicants</p> <p><em>Miss T. Tembo with Mr T. Nyamukapa</em>, for the respondents</p> <p> </p> <p>           </p> <p>MUSITHU J: Applicants are members of the Zimbabwe Republic Police (ZRP) Marondera Traffic. On 24 February 2020 they filed this urgent chamber application seeking relief set out in the draft provisional order as follows:</p> <p>“TERMS OF THE FINAL RELIEF </p> <p>                That you show cause to this Honourable Court why a final order should not be made in the following terms:-</p> <ol> <li>The First Respondent’s transfer of the Applicants from Zimbabwe Republic Police Marondera Traffic be and is hereby declared unlawful and wrongful and accordingly set aside.</li> <li>The 1st Respondent is ordered to pay costs of suit on a client-attorney scale.</li> </ol> <p> </p> <p>INTERIM RELIEF GRANTED</p> <p>Pending the confirmation or discharge of the provisional order, an interim relief is granted on the following terms;</p> <ol> <li>The transfer of the Applicants by the Respondents be and is hereby stayed pending the finalization of this matter and the pending disciplinary trial at Marondera District Headquarters.”</li> </ol> <p> </p> <p>The brief facts motivating this application are as follows.  </p> <p>On 11 February 2020, the applicants and five other police officers were manning a roadblock at the 71 kilometre peg along the Harare-Mutare road. First applicant was in charge of the road block. According to the first applicant, first respondent and other senior officers arrived at the roadblock around midday and started harassing the applicants and their fellow officers. They accused them of being corrupt and taking bribes. They were arrested at the site and ordered to discontinue the roadblock. First respondent failed to find evidence of corruption and shifted goal posts. He accused first applicant of failing to ensure that officers under her command declared their valuables in line with the procedure for manning roadblocks. Applicants deny the allegations. First applicant asserts that the officers had declared their valuables as per procedure. She attached an extract from the declaration book to confirm the declarations made on the day. The extract is a photocopy, handwritten and unreadable. She further averred that the duty to cause officers manning a roadblock to declare assets is reposed upon the Officer in Charge and not the team leader. This is in terms of the internal Traffic Operations Contemporary Anti-Corruption Strategies Circular 01/2012. In spite of the evidence that procedure was complied with, first respondent vowed to fix the applicants and their colleagues officers. They were arrested and detained in anticipation of an internal disciplinary trial.</p> <p>The applicants’ account of events is contradicted by that of first respondent. It goes as follows. On the same day around 0900 hours and at the same site, a team of senior police officers from the Police General Headquarters arrived at the site. The team comprised of Commissioner Tayengwa, Assistant Commissioner Paul Nyathi, Chief Superintendent Thebe and Chief Superintendent Kureva. The senior officers observed a Toyota Hiace combi heading towards Harare being stopped at the roadblock. The conductor disembarked and ran to second applicant. He handed her ZW$20.00, but was not issued with a receipt. As he was about to return to the combi, he and the second applicant were summoned by the senior police officers. The ZW$20.00 was recovered from second applicant. Searches were carried out on all the officers manning the roadblock. ZW$9.00 was recovered from second applicant’s trousers pocket. ZW$125.00 and US$45.00 was recovered in second applicant’s purse. The money was not declared in the declaration register. A further ZW$87.00 was found abandoned under a tree at the roadblock site. Five cellphones were found in the first applicant’s bag. They were also not declared. The roadblock started at 0600 hours and only four arrests had been made. ZW$300.00 cash as recorded in the Z69J book 06/20 had been raised from these arrests. The officers were handed over to the officer commanding Marondera District for disciplinary action. </p> <p>It is not in dispute that following this incident, the applicants were transferred from the station on that very day. First applicant was initially transferred to ZRP Juru. That transfer was overturned the following day with a radio signal confirming her new station as ZRP Sadza, Chivhu. Second applicant was transferred to ZRP Masasa, also in Chivhu. The transfers were with immediate effect. The applicants contend that their transfers from urban Marondera to remote rural stations was actuated by malice and the desire to fix them, done as it was, at short notice and with no provision for relocation allowances. As if to confirm this position, first applicant was transferred twice within 72 hours. First to ZRP Juru and then ZRP Sadza. First respondent denies that the transfers were motivated by any ill will on his part. They were motivated mainly by the events of 11 February 2020, and partly as an exercise of discretion by virtue of powers conferred on him by law. The reversal of the transfer of first applicant from Juru to Sadza followed a realization that ZRP Juru ended up having more Assistant Inspectors than required. ZRP Sadza was in need of officers of that level. The transfers affected 13 other officers. It is not clear how many of these also face internal disciplinary processes as the applicants.</p> <p> </p> <p><strong><em>POINTS IN LIMINE</em></strong></p> <p>At the commencement of the hearing, <em>Miss Tembo</em> for the respondents raised two points in <em>limine</em>, lack of urgency and failure by applicants to exhaust internal remedies. For convenience, I invited the parties’ legal practitioners to address me on the points <em>in limine</em> and the merits of the matter. The matter would be disposed of on the basis of the points in <em>limine</em> if I found them meritorious.</p> <p><strong><em>Urgency </em></strong></p> <p>Miss<em> Tembo </em>submitted that the need to act arose on 12 February 2020 when the radio signal communicating the transfers was published. The applicants filed an urgent chamber application on 19 February 2020. It was set down for hearing on 24 February 2020 at 1200hours. The applicants defaulted and the matter was struck off the roll. Even then, the delay of seven days was not explained. The applicants filed the present application on 24 February 2020. The delay was inordinate. The transfers published on 12 February 2020 were imminent, and immediate action was called for. The failure to attend court on 24 February 2020 exacerbated the delay in taking immediate action. The certificate of urgency and the founding affidavit did not explain the reason for the seven day delay in filing the first application. If the first application was not urgent, then the present was hopeless. The applicants had been sluggard in their approach to the matter.</p> <p>Mr<em> Mugiya</em> argued that the matter was urgent. The delay of seven days was not unreasonable by any measure. In any case it was explainable. Applicants became aware of the decision to transfer them on 12 February 2020. The radio signals communicating the transfers were served on 13 February 2020. The lawyers took instructions on 14 February 2020. 15 February 2020 was a weekend. The lawyers managed to file the application on 19 February 2020. The application could not be filed earlier because the swipe machine at the High Court was not working. They could not pay the filing fee on submission of the application. When the applicants got to know of their transfer, they requested the official communication from their command, but they were only given circular number 1 of 2012 and the charge sheets. The command refused to give them the radio signals leaving them with no choice but to launch the application without key documents. This explains the delay in lodging the first application. The first application was set down before MANGOTA J on 24 February 2020 at 1200hours. Applicants and their counsel state that they were delayed on their way to court because of a road traffic accident which was holding up traffic. They arrived at the judge’s chambers at 1208hours and were advised the matter had been struck off with costs. They immediately launched the present application.</p> <p>I find the explanation for the delay conceivable. It is not unusual for litigants and their lawyers to require time to put information together before filing an application of this nature. In the present matter, it was not denied that the requested information was in the hands of the first respondent or other senior officers of ZRP. What was denied was that their request for information was declined. Whether or not a matter is urgent is an issue for exercise of discretion by the judge. The remarks by Garwe JA in <em>Econet Wireless (Pvt) Limited </em>v<em> Trustco Mobile (Proprietary) Limited &amp; Another</em><em>, </em>are apposite. He said:</p> <p>“It is clear that in terms of Rules 244 and 246 of the High Court Rules the decision whether to hear an application on the basis of urgency is that of a judge.  The decision is one therefore that involves the exercise of a discretion….”</p> <p> </p> <p>In the exercise of my discretion, I find that the delay in filing the application was not inordinate. Following the striking off of the first application on 24 February 2020, the applicants filed another application on the same day. They evinced a desire to prosecute the matter on an urgent basis. The matter is urgent. The point <em>in limine</em> is dismissed.</p> <p><strong><em>Failure to exhaust domestic remedies</em></strong></p> <p>Ms<em> Tembo</em> submitted that applicants should have subjected themselves to the local remedies at their disposal before approaching this court. The applicants were transferred on the strength of powers delegated to first respondent in terms of section 10 of the <em>Police Act, </em>(the Act) as read with Article 2.1 of the ZRP Transfer Policy (the policy). Section 10 of the Act provides that:</p> <p>            “<strong>10 Delegation of Commissioner-General’s functions</strong></p> <p>Subject to this Act, the Commissioner-General may from time to time delegate to any officer of or above the rank of superintendent any right, function, power or duty conferred upon him by this Act or any other enactment, other than the power of further delegating the right, function, power or duty so delegated.”</p> <p> </p> <p>Article 2.1 of the policy states as follows:</p> <p>“The transfer of non-commissioned officers (Assistant Inspector and below) shall be authorized by the Chief Staff Officer [Human Resources Administration] and any other senior officer delegated to act in the same function by the Commissioner General of Police”</p> <p> </p> <p>The same policy, it was submitted, allows first respondent as officer commanding province, to transfer members of the police within his province. It also provides procedures to be followed by officers not contented with their transfer. Article 3.0 provides that:</p> <p>“All appeals against transfers shall be made in writing by the concerned officers/members and submitted to Police General Headquarters for consideration through the usual channels” (underlining for emphasis)</p> <p> </p> <p>Ms <em>Tembo</em> submitted that the phrase <em>“through the usual channels”</em> is well known in the force. An aggrieved officer must submit a report to their officer in charge who in turn must refer it to the officer commanding district. From the officer commanding district it goes to the office of the second respondent. The internal grievance procedure allows first and second respondents to look into the grievance and take appropriate remedial action, if need be. The applicants had not followed the internal grievance procedure, without good reason. The matter was not yet ripe for referral to this court. The court was urged not to usurp the administrative powers of second respondent. Such powers are set out in section 8 of the Act as read with section 221 of the constitution of Zimbabwe.</p> <p>            Mr<em> Mugiya</em> argued that the internal remedies alluded to by the respondents only applied where applicants were challenging their transfer. In the present matter, they were not. They were merely seeking a temporary reprieve pending the holding of their internal disciplinary trials. He further submitted that applicants engaged their commanders in terms of paragraph 30 of the Standing Orders volume 1 for consideration of their request. The request was made through the officer in charge on the day of their arrest. To date, no response had been received from the officer in charge. In any event, the applicants were not even aware of the existence of the transfer policy. It had not been officially brought to their attention or published. Counsel submitted that in terms of part 2 of Standing Orders volume 1 any policy became effective after publication to members of the force. On their part they were required to acknowledge receipt by endorsing their signatures. The signed acknowledgement of receipt is kept in the officer’s personal file for future reference in case of any future misconduct or enquiry. I read part 2 of the Standing Orders volume 1 and I did not find the part that speaks to the operationalization of the policy as alluded to by Mr<em> Mugiya</em>.</p> <p>Mr<em> Mugiya</em> submitted that the internal disciplinary trial that applicants will be subjected to is before a single officer in terms of section 34(1) of the Act. The decision of a single officer is subject to review by second respondent, where the trial results in a conviction and sentencing of the officer.  An officer can also challenge the conviction and sentence on appeal to the second respondent. If applicants had been transferred, but not charged, then they could have subjected themselves to the internal remedies alluded to. The relief sought was not available internally. A notice of objection would not take less than 30days, by which time the process that triggered the approach to this court would be long completed. The internal remedies did not provide applicants effective redress. That prompted an approach to this honourable court. Counsel referred to the case of <em>Makarudze and Another </em>v <em>Bungu and Two Others. </em> </p> <p>At the conclusion of the oral submissions, I asked parties to avail copies of the transfer policy and the Standing Orders volume 1 as both documents had been referred to extensively. <em>Clause 2.17 </em>of the transfer policy provides as follows:</p> <p><strong>“Appeals against transfer</strong></p> <p>No appeals against a transfer shall be entertained unless:-</p> <ul> <li>Officer/Member has complied with the transfer order.</li> </ul> <p>All appeals against transfers shall be made in writing by the concerned officers/members and submitted to Police General Headquarters for consideration through the usual channels” (underlying for emphasis)</p> <p> </p> <p>The preliminary objection needs to be understood in the context of the relief sought by the applicants. Applicants are not challenging their transfer. That relief is for the return day. Before me, applicants seek the temporary stay of their transfer pending the return day and the holding of the internal disciplinary trial. I have perused the transfer policy and the Standing Orders volume 1 to verify if there is provision for this kind of relief internally. I found none. The transfer policy sets out the different forms of transfer and the induction process for transferred officers. <em>Clause 2.17</em>, of the policy cited above, provides for appeals against transfer. It does not provide for the transfer procedure in detail. If the detailed procedure is resident in some other transfer procedure manual, then such was not brought to my attention. Just as is the case with the transfer policy, the Standing Orders volume 1 provides for the different forms of transfer of officers. It goes further to provide for the removal of the member’s furniture and its storage. <em>Articles 31 to 45</em> deal with the arrest of officers, suspension, prosecution, legal representation, trials and enquiries, punishment, appeals and criminal charges against officers. There is no procedure for stay of transfer pending the internal trial of an officer.</p> <p>            The submission by Ms<em> Tembo </em>that the phrase <em>“through the usual channels”</em> in <em>clause 2.17</em> of the policy is well known in ZRP is not persuasive. I say so for two reasons. Firstly the phrase <em>“through the usual channels”</em> is not defined. The meaning ascribed to it has been disputed by the applicants. In the absence of agreement as to the meaning, then oral evidence would be required for the court to appreciate its significance and application. Secondly, the clause in which the phrase is used specifically deals with appeals against transfer. The applicants <em>in casu</em> are not appealing against transfer. It is on the return day that they seek an order declaring their transfer from ZRP Marondera Traffic unlawful and wrongful. Before me they merely seek a temporary reprieve. </p> <p>In <em>Makarudze and Another </em>v<em> Bungu and Two Others</em>, Mafusire J says the following of domestic remedies:</p> <p>“The general view is that it is discouraged for a litigant to rush to this court before he or she has exhausted such domestic procedures or remedies as may be available to his or her situation in any given case. He or she is expected to obtain relief through the available domestic channels unless there are good reasons for not doing so: see <em>Nokuthula Moyo </em>v <em>Norman Gwindingwi NO &amp; Anor</em>.</p> <p>However, it is also the general view that the domestic remedies must be able to provide effective redress to the complaint. Furthermore, the alleged unlawfulness complained of must not be such as would have undermined the domestic remedies themselves: see <em>Tutani </em>v<em> Minister of Labour &amp; Ors</em>; <em>Moyo </em>v<em> Forestry Commission</em> and <em>Musandu </em>v<em> Chairperson of Cresta Lodge Disciplinary and Grievance Committee</em>. The court will not insist on an applicant first exhausting domestic remedies where they do not confer better and cheaper benefits: <em>Moyo’s </em>case, <em>supra</em>, at p 192.”</p> <p> </p> <p>The remarks by Mafusire J are apposite to this case. I am persuaded by Mr<em> Mugiya’s</em> submission that <em>clause 2.17</em> of the policy would be applicable if the applicants were challenging their transfer before me. They are not. All they seek is a temporary injunction, allowing them to remain at the station for the duration of the internal disciplinary trial. I found nothing in both the transfer policy and the standing orders by way of remedies which provide applicants the redress they seek before me. The objection is accordingly dismissed.  </p> <p><strong><em>MERITS </em></strong></p> <p>Mr<em> Mugiya</em> submitted that all the applicants seek is a temporary suspension of their transfers pending the conclusion of the internal disciplinary trial. They are not challenging their transfers at this point. He argues that the transfers were executed in a manner that is punitive, unjust and unlawful seeing as the applicants had already been charged and were awaiting the commencement of the internal disciplinary trial. It was further submitted that the respondents’ conduct was an affront to section 68, as read with section 87(3)(e) of the Constitution. The applicants were already being victimized before the internal disciplinary trial decided their fate. In any event, both the Act and the Standing Orders volume 1 have safeguards to allay any fears respondents may harbour regarding the applicants’ continued stay at the station during their internal disciplinary trial.  They can be suspended or stripped of some of their powers during the course of the trial.</p> <p>Miss<em> Tembo</em> cautioned against interference with the administrative powers reposed in the second respondent by the Constitution and the Act. The powers can only be interfered with if exercised unlawfully or irrationally.  In <em>casu,</em> respondents acted in terms of Act and the transfer policy and no malice or arbitrariness can be imputed to them. In any case, the applicants as is the case with all officers, are expected to know the transfer policy. It is part of police literature kept at every police station which every officer is familiar with. That the applicants are not challenging their transfer shows they were content with the manner they had been transferred. <em>Ms Tembo</em> further submitted that the applicants could also make use of routine orders at their disposal. These were in the form of rules and regulations governing the conduct of officers at the station. She did not explain where these are found, and neither did she make specific reference to clauses that are pertinent to this case. They were not placed before me. Miss<em> Tembo</em> further submitted that keeping the applicants at the station would send wrong perceptions at the workplace and the community. The allegations against the applicants were related to corruption, and their arrest had been witnessed by people within the community. Administratively, the applicants could not be kept at the station a day longer because of the sensitive nature of the allegations against them. There was also fear of interference with witnesses who were going to testify against the applicants.  In any case, the applicants were not the only officers affected by the transfers.</p> <p>Mr<em> Mugiya </em>argued that the routine orders referred to by respondents were not applicable to this case. They did not have the force of law. He also challenged the validity and authenticity of the transfer policy.</p> <p>The validity or authenticity of the transfer policy is not an issue for determination at this stage. Suffice it to state that there seems to be two different versions of the transfer policy. During oral submissions, Ms<em> Tembo</em> submitted that appeals against transfers are handled in terms of clause 3 of the policy. That same clause is referred to in paragraph 4.2 of first respondent’s opposing affidavit. However the transfer policy availed to me after the conclusion of the oral submissions deals with appeals against transfers in clause 2.17.</p> <p>All the applicants seek at this stage is a temporary suspension of their transfers pending the conclusion of their internal disciplinary trials. They are not opposed to their transfers. In support of their cause, they cited the inconvenience of shuttling back and forth between Marondera and their new stations in order to attend the disciplinary trial. Marondera is convenient for them as their witnesses are resident in that town. It is closer to the offices of the lawyer of their choice. In any case the trials had already commenced in Marondera, but had been postponed at the instance of the respondents. For the respondent it was submitted that arrangements can be made for the internal trials to be conducted at the applicants’ new stations or some other place conveniently located. I do not find the request by the applicants untenable.</p> <p>The reasons advanced by respondents in opposition to the interim relief sought are far from convincing. It is not in dispute that applicants face allegations which are related to corruption. They remain allegations at this stage. They have not been convicted yet. Court decisions are not influenced by public perceptions as Ms<em> Tembo</em> seemed to be suggesting. I agree with Mr <em>Mugiya’s</em> submission that the Standing Orders volume 1 and the Act provide respondent with sufficient safeguards in the interim. The safeguards deal with any administrative inconveniences that may be occasioned by the applicants’ stay at the station for the duration of the internal disciplinary trial. I am satisfied that the applicants have made a <em>prima facie</em> case for the relief sought.</p> <p><strong>Accordingly it is ordered that:  </strong></p> <p>Pending the confirmation or discharge of the provisional order, an interim order is granted in the following terms:</p> <ol> <li>The transfer of first and second applicants at the instance of first and second respondents be and is hereby suspended pending the return day and the conclusion of the internal disciplinary trial at ZRP Marondera District Headquarters.</li> <li>The costs of this application shall be in the cause.</li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Mugiya and Muvhami Law Chambers</em>, applicants’ legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office, respondents’</em> legal practitioners</p> <p>SC-43/13 at page 14 of the judgment.</p> <p>[<em>Chapter 11:10</em>]</p> <p>HH 08/15</p> <p>2nd Edition Part 5 Articles 1.0 to 8.0</p> <p>At pages 9-10 of the judgment</p> <p>HB168/11; See also <em>Musandu v Cresta Lodge Disciplinary and Grievance Committee</em> HH 115/94; <em>Moyo v Forestry Commission</em> 1996 (1) ZLR 173 (H); <em>Tuso v City of Harare</em> 2004 (1) ZLR 1 (H); <em>Chawara v Reserve Bank of Zimbabwe</em> 2006 (1) ZLR 525 (H) and <em>Tutani v Minister of Labour and Others</em> 1987 (2) ZLR 88 (H)</p> <p>1987 (2) ZLR 88 (H) at p 95D</p> <p>1996 (1) ZLR 173 (HC), at p 191</p> <p>HH 115/94</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/206/2020-zwhhc-206.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=37687">2020-zwhhc-206.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/206/2020-zwhhc-206.pdf" type="application/pdf; length=646360">2020-zwhhc-206.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/police">POLICE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/discipline-police">Discipline (POLICE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/standing-orders-police">Standing orders (POLICE)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2013/43">ECONET Wireless v TRUSTCO Mobile Ltd &amp; Another (Civil Appeal No SC 171/11) [2013] ZWSC 43 (25 September 2013);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/8">Makarudze &amp; Another v Bungu &amp; Others (HC 4406/11 ) [2015] ZWHHC 08 (06 January 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1995/2">Police Act [Chapter 11:10]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Thu, 19 Mar 2020 08:57:34 +0000 Sandra 9568 at https://old.zimlii.org Bangidza & Another v Kunaka & 4 Others (HB 07-20, HC 2242/19) [2020] ZWBHC 7 (20 January 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/7 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>FUNGAI BANGIDZA</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>TILFURY ZIMBABWE (PVT) LTD</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>ANFREW KUNAKA</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>KUDAKWASHE GOVO</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>THE PROVINCIAL MINING DIRECTOR</strong></p> <p><strong>(MIDLANDS NO)</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>MINISTER OF MINES AND MINING</strong></p> <p><strong>DEVELOPMENT (NO)</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 16 &amp; 20 JANUARY 2020</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p>            <strong>MAKONESE J:        </strong>The applicants filed an application with this court seeking an order on an urgent basis seeking the following relief:</p> <p>            <strong>“Interim relief</strong></p> <p> </p> <p>Pending the confirmation or discharge of the order, applicants are granted the following interim relief:</p> <p> </p> <ul> <li>That the certificate of registration issued in favour of 1st and 2nd respondents under the name AGKK Mining Syndicate registration number 31283 be and is hereby suspended in its operation and effectiveness pending the finalisation of the matter.</li> <li>That the 1st and 2nd respondents, their assignees, agents, workers or representatives either personally or under thename AGKK be and are hereby interdicted from interfering with mine operations of the 1st and 2nd applicantsat their mining claims known as Glen Arroch 80, 81, 82 and 83 as lawfully registered.</li> <li> </li> </ul> <p> </p> <p>In the final relief the order sought is in the following terms:</p> <p>           </p> <p>“i.        That the certificate of registration issued by the 3rd respondent in favour of AGKK Mining Syndicate under registration number 31283 remains suspended pending the determination of the following cases, HC 1707/18 and HC 1824/19.</p> <p>ii.         That the 1st and 2nd respondents be and are hereby permanently interdicted from interfering with mining operations of the applicants at their Arroch 80, 81, 82 and 83 whatsoever, directly or indirectly.</p> <p>iii.        That the respondents be and are hereby ordered to pay costs of suit on an attorney and client scale.”</p> <p>            I granted the interim relief on the 20th September 2019.  I have been asked to furnish reasons for granting this order.  These are my reasons.</p> <p>            The applicants hold certificates of registration in respect of mining claims under Glen Arroch 80, 81 and 83.  Applicants have been carrying out mining operations at the mining location for some time.  Disputes have arisen between the applicants and Damafalls (Pvt) Ltd.  The dispute was brought to this court under case number HC 1707/18.  The matter was heard and after full argument, the judge dealing with the matter reserved judgment.  The matter is therefore still pending in this court.  The 3rd respondent in this present application attempted to issue a certificate of registration to an entity known as AGKK over the same mining location, whilst the dispute remained unresolved and pending.  The applicants approached this court on an urgent basis and sought and obtained an interdict against the 3rd respondent.  In an apparent show of defiance 3rd respondent issued a certificate of registration in favour of AGKK inspite of the existence of and extant order of this court under case number HC 1821/19.  In that matter this court ordered that whilst the matter remained pending the 3rd respondent could not issue a certificate of registration to a third party.  This order was served on the respondents and the parties were expected to comply with the orders of this court.  The legality of the certificate of registration issued to AGKK is being challenged and an allegation has been made that the certificate was issued irregularly and fraudulently.  The conduct of the respondents is clearly contemptuous of this court and its processes.  It is the duty of this court to ensure that its processes are complied with.  The integrity of the court and its orders must be maintained and observed.</p> <p>            The requirements for the granting of an interim interdict are well settled in our law.  These are:</p> <ul> <li>the existence of a right which, though <em>prima facie</em> established, is open to some doubt;</li> <li>a well-grounded application of irreparable harm;</li> <li>the absence of any other remedy;</li> <li>the balance of convenience favours the applicant..</li> </ul> <p>The principle was well set out in the case of <em>ZESA Staff Pension Fund</em> v <em>Mushambadzi </em>SC-57-02.  The expression <em>“prima facie established though open to some doubt” </em>relates to the existence of a right shown on the papers.  As regards proof of a well grounded apprehension of irreparable harm, and there being no adequate remedy, the court must exercise its discretion, such discretion to be exercised judiciously upon consideration of the facts on record and placed before the court.  The balance of convenience refers to the prejudice likely to be suffered by an applicant if the interim order is not granted.</p> <p>            See also <em>Eriksen Motors (Welkom Ltd)</em> v <em>Protea Motors &amp; Anor</em> 1973 (3) SA 685 (A) and <em>Flame Liliy Investment Company (Pvt) Ltd</em> v <em>Zimbabwe Salvage (Pvt) Ltd &amp; Anor</em> 1980 ZLR 378.</p> <p>            In the circumstances of this case, there is no dispute that the 3rd respondent ignored an extant order of this court and proceeded to issue a certificate of registration over claims that are being contested in court.  The matter is pending and final judgment has not been delivered.  The consequence of allowing the respondents to treat court orders with disdain and contempt is to render the court powerless against clear acts of illegality.  It is for this reason that I granted the interim relief on an urgent and ex parte basis.  This order granted by this court does not have final effect.  The respondents could and may file papers in opposition and justify their basis for refusing to obey extant orders of this court.</p> <p>In the result, and for the aforegoing, reasons, I granted the interim order sought as prayed in the draft order.</p> <p> </p> <p> </p> <p> </p> <p><em>Mutatu, Masamvu &amp; Gustavo Law Chambers</em>, applicant’s legal practitioners</p> <p><em>Sibanda &amp; Partners</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/7/2020-zwbhc-7.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19464">2020-zwbhc-7.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/7/2020-zwbhc-7.pdf" type="application/pdf; length=300843">2020-zwbhc-7.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2002/57">Zesa Staff Pension Fund v Mushambadzi ( 278/2001) (( 278/2001)) [2002] ZWSC 57 (07 August 2002);</a></div></div></div> Mon, 16 Mar 2020 08:39:18 +0000 Sandra 9565 at https://old.zimlii.org Palmer v Kanyenze (HH 16-20, HC 10057/19) [2020] ZWHHC 16 (08 January 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/16 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>DAVID GEORGE PALMER</p> <p>versus</p> <p>SOLOMON NYASHA KANYENZE</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>DUBE-BANDA J</p> <p>HARARE, 16 December 2019 and 8 January 2020</p> <p> </p> <p><strong>Urgent chamber application </strong></p> <p> </p> <p><em>D.</em> <em>Drury</em>, for the applicant</p> <p><em>T.R. Madzingira,</em> for the respondent</p> <p> </p> <p>DUBE-BANDA J: This is an urgent application argued before me on the 16 December 2019. For ease of reference and where the context allows, I refer to applicant as Mr <em>Palmer</em> and respondent as Mr <em>Kanyeze</em>.  After hearing Counsels for both parties I reserved judgment. In this application applicant seeks a final order drafted in the following terms:</p> <ol> <li>That the execution of the order of the court <em>a quo</em> in the matter between <em>Solomon Nyasha Kanyenze </em>v<em> David George Palmer</em> Murewa CIV 95/19 be and is hereby suspended pending the decision of the appeal in the High Court in case number HC CIV Appeal No. 352/19.</li> <li>That there be no order as to costs in the event that this application is not opposed. Alternatively: that respondent pay applicant’s costs of suit.</li> </ol> <p>The application is opposed.</p> <p>In the certificate of urgency it is alleged that there is a prospect of execution of the order granted by the court<em> a quo</em> which if carried into force - notwithstanding the noting of the appeal - will cause irreparable damage and harm to the appellant and thus render the appeal academic or nugatory. It is contended that the objective grounds of challenge set out in the grounds of appeal warrant a stay of execution.</p> <p>In the founding affidavit it is contended that whilst the respondent has not made an application for the execution of the interdict order and has not processed a writ of execution, the imminent threat of a writ to stop the maintenance and care of the existing tobacco crop-which is valued at hundreds of thousands of United States dollars and in excess of the monetary jurisdiction of the Magistrates Court-is very real. This could take place at any time and for that reason it becomes procedurally necessary that a stay of execution pending the finality of the appeal process be granted.</p> <p>Applicant makes the point that in order to maintain the present <em>status quo</em> he has to continue tending to the tobacco crop rather than abandoning or neglecting it, as such would cause him irreparable loss and prejudice. He contends that this application is meant to avoid censure for any perceived contempt of court emanating from the order of the court <em>a quo.</em>  </p> <p><strong>Factual background </strong></p> <p>Mr <em>Kanyeze</em> sought and obtained from the Magistrate’s Court in Murewa an order framed as follows:</p> <ol> <li>The application for an interdict be and is hereby granted.</li> <li>Respondent and all those acting through him be and are hereby ordered to desist from interfering with the applicant’s peaceful and undisturbed use and enjoyment of his 150 ha of subdivision 8 Journeys End Farm, Murewa in any way whatsoever.</li> <li>Respondent and all those acting through him be and are hereby ordered to immediately stop all farming activities on Subdivision 8 Journeys End Farm Murewa.</li> <li>Costs on a higher scale.</li> </ol> <p>Mr<em> Palmer</em> aggrieved by the magistrate’s order noted an appeal with this court, and such appeal is pending under cover of case number HC Civ. Appeal 352/19. The appeal is yet to be set down for a hearing. Mr <em>Palmer</em> attacks the judgment of the Magistrate’s court on six grounds set out in the notice of appeal. The grounds of appeal are couched as follows:</p> <ol> <li>The court <em>a quo</em> grossly erred in law in refusing to hear <em>viva voce</em> evidence in circumstances where a special plea of jurisdiction had been raised and a request to do so was moved by appellant(respondent in the court a quo)</li> <li> </li> <li>The court <em>a quo </em>grossly erred in holding that the applicant had demonstrated locus standi to mount an interdictory application on the strength of a 2017 offer letter and that such property description in certain photographs <em>ipso facto</em> constituted acceptable evidence and proof that the photographed area of the land was unlawfully occupied by appellant before or when the application was launched.</li> <li>The court <em>a quo</em> grossly erred in law in proceeding to grant an application for an interdict in circumstances where the parties had not made any submissions on the merits of the case.</li> <li>The court <em>a quo</em> grossly misdirected itself in proceeding to grant relief in circumstances where applicant had failed to make a proper case for an interdict.</li> <li>The court <em>a quo </em>grossly misdirected itself in granting interdictory relief in favour of the respondent (applicant in court a quo) in respect of a property described as Subdivision 8 of Journey’s End in Murewa district of Mashonaland East Province measuring approximately 150 ha in extent when such property was not geographically identified with sufficiency.</li> </ol> <p>Pending the finalisation of his appeal, Mr <em>Palmer</em> seeks from this court an order quoted above. He contends that this matter is urgent and this court has jurisdiction to adjudicate it. Mr <em>Madzingira</em> for the respondent raised a number of preliminary points. It is argued in<em> limine</em> that this court has no jurisdiction to entertain this matter; that the draft order is defective; that this application is pre-mature and that this matter is not urgent.</p> <p>The parties argued both the preliminary points and the merits of the matter. First I deal with the preliminary points, if these succeed then the inquiry ends there, if they fail, then I shall proceed to adjudicate the merits of the dispute.</p> <p> </p> <p><strong>Preliminary points</strong></p> <p>            Respondent argues that this court has no jurisdiction to adjudicate this matter at this stage. Cut to the borne, it is contended that this court cannot, as a court of first instance entertain an application to stay execution of an order emanating from the Magistrate’s Court. It is submitted that the Magistrate’s court has jurisdiction to control its own processes and it can hear an application for stay of execution of its order. Mr <em>Madzingira </em>places reliance on s 40 (3) of the Magistrate’s Court [Chapter 7:10], which provides that:</p> <p>“Where an appeal has been noted the court may direct either that the judgment shall be carried into execution or that execution thereof shall be suspended pending the decision upon the appeal or application.”</p> <p>In <em>James Chipadze </em>v <em>Tonderayi Mutema and Others</em> HH 283-18 this court held that applications arising from execution of warrants issued out of the magistrate’s court are clearly for that court to determine. The magistrate’s court has its own rules dealing with such matters. Rules of the High Court cannot be used to determine issues relating to execution of warrants against property issued out of the magistrate’s court. I agree that as a general rule this court should be slow, as a court of first instance, to entertain matters which fall within the jurisdiction of the magistrate’s court.</p> <p>According to Mr <em>Drury</em> for the applicant, this court has jurisdiction to hear this matter. It is argued that this application does not involve the inherent or original jurisdiction of this court, it involves the ancillary jurisdiction anchored on the notice of appeal. Put differently, it is the notice of appeal that activates or engages the jurisdiction of this court to hear this matter. It is argued that once this court is seized with the appeal it is then imbued with the jurisdiction to control and regulate the process having a bearing on the appeal.   </p> <p>It is further argued for the applicant that the jurisdiction that this court has to control its own processes includes the power to determine whether or not execution must be carried out pending the hearing of an appeal.</p> <p>I agree with Mr <em>Drury</em> that the jurisdiction of this court, as a court of first instance to hear this matter is activated by the appeal pending before this court. It does not involve the original jurisdiction of this court. Once this court is seized with the appeal, it has jurisdiction to regulate any process having a bearing on the appeal. See<em> Netone Cellular (Pvt) Limited </em>v<em> 56 Netone Employees &amp; Another </em>SC 40/50 and <em>Synohydro Zimbabwe (Private) Limited </em>v<em> Townsend Enterprises (Private) Limited</em> SC 27/19. This court has to protect the integrity of the appeal pending before it. If this court does not invoke its jurisdiction and determine whether execution should be carried out or stayed pending appeal, and the appeal finally succeeds, this might result in empty victory.  This court has jurisdiction to guard against such an eventuality.</p> <p>The jurisdiction of this court to entertain this matter, as a court of first instance is also anchored on section 176 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013, (Constitution). This is the empowering provision which enjoins this court to regulate its own processes. The provision provides as follows:</p> <p>“The Constitutional Court, the Supreme Court and the High Court have inherent power to protect and regulate their own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of this Constitution.”</p> <p>There is an appeal pending, and this court cannot be helpless to regulate the process having a bearing on such appeal pending before it.</p> <p>Therefore my answer to this question is that this court has jurisdiction, as a court of first instance to hear this matter on the basis of the notice of appeal and section 176 of the Constitution. Therefore the preliminary point alleging lack of jurisdiction of this court, as a court of first instance, to hear this application has no merit and is refused.</p> <p>It is further argued, for the respondent, that this application is an abuse of the process of this court, because by operation of law, the execution of the order from the court <em>a quo </em>is stayed pending leave to execute pending appeal being granted or the finalisation of the appeal. It is correct that authorities clearly establish that at common law a decision of a lower court in respect of which an appeal has been noted cannot be executed upon. It can only be executed upon leave to execute being grated. No such leave was applied for or granted in this case. It is the applicant who seeks to stay execution on the grounds that an appeal has been noted. In my view the applicant is entitled to make such an application once he has noted an appeal. See <em>Netone Cellular (Pvt) Limited </em>v<em> 56 Netone Employees &amp; Another (supra).</em></p> <p>More so the order granted by the court <em>a quo</em> makes such an application imperative. I say so because the order granted by the court <em>a quo</em> does not necessarily require the respondent to make an application to execute pending appeal.  The order directs Mr Palmer and all those acting through him to desist from interfering with Mr<em> Kanyeza’s </em>peaceful and undisturbed use and enjoyment of his 150 ha of subdivision 8 Journeys End Farm, Murewa, in any way whatsoever. Mr <em>Palmer</em> and all those acting through are ordered to immediately stop all farming activities on Subdivision 8 Journeys End Farm Murewa. The order requires action on the applicant, it places an <em>onus</em> on him to comply, and not on respondent to demand compliance.</p> <p>The order requires Mr <em>Palmer</em> to comply with its terms, failure of which he risks an allegation of contempt of court. It is therefore incumbent upon him to take the first move. He must seek an order to suspend compliance with the order of the court<em> a quo</em> pending appeal that he has filed. It is different from an order sounding in money, in which the judgment creditor may have an interest to execute pending appeal. In <em>casu</em>, the wording of the order does not require the respondent to act, but it requires the applicant to act. Applicant must comply, do what the order demands or seek a court order to suspend compliance, which is what he has done by filing this application.</p> <p>In my view Mr <em>Palmer</em> cannot be faulted for having taken the first move. I therefore find that the point <em>in limine </em>in respect of the alleged abuse of the process of this court has no merit and is refused.</p> <p>            Respondent contends that the draft order is incurably defective for want of compliance with Form 29C. Respondent argues that the order sought is interim, while applicant says it is final. My view is that although this order is sought in an urgent application, in respect of this application it is a final order. Once this application is determined, it will not be re-visited again, at least by this court. An order is final and effective because it has the effect of a final determination on the issues between the parties in respect to which relief is sought from the court. See <em>Blue Ranges Estates (Pvt) Ltd </em>v<em> Muduvuri &amp; Another </em>2009 (1) ZLR 368. The order sought in this application has the effect, if granted, of settling the dispute in respect of applicant’s compliance with the order of the court <em>a quo</em> pending the finalisation of the appeal pending before this court. There is nothing interim about the order sought.</p> <p>            Is it competent to seek a final order in a chamber application accompanied by a certificate of urgency? There are instances where a final order can competently be granted in such an application and there could be instances where granting a final order in such a case would be incompetent. It is something that has to be decided on a case by case basis. A final order for spoliation may be granted in an urgent application. See <em>Blue Ranges Estates (Pvt) Ltd </em>v <em>Muduvuri &amp; Another. </em>In <em>casu</em> applicant seeks an order to stay compliance with the order of the court <em>a quo</em> pending appeal, and there is nothing that can be determined on the return day. My view is that respondent will suffer no prejudice should a final order be granted in the circumstances of this case, he was served with the present application; he filed a notice of opposition and an opposing affidavit and his case was competently and effectively argued by Counsel.  </p> <p>            Again a draft order is what it is, a draft order. A court is not bound to grant an order as presented in the draft. In terms of rule 240 of the High Court Rules, 1971 (Rules), at the conclusion of the hearing or thereafter the court may refuse the application or may grant the order applied for, or any variation of such order or provisional order. I therefore do not agree that the draft order is incompetent. Finally, if this court agrees that a good case has been made, it is for this court to design the order that speaks to the justice of this case. As a result the preliminary point attacking the competence of the draft order has no merit and is refused.</p> <p>            It is further contended by the respondent that this application is pre mature, implying that it is not ripe for adjudication. It is alleged that this court is hamstrung in making a finding on the issues of prospects of success; irreparable harm and balance of conveniences without the record of proceedings from the court <em>a quo</em>. The idea behind the requirement of ripeness is that a complainant should not go to court before the complaint is ripe for adjudication. It is opposite of the doctrine of mootness, which prevents a court from deciding an issue when it is too late. The doctrine of ripeness holds that there is no point in wasting the court’s time with half-formed decisions whose shape may yet change, or indeed decisions that have not yet been made. But this principle should not be taken too far. It would be unattainable to expect an applicant to wait until there is absolutely no possibility of the action being reversed. See <em>Bindura Town Management Board </em>v<em> Desai &amp; Co </em>1953 (1) SA 358 at 363D.</p> <p>My view is that, the fact that there is an order of court that is extant and enforceable, makes the matter ripe for adjudication. In any event applicant is obliged to comply with the order of the court <em>a quo</em> immediately upon notice of it.  To avoid compliance, applicant must seek the intervention of this court and this is exactly what he has done. The issue of the absence of the record is no bar to hearing of this matter. The court may make factual finding on the undisputed evidence before it, even without the record. As a result I find that the preliminary point in respect of ripeness has no merit and is refused.</p> <p>            Respondent contends that this matter is not urgent. Urgent applications are governed by r 244 of the High Court Rules, 1971 (Rules), which provides:</p> <p>“Where a chamber application is accompanied by a certificate from a legal practitioner in terms of paragraph (<em>b</em>) of subrule (2) of rule 242 to the effect that the matter is urgent, giving reasons for its urgency, the registrar shall immediately submit it to a judge, who shall consider the papers forthwith.</p> <p>Provided that, before granting or refusing the order sought, the judge may direct that any interested person be invited to make representations, in such manner and within such time as the judge may direct, as to whether the application should be treated as urgent.”</p> <p> </p> <p>This Court enjoys a discretion in urgent applications to authorise a departure from the ordinary procedures that are prescribed by the Rules. However the court is usually hesitant to dispense with its ordinary procedures, and when it does, the matter must be so urgent that ordinary procedures would not suffice or meet the justice of the case.</p> <p>In the ordinary run of things, court cases must be heard strictly on a first come first serve basis. It is only in exceptional circumstances that a party should be allowed to jump the queue on the roll and have its matter heard on an urgent basis. The <em>onus</em> of showing that the matter is indeed urgent rests with the applicant. An urgent application amounts to an extraordinary remedy where a party seeks to gain an advantage over other litigants by jumping the queue. And have its matter given preference over other pending matters. That indulgence can only be granted by a judge after considering all the relevant factors and concluding that the matter is urgent and cannot wait. See <em>Kuvarega </em>v<em> Registrar General and Another</em> 1998 (1) ZLR 188.</p> <p>In assessing whether an application is urgent, this court may consider a number of factors, being whether the urgency was self-created; the consequence of the relief not being granted and whether the relief would become irrelevant if it is not immediately granted.</p> <p>I have to determine on a factual matrix of this case, whether applicant has indeed discharged the<em> onus</em> of showing that this matter is urgent and cannot wait. Should applicant be allowed to jump the queue and have its case given preference over other pending matters? I now turn to this issue.</p> <p>Respondent contends that the order appealed against which forms the basis of the present application was handed down on the 29 November 2019. It is said that the present application was only filed on the 11 December 2019. It is complained that it has taken applicant seven days to file this application. It is then argued that this amounts to self-created urgency.</p> <p>In answer applicants argues that this matter is urgent. It is said from the date of filing the appeal, it took applicant five working days to file this application. Applicant contends that five days cannot be taken to be inordinate and cannot be considered to be a delay. For this proposition applicant relies on the authority in <em>National Prosecuting Authority </em>v<em> Busangabanye &amp; Another </em>HH 427/15 at page 3 wherein Mathonsi J (as he then was) held that:-  </p> <p>“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.”</p> <p> </p> <p>            In my view applicant acted when the need to act arose. A delay of five working days cannot by any stretch of imagination be defined as inordinate or a delay. This case exemplifies the danger of blowing out of proportion the notion of self-created urgency.</p> <p>This matter is urgent. The order of the court <em>a quo </em>demands applicant to comply with it immediately. To avert compliance until the finalisation of the appeal, it became incumbent on applicant to seek the intervention of this court on an urgent basis.  As a result, I find that the preliminary point alleging lack of urgency has no merit and is accordingly refused. </p> <p> </p> <p><strong>Merits </strong></p> <p>In application proceedings it is a general rule that where a dispute of fact has arisen on the affidavits, a final order may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the court to give such final relief on the papers before it, is however not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or <em>bona fide</em> dispute of fact.  See <em>Plascon-Evans Paints Limited </em>v <em>Van Riebeeck Paints (Proprietary) Limited,  Room Hire Co. (Pty) Ltd</em> v<em> JeppeStreet Mansions </em>(Pty) Ltd, 1949 (3) SA 1155 (T), at pp 1163-5; <em>Da Mata v Otto, NO,</em> 1972 (3) SA 585 (A), at p 882 D - H). Therefore in application proceedings a court may grant a final order based on common cause facts; facts not seriously disputed and facts not disputed at all.</p> <p>In <em>casu</em> the following facts are either common cause, that on the 29 November 2019, the court <em>a quo</em> granted an interdict in favour of Mr <em>Kanyeze</em> and that on the 3rd December 2019 Mr <em>Palmer </em>filed a notice of appeal, and such appeal is pending under cover of case number HC CIV 352/19.</p> <p>Applicant in his founding affidavit makes specific allegations of fact to show that he will suffer irreparable harm should this application be refused; that the balance of convenience favours him and that the appeal has prospects of success. In his opposing affidavit, respondent instead of meeting applicant’s facts head on, he repeats allegations raised as preliminary points, issues of jurisdiction and the absence of the record of proceedings from the court <em>a quo</em>. The approach taken by the respondent does not serve a useful purpose, because applicant’s version remains intact and unchallenged. It is important for a party when opposing the relief sought by an opposing litigant to deal specifically with the averments contained in such party’s affidavits, challenge them and demonstrate the basis of the challenge.  This respondent did not do.</p> <p>Applicant in paragraphs 11.1 to 11. 27 provides detailed of the irreparable harm that he will suffer should this application be refused; shows that the balance of hardship or convenience favour the granting of this application and shows that his appeal carries prospects of success. This detail is not challenged by the respondent, all he says in paragraph 12 of his opposing affidavit is that “these are denied and disputed in total.” Such a response by a litigant to detailed submissions by the opposing party is not enough, it is inadequate. The court remains with uncontroverted evidence before it. Without any meaningful opposition the court can only accept the version put up by the litigant with detailed evidential material before it. As a result, I find that applicant’s version on the merits to be common cause, or not seriously disputed.    </p> <p>The 11 ha. field which is the subject of this litigation between the parties has been used by the applicant for over two decades. He has grown winter wheat and now there is a tobacco crop whose export value is USD 140 000.000. This crop is expected to mature in or around April 2020. I agree that the facts of this show that applicant will suffer irreparable harm should respondent take over this filed and the crops pending the adjudication of the appeal.  </p> <p>Applicant avers that before the launch of the proceedings before the court <em>a quo, </em>respondent was not in possession or control of any of the fields that relates to his offer letter of 2017. It is submitted by applicant that the offer letter relied upon by respondent is stale. This allegation is not controverted.  Respondent has put no crop of any kind on the disputed lands. He has not invested any monies on the disputed lands. The essence of the balance of convenience is to try to assess which of the parties will be least seriously inconvenienced by being compelled to endure what may prove to be a temporary injustice until the just answer can be found at the conclusion of the matter. In <em>casu</em> I find that the balance of hardships favours the applicant.</p> <p>The grounds of appeal contained in the notice of appeal and the detailed averments in the applicant’s papers shows that applicant has an arguable case on appeal. In my view the justice of the case require applicant be allowed to protect his crop until such that his appeal is finalised.</p> <p>Based on the papers before me; common cause facts; undisputed facts and the submissions by the parties, I am satisfied that applicant has an arguable case on appeal. I am also satisfied that applicant will suffer irreparable harm should this application be refused and that the balance of hardship favours him.</p> <p> </p> <p><strong>Disposition </strong></p> <p>            In conclusion, I find that applicant has discharged the <em>onus</em> on him of showing that he has made a good case for the relief he is seeking from this court. As a result I order as follows:</p> <ol> <li>That applicant’s compliance with the order of the Magistrates Court, Murewa <em>  </em>in the matter between <em>Solomon Nyasha Kanyenze </em>v<em> David George Palmer</em> Murewa CIV 95/19 be and is hereby suspended pending the decision of the appeal in the High Court in case number HC CIV Appeal No. 352/19.</li> </ol> <p> </p> <ol> <li>That there be no order as to costs.</li> </ol> <p> </p> <p><em>Madzingira &amp; Nhokwara</em>, applicant’s legal practitioners</p> <p><em>Honey &amp; Blanckenberg</em>, respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/16/2020-zwhhc-16.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33658">2020-zwhhc-16.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/16/2020-zwhhc-16.pdf" type="application/pdf; length=349706">2020-zwhhc-16.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/certificate-urgency">certificate of urgency</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2019/27">Synohydro Zimbabwe (Private) Limited v Townsend Enterprises Private Limited &amp; 2 Others (SC 27/19, Civil Appeal No. SC 73/19) [2019] ZWSC 27 (28 February 2019);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 17 Feb 2020 10:30:22 +0000 Sandra 9482 at https://old.zimlii.org