Rights (MINES AND MINERALS) https://old.zimlii.org/taxonomy/term/10809/all en Nyakudya v Vibranium Resources (Pvt) Ltd (Judgement No. HH 409-21, HC 4040/21 Ref HC 2163/21) [2021] ZWHHC 409 (06 August 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/409 <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>HH 409-21</p> <p>HC 4040/21</p> <p>Ref: HC 2163/21</p> <p>SPENCER NYAKUDYA</p> <p>versus</p> <p>VIBRANIUM RESOURCES (PVT) LTD</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANZUNZU J</p> <p>HARARE, 27 July &amp; 6 August 2021</p> <p> </p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p> </p> <p><em>T Chiturumani</em>, for the applicant</p> <p><em>B Biza</em>, for the respondent</p> <p> </p> <p> </p> <p>MANZUNZU J: This is a chamber application filed on urgency. The applicant seeks an order in the following terms;</p> <p>“TERMS OF FINAL ORDER SOUGHT</p> <p>That you show cause to this Honourable Court why a final order should not be made as set out hereunder:-</p> <ol> <li>Respondent be and is hereby interdicted from evicting and or locking out applicant from a property known as Block number 47622, Shamva ‘X’ mine in Shamva without an order of court.</li> <li>Respondent to pay costs of suit at an attorney and client scale.</li> </ol> <p>INTERIM RELIEF GRANTED</p> <p>Pending the return date and finalization of this application:</p> <ol> <li>Respondent be and is hereby ordered to remove the fence that is erected and encircles a property known as Block number 47622, Shamva ‘X’ mine in Shamva upon receipt of this order failure of which the Sheriff for Zimbabwe or his lawful deputy be and is hereby ordered, empowered and directed to remove the fence.</li> <li>Respondent and all his agencies who act on his  behalf be and are hereby ordered to allow applicant access and entrance to the property known as Block number 47622, Shamva ‘X’ mine in Shamva upon receipt of this order.</li> <li>Respondent be and is hereby ordered to remove and or ensure that all the security guards, security forces, police officers and all his agents are removed from the property known as  Block number 47622, Shamva ‘X’ mine in Shamva.”</li> </ol> <p>The respondent opposed the application and raised six points in<em> limine</em> the chief of which being that the matter is not urgent. There was a serious attack on the certificate of urgency. The applicant maintained that the matter is urgent. The question then is whether or not this is a matter which must be heard on an urgent basis. In other words does it meet the requirements of urgency?</p> <p>The requirements for urgency are well known. It starts with rule 244 which provides that;<strong><em> “</em></strong>Where a chamber application is accompanied by a certificate from a legal practitioner in terms of paragraph (b) 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> </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>In  <em>Kuvarega </em>v<em> Registrar-General &amp; Anor</em> 1998 (1) ZLR 188 (HC) it was stated,  “What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the dead-line draws near is not the type of urgency contemplated by the rules.”</p> <p> </p> <p>In <em>Gwarada </em>v<em> Johnson &amp; Ors,</em> HH 91/09 it was stated,   “Urgency arises when an event occurs which requires contemporaneous resolution, the absence of which would cause extreme prejudice to the applicant. The existence of circumstances which may, in their very nature, be prejudicial to the applicant is not the only factor that a court has to take into account, time being of the essence in the sense that the applicant must exhibit urgency in the manner in which he has reacted to the event or the threats, whatever it may be.”</p> <p> </p> <p> </p> <p>In <em>Documents Support Centre (Pvt) Ltd </em>v<em> Mapuvire</em> 2006 (2) ZLR 240 (H) the court said, “… urgent applications are those where if the courts fail to act, the applicants may well be within</p> <p>their rights to dismissively suggest to the court that it should not bother to act subsequently as the position would have become irreversible and irreversibly so to the prejudice of the applicant.”</p> <p> </p> <p>In <em>Mushore </em>v<em>  Mbanga &amp; 2 Ors</em> HH 381/16 the court held that there are two paramount considerations in considering the issue of urgency, that of time and consequences. These are considered objectively. The court stated; “By ‘time’ was meant the need to act promptly where there has been an apprehension of harm. One cannot wait for the day of reckoning to arrive before one takes action… By ‘consequences’ was meant the effect of a failure to act promptly when harm is apprehended. It was also meant the effect of, or the consequences that would be suffered if a court declined to hear the matter on an urgent basis.”</p> <p> </p> <p>An applicant has a duty to lay out in his founding affidavit why he says the matter is urgent. This is over and above what is expected of the certificate of urgency. In <em>Mayor Logistics (Private) Limited </em>v <em>Zimbabwe Revenue Authority </em>CCZ 7/14 the court had  this to say; “A party favoured with an order for a hearing of the case on an urgent basis gains a considerable advantage over persons whose disputes are being set down for hearing in the normal course of events.  A party seeking to be accorded the preferential treatment must set out, in the founding affidavit, facts that distinguish the case from others to justify the granting of the order for urgent hearing without breach of the principle that similarly situated litigants are entitled to be treated alike. The certificate of urgency should show that the legal practitioner carefully examined the founding affidavit and documents filed in support of the urgent application for facts which support the allegation that a delay in having the case heard on an urgent basis would render the eventual relief ineffectual.”</p> <p> </p> <p> </p> <p>In summary, the applicant must act promptly when the need to act arises and must show that if the court does not hear the matter urgently he will suffer irreparable harm. Where the applicant fails to act timeously, he has a duty to give a reasonable explanation for the delay, otherwise in my view, even if it is shown that irreparable harm will be suffered, the matter cannot be heard on urgency. The applicant must treat the matter as urgent and this can be discerned from the action taken and how closely related such action is to the time when the apprehension of harm is realized.</p> <p>            A certificate of urgency assists the court in its determination of whether or not a matter is urgent. In <em>Condurago Investments (Pvt) Ltd </em>v <em>Mutual Finance (Pvt) Ltd</em> HH 630/15 the court underscored the importance of a certificate of urgency in the following words;</p> <p>“An urgent application is an extraordinary remedy where a party seeks to gain an</p> <p>advantage over other litigants by jumping the queue. That indulgency can only be granted by a judge after considering all the relevant factors and concluding that the matter cannot wait. See <em>Kuvarega </em>v<em> Registrar General &amp; Anor</em> 1998 (1) ZLR 188.</p> <p> </p> <p>The need for the certificate of urgency is therefore meant for the benefit of the generality of the hapless litigants who are about to be jumped in the queue but cannot speak for themselves because they are never consulted or given an opportunity to object. For that reason there is need for a judge to proceed with caution and due diligence so that justice may be done and be seen to be done. According to the well-established dictum of <em>Curlewis in R </em>v <em>Heerworth</em> 1928 AD 265 at 277, a judge must ensure that, “justice is done”</p> <p> </p> <p>To assist the judge in his difficult task in dispensing justice at short notice and in the heat of the moment r 244 provides him with the benefit of the opinion of an officer of the court a trained legal practitioner who will have had the opportunity to peruse the case beforehand and formulate an opinion regarding the urgency of the matter. The certifying lawyer therefore carries a heavy responsibility in which he guides and provides assistance to the presiding judge. That duty must be discharged conscientiously with due diligence and due attention to the call of duty.”</p> <p>The certificate of urgency is an assisting aid to the court and not a substitution to the discretion of the court. I have no doubt it plays a critical role. It must lay down the basis upon which the legal practitioner expresses his opinion of urgency.</p> <p>The applicant states in his founding affidavit that the respondent sued him for eviction from  Block number 47622, Shamva ‘X’ mine in Shamva under case number HC 2163/21 and that the matter is still pending before this court. The application for eviction was filed on 26 May 2021 and the applicant filed opposing papers on 1 June 2021. Applicant alleges that the respondent has now fenced the disputed area denying the applicant access. He only got to notice the fence on 21 July 2021 when he returned to the mine from Harare. He said he was absent from the mine as from 1 June 2021 when he went to see his family in Harare. It is the 21st July 2021 date which he says marks the need to act. He acted on 22 July 2021 when he filed the present application.</p> <p>The respondent said following the cancellation of the applicant’s mining certificates by the Provincial Mining Director the applicant was removed from the mining claims in June 2021. Respondent does not deny erecting a fence at the mine but said it was in compliance with the law. Respondent said applicant had sought to get a similar relief in an urgent application under case number HC 2171/21 which was ruled not urgent. Indeed there is an application filed on 11 May 2021 which was ruled not urgent on 12 May 2021. Applicant has kept silent about it. The interim relief sought in that application is for the withdrawal and removal of Police officers from the mine who allegedly raided, blocked, impeded, stopped and interfered with his mining activities. The applicant did not reveal that he was removed and barred from the mine by the Police as he stated in the HC 2171/21.</p> <p>Mr <em>Biza</em> was able to demonstrate how untruthful the applicant was. In order for the court to determine when the need to act arose, the parties must be truthful in the narration of events. Applicant said he was away from the mine as from 1 June 2021 presumably on a visit to Harare to see his family. He said he came back to the mine on 21 July 2021 only to find it fenced. That cannot possibly be correct. It was shown that applicant was involved in a fracas with the Police at the mine on 23 June 2021 resulting in certain charges being levelled against him. On 29 June 2021 in the company of the local Member of Parliament he also visited the mine. The evidence is uncontroverted.</p> <p>When then did the need to act arise according to the applicant whose evidence shows that he has been economic with the truth. Litigants who come to court on urgency have a duty to disclose all the facts surrounding their case including such facts which might be prejudicial to their case. It cannot be correct that the need to act arose on 21 July2021. In the absence of when the need to act arose the court cannot rule in applicant’s favour.</p> <p>I was not persuaded by Mr <em>Chiturumani’</em>s submission that the applicant would suffer irreparable harm. He went in circles to say the least. For the first time we heard this was applicant’s communal home and that the fence made him homeless leaving him with no clothes to wear in this unfriendly weather. The court had to remind Mr <em>Chiturumani</em> that the applicant said from 1 June 2021 to 21 July 2021 he was with his family in Harare. The issue of being homeless turned to be superficial. The truth of the matter is that applicant wants restoration to the mine, a place where the Ministry of Mines say he cannot do illegal mining activities.</p> <p>Applicant says he left mining equipment which is meant for hire and therefore will lose hiring business. Mind you the applicant is not saying he wants to remove his equipment from site, which he has not claimed that he is prevented from doing so. He hides behind the application for spoliation. His evidence does not aver the requirements of spoliation. In another breath he seeks a prohibitory interdict, interdicting respondent from evicting him from the mine.</p> <p>The certificate of urgency was attacked for its failure to meet the standard required of it. A certificate of urgency is not filed as a matter of routine which is the impression I got from Mr <em>Chiturumani’</em>s submission. It cannot just be a piece of paper filed to allow the Registrar to place the matter before a judge in terms of rule 244 but serves a purpose which is to give reasons why the matter must be treated as urgent. Because there is a demand to give reasons, it calls for a legal practitioner to apply his/her mind.  </p> <p>In <em>Chidawu and others </em>v <em>Shah &amp; others</em> 2013 (1) ZLR 260 the court had this to say; “In certifying the matter as urgent, the legal practitioner is required to apply his or her own mind to the circumstances of the case and reach an independent judgment as to the urgency of the matter. He or she is not supposed to take verbatim what his or her client says regarding perceived urgency and put it in the certificate of urgency. I accept the contention by the first respondent that it is a condition precedent to the validity of a certificate of urgency that a legal practitioner applies his mind to the facts. GILLESPIE J had occasion to discuss the duty that lies upon a legal practitioner who certifies that a matter is urgent in <em>General Transport &amp; Engineering (Pvt) Ltd&amp; Ors v Zimbank Corp (Pvt) Ltd</em> 1998 (2) ZLR 301, where he stated:</p> <p>‘Where the rule relating to a certificate of urgency requires a legal practitioner to state his own belief in the urgency of the matter that, invitation must not be abused. He is not permitted to make as his certificate of urgency a submission in which he is unable to conscientiously concur. He has to apply his own mind and judgment to the circumstances and reach a personal view that he can honestly pass on to a judge and which he can support not only by the strength of his arguments but on his own honour and name.</p> <p>………….It is therefore an abuse for a lawyer to put his name to a certificate of urgency where he does not genuinely believe the matter to be urgent. Moreover, as in any situation where the genuineness of a belief is postulated, that good faith can be tested by the reasonableness or otherwise of the purported view. Thus where a lawyer could not reasonably entertain the belief he professes in the urgency of the matter he runs the risk of a judge concluding that he acted wrongfully if not dishonestly in giving his certificate of urgency.” [emphasis is mine].</p> <p>What comes out of this case is that a legal practitioner, “is not supposed to take verbatim what his or her client says regarding perceived urgency and put it in the certificate of urgency. He has to apply his own mind and judgment to the circumstances and reach a personal view.”</p> <p>In <em>casu</em>, a reading of the certificate of urgency does not meet this criteria. It regurgitates what is in the founding affidavit. It must be noted it is the same legal practitioner who filed a certificate of urgency in HC 2171/21. He ought to have realised the factual incongruence. In HC 2171/21 he acknowledged the applicant was in peaceful and undisturbed possession of the mining claim before the Police raided, barred and blocked him from entering. He said the need to act in that case arose on 10 May 2021.</p> <p>In <em>casu</em>, the legal practitioner now says it is the fencing which has despoiled the applicant of his access to the mining claim. He should have realized that the two were not compatible and must have refused to issue his certificate without explanation. It makes the certificate of urgency fatally defective in that it shows the author did not apply his mind. A legal practitioner who issues a certificate of urgency owes a duty to court as an officer of this court. In HC 2171/21 the applicant said urgency was based on the fact that he was barred by the Police. Having failed on urgency in that respect he now claims the fence has barred him. “There is an allied problem of practitioners who are in the habit of certifying that a case is urgent when it is not one of urgency.” CHATIKOBO J, as he then was, observed in the<em> Kuvarega</em> case <em>(supra</em>). The bottom line is that this matter is not urgent.</p> <p>Disposition:</p> <ol> <li>The application is not urgent.</li> <li>The matter is struck off the roll of urgent matters with costs.</li> </ol> <p> </p> <p><em>Chiturumani Zvavanoda Law Chambers,</em> applicant’s legal practitioners</p> <p><em>Mhishi Nkomo Legal Practice</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/2021/409/2021-zwhhc-409.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28798">2021-zwhhc-409.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/2021/409/2021-zwhhc-409.pdf" type="application/pdf; length=638834">2021-zwhhc-409.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/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</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/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/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></div> Wed, 18 Aug 2021 09:24:33 +0000 Sandra 10099 at https://old.zimlii.org Caprcend Pvt Ltd v Mazowe Mining Company Private Limited (Judgment No. HH 395-21, HC 3586/21) [2021] ZWHHC 395 (29 July 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/395 <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 395-21</p> <p>HC 3586/21</p> <p> </p> <p>CAPRCEND PRIVATE LIMITED</p> <p>versus</p> <p>MAZOWE MINING COMPANY PRIVATE LIMITED</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE 8, 12 &amp; 29 July 2021</p> <p><strong>Urgent chamber application</strong></p> <p><em>M. Mtlongwa</em>, for the applicant</p> <p><em>G.R.J. Sithole</em> with <em>T. Sena</em>, for the respondent</p> <p>                TAGU J: This is an urgent chamber application in which the applicant is seeking an order declaring that the dispossession of the applicant by the respondent of a mining claim named Canbrae 4 M5341, claim number 10779, measuring 2 hectares and situated in Mazowe (“the property“) in the absence of an order of court is wrongful and unlawful and that the respondent be ordered to return peaceful and undisturbed possession of the property within twenty-four (24) hours of service of this Order on the respondent.</p> <p>The basis of the application being that the applicant was in peaceful and undisturbed possession of the property since November 2020 until 29 June 2021 when the respondent through persons unknown to the applicant and in the company of armed members of Zimbabwe Republic Police wrongfully and unlawfully took occupation of the property by destroying structures which were erected on the property by applicant such as the security officers’ cabins, security/parameter fence and preventing the applicant from exploiting its mineral mining rights. The respondent did not have an order of court sanctioning its conduct. The respondent’s conduct is not only wrongful and unlawful but has the effect of despoiling applicant from its peaceful and undisturbed occupation of the property which it enjoyed before the respondent’s unlawful occupation.</p> <p>The respondent raised four points <em>in limine</em> in its notice of opposition. These were:</p> <p>1.         that the applicant does not exist,</p> <p>2.         that the application is fatally defective,</p> <p>3.         that the application is not urgent and</p> <p>4.         that there are material disputes of facts.</p> <p> I have to dispose of these points <em>in limine</em> before dealing with the merits of the application.</p> <p><strong>THAT THE APPLICANT DOES NOT EXIST</strong></p> <p>The respondent’s contention is that the applicant herein does not exist. It conducted a company search at the Companies Office and the results showed that there is no registered company that answers to the name “Caprcend Private Limited.” The respondent challenged the deponent to the applicant’s founding affidavit Clark Clever Makoni to furnish this Honourable Court with proof to the contrary, in particular by way of Certificate of Incorporation for the company failing which the instant application ought to be dismissed with costs on a higher scale being granted against the deponent personally.</p> <p>In answering to this point <em>in limine</em> the applicant submitted in its answering affidavit that the Applicant is a duly registered company in terms of the laws of Zimbabwe. The applicant supplied the copy of the Certificate of Incorporation together with a Tax clearance as annexures “B1-2” and prayed that the point <em>in limine</em> be dismissed.</p> <p>A perusal of Annexure “B1” which is a Certificate of Incorporation No. 115482 issued on 14 January 2009 describes the applicant as “CAPRCEND INVESTMENTS [PRIVATE] LIMITED”. The Tax Clearance Certificate (ITF263) for the year ending 31 December 2021 issued on the 2 April 2021 Annexure “B2” also described the applicant as Caprcend Investments (Pvt) Ltd. The counsels for the respondent in their oral submissions insisted that the Annexures referred to are for a different entity and does not rescue the non-suited of the applicant hence there is no applicant before the Court. The counsel for the applicant in his oral submissions argued that the gist of the matter is the omission of the word “Investments” otherwise there is an entity called “Caprcend”. In praying for the dismissal of the point <em>in limine</em> he referred the Court to the case of <em>Mercy Masuku</em> v <em>Delta Beverages</em> HB-172/12.</p> <p>It is trite that proceedings brought by or against a non-existent entity is void ab initio and a nullity. See <em>Gariya Safaris (Private) Ltd</em> v <em>van Wyk</em> 1996 (2) ZLR 246.</p> <p>In the case of <em>Mercy Masuku</em> v <em>Delta Beverages supra</em>, the Court, faced with a similar situation had occasion to comment as follows where “DELTA BEVERAGES” was cited as such instead of “DELTA BEVERAGES (PRIVATE) LIMITED”-</p> <p>“Where, the entity is non-existent indeed the issue of nullity sits to the bottom of the sea like lead and cannot be brought up to the surface. However, the issue adopts a completely different complexion where there is in existence an entity who is by some error or omission is not cited. It would seem that authorities held that there should be a distinction. In van Vuuren Braun and Summers 1910 TPD 950 WESSELS J at 955 states:</p> <p>“Now in order to bring a defendant legally into court a summons is required. In order that summons may be valid, it must comply with the requirements of r 6. It must purport to be a summons, a mere request or letter to the effect that the defendant is kindly requesting to appear in court on a certain day is an invalid citation. Next the summons must specify the defendant. It is true that it will not be described as accurately as he should be. If a man is baptized “George Smith” it is no defect to call him “John Smith” because the individual is pointed out with sufficient accuracy. But if there were no mention of the defendant at all the summons would be a wholly worthless document and could not be amended by inverting the defendant’s name in court.”</p> <p> </p> <p>The judge went further to say –</p> <p>“<em>In casu</em> the entity against whom applicant has sued is said to be non-existent. The argument is grounded on the fact that the citation omitted the full description of the respondent. The crucial question that irresistibly begs an answer is, to what extent does the omission affect the identification of the respondent? Respondent is a well-known blue chip company whose fleet of cars are all over our national and domestic roads and its commercial advertisements need no introduction….To me, applicant may have technically erred in her description, but, has described respondent with sufficient clarity to an extent of eliminating any mistake either legal or factual of respondent’s identity. Applicant sufficiently described respondent”</p> <p>In the present case it is not in doubt that the applicant and the respondent entered into a mining contract collaboration agreement for gold mining and processing sometime in November 2020. The Mining Cooperation Agreement is referred to by the deponent Clark Clever Makoni at page 7 para 6 of his founding affidavit and attached to the Applicant’s application on page 16 of the record.as Annexure “B”. It is headed-</p> <p><strong><em>“MINING COOPERATION AGREEMENT</em></strong></p> <p><em>Made and entered into by and between</em></p> <p><strong><em>MAZOWE MINIG COMPANY MINE WORKERS</em></strong></p> <p><strong><em>SCHEME</em></strong></p> <p><em>Represented by Hon. C.T. MUGWENI authorized thereto</em></p> <p><em>Of</em></p> <p><em>CAPRCEND</em></p> <p><em>53B Kennedy Drive Greendale, HARARE</em></p> <p><em>AND</em></p> <p><strong><em>MAZOWE MINING COMPANY (PRIVATE) LIMITED:</em></strong></p> <p><strong><em>Under Corporate Rescue</em></strong></p> <p><em>Represented by MR. Stanley Matunhire authorized thereto:</em></p> <p><em>P. Bag 2005</em></p> <p><em>Mazowe.”</em></p> <p> </p> <p>In view of the above, it does not make sense for the respondent to argue that there is no entity by the name “CAPRCEND”. The respondent never disputed that it entered into such an agreement with the applicant. The respondent in answer to applicant’s response said there is no such entity and submitted that there was no omission because if it there was an omission counsel for the respondent questioned why the resolution is also different? The million dollar question this court would ask is why is it that the Mining Cooperation Agreement different from the Certificate of Incorporation? The agreement does not cite the applicant in full. I am of the view that the applicant is an existing entity and is fully known by the respondent. While it is admitted that the applicant was not cited in full in this application it does not mean that it does not exist. It was a mere omission. I will therefore dismiss this point <em>in limine</em>. </p> <p><strong>THAT THE APPLICATION IS FATALLY DEFECTIVE</strong></p> <p>The respondent is currently under supervision and corporate rescue proceedings with effect from 20 February 2020. It was submitted that in terms of s 126 of the Insolvency Act</p> <p>[<em>Chapter 6.07</em>] there is general moratorium on legal proceedings in respect of a company under corporate rescue. During corporate rescue proceedings no legal proceedings against a company which is under corporate rescue or in relation to any property belonging to the company, or lawfully in its possession may be commenced or proceeded with in any forum except-</p> <ol> <li>with the written consent of the corporate rescue practitioner or</li> <li>with the leave of court or</li> <li>as a set-off against the company in legal proceedings or</li> <li>criminal proceedings against directors or officers of the company or</li> <li>proceedings concerning any property or right over which the company exercises the powers of a trustee or</li> <li>proceedings by a regulatory authority in the execution of its duties after written notification to the corporate rescue practitioner.</li> </ol> <p>In <em>casu</em> it was submitted that no consent has been given by the corporate rescue practitioner to commence legal proceedings against the respondent a company under supervision and corporate rescue proceedings. That the applicant does not have the leave of court to file this application. It was submitted that the application filed by the applicant does not fit in any of the exceptions stated in section 126 of the Insolvency Act. In the circumstances, the application is fatally defective for being contrary to the provisions of statute hence must be dismissed with cost on a higher scale.</p> <p>In its answering affidavit the applicant submitted that s 126 of the Insolvency Act [<em>Chapter 6.07</em>] is a general moratorium on legal proceedings. That it is not binding in an application of this nature wherein the applicant is seeking common law remedy of spoliation. Spoliation being a common law remedy is not affected by the said provision. It was submitted that spoliation is an exception by its nature as it does not need a remedy that affect the substantiveness of the otherwise corporate rescue of the respondent. It was argued further that this is an application for restoration of a status quo ante of the parties. Hence it was not the intention of the legislature that the respondent by the mere fact that it is under corporate rescue should therefore engage in unlawful conduct and take the law into its own hands. See <em>Farai Mushoriwa</em> v <em>City of Harare</em> HH-195/14 at p 3 of the cyclostyled judgment. Therefore, the general requirement for leave to sue as contemplated in s 126 of the Insolvency Act is only designed for claims or litigation that affects the objectives for recovery. It does not apply to common law remedy of spoliation that is sought. Furthermore, it was argued that the rules of this Honourable court do not provide for a procedure for urgent application for leave to sue on urgent basis. This instant application being for spoliation which needs to be heard on urgency, it cannot wait for an application for leave to sue to be done first, otherwise the need for urgent protection will fall away. See <em>Hwange Coal Gasification</em> <em>Company (Private) Limited</em> v<em> Hwange Colliery Company Limited &amp; Anor</em> HB-246/20. The Applicant then suggested that this Honorable Court when approached on urgent basis as in this present application can only be guided by the course provided for in r 4C  of the High Court Rules, 1971 and exercise its discretion in the interest of justice and waive the requirement for leave and hear the matter. See <em>Romeo Taombera Zibani</em> v<em> Judicial Service Commission and Ors</em> HH-797/16. Finally, it was submitted that the remedy for spoliation being sui generis cannot be said to be covered under the said section 126 of the Insolvency Act and the point <em>in limine</em> should be dismissed for lack of merit.</p> <p>It is common cause that the Respondent is currently under supervision and corporate rescue proceedings with effect from 20 February 2020. Court orders under case Nos. HC 2696/19 and HC 978/20 placed the respondent under corporate rescue and REGGIE SARUCHERA was duly appointed Corporate Rescue Practitioner of the respondent. Even the Mining Cooperation Agreement between the applicant and the respondent confirmed this fact. The question to be decided is whether or not any legal proceedings of any nature could be commenced or proceeded with in any forum against a company under supervision and corporate rescue.</p> <p>To answer the above question one has to briefly look at the provisions of section 126 of the Insolvency Act [<em>Chapter 6.07</em>]. The provision of the statute above reads as follows-</p> <p>        <strong>“126. General moratorium on legal proceedings against company.</strong></p> <ol> <li>During corporate rescue proceedings, no legal proceedings, including enforcement action, against the company, or in relation to any property belonging to the company, or lawfully in its possession, may be commenced or proceeded with in any forum, except-</li> </ol> <ol> <li>with the written consent of the practitioner; or</li> <li>with the leave of the Court and in accordance with any terms the Court considers suitable; or</li> <li>as a set –off against any claim made by the company in any legal proceedings, irrespective of whether those proceedings commenced before or after the corporate rescue proceedings began: or</li> <li>criminal proceedings against the company or any of its directors or officers ; or</li> <li>proceedings concerning any property or right over which the company exercises the powers of a trustee; or</li> <li>proceedings by a regulatory authority in the execution of its duties after written notification to the corporate rescue practitioner.”</li> </ol> <p>The wording of s 126 of the Insolvency Act [<em>Chapter 6.07</em>] above is clear and requires no interpretation. In its literal sense s 126 shows that no legal proceedings may be commenced or proceeded with against a company under corporate rescue proceedings. I am not persuaded that the use of the word “may” means the clear provisions of a statute can be dispensed with. If the legislature in its wisdom wanted proceedings of an urgent nature to be commenced or proceeded with against a company under corporate rescue proceedings it should have said so. The legislature listed the circumstances under which legal proceedings may be commenced or proceeded with. I agree with the counsel for the respondent that s 126 oust the common law. This application is barred by statute. It is fatally defective as it was instituted without satisfying the conditions stated under s 126 of the Insolvency Act [<em>Chapter 6.07</em>].                      </p> <p><strong>THAT THE APPLICATION IS NOT URGENT</strong></p> <p>The basis for this contention is that the purported urgency is fictional and self-created. It was submitted that the certificate of urgency which is an indispensable component of an urgent chamber application was done by MOSES TINASHE MAVHAIRE on 1 July 2021 whereas the founding affidavit was sworn by CLARK CLEVER MAKONI on 2 July 2021. The certificate of urgency therefore predates the founding affidavit when the former is supposed to be based on the latter. A legal practitioner cannot therefore certify urgency on the basis of non-existent founding affidavit. To that extent the certificate of urgency is fake, irregular and cannot create any urgency at all. See <em>Condurago Investments (Pvt) Ltd t/a Mbada Diamonds</em> v <em>Mutual Finance (Pvt) Ltd</em> HH-630/15. In that case citing <em>Morgen Tsvangirayi</em> v <em>Chairperson of the Electoral Commission</em></p> <p>EC 6 /13 BHUNU J (as he then was) when confronted with a similar situation had this to say-</p> <p>“To make matters worse the applicant has filed case number EC 27/13 without a valid certificate of urgency as is required by law. A perusal of the documents shows that Mr <em>Batasara</em> issued the certificate of urgency on 5 August 2013 three days before the applicant had deposed to his founding affidavit on 8 August 2013. Mr <em>Batasara</em>’s assertion that he had read and understood the applicant’s affidavit on 5 August 2013 is therefore false in fact and misleading, he could not possibly have read and understood the applicant’s founding affidavit on 5 August when it was not in existence. Thus the applicant filed the application with a false certificate of urgency. With respect, a fake and to that extent irregular certificate of urgency cannot establish urgency.”</p> <p>In the present case Mr <em>Moses Tinashe Mavhaire</em> said on 1 July 2021 that “…having read the applicant’s Founding Affidavit and its annexures, do hereby certify that these proceedings are urgent for the following reasons…” Yet the founding affidavit of Clark Clever Makoni was only commissioned on 2 July 2021. In the <em>Tsvangirayi</em> v Electoral Commission supra, the judge quoted GOWORA JA who quoted the remarks of GILLESPIE J in <em>General Transport &amp; Engineering (Pvt)</em> <em>Ltd &amp; Ors</em> v <em>Zimbank Corp (Pvt) Ltd</em> 1998 (2) ZLR 301 where the learned judge of Appeal had no kind words for legal practitioners who issue certificates of urgency as a matter of routine without firstly applying their minds. He characterized that king of conduct as an abuse of the law and remarked in the process that-</p> <p>“It is therefore an abuse for the lawyer to put his name to a certificate of urgency where he does not genuinely believe the matter to be urgent. More over as in any situation where the genuineness of a belief is postulated, that good faith can be tested by the reasonableness or otherwise of the purported view. Thus where a lawyer could not reasonably entertain the belief he professes in the urgency of the matter he runs the risk of a judge concluding that he acted wrongfully if not dishonestly in his certificate of urgency… In certifying the matter as urgent, the legal practitioner is required to apply his or her own mind to the circumstances of the case and reach an independent judgment as to the urgency of the matter. He or she is not supposed to take verbatim what his or her client says regarding perceived urgency. I accept the contention by the first respondent that it is a condition precedent to the validity of a certificate of urgency that a legal practitioner applies his mind to the facts.”</p> <p>The counsel for the applicant submitted that Rules of this court does not provide content or form of certificate of urgency to be followed by legal practitioners. He said it cannot only be based on the founding affidavit but on facts placed before him. He maintained that facts in this case show urgency and that the date of commissioning confirms its status. He maintained that this being an application for spoliation its urgent by its very nature.</p> <p>While I accept that spoliation applications are urgent by their very nature, I think the counsel for the applicant as well as the certifying counsel fell into the error that caused GOWORA JA to remark that “he or she is not supposed to take verbatim what his or her client says regarding perceived urgency.”                </p> <p>It is clear the certificate of urgency predates the founding affidavit, albeit by one day when the former was supposed to be based on the later.</p> <p><strong>THAT THERE ARE MATERIAL DISPUTES OF FACTS</strong></p> <p>This contention is based on the fact that the answering affidavit created material disputes of facts as it is not clear as to where and when the photos attached to the answering affidavit were taken. Indeed it is difficult to say the photos relate to what happened. Their authenticity is in question. Coupled with what I have already said, this application is fatally defective and has to be dismissed.</p> <p>IT IS ORDERED THAT</p> <ol> <li>The application is dismissed.</li> <li>There is no order as to costs.</li> </ol> <p> </p> <p><em>Mangezi, Nleya &amp; partners</em>, applicant’s legal practitioners</p> <p><em>Chimuka Mafunga</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/2021/395/2021-zwhhc-395.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28733">2021-zwhhc-395.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/2021/395/2021-zwhhc-395.pdf" type="application/pdf; length=620229">2021-zwhhc-395.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/proceedings-and-against">Proceedings by and against</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><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/possession-protected-spoliatory-remedies">Possession protected by spoliatory remedies</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/2014/195">Mushoriwa v City of Harare (HC 4266/13) [2014] ZWHHC 195 (29 April 2014);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2016/797">Zibani v JSC &amp; Others (HH 797/16 HC 12441/16) [2016] ZWHHC 797 (12 December 2016);</a></div><div class="field-item even"><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 odd"><a href="/zw/judgment/bulawayo-high-court/2020/246">Hwange Coal Gasification Company (Private) limited v Hwange Colliery Company Limited &amp; Anor (HB 246-20, HC 912/20) [2020] ZWBH 246 (29 October 2020);</a></div></div></div> Wed, 04 Aug 2021 09:44:14 +0000 Sandra 10088 at https://old.zimlii.org Riogold (Pvt) Ltd v Falcon Gold Zimbabwe LTD And Another (HH 258-21) [2021] ZWHHC 258 (24 May 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/258 <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 258-21</p> <p>HC 882/20</p> <p>RIOGOLD (PRIVATE) LIMITED                          </p> <p>versus</p> <p>FALCON GOLD ZIMBABWE LIMITED  </p> <p>and</p> <p>THEMBINKOSI MAGWALIBA N.O.</p> <p> </p> <p>  </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSITHU J</p> <p>HARARE, 28 July 2020 &amp; 24 May 2021</p> <p> </p> <p> </p> <p><strong>Opposed Application – Setting aside of Arbitral Award</strong></p> <p> </p> <p><em>T. Mpofu </em>with<em> T.L. Mapuranga</em>, for the applicant  </p> <p><em>D. Tivadar, </em>for the 1st respondent</p> <p> </p> <p> </p> <p><strong>MUSITHU J: </strong></p> <p><strong>INTRODUCTION </strong></p> <p>            The applicant seeks an order setting aside an award rendered by the second respondent. The arbitral award was rendered following a dispute arising from the implementation of an agreement for the sale of shares between applicant and first respondent. Second respondent was the appointed arbitrator. Applicant and the first respondent are both mining entities of high repute. The application was made in terms of Article 34 (2)(ii) of the Model Law to the Arbitration Act.<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a> The arbitral award is impugned on the basis that it offends the public policy of Zimbabwe. The relief sought is couched in the draft order as follows:</p> <p>            “IT IS ORDERED THAT:</p> <ol> <li>The award by the second respondent dated 27th August 2019 be and is hereby set aside.</li> <li>The first respondent bears costs of this application.….”</li> </ol> <p> </p> <p>1st respondent opposed the application.</p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>            The applicant and 1st respondent entered into an agreement for the sale of shares on 30 September 2016 (the agreement). In terms of the agreement, 1st respondent sold to the applicant its entire issued share capital in an entity called Palatial Gold Investments (Private) Limited (Palatial), which operated a mine under the style Dalny Mine. Palatial owned the claims, processing plant and other assets comprising the undertaking known as Dalny Mine. Palatial was formed in 2014 and it received transfer of the assets around October 2014. That transaction occurred about two years before the agreement between the applicant and the 1st respondent was consummated. At the time of the transfer of the undertaking to Palatial, operations at Dalny Mine had ceased in August 2013.</p> <p>            At arbitration, applicant sought to enforce 1st respondent’s obligation to indemnify it against liabilities of Palatial that were not disclosed as required by the agreement. In the alternative, applicant sought relief based on alleged breaches of certain contractual warranties made by the 1st respondent.</p> <p><strong>THE CLAIM AND THE AWARD</strong></p> <p>            Applicant herein was the claimant in the arbitration proceedings. Respondent herein was the respondent in the same proceedings. In his award, 2nd respondent summarised the relief sought by the applicant against 1st respondent as follows:</p> <p>“5.1     An award for the indemnification of Rio Gold and Palatial in respect of any claims or expenses or losses arising from the termination or intended termination of the employment of any person not named on annexure A to the statement of claim who claims to have been an employee of Palatial in and after September 2013. The claims, expenses or losses to which the indemnification applies include arrear emoluments <em>“found to be due”, </em>any compensation for loss of employment that <em>“may be found to be due”, </em>any liability of a fiscal nature arising from the existence or termination of such employment, the total of any dues owing or that may be owed to any social security fund, national employment, trade union, regulator or other body on account of such employment and the cost of legal and other professional services attendant upon the resolution of any issues arising from such employment, <em>“whether or not legal proceedings shall have been instituted or defended”</em></p> <p>5.2       an award indemnifying Rio Gold and Palatial in respect of all costs, losses or expenses attendant upon obtaining vacant possession of any house forming part of Dalny Mine village which as at 30 September 2016 was occupied by any person who is not either named in Annexure A to the statement of claim or a civil servant. Such costs, losses and expenses would include legal and other professional services whether or not legal proceedings shall have been instituted, the costs of securing alternative accommodation for Palatial’s personnel who but for the occupation of the persons sought to be removed from occupation, would have resided in the houses in question and the costs of transporting any person from such alternative accommodation to their place of employment.</p> <p>5,3       an award that Falcon Gold shall pay the costs of the arbitration and bear the fees and expenses of the arbitration tribunal.”</p> <p>            On its part, 1st respondent, insisted that it had made the relevant disclosures as were required under the agreement at the material time. This included the placement of the hundreds of workers on unpaid leave with effect from 30 August 2013, as well as the disclosure of the contracts of employment for the several hundreds of employees. The written employment contracts between 1st respondent or Palatial and the employees were made available to the applicant prior to the completion date<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a> specified in the agreement between the parties. It also averred that upon receiving the contracts, applicant could have ascertained the status of each employee and tell whether or not the employees were permanent.</p> <p>In April 2017, before the completion date, <em>Mabeka</em> and 715 others who claimed to be employees of Dalny Mine lodged a claim with the Ministry of Labour in Kadoma. The notification which had a hearing date of 3 May 2017, was given to 1st respondent. 1st respondent in turn informed applicant so that it could attend the hearing. A representative of the applicant attended the hearing. With full knowledge of the potential claims, and before the completion date, applicant elected to proceed with the transaction for the purchase of shares. It did not serve a notice of breach as required under clause 17 of the agreement, nor did it claim damages or cancel the agreement. It did not opt to refuse to fulfil the conditions precedent and therefore allow the agreement to lapse. It chose to allow the agreement to proceed to completion.</p> <p>In its financial statements for 2017, applicant did not make any provision for contingent liability arising from the labour claims. 1st respondent contends that this showed that the applicant did not consider the claims as having any merit at all. For its part, 1st respondent considered that Palatial did not employ the said persons and their contracts had been lawfully terminated. They were no longer employees of Palatial. It was only in February 2018 that a dispute was declared in respect of the claim by the 716 third parties.</p> <p>1st respondent maintained that the claim in respect of the occupation of houses in the Dalny Mine Village by persons who alleged to be employees of Palatial was premature. No dispute had been declared in accordance with clause 18 of the agreement<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a>. The dispute could not therefore be competently referred to arbitration at that stage. That position had been acknowledged by the applicant through a letter of 13 February 2018. The arbitration tribunal could not assume jurisdiction over the matter.</p> <p>            Having evaluated the facts and the evidence placed before him, 2nd made the following conclusion:</p> <p>            “49.     In the result, I conclude as follows:-</p> <p>49.1     The Claimant cannot be awarded the claims for indemnification that it has made. They are accordingly dismissed in their entirety.</p> <p>49.2     The Claimant shall pay the Respondent’s costs of the arbitration including the fees and expenses of the arbitration tribunal”</p> <p> </p> <p><strong><em>Applicant’s Case </em></strong></p> <p>            Applicant summarised its present claims as follows. In <em>Robes Mabheka and 715 others v Dalny Mine, </em>716 persons claimed to be employees of Dalny Mine. The claim was instituted in August 2017 by the National Employment Council for the Mining Industry. The total claim for salary arrears was US$10 129 360 as at 2013. The second claim was by <em>Binoni Nkomo and 17 others v Falcon Gold Group and Rio-Zim (Pvt) Limited</em>. The claim was instituted in January 2018 by 18 persons who also claimed to be employees of Dalny Mine. They were allegedly not paid their salaries since 2013. Their total claim was US$1 064 525.48. In 2017, applicant apparently discovered that Dalny Mine village houses were not occupied by civil servants as disclosed by 1st respondent. The houses were occupied by persons who claimed to be employees of Dalny Mine. Applicant claims that of the several hundreds of persons who claimed to be Dalny Mine employees, only 53 were disclosed. Their contracts were nevertheless not disclosed.</p> <p>            Applicant further contended that 1st respondent breached the duty to disclose <em>“full and accurate details of the identities, job titles, place of work, dates of commencement of employment of all employees”, </em>during the due diligence exercise as required by the agreement. 1st respondent falsely warranted that it had made such disclosure when it had not done so. It also falsely warranted that it had disclosed employment documents including <em>“copies of all contracts which apply to the Company’s employees”. </em>The failure to make full discloser of the status of 813 employees was at the heart of applicant’s claim. Warranties were limited under clause 10.4 of the agreement.<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4">[4]</a> In relation to the 813 contract employees, 2nd respondent was required to determine whether there was fair disclosure in terms of the agreement.  Applicant averred that in terms of clause 8.1.2.1 of the agreement, 1st respondent was required to provide applicant full access to information. 1st respondent violated this obligation as it allegedly failed to disclose hundreds of employment contracts within its possession relating to the 813 employees.</p> <p>In terms of clause 9 of the agreement, applicant was expected to rely on information provided by 1st respondent on the status of the 813 contract workers. It indeed relied on that information. 1st respondent did not deny representing that the contracts of the 813 contract employees had ceased on 31 August 2013. This happened three years before applicant purchased Palatial Gold. Dalny Mine assets were transferred to the new entity. None of the employees were transferred to Palatial Gold.  </p> <p>Applicant contended that 1st respondent also gave contradicting versions of the state of the 813 employees even in its pleadings. On one hand it said the contracts of the said employees had terminated on 31 August 2013. On the other hand it sought to argue that, through questions posed by its counsel that the same employees were employees of 1st respondent as at the time the agreement was concluded. It was also suggested that the employees were on unpaid leave. Applicant submitted that it was legally and factually impossible for one to be a non-employee through the termination of their employment by effluxion of time and be on paid leave at the same time. In terms of the agreement, 1st respondent indemnified applicant against all loss, liability, damage or expense which it was likely to suffer.</p> <p>It was applicant’s further contention that 1st respondent breached other warranties with respect to the financial affairs of the company<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5">[5]</a>. The take on balance sheet and the accounts of Palatial Gold did not reflect the contingent liability to the 813 contract workers. The accounts of the company did not give a true and fair view of the state of affairs of the company at the relevant accounting reference. The failure to make provision for contingent liabilities breached International Financial Reporting Standards. The Take On balance sheet understated actual or contingent liabilities of the Company that ought to have been provided for as at the Accounts Date. The accounts did not give a reasonably justifiable view of the state of affairs of the Company. As at the effective date the financial affairs of the company were not substantially as reflected in the takeover balance sheet. It was also false to warrant that all financial and accounting records of the company were fully and accurately prepared and maintained, thus constituting an accurate record of all matters required by law to appear in them.</p> <p>1st respondent allegedly failed to pay NSSA levies in breach of clause 11.4 of the agreement in which it made the undertaking that <em>“the company has not taken or omitted to take any action in respect of the business which has resulted in or may result in the company or the business being subjected to a fine or penalty”. </em>NSSA levies attracted fines or penalties. 1st respondent also warranted that there were no outstanding disputes, actions or claims or complaints in respect of the mine assets. At the time of making that guarantee, 1st respondent was allegedly aware that the mine complex was occupied by its former employees who claimed the right to occupy the village based on their employment.</p> <p>Applicant asserts that 2nd respondent’s findings on the question of disclosure were not supported by the facts. He made a factual finding that 1st respondent had made a disclosure in respect of the labour strength including the more than 800 labour force. Such disclosure had been made to the auditors involved in the due diligence process. Applicant contends that 2nd respondent made an error in the process. Evidence showed that no such disclosure could have been made, as 1st respondent always insisted that such employees were not part of the Dalny Mine workforce. It treated them as non-existent. It defied logic to then conclude that they were disclosed as contemplated by the agreement when their very existence was an issue.</p> <p>2nd respondent is also adjudged to have fallen into error by making a factual finding that contracts of employment had been provided, yet he had allegedly accepted that such contracts of employment had not been requested by the applicant. No evidence had been led by 1st respondent to refute applicant’s claims that it had done so. 2nd respondent allegedly ignored evidence that such contracts were requested but were not provided. Applicant had requested contracts of employment for all employees. 2nd respondent made a finding that not all contracts of employment were disclosed. His conclusion that such contracts were not requested was grossly unreasonable. The failure by 2nd respondent to apply his mind on the issue went beyond mere faultiness or incorrectness and constituted a palpable inequity which was so far reaching and outrageous in its defiance of logic that a sensible and fair minded person would not have reached the same conclusion.</p> <p>Regarding the claim for indemnity, applicant submitted that the indemnity was due to the applicant once a claim was made. The indemnity clause in the agreement covered future events. The payment of amounts found to be due to employees was a separate event to the giving of the indemnity. Payment followed after the determination of the claims. It was not a requirement that employees’ lawsuits must succeed first. Applicant submitted that it was not intended under clause 14 of the agreement that actual loss be suffered before indemnity could be claimed. Judgment would have to be taken against the applicant first. The judgment creditor would be entitled to execute immediately. 1st respondent would then resist a demand made by the applicant, resulting in the referral of the dispute to arbitration. In the meantime, the judgment creditor would have executed its judgment. Such an interpretation defied logic and was outrageous. Applicant submitted that at law, a claim was a “demand for something as due; and an assertion of a right to something”. In <em>casu</em>, not only was a demand made, but litigation was instituted against the applicant.</p> <p>2nd respondent’s award is also impugned for finding that there was a discord between the relief sought and the dispute declared by the parties. Applicant contended that a dispute was declared in respect of the claims it received from former employees. The claims by former employees formed the basis of the claim as set out in the statement of claim and the evidence. The claims in respect of the occupation of the Dalny Mine Village were accessory to the issue of the existence or otherwise of the 800 employees. Applicant maintained that 2nd respondent’s conclusion was wrong. It was the mere receipt of the claim on which applicant could be liable that entitled it to withhold further payments until the issue of the claims were resolved through arbitration.</p> <p>According to the applicant clause 14.1 of the agreement, as read with clause 14.1.3 expressly included <em>“legal action being taken against the Purchaser or the Company by a third party in respect of which the Purchaser has relied on a Warranty given by the Seller”</em>. Applicant averred that a reading of clause 14 in its entirety showed that the parties intended that the seller should indemnify the purchaser against claims brought but were not disclosed. The final determination of those claims was irrelevant. An undertaking to indemnify was sufficient for purposes of the agreement.  </p> <p>Applicant asserted that the housing claim was also part of the employment issue. As long as the employment status of the employees was not resolved, applicant continued to be denied access to the properties occupied by persons claiming to be employees. Applicant averred that 2nd respondent did not apply his mind in concluding that its claim was incompetent since it was in essence one for a declaratory order, with no loss having been suffered. 2nd respondent’s finding that the claim was for a declaratory order in respect of indemnification for possible future liability and not for loss suffered was misplaced. He allegedly ignored authority submitted to him with regards to the meaning of indemnification.</p> <p>Applicant also contends that the finding that its claims exceeded US$4 (four) million and therefore unawardable was grossly unreasonable. 2nd respondent should have awarded indemnity up to the maximum that applicant was entitled to under the agreement. 2nd respondent is adjudged to have made a serious error of law going beyond mere faultiness.</p> <p>Applicant contended that 2nd respondent’s error regarding the question of indemnity had the effect of denying it the protection provided for in the agreement. He set a new basis upon which the indemnity provisions were to be invoked. This went beyond mere faultiness. The court was urged to intervene and set aside the award as it was clearly in conflict with the public policy of Zimbabwe. Freedom of contract was an essential part of the public policy of Zimbabwe and agreements entered into were to be enforced as they were for as long as they were compatible with the public policy of Zimbabwe.</p> <p><strong><em>Respondents Case</em></strong></p> <p>            In response, 1st respondent averred that for an arbitral award to be set aside on public policy grounds, it had to be demonstrated that it was outrageous in its defiance of logic or accepted moral standards and outrageously illogical or immoral in its reasoning or conclusions. It further averred that the applicant’s founding affidavit sought to re-argue the matter from the start. It contained legal averments. It did not attack 2nd respondent on how he conducted the arbitration hearing. The 1st respondent’s affidavit did not deal with the applicant’s founding affidavit blow by blow. The affidavit focused on the key aspects of the dispute which were relevant.</p> <p>            1st respondent averred that Mr Bhekinkosi Nkomo’s (the deponent to the applicant’s founding affidavit) evidence under cross examination actually supported its case. The evidence contradicted applicant’s own pleaded position. 1st respondent claimed that Nkomo’s evidence was so damaging to the applicant’s case to the extent that 1st respondent chose not to call its own witnesses in the aftermath of Nkomo’s cross examination. It relied on the evidence extracted from Nkomo under cross examination. His evidence was crucial in demonstrating the correctness of the award.</p> <p>            1st respondent condemned applicant’s affidavit for being too legalistic and ill-prepared. It was 18 pages long and had 480 pages of attachments. Be that as it may, applicant did not make a single cross reference to the enclosed documentation. The enclosed documentation were not even introduced in Nkomo’s affidavit. They were only found in the index. No reference was made to the parties’ pleadings or to the documentation. An application had to stand or fall on the founding affidavit. It was incumbent upon applicant to explain the basis upon which the award was being attacked. With respect to the indemnity claim, 1st respondent argued that its position was always that the individuals who claimed to be employees of Dalny Mine were not employees of that entity as at the time of concluding the agreement. Consequently, the accounts of Palatial Gold did not reflect any contingent liability with respect to the 813 employees. This was because no such liability existed. If these 813 claimants were not employees of Dalny Mine, then the applicant’s claim for indemnity fell away.</p> <p>            1st respondent claimed that Nkomo himself told 2nd respondent that the claimants were not Dalny Mine employees. The witness agreed with 1st respondent’s case, and he could not seek to wriggle out of that position at this stage. The witness also conceded that applicant had not incurred any liability to pay these individuals at that stage. 1st respondent further averred that the applicant’s defence in the labour proceedings was that these individuals were not Dalny Mine employees. For that reason, applicant could not argue in the current proceedings that these individuals were employees. Nkomo’s evidence was that the issue of potential liability was assessed and recorded as zero. This meant that there was nothing to indemnify. 2nd respondent was therefore correct in concluding that there was nothing to indemnify.<a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6">[6]</a> 1st respondent further contended that 2nd respondent was correct in finding that the labour dispute brought by claimants had been disclosed. 1st respondent referred to applicant’s own pleaded position which it captured as follows:</p> <p>“The Respondent stated that the bulk of the employees (800+) employed at the establishment were contract employees who had their contracts simultaneously terminated by August 2013 in accordance with the law, and that these specific 800+ employees were disputing the termination of their contracts”<a href="#_ftn7" name="_ftnref7" title="" id="_ftnref7">[7]</a></p> <p>1st respondent further averred that there was ample evidence placed before the 2nd respondent for him to make a finding that there was adequate disclosure prior to the share sale agreement. However applicant wanted 2nd respondent to ignore all disclosures made during the due diligence process and focus on the disclosure letter alone. 1st respondent contends that such an approach would defeat the purpose of the due diligence process. There were also disclosures made to the auditors who were carrying out the due diligence process on behalf of the applicant. Although the applicant claimed that such matters were not brought to its attention, 1st respondent contended that these were valid disclosures even though the applicant may have been unaware of them. 2nd respondent was justified in finding that sufficient disclosure was made.</p> <p>On the question of warranties, 1st respondents argued that the applicant failed to point out to any flaws in the 2nd respondent’s findings. Further, applicant had not sought relief premised on a breach of warranties in its statement of claim. 1st respondent averred that applicant mentioned the breach of warranties as an alternative to the indemnity claim.</p> <p>1st respondent submitted that the award did not offend the public policy of Zimbabwe. The applicant had failed to point to an illogical or immoral finding on the part of the 2nd respondent. It urged the court to dismiss the application with costs on the higher scale.</p> <p><strong><em>Applicant’s Reply</em></strong></p> <p>            In reply applicant denied misrepresenting issues before the 2nd respondent. Applicant insisted having set out the basis upon which the 2nd respondent’s factual findings contradicted evidence placed before him. Nkomo denied that his evidence was damaging to the applicant’s case as alleged. He also denied that his founding affidavit was legalistic and ill-prepared. He further averred that an attack on the award required a presentation of the issues and the evidence before the 2nd respondent and the legal conclusions that should have been reached. This what the applicant had done.</p> <p>            Regarding the indemnity claim, applicant submitted that the 2nd respondent’s reasoning failed to appreciate a basic issue. Litigation was brought against applicant by the alleged 813 employees. Applicant was indemnified against the possibility of these claims succeeding. Once the claims were brought, then 1st respondent was required to indemnify the applicant. Applicant insisted that 1st respondent’s position was contradictory. On one hand it argued that it had disclosed the 813 employees. On the other hand it sought to argue that these were not employees at the time of the sale. These were mutually exclusive positions. Applicant had defended itself against these claims with the assistance of 1st respondent. What remained a risk was that should the 813 employees be held to be employees of Dalny Mine, then applicant would become liable following its takeover of that undertaking. It was against this risk that indemnity should have been granted. There was no need for applicant to be first declared liable at law before it sought the indemnity.</p> <p>            Applicant asserted that it had dealt with the issue of the breach of warranty as attested by paragraphs 26, 31, 38, 39, 40, 44, 50, 52, 54, and 76-80 of its founding affidavit. Applicant also insisted that 2nd respondent failed to properly interpret the contract thus depriving it of its rights under the same contract. 2nd respondent also stands accused of failing to apply his mind to the facts and making conclusions on the facts that were divorced from the evidence that no reasonable person applying his mind could have arrived at them.</p> <p><strong>THE ISSUES </strong></p> <p>The sole issue for determination is whether 2nd respondent’s legal and factual conclusions were grossly irrational or outrageously immoral as to offend the public policy of Zimbabwe.</p> <p><strong>THE LAW</strong></p> <p>The application was made in terms of Article 34(2)(b)(ii) of the Model Law to the <em>Arbitration Act<a href="#_ftn8" name="_ftnref8" title="" id="_ftnref8"><strong>[8]</strong></a>. </em>It reads as follows:</p> <p> “(1)…………..</p> <p>(2) An arbitral award may be set aside by the <em>High Court </em>only if-</p> <p>(a) ……………………; or</p> <p>              (b) the High Court finds, that-</p> <p>                        (i)…………………..</p> <p>                        (ii) the award is in conflict with the public policy of Zimbabwe”</p> <p> </p> <p>The approach of the courts in applications of this nature was set out in <em>ZESA v Maposa<a href="#_ftn9" name="_ftnref9" title="" id="_ftnref9"><strong>[9]</strong></a> </em>by GUBBAY CJ as follows:</p> <p>“Under article 34 or 36, the court does not exercise an appeal power and either uphold or set aside or decline to recognize and enforce an award by having regard to what it considers should have been the correct decision. Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then it would be contrary to public policy to uphold it. The same consequence applies where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned above”</p> <p>The court is not required to interrogate the merits of the decision in order to determine its substantive correctness. An arbitral award will be interfered with in very exceptional circumstances at this stage. An applicant who seeks to have an award set aside on public policy grounds must demonstrate that the errors imputed on the arbitrator are so far reaching and outrageous in their defiance of logic that any fair minded person would consider them an affront to the conception of justice.</p> <p> </p> <p><strong>THE SUBMISSIONS</strong></p> <p>            For the applicant, Mr<em> Mpofu</em> submitted that 2nd respondent completely misconstrued the issues before him. He cited four key areas. These are: failure to appreciate the case, the law and the remedy sought; Failure to properly address the substantive issues of non-disclosure and the breach of warranties; Irregularity in the finding that the applicant’s indemnity claims exceeded US$4 million and could thus not be awarded; the failure to properly interrogate the evidence placed before the tribunal. Counsel then proceeded to deal with these matters <em>ad seriatim</em>.</p> <p>            Regarding 2nd respondent’s failure to appreciate the case, the law, and the relief sought, Mr <em>Mpofu</em> submitted that there was no dispute between the parties as to what an indemnity entailed. A party that expected to be sued carried a risk that had to be passed to the party that agreed to assume that risk. He gave the analogy of criminal sanctions. There was no punishment without fault. The same principle extended to civil proceedings. There was no liability without fault. Indemnity was connected to the present and future actions. In its heads of argument, applicant defined indemnity as meaning <em>“to preserve, protect, keep free from; secure against (any hurt, harm or loss); to secure against legal responsibility for past or future actions or events; to give indemnity to”. </em>The payment of any amount found to be due to the employees was a separate event to the giving of an indemnity. Payment followed the determination of the claims. However, the indemnity was due to the claimant once a claim was made. The indemnity in the agreement covered future payments. It was not necessary that employees’ lawsuits first succeed. The fact that a party claimed indemnity did not necessarily mean they should not defend themselves when sued. The same applied when the party intended to sue. Costs would have to be incurred. Under the common law, a party had to claim indemnity through the agreement.</p> <p>According to Mr <em>Mpofu</em>, an indemnity claim was not just available by operation of the common law, it was also available as a special procedure. Even if a claim against the applicant was without merit, indemnity still ought to be granted. It secured on behalf of the applicant, the full enjoyment of benefits of the contract. The contract was for US$8 million, while the claims amounted to US$13 million. If the claims succeeded, applicant would be required to pay an amount higher than the contract sum. Such a scenario would never have been in the contemplation of the parties. Counsel submitted that 2nd respondent misapplied the law on indemnity. He referred to paragraph 43 of 2nd award where he said <em>“Further, a claim for indemnity by its nature is a claim for loss suffered. Rio Gold having mounted its claim as a claim for indemnification cannot be indemnified for loss which has not eventuated”<a href="#_ftn10" name="_ftnref10" title="" id="_ftnref10"><strong>[10]</strong></a>. </em>Mr <em>Mpofu</em> argued that such an approach was wrong.</p> <p>To illustrate this point further, applicant’s counsel referred to paragraph 30.7 of the 2nd respondent’s award where he stated as one of his conclusions drawn from the evidence:</p> <p>“30.7 That there was no loss suffered by Rio Gold as a result or the alleged non-disclosure of material facts in breach of the warranties. The claim by Rio Gold, in its statement of claim and in oral evidence was therefore one, not for the indemnification but for a declaratory order in respect of indemnification for possible future liability. This is contrary to the substance of the prayer which is summarised herein. The Claimant cannot therefore canvass a different claim at the hearing or in its papers”</p> <p>Mr <em>Mpofu</em> submitted that the claim could not have been one for declaratory relief. He further submitted that section 16 of the Labour Act<a href="#_ftn11" name="_ftnref11" title="" id="_ftnref11">[11]</a> contemplated that when an undertaking was sold, the purchaser inherited the former employer’s liabilities. Any claim must be brought against the current employer, who was not responsible for the past debts unless there was some prior agreement. In <em>casu, </em>the current employer was asking the former employer to carry that burden. That was the point missed by 2nd respondent. That error denied applicant its contractual benefits. It constituted an affront to public policy. 2nd respondent was only expected to acknowledge the existence of the claim rather than assess its validity. It was wrong for 2nd respondent to consider the merits of the claim instead of the facts on which it was premised. Applicant was supposed to be protected in case the claim succeeded. It continued to incur costs in defending the claims. Applicant could not be saddled with costs that were not of its own making.</p> <p>Mr <em>Mpofu </em>further submitted that the agreement required full disclosure. Clause 17.3<a href="#_ftn12" name="_ftnref12" title="" id="_ftnref12">[12]</a> as read with clause 17.1 of the agreement was clear on what needed to be disclosed. Counsel also averred that 1st respondent failed to comply with section 12 (1) and (2) of the Labour Act. What clause 17.1 required to be furnished, was exactly what section 12 (1) and (2) of the Labour Act provided for. It was the 1st respondent that had employed the persons making the claims. It was also 1st respondent that had their employment contracts. It knew how much they were paid, and the extent of liability in the case of a claim. Full and adequate disclosure entailed advising applicant of potential claims and the merits of such claims. Such disclosure was necessary as it affected the purchase price of the shares. It was not made and the indemnity claim kicked in.</p> <p>Mr <em>Mpofu</em> further submitted that 1st respondent had the onus to show that it made full disclosure. Instead it chose not to lead evidence to show its compliance with clause 17(1) and (3) of the agreement. It presented contradictory positions on the status of the employees. There was only a disclosure of 53 employees, but their contracts were not even available. The claim was made in 2013 before applicant acquired Palatial Gold. If the claim was successful, it was for the 1st respondent’s account. Applicant could not be denied its indemnity under the circumstances. A finding whose effect was to take away a benefit accorded under the contract was contrary to public policy. The court was referred to the case of <em>Delta Operations (Pvt) Ltd. v Origen Corporation (Pvt) Ltd<a href="#_ftn13" name="_ftnref13" title="" id="_ftnref13"><strong>[13]</strong></a>, </em>where the court emphasised the need to respect the sanctity of contracts. 2nd respondent granted a remedy outside the purview of the contract. Applicant was likely to find itself paying in excess of $13 million for obligations incurred before the registration of Palatial Gold.</p> <p>Concerning the 1466 residential units constituting the Dalny Mine village, counsel submitted that these were supposed to be used by the applicant for its business. 1st respondent represented that most of the housing units were occupied by civil servants, yet they were occupied by its former employees. The former employees were not prepared to relinquish possession until their dispute with the former employer was resolved. The effect of the impasse was that applicant had no access to the houses, and to gain that access, applicant had to institute proceedings to evict the occupants.</p> <p>In respect of the finding that the claim for indemnity was above US$4 million and therefore incompetent, Mr <em>Mpofu</em> submitted that 2nd respondent ought to have awarded an amount which fell within the cap, instead of completely dismissing it. Dismissing the claim was a misdirection. In its heads of argument, applicant observed that the amount of indemnity was limited to an amount equal to 50% of the Purchase Consideration but there were exceptions. The limit did not apply in respect of a breach involving fraud or corruption, and/or in circumstances where the seller repudiated the agreement.<a href="#_ftn14" name="_ftnref14" title="" id="_ftnref14">[14]</a> It also did not apply in the event of a wilful misconduct by the seller. Even after so finding, 2nd respondent should have ordered an indemnity of up to the maximum that applicant was entitled to under the agreement. 2nd respondent accordingly committed a serious error of law which went beyond mere faultiness.</p> <p>On the issue of evidence, Mr <em>Mpofu</em> highlighted the significance of evidence in providing a context to the contractual dispute. He submitted that three principles were key to the interpretation of contracts. These were: the text; the context and the purpose. Counsel referred to the case of <em>Old Mutual &amp; Others v Peter Moyo<a href="#_ftn15" name="_ftnref15" title="" id="_ftnref15"><strong>[15]</strong></a></em>. Only one party led evidence before the 2nd respondent. 1st respondent failed to discharge its onus. According to Mr <em>Mpofu</em>, the question that arose was where 1st respondent obtained the questions that it put to the applicant’s witness. The essence of cross examination was for 1st respondent to put questions to the witness based on its own case. 2nd respondent made a finding in favour of a party that did not testify. How the 2nd respondent was able to measure the quality of 1st respondent’s evidence was beyond reason. 2nd respondent allegedly preferred submissions made by 1st respondent’s counsel, ahead of evidence led from the applicant’s witness. Mr <em>Mpofu</em> argued that it was irrational for 2nd respondent to find in favour of a party that did not testify.</p> <p>Mr <em>Mpofu</em> submitted that the applicant’s affidavit provided a platform of what was necessarily legal immorality, something patently unjust. Two key points were made in the affidavit. These were failure to appreciate facts and the effect of the contract. If the court agreed with the applicant, then there was need to set aside the award. The intervention would not leave 1st respondent in a worse off position. It would leave both parties in safe positions. The court was urged to interfere with the award in defence of public policy.  </p> <p>For the 1st respondent, Mr <em>Tivader</em> submitted that an application stands or falls on the founding affidavit. He argued that applicant’s counsel was raising new matters that were never pleaded in its case, and neither were they raised in the heads of argument. He pointed to the allusion to sections 12 and 16 of the Labour Act for instance.  In any case, the dispute emanated from a sale of shares and the Labour Act was not applicable. Mr <em>Tivader</em> further submitted that applicant merely alleged that the award was immoral without pointing out the offending parts of the award. Counsel further averred that the application was ill-conceived as applicant had contractual remedies at its disposal. </p> <p>Mr <em>Tivader</em> argued that the award was detailed and well-reasoned. The evidence of the applicant’s only witness, Nkomo was contradictory as he continued to change his own version of events. Nkomo had told the 2nd respondent that there was no dispute pending, yet in his papers before this court he was claiming that there was pending litigation justifying the claim for indemnity. Counsel submitted that 2nd respondent measured Nkomo’s evidence against Nkomo himself. Nkomo was not just the applicant’s witness. He was either party’s witness. No further evidence was required once he had testified. 2nd respondent made key conclusions on the basis of Nkomo’s evidence. Applicant was notified of the existence of former employees and their potential claims. 2nd respondent made a credibility finding that information was brought to the attention of the applicant. How could one ask about the 813 employees if they were not aware of their existence? Counsel submitted that Nkomo’s evidence was that the alleged employees were not employees of Dalny Mine. 1st respondent pleaded that they were not employees. It followed that no one alleged that these were employees. Further, Mr Nkomo accepted that no contingent liability had been provided for in respect of these employees in applicant’s accounts. In light of this averment, applicant could then not make an about turn and insist that liability existed. Counsel further submitted that the existence of the employees was disclosed as part of the due diligence exercise.</p> <p>Mr <em>Tivader</em> submitted that the claim for indemnity was not the primary obligation. It was secondary. One only got indemnified for the loss actually suffered. In other words, one had to establish a primary obligation first. Counsel submitted that the applicant sought indemnity from 1st respondent on the basis of three propositions, namely that: the claimants in the labour dispute were employees of Dalny Mine at the time of the sale; the claimants’ labour claim was valid; at the time of the sale, applicant was not aware that these individuals were employees of Dalny Mine. Put differently applicant claimed that the risk of the labour claim was not disclosed by 1st respondent. If any one of these prerequisites was not established, then it followed that applicant was not entitled to an indemnity in respect of the labour claims. The onus was on the applicant to establish that all the three prerequisites were present in this regard. Mr <em>Tivader</em> argued that the applicant had failed to discharge that onus. </p> <p>In its heads of argument, 1st respondent submitted that applicant expressly pleaded in the labour proceedings that the claimant employees failed to bring valid proceedings. Through its legal practitioners of record, applicant pleaded that: the claimants’ statement of claim was deficient; the claimants failed to substantiate that they were employees and were claiming salaries from 2013; only 268 of the 716 claimants filed affidavits. It meant that the other 448 claimants were not part of the proceedings; the alleged claimants’ union did not have mandate to prosecute the claim; the entire claim ought to be dismissed; the claims for wages and permanent employee status had prescribed. In the proceedings before 2nd respondent, applicant sought to distance itself from its own pleaded position in the labour proceedings. This was impermissible and it was rightly dismissed by the 2nd respondent. The applicant could not be allowed to approbate and reprobate.</p> <p>Further, in its heads of argument 1st respondent submitted that the potential claim was disclosed to the applicant. Applicant admitted in its pleadings that during the due diligence process prior to the sale, 1st respondent disclosed that over 800 persons could bring a claim against the company challenging the termination of their employment. Applicant expressly stated that the 1st respondent had advised that <em>“800 + employees were disputing the termination of their contracts”<a href="#_ftn16" name="_ftnref16" title="" id="_ftnref16"><strong>[16]</strong></a></em>. 2nd respondent could not ignore such admission. The court was referred to the authority of <em>Delta Corporation Ltd v Forward Wholesalers (Private) Ltd<a href="#_ftn17" name="_ftnref17" title="" id="_ftnref17"><strong>[17]</strong></a>. </em></p> <p>1st respondent argued that applicant could not amend or supplement the basis of its application. After receiving 1st respondent’s opposing papers, applicant sought to alter its original position in its answering affidavit as well as its heads of argument. To illustrate this point, 1st respondent referred to the admission by the applicant that <em>“The nature of the relief and the basis thereof are adequately summarised in the arbitrator’s award”<a href="#_ftn18" name="_ftnref18" title="" id="_ftnref18"><strong>[18]</strong></a>. </em>After 1st respondent recorded Nkomo’s admission of this point, he changed his evidence in the answering affidavit as follows: <em>“I deny that I accepted that the arbitrator correctly understood the relief sought. I stated that he adequately summarised the nature of the relief and basis<a href="#_ftn19" name="_ftnref19" title="" id="_ftnref19"><strong>[19]</strong></a>”</em>. 1st respondent argued that this was a desperate attempt by Nkomo to distance himself from the implications of the admission he had properly made. Mr <em>Tivader</em> submitted that the arbitrator could not<em>“adequately summarise”</em> the relief sought if he did not understand the relief that was being sought in the first place. The court was referred to the case of <em>Mutasa v Telecel International &amp; Another<a href="#_ftn20" name="_ftnref20" title="" id="_ftnref20"><strong>[20]</strong></a></em>.</p> <p>In its heads of argument, the 1st respondent took issue with applicant’s submission that the 2nd respondent deliberately ignored or disregarded the law. It submitted that the assertion was tantamount to an allegation of fraud against the 2nd respondent. The court was urged to disregard that submissions for reasons that: the application was not brought on the basis that the 2nd respondent deliberately, and therefore fraudulently went against the law; applicant adduced no evidence to show that the 2nd respondent deliberately set out to find against the applicant, irrespective of what the law said; consequently, 2nd respondent was denied an opportunity to respond to the allegation that he deliberately abused his office. 1st respondent further submitted that applicant’s case ought to be confined to what it set out in its founding affidavit. It could not be allowed to patch up its case in the answering affidavit and heads of argument. </p> <p>In reply Mr <em>Mpofu</em> submitted that 1st respondent misconstrued its remedies and the dispute at hand. Applicant was claiming indemnity in respect of claims made against it. The issue was not whether the 813 claimants were applicant’s employees or not. These people had started to sue. As they sued, the applicant’s assets were exposed to execution. 1st respondent position was untenable. It wanted applicant to be sued first, have a judgment and a writ granted against it and then approach the applicant. Mr <em>Mpofu</em> submitted that indemnity was a contractual benefit available to the applicant.<a href="#_ftn21" name="_ftnref21" title="" id="_ftnref21">[21]</a>  It covered both loss and liability. Once it was accepted that there were claims against the applicants, then indemnity automatically set in. It was against public policy for 2nd respondent to deny applicant that benefit.</p> <p>Counsel also submitted that it was folly to suggest that the sole witness was not applicant’s witness alone. A witness came to testify under two circumstances: when called by a party who desired to lead evidence from that witness; when called by the court to clarify certain evidence for the court. 2nd respondent was dealing with the applicant’s witness.   </p> <p>Mr <em>Mpofu</em> further submitted that the claim by NSSA was not dealt with by 1st respondent. So was the claim surrounding the Dalny Mine houses occupied by persons who claimed to be employees of Dalny Mine. Both claims were not disclosed. 2nd respondent was therefore wrong to withhold his jurisdiction, yet the jurisdiction had been set out in the statement of claim. Mr <em>Mpofu</em> further submitted that sections 12 and 16 of the Labour Act were raised as points of law, and there was nothing anomalous with that. He insisted that public policy considerations favoured the vacation of the award.</p> <p><strong>THE ANALYSIS</strong></p> <p>            I deliberately regurgitated the factual background and the applicant’s case <em>extensor,</em> just to illustrate the extent to which the applicant appeared to misunderstand the crux of its own application. The applicant seeks the setting aside of the 2nd respondent’s award on public policy grounds, yet most of the averments in the founding affidavit appear more like an attempt at rearguing the claim afresh. The bulky of the affidavit addresses issues which ought to have been rightly argued before the 2nd respondent. The founding affidavit is unnecessarily long, convoluted and all muddled up. It spans a good 18 pages. Out of the 97 paragraphs of the founding affidavit, only a few paragraphs attempt to relate to the cause of action before this court. Attached to the founding affidavit are acres of unreferenced material whose relevance was not explained in the affidavit. Affidavits must, for the benefit of the court, set out the background facts germane to the dispute with sufficient detail and clarity. The founding affidavit forms the foundation of the applicant’s case.<a href="#_ftn22" name="_ftnref22" title="" id="_ftnref22">[22]</a> Annexures to affidavits should not just be attached as a formality. Their relevance must be explained with sufficient exactitude.  </p> <p>            Perhaps it was with these deficiencies in mind that Mr <em>Mpofu, </em>cleverly adopted a somehow structured approach in his submissions, by seeking to have the arbitral award impugned on the following bases: failure to appreciate the case, the law and the remedy sought; failure to properly address the substantive issues of non-disclosure and breach of warranties; the irregularity of finding that applicant was not entitled to indemnity because its claims exceeded US$4 million; the failure to properly interrogate the evidence placed before the tribunal. I now turn to deal with these in detail.</p> <p><strong><em>Failure to appreciate the case, the law and the remedy sought</em></strong></p> <p>            The submission, as I understood it from applicant’s counsel, pertained to the manner in which the 2nd respondent treated the indemnity claim. The 2nd respondent was impeached for the manner in which he treated the indemnity claim. Indemnity was due to the applicant once a claim was made against it. Applicant argued that it was not necessary that employees’ lawsuits first succeed. 1st respondent on the other hand argued that one only got indemnified for the loss actually suffered. In other words, one had to establish a primary obligation first. In <em>casu</em> that did not happen. The claim for indemnity was premature. The claim for indemnity was founded on the indemnity clause.<a href="#_ftn23" name="_ftnref23" title="" id="_ftnref23">[23]</a> It was in respect of any claims or expenses or losses arising from the termination or intended termination of the employment of every person who professed to be an employee of the company after September 2013. It was also in respect of any costs, losses or expenses attendant upon securing vacant possession of any house forming part of Dalny Mine Village, and such house was not occupied either by a person in annexure A of the claim or a civil servant.<a href="#_ftn24" name="_ftnref24" title="" id="_ftnref24">[24]</a></p> <p>            To contextualise the applicant’s argument, it is important to analyse the 2nd respondent’s findings on this point based on the evidence that was placed before him. He made the following observations<a href="#_ftn25" name="_ftnref25" title="" id="_ftnref25">[25]</a>:</p> <p>“30.        The following conclusions can be drawn from the evidence, both oral and written submitted for the parties:-</p> <p>                …………</p> <p>30.4        That therefore to the extent that Rio Gold was informed in respect of the entire labour strength, in different categories, it was not denied any information which it would have wanted in order to make an informed decision. In fact, it was advised to make the necessary assessments in respect of the risk or potential claims arising from the known claims which had been made by certain employees within the context of all the other disclosed employees.  </p> <p>                ………</p> <p>30.7        That there was no loss suffered by Rio Gold as a result of the alleged non-disclosure of material facts in breach of the warranties. The claim by Rio Gold, in its statement of claim and in oral evidence was therefore one, not for the indemnification but for a declaratory order in respect indemnification for possible future liability. This is contrary to the substance of the prayer which is summarised herein. The dispute which was declared related to a claim for indemnity. The claimant cannot therefore canvass a different claim at the hearing or in its papers.”</p> <p> </p> <p>The findings as drawn from the evidence constituted the foundation of the 2nd respondent’s decision on the merits. On the evidence, 2nd respondent found that the claim by applicant in its statement of claim and oral evidence was not one for indemnification, but one for a <em>declaratur </em>in respect of indemnity possibly for future liability. It was at variance with the substance of its prayer. The declared dispute related to a claim for indemnity. What was placed before the tribunal had nothing to do with the declared dispute. For that reason, 2nd respondent reasoned that applicant could not be allowed to canvass a different claim at the hearing.</p> <p>In any case, the agreement itself regulated the manner in which indemnity kicked in. Clause 14.1 of the agreement provided that: <em>“Without prejudice to any of the other rights of the Purchaser arising from any of the provisions of this Agreement, the Seller indemnifies the Purchaser and the Company against all loss, liability, damage or expense which the Purchaser and/or the Company may suffer as a result of or which may be attributable to….”. </em>Clause 14.3 then stated that: <em>“</em><em>The Seller will be entitled to resist any Claim in the name of the Purchaser or the Company and to control the proceedings in regard thereto, provided that:</em></p> <p><em>14.3.1. the Seller indemnifies the Purchaser and the Company in a manner and form reasonably acceptable to the Purchaser and the Company against all party and party or attorney and own client costs which may be incurred as a consequence of such proceedings and the Purchaser and the Company will be entitled to require the Seller to give security reasonably acceptable to the Purchaser and the Company against such costs;</em></p> <p><em>14.3.2. the Purchaser and the Company will render reasonable assistance to the Seller, at the expense of the Seller, in regard to the proceedings; and</em></p> <p><em>14.3.3. The Company and/or the Purchaser shall have the right to take cover the conduct of such litigation in the event that the Company and/or the Purchaser reasonably believe that it is in their best interest to do so and gives the Seller notice of their intention to do so</em><em>.</em>.” (Underlining for emphasis)</p> <p>A reading of the above clauses in my view shows that the 1st respondent was expected to be actively involved in any litigation brought against the applicant in its position as the purchaser. It was also for that reason that clause 14.2 required the applicant to <em>“give fifteen (15) calendar days written notice to the Seller of any Claim to enable the Seller to take steps to resist the Claim, should it wish to do so”. </em>In my view that could only mean that at no point would the applicant be left exposed to any claim or potential claim on its own accord. Clause 14.5 of the agreement is also instructive. It stated that: <em>“Subject to clause 15, if the Purchaser or Company suffers any loss, liability, damage or expense in respect of which an indemnity is given in terms of clause 14, the amount of such loss, liability, damage or expense will be deemed to be the amount payable by the Seller to the Purchaser and the Company in terms of this clause 14”. </em>From the construction of the aforementioned clauses, I do not read the intention of the parties to have been that a claim for indemnity should be made before any loss was suffered or ascertainable.</p> <p>2nd respondent also found that applicant was not denied any information which it would have required in order to make an informed decision. He also found that all the details that were reasonably necessary to enable applicant to make a consideration of the relevant issues and the attendant risk were availed by the 1st respondent. In light of the 2nd respondent’s findings, I failed to appreciate the relevance of section 12 of the Labour Act to which my attention was drawn.  I do not see how the findings of the 2nd respondent can be faulted in this regard. I find no merit in the submission.</p> <p><strong><em>Failure to properly address the substantive issues of non-disclosure and breach of warranty</em></strong></p> <p>            Applicant’s contention is that 1st respondent’s failure to make full disclosure constituted a gross violation of its contractual obligations. It had the onus of proving that full disclosure had been made, but it chose not to call any witness. That failure to make full disclosure in turn resulted in a breach of the warranties that 1st respondent had made under the agreement. 2nd respondent made the following pertinent observations, regarding 1st respondent disclosure obligations:</p> <p>“30.1      That the labour strength, including the employees whose contracts of employment were not renewed on the 30th of August 2013 was disclosed to Rio Gold during the due diligence exercise. However, the letter which disclosed the status of these employees was not brought to the personal attention of Mr Nkomo by auditors who had received during the due diligence exercise.</p> <p>30.2        That disclosure was undertaken prior to the completion or even the effective date of the contractual agreement for the purchase and sale of shares in Palatial. It was made during the due diligence exercise.</p> <p>30.3        That therefore, neither Mr Nkomo nor the auditors requested the contracts of employment in respect of the 800 plus employees. Mr Nkomo could not have requested for these contracts because the letter disclosing them never came to his personal attention. The auditor to whom the letter was addressed is not alleged to have requested for the contracts. The necessity for the request was not spoken to by the auditor. To the extent that Mr Nkomo indicated that the contracts were requested. He could not have been saying the truth. He personally was not aware of the existence of the letter and therefore any such request would not have been done by him and if it was done, he was not informed.</p> <p>                …………….</p> <p>30.5        There was therefore fair disclosure as contemplated by clause 10.4 of the contract. The details, facts and circumstances that were reasonably necessary to be disclosed in order for Rio Gold to make a proper appreciation and consideration of the relevant issue and attendant risk were heard by Falcon Gold.” (Underlining for emphasis).</p> <p>The finding by the 2nd respondent that there was fair disclosure as contemplated by the agreement is unassailable. The 2nd arbitrator was influenced in his conclusion by the evidence that was placed before him. I agree with the submission by 1st respondent’s counsel that the applicant failed to point out to any flaws in the 2nd respondent’s findings on the alleged non-disclosures and the breach of warranties. The flaws in the applicant’s case can be attributed to the manner in which it set out its claim in the founding affidavit. The claim was pleaded in a manner which leaves one wondering whether it was meant to be a repeat of the proceedings before 2nd respondent.</p> <p>As regards the failure to disclose the potential claim by NSSA  and the status of the of the Dalny Mine Village, the 2nd respondent found that “<em>There was no declaration of dispute, in terms of the contractual agreement in respect of the potential claim by NSSA or the claim in respect of expenses incurred for the caring of employees who could not occupy Mine houses within the Dalny Mine village to the place of employment on account of the houses having been occupied by persons who claimed to be employees of Falcon Gold”<a href="#_ftn26" name="_ftnref26" title="" id="_ftnref26"><strong>[26]</strong></a>. </em>The 2nd respondent then further remarked that <em>“Accordingly, the sine qua non provided for in the contractual document, for liability, that is the declaration of a dispute and its reference to arbitration” </em>had not been fulfilled. 2nd respondent found himself constrained to deal with those issues under the circumstances. The 2nd respondent also found that no claim had been made by NSSA. Applicant suspected that NSSA may make a claim together with the employment council and other regulatory bodies arising from the 813 employees. The arbitrator then concluded that <em>“As a matter of fact therefore, it has not been proven in this arbitration that Falgold knew that it had not paid NSSA levies. I cannot therefore make a finding in favour of Rio Gold in the absence of any evidence of the existence of the fact. To do so would be to err”<a href="#_ftn27" name="_ftnref27" title="" id="_ftnref27"><strong>[27]</strong></a></em></p> <p>While the applicant alluded to these matters in the founding affidavit, still it failed to demonstrate in what way the 2nd respondent’s conclusion offended public policy so as to justify the setting aside of the award. I accordingly find that this submission is devoid of merit and it is dismissed.</p> <p><strong><em>Irregularity in the finding that the claims exceeded US$4 million and could not be awarded </em></strong></p> <p>Applicant submitted that the finding that the indemnity sought was above $4 million and therefore could not be granted was a serious error of law which went beyond mere faultiness. 2nd respondent ought to have awarded an amount which fell within the permissible limit applicant was entitled to under the agreement. In his findings, 2nd respondent reasoned that: <em>“if any liability should attach to Falcon Gold, such liability would be limited to a claim for the sum of $4 000 000.00. Accordingly, therefore, the present claims by Rio Gold were in excess of the limitation of liability clause.”<a href="#_ftn28" name="_ftnref28" title="" id="_ftnref28"><strong>[28]</strong></a></em>He however concluded that there had been no loss suffered by the applicant as a result of the alleged non-disclosure of material facts in breach of the warranties. </p> <p>            I did not read the 2nd respondent’s finding to mean that he declined to grant the indemnity on account of the fact that it was above the US$4 million cap. He declined to grant it on the basis that applicant had not suffered any loss as a result of the alleged non-disclosures. That conclusion was reached on the basis of the evidence that was before him. I did not find any fault with that conclusion to warrant that his decision be set aside on public policy grounds. The submission is without merit and must be dismissed. </p> <p><strong><em>Failure to properly interrogate the evidence placed before the tribunal</em></strong></p> <p>Mr <em>Mpofu </em>submitted that it was anomalous for the 2nd respondent to rely on the untested testimony of the 1st respondent and reject the evidence of the applicant’s witness, Nkomo. Mr <em>Tivader </em>on the other hand submitted that Nkomo was any party’s witness. He came and said everything that the parties wanted to hear, and it was left to the 2nd respondent to evaluate his evidence. The failure by 1st respondent to call any witness did not escape the 2nd respondent’s attention. He addressed the issue as follows:</p> <p>“25. It is important to underline the legal principle which applies where one party elects to lead evidence and the other does not. This principle was set out in the old case of <strong>Siffman v Kriel</strong> 1909 TS 538 where the court said that:-</p> <p><strong>“<em>It does not follow, because evidence is not contradicted, that therefore it is true. Otherwise the court, in cases where the defendant is in default, would be bound to accept any evidence the plaintiff might tender. The story told by the person on whom the onus rests may be so improbable as not to discharge it.”</em></strong>”<a href="#_ftn29" name="_ftnref29" title="" id="_ftnref29">[29]</a></p> <p> 2nd respondent went on to cite the case of <em>Sheka Brothers v Besta<a href="#_ftn30" name="_ftnref30" title="" id="_ftnref30"><strong>[30]</strong></a></em>, which confirms the same principle and concluded by saying:</p> <p>“In the circumstances therefore, the fact that the evidence led on behalf of Rio Gold was not contradicted by evidence led by Falcon Gold, because the latter did not lead any evidence but was content to simply challenge the evidence of Mr Bheki Nkomo through cross examination does not necessarily give any advantage to Rio Gold at all. The evidence must be assessed to see if it is sufficient, together with other evidence led for the Claimant to discharge the onus upon the Claimant.”</p> <p> </p> <p>Having reached that conclusion on the law, the 2nd respondent went on to comment on the deportment of the witness as follows:</p> <p>“30.10 A final conclusion must be made in respect of the demeanor of Mr Nkomo in his evidence. He did not answer questions in a manner that supported the claim. In cross examination he made statements which supported the case for the Respondent. He came out agitated when pressed on critical issues. While he was candid in his answers on questions of fact, he disagreed with the conclusions which can be drawn from his evidence.”<a href="#_ftn31" name="_ftnref31" title="" id="_ftnref31">[31]</a></p> <p>With all due respect, I do not see how the 2nd respondent’s analysis of the law on the uncontested evidence of a witness is reproachable. I have failed to find fault with his overall assessment of the demeanour of the witness and the credibility of his testimony. I am also not persuaded by Mr <em>Mpofu’s</em> argument that first respondent’s reliance on the testimony of the applicant’s witness meant that it failed to discharge the onus reposed upon it. In evaluating Nkomo’s testimony, 2nd respondent found that the answers that he gave under cross examination actually supported the 1st respondent’s case.<a href="#_ftn32" name="_ftnref32" title="" id="_ftnref32">[32]</a> This court cannot interfere with the 2nd respondent’s finding in that regard. His conclusions cannot be construed to be so gross as to constitute an affront to public policy. The court finds no merit in this submission. </p> <p><strong>CONCLUSION</strong></p> <p>It is this court’s finding that the applicant has failed to set out a solid basis for the setting aside of the arbitral award on the basis that it is contrary to public policy. The approach of the courts in applications of this nature has always been to adopt a more restrictive interpretation of public policy in order to preserve the integrity of the arbitration process and its objectives. In <em>ZESA v Maposa</em> GUBBAY CJ, further stated as follows:</p> <p>“In my opinion, the approach to be adopted is to construe the public policy defense, as being applicable to either a foreign or domestic award, restrictively in order to preserve and recognize the basic objectivity of finality in all arbitrations; and to hold such defence applicable only if some fundamental principle of the law or morality or justice is violated. This is illustrated by dicta in many cases, of which the following is impressive:</p> <p>In <em>Paklita Investment Ltd v Klockner East Asia Ltd</em>, reported in (1994) 19 Yearbook of Commercial Arbitration 664, the Supreme Court of Hong Kong remarked at 674:</p> <p>“The public policy defence is construed narrowly and I deprecate the attempt to wheel it out on all occasions. As the US Court of Appeals for the 2nd Circuit said in Parsons &amp; Whittemore v RAKTA 508 F 2d 969 (2d Cir 1974):</p> <p>‘….the convention’s public defence should be construed narrowly. Enforcement of foreign arbitral awards may be denied on this basis only where enforcement would violate the forum State’s most basic notions of morality and justice’”<a href="#_ftn33" name="_ftnref33" title="" id="_ftnref33">[33]</a></p> <p>It is my finding that the applicant failed to demonstrate that the award is against public policy, or let alone show that the reasoning and conclusions of the second respondent were wrong in fact or in law. The complaints relied upon do not satisfy the threshold for the setting aside of an award on public policy grounds, more so considering the mix-up in the applicant’s pleadings that I alluded to earlier on.</p> <p><strong>COSTS  </strong></p> <p>            Respondents sought the dismissal of the application with costs on the higher scale of attorney and client. The general rule is that the costs follow the event, and a successful party is entitled to costs on a scale which must be determined depending on the nature of the case and the manner in which litigation was conducted. An award of costs on the attorney and client scale is not lightly granted by the court and the tendency is to do so on rare occasions. Those occasions include cases where the conduct of a litigant necessitates such an award. Even though I have grave concerns with the manner in which the applicant pleaded its case, I am not persuaded to dismiss the application with an order of costs on the higher scale. I have also considered that counsel for the 1st respondent did not advance reasons to support the claim for costs on the higher scale.</p> <p> </p> <p><strong>DISPOSITION  </strong></p> <p>Accordingly, it is ordered as follows;</p> <ol> <li>The application is dismissed.</li> <li>Applicant shall pay 1st respondent’s costs of suit.</li> </ol> <p> </p> <p><em>Wintertons, </em>legal practitioners for the applicant</p> <p><em>Atherstone &amp; Cook</em>, legal practitioners for 1st respondent</p> <p> </p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> [<em>Chapter 7:15</em>]</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> Clause 7 of the agreement on page 116 of the record.</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> Clause 18.1 provided that:</p> <p>“In the event that any dispute shall arise between the Parties as to the coming into effect of this Agreement or its interpretation, or arising out of the implementation or termination of this Agreement or its cancellation, then such dispute shall be referred to arbitration by an arbitrator appointed for that purpose by the Parties or, failing their agreement in that connection within fourteen calendar (14) days of a dispute having been declared, appointed by the Commercial Arbitration Centre in Harare”</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> Clause 10.4 on page 122 of the record reads in part as follows:</p> <p>“The Warranties are limited and qualified to the extent to which a fair disclosure of any fact or circumstances has been made in the, but only to the extent any such fact or circumstance has been fairly disclosed in the Disclosure Letter attached hereto as Schedule 9. For purposes of the aforegoing a “fair disclosure” is one where all information, detail, facts and circumstances that are reasonably necessary to be disclosed to enable a proper appreciation and consideration by a purchaser of the relevant issue and attendant risks have been disclosed……”</p> <p> </p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a> Clause 7 of the agreement page 183 of record, 1st respondent warrants that:</p> <p>“7.1 The accounts of the Company as at 31st March 2016 (the Accounts Date):</p> <p>7.1.1 give a true and fair view of the state of affairs of the Company at the relevant accounting reference;</p> <p>7.1.2 comply with the requirements of the Companies Act (as applicable) and all other relevant statutes or statutory instruments;</p> <p>7.1.3 comply with the International Financial Reporting Standards (IFRS);</p> <p>7.1.4 do not understate any actual or contingent liabilities of the Company that ought reasonably to have been provided for as at the Accounts Date; and contain reasonable reserves and/or provisions and/or notes, where appropriate, for capital commitments and liabilities (contingent, disputed and/or unquantifiable) to the extent this is required in order for the Accounts to give a reasonably justifiable view of the state of affairs and/or profits or losses of the Company”</p> <p>Clause 8.2 on page 185 states that:</p> <p>“As at the Effective Date the financial affairs of the Company will substantially be as reflected in the Takeover Balance Sheet and as far as the Seller is aware, no event, fact or matter has occurred or will occur which is likely to give rise to any such change except as shall be reflected in the Completion Balance Sheet”</p> <p>Clause 9.1 states:</p> <p>“All financial and accounting records of the Company have been fully and accurately prepared and maintained and constitute an accurate record of all matters required by law to appear in them and do not contain any material inaccuracies or discrepancies of any kind.”</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a> Paragraph 29.4 of award on page 45 of record.</p> <p><a href="#_ftnref7" name="_ftn7" title="" id="_ftn7">[7]</a> Paragraph 10 page of claimant’s reply on 95 of the record</p> <p><a href="#_ftnref8" name="_ftn8" title="" id="_ftn8">[8]</a> [<em>Chapter 7:15</em>]</p> <p><a href="#_ftnref9" name="_ftn9" title="" id="_ftn9">[9]</a> 1999 (2) ZLR 452 (S) at page 466</p> <p><a href="#_ftnref10" name="_ftn10" title="" id="_ftn10">[10]</a> Page 60 of the record of proceedings</p> <p><a href="#_ftnref11" name="_ftn11" title="" id="_ftn11">[11]</a> [<em>Chapter 28:01</em>]</p> <p><a href="#_ftnref12" name="_ftn12" title="" id="_ftn12">[12]</a> Page 191 of the record</p> <p><a href="#_ftnref13" name="_ftn13" title="" id="_ftn13">[13]</a> SC 86/06</p> <p><a href="#_ftnref14" name="_ftn14" title="" id="_ftn14">[14]</a> Per clause 15.1.2; 15.4.2; 15.4.3; 15.4.4</p> <p><a href="#_ftnref15" name="_ftn15" title="" id="_ftn15">[15]</a> [A5041/19] [2020ZAGPJHC1 of 14 January 2020]</p> <p><a href="#_ftnref16" name="_ftn16" title="" id="_ftn16">[16]</a> See applicant’s reply at the arbitration proceedings at page 95 paragraph 10 of the record</p> <p><a href="#_ftnref17" name="_ftn17" title="" id="_ftn17">[17]</a> [2017] ZWHHC 53</p> <p><a href="#_ftnref18" name="_ftn18" title="" id="_ftn18">[18]</a> Paragraph 13 of the applicant’s founding affidavit on page 6 of the record.</p> <p><a href="#_ftnref19" name="_ftn19" title="" id="_ftn19">[19]</a> Paragraph 12 of answering affidavit on page 541 of the record.</p> <p><a href="#_ftnref20" name="_ftn20" title="" id="_ftn20">[20]</a> HH 331/14</p> <p><a href="#_ftnref21" name="_ftn21" title="" id="_ftn21">[21]</a> Clause 14.1 of agreement on page 127 of the record.</p> <p><a href="#_ftnref22" name="_ftn22" title="" id="_ftn22">[22]</a> See Herbstein &amp; Van Winsen: <em>The Civil Practice of the High Courts of South Africa</em> 5th Ed p 440</p> <p><a href="#_ftnref23" name="_ftn23" title="" id="_ftn23">[23]</a> Clause 14 stated:</p> <p>“14 INDEMNITY </p> <p>14.1         Without prejudice to any of the other rights of the Purchaser arising from any of the provisions of this Agreement, the Seller indemnifies the Purchaser and the Company against all loss, liability, damage or expense which the Purchaser and/or the Company may suffer as a result of or which may be attributable to:</p> <p>14.1.1.     any other liability of the Company which is known or which reasonably ought to have been known arising prior to the Completion Date and not disclosed to the Purchaser prior to the Signature Date; and/or</p> <p>14.1.2      any claims as a result of any breach of contract or delictual/tort act or omission by the Company occurring before the Completion Date and not disclosed to the Purchaser; and/or</p> <p>14.1.3.     a breach by the Seller of the Warranties, which breach shall include legal action being taken against the Purchaser or the Company by a third party in respect of which the Purchaser has relied on a Warranty given by the Seller,</p> <p>(each one a Claim).</p> <p>14.2.        The Purchaser will give fifteen (15) calendar days written notice to the Seller of any Claim to enable the Seller to take steps to resist the Claim, should it wish to do so.</p> <p>14.3         The Seller will be entitled to resist any Claim in the name of the Purchaser or the Company and to control the proceedings in regard thereto, provided that:</p> <p>14.3.1.     the Seller indemnifies the Purchaser and the Company in a manner and form reasonably acceptable to the Purchaser and the Company against all party and party or attorney and own client costs which may be incurred as a consequence of such proceedings and the Purchaser and the Company will be entitled to require the Seller to give security reasonably acceptable to the Purchaser and the Company against such costs;</p> <p>14.3.2.     the Purchaser and the Company will render reasonable assistance to the Seller, at the expense of the Seller, in regard to the proceedings; and</p> <p>14.3.3.     The Company and/or the Purchaser shall have the right to take cover the conduct of such litigation in the event that the Company and/or the Purchaser reasonably believe that it is in their best interest to do so and gives the Seller notice of their intention to do so..”</p> <p> </p> <p><a href="#_ftnref24" name="_ftn24" title="" id="_ftn24">[24]</a> See the claimant’s prayer in its claim to arbitration tribunal at pages 73-75 of record.</p> <p><a href="#_ftnref25" name="_ftn25" title="" id="_ftn25">[25]</a> Pages 52-55 of the record.</p> <p><a href="#_ftnref26" name="_ftn26" title="" id="_ftn26">[26]</a> Paragraph 30.8 of the award on page 54 of the record.</p> <p><a href="#_ftnref27" name="_ftn27" title="" id="_ftn27">[27]</a> Paragraph 44 of the award on page 60 of the record.</p> <p><a href="#_ftnref28" name="_ftn28" title="" id="_ftn28">[28]</a> Paragraph 30.6 of the award on page 54 of the record.</p> <p><a href="#_ftnref29" name="_ftn29" title="" id="_ftn29">[29]</a> Paragraph 25 of the award on page 41 of the record</p> <p><a href="#_ftnref30" name="_ftn30" title="" id="_ftn30">[30]</a> 1952 (3) SA 664 (A) where at 670E Greenberg JA said:</p> <p>“The evidence of these two witnesses, as was to be expected, has not been contradicted by any evidence led on behalf of the defendants, but this fact does not relief the plaintiff of the obligation to discharge the onus resting on him”</p> <p><a href="#_ftnref31" name="_ftn31" title="" id="_ftn31">[31]</a> Paragraph 30.10 of the award on page 54 of the record.</p> <p><a href="#_ftnref32" name="_ftn32" title="" id="_ftn32">[32]</a> Paragraph 30.12 of the award on page 55 of the record.</p> <p><a href="#_ftnref33" name="_ftn33" title="" id="_ftn33">[33]</a> <em>Supra</em> at page 465</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/2021/258/2021-zwhhc-258.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=96214">2021-zwhhc-258.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/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/award-0">Award</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/setting-aside-award">setting aside award</a></li><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/shares">Shares</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-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/1996/6">Arbitration Act [Chapter 7:15]</a></div></div></div> Thu, 10 Jun 2021 10:22:26 +0000 Sandra 10046 at https://old.zimlii.org Manja And 98 Others v Sheriff of Zimbabwe And Another (SC 9-21, Civil Appeal No. SC 252/20) [2021] ZWSC 9 (09 March 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/9 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 9/21</p> <p>Civil Appeal No. SC 252/20</p> <p><strong>REPORTABLE</strong><strong>        (9)</strong></p> <p> </p> <p> </p> <p><strong>ANDERSON     MANJA     AND     98     OTHERS</strong></p> <p><strong>v</strong></p> <ol> <li><strong>SHERIFF     OF     ZIMBABWE      (2)     GURTA     MINING     AG </strong></li> </ol> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MAVANGIRA JA, UCHENA JA &amp; MATHONSI JA</strong></p> <p><strong>HARARE: OCTOBER 23, 2020, &amp; MARCH 9, 2021 </strong></p> <p> </p> <p> </p> <p>Ms. <em>C. Damiso</em>, for the appellant</p> <p>Ms<em>. L .Chirumbwana, </em>for the  first respondent</p> <p><em>S. Bhebhe </em>with<em> H. Muromba</em>, for the second respondent</p> <p> </p> <p> </p> <p><strong>MATHONSI JA:            </strong>This is an appeal against the whole judgment of the High Court handed down on 3 June 2020 which upheld the second respondent’s claim to immovable property and / or mining claims located in Mashonaland West placed under judicial attachment by the first respondent for sale in execution of a judgment. The judgment also saddled the appellants, being the judgment creditors, with costs on the superior scale.</p> <p> </p> <p><strong>THE JUDGMENT</strong></p> <p> </p> <p>The judgment itself, committing as it does, the first seven of sixteen pages to anything else other than the case before the court <em>a quo, </em>represents such a faulty, and indeed unconventional method of judicial articulation, it is staggering.  A lot of time and energy was expended on matters not germane to the issue at hand.</p> <p> </p> <p>                   Indeed, a huge part of the court <em>a quo</em>’s pronouncement constitutes a discussion of those issues which are unrelated to the dispute between the parties.  While it is accepted that the law is an inexact science and that there are many sources of law, the judgment commences by quoting the Holy Bible. It progresses to an extensive citation of “handouts” or lecture notes given by a university lecturer to her 1995 Practical Skills Class.  The lecture notes on drafting court documents are quoted extensively.</p> <p> </p> <p>                   The judgment then proceeds to again quote extensively a 1989 presentation by a “reputable Zimbabwean legal practitioner, notary public and conveyancer” at a Law Society of Zimbabwe Summer School, on “The Technique of Litigation”.  After briefly adverting to the facts of the matter, before the court <em>a quo</em>, the judgment again veers off track to reproduce two stanzas of a Shona song by the judge’s favourite gospel artist.  In terms of s 49 of the High Court Act [<em>Chapter 7: 06</em>] English language is the official language in which proceedings in the court <em>a quo</em> are conducted.</p> <p> </p> <p>                   Yet what was before the court <em>a quo</em> was a simple and straight forward interpleader application requiring the court <em>a quo</em> to determine whether the mining claims which had been placed under judicial attachment for sale in execution of a judgment debt, belonged to the claimant, which is the second respondent herein, or Amble Mining (Private) Limited, the judgment debtor.</p> <p> </p> <p>                   It ought to be said that when the judgment finally addresses the real issues in dispute between the parties, it employs quite inappropriate and injudicious language at times.  An important and central principle of company law, the lifting or piercing of the veil of incorporation, is referred in the judgment as “lifting the corporate petticoat” and going “behind the claimant’s skirt”.  These suggestive undertones make a mockery of critical legal principles.</p> <p> </p> <p><strong>BACKGROUND FACTS</strong></p> <p>                   The appellants were employed by Amble Mining (Private) Limited.  A labour dispute between them and their employer yielded an arbitral award which was registered as a judgment of the High Court.  Upon execution of that judgment, a Chrome Mine comprising of mining claims, 110 compound houses, a shop, 6 round thatched guest houses, 3 separate guest houses and a workshop were seized by the Sheriff.  The Sheriff sought to recover the judgment debt of USD 1 199 251,88.</p> <p> </p> <p>                   Following attachment, the second respondent, a company incorporated in terms of the laws of Switzerland claimed all the property as its own.  The appellants did not admit the claim.  This forced the Sheriff to institute interpleader proceedings in the court <em>a quo</em> to settle the conflicting claims.</p> <p> </p> <p>                   The second respondent admitted that the mining claim once belonged to the judgment debtor.  Its case however was that it had bought the property from the judgment debtor in 2009 during which year it also took transfer of the claims.</p> <p> </p> <p>                   As proof of the sale, the second respondent produced a Board Resolution of a company known as Maranatha Ferrochrome (Private) Limited, the holding company of Amble Mining (Private) Limited.  The second respondent also produced a copy of a certificate of registration of the mining claim issued by the Ministry of Mines and Mineral Development in its name.</p> <p> </p> <p>                   In addition to that, the second respondent also produced two letters written by the Acting Provincial Mining Director for Mashonaland West.  The letters in question are contradictory.</p> <p> The first dated 31 May 2018 stated that the mining claims belonged to the judgment debtor.  The second dated 5 July 2018 apologised for what it referred to as a “gaffe” in the earlier letter and stated that the mining claims belonged to the second respondent.</p> <p> </p> <p>                   The appellants’ case was that there was collusion between the Acting Provincial Mining Director, the second respondent, the judgment debtor and Maranatha Ferrochrome (Private) Limited in order to confound creditors.  The appellants moved for the lifting of the veil of incorporation so as to expose the second respondent, the judgment debtor and Maranatha Ferrochrome (Private) Limited as companies of the same group.  The purported sale of the mining claims would be shown to be a sale between subsidiary companies.</p> <p> </p> <p>                   The court <em>a quo</em> found that after producing the documents I have alluded to the second respondent had discharged the <em>onus </em>of proving ownership.  It had set out a <em>prima facie </em>case of ownership which had the effect of shifting the <em>onus</em> to the judgment creditors, the appellants herein, to prove otherwise.  The court <em>a quo</em> further found that the appellants did not adduce any evidence.  As such, the <em>prima facie</em> case provided by the second respondent “mutated” to proof of ownership.</p> <p> </p> <p>                   The appellants were aggrieved and noted this appeal on 4 grounds.</p> <p> </p> <p><strong>GROUNDS OF APPEAL</strong></p> <ol> <li>The court <em>a quo</em> grossly erred by granting interpleader claim in the circumstances where the second respondent failed to prove ownership of the attached property on a balance of probabilities.</li> <li>The court <em>a quo</em> grossly erred by failure to consider connivance between the judgment debtor and the second respondent to defeat execution of a court order.</li> </ol> <p>3.      The court <em>a quo</em> grossly erred by shifting the burden of proof to the appellant instead of  the second respondent.</p> <ol> <li>The court <em>a quo</em> erred by granting costs on an attorney client scale against the appellants where there was no basis for such.</li> </ol> <p> </p> <p><strong>THE APPEAL</strong></p> <p>                   Although there are four grounds of appeal, they crystallise around essentially one issue that falls for determination in this appeal.  It is whether the court <em>a quo </em>erred in upholding the claimant’s claim to the property.</p> <p> </p> <p>                   It was submitted on behalf of the appellants that the second respondent did not discharge the burden of proving ownership because the evidence tendered by the second respondent shows that itself, Maranatha Ferrochrome (Private) Limited and the judgment debtor are one and the same thing.  The whole arrangement, so the argument goes, to transfer the mining claims from the judgment debtor to the second respondent was meant to shield the property from execution.</p> <p> </p> <p>                   To illustrate that point, counsel for the appellants drew attention to the Board Resolution relied upon as evidence of the existence of a sale agreement involving the mining claims.  It was argued that a resolution is not a sale agreement but is a pre-requisite for the conclusion of a sale agreement by a company.  If indeed the judgment debtor had gone on to enter into an agreement of sale in terms of which it alienated the property to the second respondent, it was argued, then the latter would have produced, not only the agreement of sale, but also proof of payment as consideration for the mining claims.</p> <p> </p> <p>                   Apart from that, counsel submitted, the fact that it is common cause that Andrew Lawson, who attended the Board of Directors’ meeting of 13 October 2009 in Italy at which the resolution was made, is also a director of the judgment debtor, is suggestive of the resolution being a sham and the transfer of the claims being an elaborate hoax.</p> <p> </p> <p>                   In view of its centrality in the resolution of this appeal, the resolution, which is an extract from the minutes of an Extraordinary Meeting of the Board of Directors of Maranatha Ferrochrome (Private) Limited held on 13 October 2009 is reproduced below:</p> <p>“Minutes of an Extraordinary Meeting of the Board of Directors of Maranatha Ferrochrome (Pvt) Ltd held on Tuesday 13 October 2009 in the offices of Sineco Spa in Ceparano, Italy.</p> <p>          Present:                Mr Gialuigi Ghezzi- Chairman</p> <p>                                       Mr Giorgio Barelli – Director</p> <p>                                       Mr Andrew Lawson-  Director</p> <p>          Apologies             Mr. George Mashavatu – Director.</p> <p>The following resolutions were agreed and passed unanimously by the board of directors of Maranatha Ferrochrome (Private) Limited-</p> <ol> <li>Maranatha Ferrochrome (Private) Limited hereby agrees to sell all mining claims and leases owned by this company and its subsidiary, Amble Mining (Pvt) Ltd, Gurta A.G. of Switzerland.  These claims are, in total, to be sold for  a sum of  USD 1 350 000 (one million three hundred and fifty thousand united state dollars).  It was noted that Mr. Andrew Lawson has authority to sign and accept ownership of the said claims and mining lease on behalf of Gurta A.G. by means of a Power of Attorney from Gurta A.G.</li> <li>Mr Keith Beck –ID NO.-32-058218 N 00 is hereby empowered to transfer ownership of the above - mentioned mining claims and leases on behalf of Maranatha Ferrochrome (Pvt) Ltd and Amble Mining (Private) Limited.” (The underlining is for emphasis).</li> </ol> <p> </p> <p> </p> <p>                   A simple interpretation of this resolution, which is obviously not an agreement of sale, is that Andrew Lawson, a director of the alleged seller of the mining claims (Maranatha) was given a power of attorney by the alleged purchaser of those claims, the second respondent, to receive delivery of the claims from the same seller in which he is a director.  He was to hold the claims on behalf of the alleged new owner.</p> <p> </p> <p>                   This was a classic case of the seller selling to itself.  It is also remarkable that after agreeing to sell the mining claims the alleged seller does not appear to have progressed further to accomplish the mission.  No sale agreement was produced.  In addition, the closest the second respondent came to proving movement of funds to purchase the claims, is an invoice dated 18 December 2018 setting out the values of the 54 Blocks of Ngezi Mining claims being US$1 050 000.00.  It also shows the value of the 6 Blocks of Mapanzura Mining claims, being US$300 000.00.  It is needless to say that the invoice, being neither a receipt nor a bank statement, does not prove anything.  I mention in passing that if indeed money had changed hands, the second respondent would not have had any difficulties producing proof of payment.</p> <p> </p> <p>                   Counsel for the appellants also made reference to the lease agreements produced by the second respondent.  Again because of its importance in shedding light to the dispute between the parties, I reproduce the pertinent part of the standard document hereunder:-</p> <p>               <strong>“LEASE AGREEMENT</strong></p> <p>A settlement agreement was negotiated between Upthrow Trading Private) Limited, Maranatha Ferrochrome (Pvt) Ltd, Amble Mine (Private) Limited, Gurta AG, Glossy Investments (Private)limited and Honourable Paul Mangwana and signed in Italy on 3 October 2013. In terms of this settlement agreement, following the completion of the handover of the mining claims, Maranatha Ferrochrome (Private) Limited representing Gurta AG who are the legitimate owners of the mining claims in Ngezi do hereby offer the Lease Agreement Arrangement for the property known as:-</p> <p> </p> <p>         <strong>WHITE HOUSE ROOM 3</strong></p> <p>The lessee hereby agrees to rent the said property (on) for a period of 3 months with effect from  1 September 2015 expiring on 3 November 2015 subject to the payment of monthly rentals amounting to US$25.00 to Maranatha Ferrochrome (Private) Limited .  Lease maybe terminated by either party giving two weeks as notice of termination” (The underlining is for emphasis)</p> <p> </p> <p> </p> <p>                   Again a simple interpretation of the lease agreements which the second respondent entered into with its alleged tenants shows that 6 years after the second respondent had purportedly purchased the mining claims and their environs from the judgment debtor, the latter was still being listed on the lease agreements as having an interest in the property.  Not only that, the second respondent was still not visible on the ground to an extent that the leases were written on the letterhead of Maranatha Ferrochrome (Private) Limited, the parent company of the judgment debtor.</p> <p> </p> <p>                   If that set of facts was not disconcerting enough, then it should indeed be remarkable to note that Maranatha Ferrochrome (Private) Limited was also receiving rentals for the leased properties.  Those facts cannot be ignored.</p> <p> </p> <p>                   The documents from the Ministry of Mines and Mineral Development relied upon by the second respondent had their own challenges.  Counsel for the appellant submitted that the certificate of registration purportedly showing that the claims had changed hands was a photocopy.  Although the second respondent was challenged to produce the original, it failed to do so.  </p> <p> </p> <p>                   More importantly, when the Ministry was requested to confirm the status of the mining claims, it initially wrote a letter dated 31 May 2018 signed by one M. Maisera, the Acting Deputy Provincial Mining Director for Mashonaland West, which states in part:</p> <p>“This office acknowledges receipt of your letter dated 24 May 2018 in which information of mines held by Amble Mining (Private) Limited is requested.</p> <p>According to records held by this office, Amble Mining (Private) Limited is the holder of the following chrome blocks……”</p> <p> </p> <p> </p> <p>                   It is common cause that the listed blocks are those that were placed under attachment and form the dispute between the parties.  There may have been a change of the Acting Provincial Mining Director for Mashonaland West because on 5 July 2018, <em>S.Mpindiwa</em>, writing under that title, was singing a different tune.</p> <p> </p> <p>                   In <em>Mpindiwa</em>’s letter to the appellants’ legal practitioners, he/she apologised for what he/she referred to as “a gaffe” in stating that the judgment debtor owned the mining claims.  Instead, that office then stated that the mining claims were long transferred to the second respondent.  Unfortunately the letter did not explain how the “gaffe” came about.</p> <p> </p> <p>                   Ms <em>Damiso</em> for the appellants pointed to this contradiction as proof of collusion or</p> <p>at the very least, that the information from the Ministry of Mines could not be relied upon.</p> <p> </p> <p> </p> <p>       Mr <em>Bhebhe</em> who appeared for the second respondent, strongly defended the judgement of the court <em>a quo</em>.  He submitted that sufficient proof of ownership of the property in dispute was produced by the second respondent in the form of the certificate of registration of the mining claims in the second respondent’s name and the confirmation letter from the Mines Ministry.  Mr. <em>Bhebhe</em> insisted that the court <em>a quo</em> was correct in finding that the second respondent had managed to adduce <em>prima facie</em> evidence of ownership.</p> <p> </p> <p>Mr. <em>Bhebhe</em> further submitted that the court <em>a quo</em> could not possibly pierce the corporate veil because the appellants never asked it to do so.  In addition, so it was argued, there exists no grounds for piercing the veil in the circumstances of this case.  In my view that argument is misleading.  On that issue the court <em>a quo</em> pronounced itself at p 14 of its judgment thus:-</p> <p>“Still on lifting the corporate petticoat (<em>sic</em>)of Gurta and peering behind it, I see no other exceptional circumstance justifying the same.  The judgment creditors told me both in heads of argument and at the hearing that Maranatha Ferrochrome (Private) Limited, the judgment debtor, and the claimant are a single economic entity.  I was therefore invited to go behind the claimant’s skirt (<em>sic</em>), disregard the three companies’ separate corporate personalities and order execution of the mining claim even though registered in the claimant’s name to satisfy the judgment debt owed by Amble Mining (Private) Limited.  Mr <em>Zimudzi</em> referred me to <em>Deputy Sheriff Harare v Trinpac Investments (Private) Limited and Anor</em> HH 121/11.</p> <p>That case is distinguishable.  Here, there is no evidence at all as to who the shareholders of the claimant are.  There is completely no evidence to prove that they are the same persons as the shareholders of the judgment debtor and its holding company, Maranatha Ferrochrome (Private) Limited.  Neither is there any evidence that the directorship of the claimant is the same as that of the other two companies.  The bare allegation that claimant is a ‘baby’ of the ‘Ghezzi family’ was not substantiated.  I therefore refuse to interfere with claimant’s corporate regalia”.</p> <p> </p> <p> </p> <p>                   It is apparent from the foregoing passage in the judgment that indeed the court <em>a quo</em> was invited to lift the corporate veil.  It considered the submissions made justifying such course of action and rejected them.  The issue before this Court now is the correctness of that finding.</p> <p> </p> <p><strong>APPLICATION OF THE LAW TO THE FACTS</strong></p> <p>Although the evidence of ownership of the mining claims was discredited by the appellants, in my view the case turns on whether the second respondent, as the claimant, could be said to be a different entity from the judgment debtor sufficiently to disentitle the appellants from executing against the mining claims.</p> <p> </p> <p>                   The position of the law regarding the separate legal <em>persona</em> principle is well established.  It was succinctly articulated by PATEL J (as he then was) in <em>Deputy Sheriff Harare v Trinpac Investments (Private) Limited and Anor</em> 2011 (1) ZLR 548 (H) at 552 and A-C where the learned judge quoted with approval Cape<em> Pacific Limited</em> vs <em>Labner Controlling Investments</em> <em>(Private)</em> <em>Limited</em> &amp; <em>Ors</em> 1995 (4) SA790 (A) at 803 – 804:</p> <p>“It is undoubtedly a salutary principle that our Courts should not lightly disregard a company’s separate personality, but should strive to give effect to and uphold it.  To do otherwise would negate or undermine the policy and principles that underpin the concept of separate corporate personality and the legal consequences that attach to it.  But where fraud, dishonesty or other improper conduct (and I confine myself to such situations) is found to be present, other considerations will come into play.  The need to preserve the separate corporate identity would in such circumstances have to be balanced against policy considerations which arise in favour of piercing the corporate veil--- And a court would then be entitled to look to substance rather than form in order to arrive at the true facts, and if there has been a misuse of corporate personality, to disregard it and attribute liability where it should rightly lie.  Each case would obviously have to be considered on its own merits.”</p> <p> </p> <p> </p> <p>           This court approved that judgment is <em>Stylianou  &amp; Ors v Mubita &amp; Ors </em>SC 7/17.</p> <p> </p> <p> </p> <p>                   The courts have purposely refrained from attempting to define all the circumstances under which the corporate veil will be lifted.  This has been done commendably to avoid unnecessarily fettering what is clearly the exercise of a wide judicial discretion.  What comes out from the authorities is that the court will disregard a company’s separate personality where an element of fraud or other improper conduct in either the establishment or use of a company or in the conduct of the company’s affairs exists.</p> <p> </p> <p>                   When refusing to lift the veil of incorporation, the court <em>a quo</em> was exercising judicial discretion.  An appeal court is generally loath to interfere with the exercise of discretion.  The basis for interference on appeal is however well settled in this jurisdiction.</p> <p> </p> <p> </p> <p>                    An appeal court may interfere where it appears that some error has been made in the exercise of discretion.  Where the lower court acts on a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, the appeal court will review the lower court’s decision and substitute its own discretion.  See <em>Barros and Anor v Chimphonda</em> 1999 (1) ZLR 58 (S) at p 62 F – 63A.</p> <p> </p> <p>                   I am of the firm view that the court <em>a quo</em> completely disregarded important facts pointing to the inseparable nature of the second respondent and the judgment debtor.  The court <em>a quo</em> completely ignored the evidence showing that even the alleged sale of the mining claims by the judgment debtor to the second respondent was a hoax.  The board resolution which stood as proof of the sale agreement, there being no agreement of sale at all, shows that a director of the seller also represented the purchaser.  Andrew Lawson attended the meeting which resolved to sell the claims to the second respondent as a director of the judgment debtor.  He was part of the decision-making process.</p> <p> </p> <p>                   At the same time, he was the holder of a power of attorney issued to him by the second respondent.  It empowered him to take delivery of the mining claims from the judgment debtor on behalf of the second respondent.  He literally acted as both the seller and the purchaser.  If that does not point to a sham, nothing will.</p> <p> </p> <p>                   That is not all.  The court <em>a quo</em> completely overlooked the lease agreements relied upon by the second respondent.  I have already stated that those agreements were written on Maranatha Ferrochrome (Private) Limited letterhead.  They show that Amble Mine (Private) Limited, the judgment debtor, was also listed as one of the lessors of the premises being leased out.  More importantly, they show that rentals were being paid to Maranatha Ferrochrome (Private) Limited, which is literally the judgment debtor by virtue of its controlling authority over the judgment debtor.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>                   These factors, together with the absence of any evidence pointing to the existence of a proper agreement of sale and the payment of the purchase price, can only lead to one conclusion. It is that there was collusion between the judgment debtor and the second respondent.  Indeed there is no distinction between the judgment debtor and the second respondent.  They are one and the same thing.  The purported transfer of the mining claims from the judgment debtor was an elaborate scheme designed to confound creditors.</p> <p> </p> <p>                   This is a classic case for disregarding the separate corporate personality of the companies in order to assign liability where it belongs.  Corporate personality is being misused in order to dodge liability and for that reason policy considerations require that it be disregarded.  The appeal has merit given that the court <em>a quo</em> clearly misdirected itself in material respects.</p> <p> </p> <p>                   The appellants asked for costs to be awarded on the higher scale owing to the dishonest manner in which the second respondent conducted itself.  No good case for such a punitive measure has been made, but there is no reason why costs should not follow the result in the usual manner.</p> <p> </p> <p>                   In the result, it is ordered as follows:</p> <ol> <li>The appeal be and is hereby allowed with costs.</li> <li>The judgment of the court <em>a quo</em> be and is hereby set</li> </ol> <p>aside and substituted with the following:</p> <p>“ (a)The claimant’s claim to all the property which was</p> <p>placed under attachment in execution of the</p> <p>judgment in case number HC 5852/17 be and is hereby dismissed</p> <p>   (b) A certain Chrome Mine, comprising of the mining claim, being a block of 25 mining claims known as BEE 47, registered as number G 31 OBM be and is hereby declared executable.</p> <p>    (c) The claimant shall bear the costs" </p> <p> </p> <p><strong>MAVANGIRA JA:</strong>                           I agree</p> <p><strong>UCHENA JA:</strong>                                   I agree</p> <p><em>Zimudzi &amp; Associates, appellant’s legal practitioners</em></p> <p><em>Dube –Banda Nzarayapenga, 1st respondent’s legal practitioners</em></p> <p><em>Messrs Kantor &amp; Immerman, 2nd respondent’s legal practitioners</em></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/supreme-court-zimbabwe/2021/9/2021-zwsc-9.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40455">2021-zwsc-9.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/supreme-court-zimbabwe/2021/9/2021-zwsc-9.pdf" type="application/pdf; length=546147">2021-zwsc-9.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/corporate-veil">Corporate veil</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><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/interpleader-proceedings-0">Interpleader proceedings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/property-attached-execution">property attached in execution</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/judgment-practice-and-procedure">Judgment (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/correction-judgment">correction of judgment</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/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Thu, 03 Jun 2021 10:08:29 +0000 Sandra 10017 at https://old.zimlii.org Breckridge Investments (Pvt) Ltd v RioZim Limited And 2 Others; Breckridge Investments (Pvt) Ltd v RioZim Limited And 3 Others (HH 19-21, HC 1380-1/20) [2021] ZWHHC 19 (25 January 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/19 <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>1.         BRECKRIDGE INVESTMENTS (PVT) LTD                                          HC  1380/20      versus</p> <p>            RIOZIM LIMITED                                                                           </p> <p>            and</p> <p>            NORTH RAND (PVT) LTD                                                                         </p> <p>            and</p> <p>            MINISTER OF MINES AND MINING DEVELOPMENT          </p> <p> </p> <p>2.         BRECKRIDGE INVESTMENTS (PVT) Ltd                                              HC 1381/20</p> <p>            versus</p> <p>            RIOZIM LIMITED</p> <p>            and</p> <p>            NORTH RAND (PVT) LTD</p> <p>            and</p> <p>            SHERIFF OF THE HIGH COURT</p> <p>            and</p> <p>            MINISTER OF MINES AND MINING DEVELOPMENT</p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUNANGATI-MANONGWA J</p> <p>HARARE, 7 September 2020 &amp; 25 January 2021</p> <p> </p> <p><strong>Opposed Matter</strong></p> <p><em>Z. Lunga</em>, for the applicant</p> <p><em>T.L Mapuranga</em>, for the 1st respondent</p> <p><em>C Chitekuteku</em>, for the 4th respondent</p> <p>            MUNANGATI-MANONGWA J: This matter is a consolidation of two cases HC 1380/20 and HC 1381/20 the parties of which are the same. In both matters, rescission of judgment is being sought. In HC1380/20, the applicant seeks the following relief:</p> <ol> <li>The rescission of the judgment in HC 4945/18.</li> <li>The joinder of the Applicant in Case No. HC 4945/18</li> <li>That the 1st Respondent serves the Applicant with a copy of the application and founding affidavit in HC 4945/18 within 4 days from the date of this order being granted.</li> <li>That Applicant is granted 10 days within which to file its opposition and opposing affidavit.</li> </ol> <p>The relief sought in HC 1381/20 is as follows:</p> <ol> <li>The rescission of the judgment in Case No. HC 8198/20.</li> <li>The joinder of applicant as respondents in HC 8198/20.</li> <li>That 1st respondent serves the applicant with a copy of the founding affidavit in HC 8198/20 within four days from the date of this order.</li> <li>That applicant be granted 10 days to file their notice of opposition and opposing affidavits.</li> </ol> <p>The 1st respondent opposed the application. The brief facts of this matter are that on 3 October 1996, 1st and 2nd defendants entered into a Notarial Prospecting Contract and Option Agreement involving 50 (fifty) gold mining claims. In the contract Rio Tinto Zimbabwe Limited (now Riozim Limited, 1st respondent herein) was stated as “the Owner” and North Rand,( 2nd respondent herein) “the Company.” A pertinent clause in the agreement read as follows: “The Owner as the registered and beneficial owner of the said blocks and of the Mining Rights hereby grants to the company, which accepts from it, the sole and exclusive option during this agreement to buy, at any time on or before the 30 day of September, 1997, or such later date as the owner and the Company may agree in writing, the said blocks and all the mining rights relating thereto together with ore and mineral or metalliferous substance…for the sum of ONE MILLION DOLLARS ($1 000 000) (hereinafter referred to as “the initial payment”)…” The total purchase price was US$6 000 000. The other terms of the contract are not relevant in the determination of this application. The 2nd respondent issued out summons against second and third respondents seeking cancellation of the said agreement and transfer of certain claims from the 2nd respondent, back to it.</p> <p>On 6 June 2018, default judgment was granted in favour of the first respondent Riozim, against North Rand (Pvt) Ltd as follows:</p> <ol> <li>The agreement between the plaintiff and the 1st defendant is hereby cancelled.</li> <li>The 2nd defendant (Minister of Mines) shall transfer to the plaintiff all the mining claims registered in the 1st defendant’s name as of the date of this order and listed under annexures RZ3, which claims were transferred to the 1st defendant from the plaintiff pursuant to the agreement dated 3 October 1996.</li> <li>Costs of suit on a legal practitioner client scale.</li> </ol> <p>Apparently the applicant claims that it owns the 20(twenty) mining claims listed in Annex RZ3 referred to in the order. The mining claims are registered in its names. It is this default judgment that applicant herein seeks to rescind. Of note is the fact that the agreement aforementioned pertained to 50 claims and of these, the applicant claims that 20 claims are registered in its name.</p> <p>            Suffice to say after the granting of the initial default judgment the 1st respondent went back to Court and sought another judgment which was granted against North Rand and the Minister of Mines in default on 10 October 2018. The order thereof reads:</p> <ol> <li>      The Sheriff is hereby authorized to sign all papers authorizing the 2nd respondent to transfer the following mining claims from the 1st respondent to the applicant            as contemplated in Section 275 of the Mines and Minerals Act (<em>Chapter 21:05</em>) <ol> <li>      Bono, registered no. 14860 in respect of Gold, 9 claims situated in Kadoma</li> <li>      Bono 2 registered no, 14770, in respect of Gold, 9 claims situated in Kadoma</li> <li>      Bono 3, registered no. 14771, in respect of Gold, 10 claims situated in Kadoma</li> <li>      Blue Streak, registered no.12918, in respect of Gold, 10 claims situated in Kadoma</li> <li>      Blue Streak 2, registered no.12989, in respect of Gold, 10 claims situated in           Kadoma</li> <li>      Blue Streak  8, registered no.14132, in respect of Gold, 10 claims situated in          Kadoma</li> <li>      Blue Streak 9, registered no.14145, in respect of Gold, 10 claims situated in           Kadoma</li> <li>      Blue Streak 10, registered no.14146, in respect of Gold, 8 claims situated in           Kadoma</li> <li>      Blue Streak 11, registered no.14259, in respect of Gold, 6 claims situated in           Kadoma</li> <li>Blue Streak 12, registered no.14260, in respect of Gold, 10 claims situated in         Kadoma</li> <li>Blue Streak 13, registered no.14261, in respect of Gold, 10 claims situated in         Kadoma</li> <li>Concession Hill (W Portion) registered no. 319B, in respect of Gold, 5 claims        situated in Kadoma.</li> <li>Duchess 2, registered no.13938, in respect of Gold, 10 claims situated in    Kadoma</li> <li>Hilldene M, registered no 14144, in respect of Gold, 7 claims situated in    Kadoma</li> <li>Homelands 2, registered no.14143 in respect of Gold, 10 claims situated in            Kadoma</li> <li>Pickstone North, registered no.14037 in respect of Gold, 10 claims situated in        Kadoma</li> <li>Peerless, registered no. 8034, in respect of Gold, 10 claims situated in Kadoma</li> <li>Venning, registered no.9315, in respect of Gold, 10 claims situate in Kadoma</li> <li>Warren 2, registered no.14772, in respect of Gold, 10 claims situate in        Kadoma</li> <li>Duchess 3, registered no.6436, in respect of Gold, 11 claims situate in        Kadoma</li> </ol> </li> <li>      Any respondent opposing this application will pay costs of the application.</li> </ol> <p>The applicant herein further seeks rescission of this judgment.</p> <p>            At the hearing of the two applications, the parties agreed that, if rescission of the judgment in HC 4945/18 (the initial order) is granted, the other default judgment, which sought execution, should also be set aside. The court acceded to the request as the proper course of action to follow as the second judgment/order was premised on the first order and simply sought to attain execution.</p> <p>                  It turns out that I granted the two orders for which rescission is being sought. The applicant seeks rescission of the initial order in terms of Rule 449 (1)(a).The applicant’s case is that it is the owner of the 20 (twenty) aforementioned claims which are stated in the order as listed under Annexure RZ3.The claims are registered in its name and it has proof of ownership by way of certificates. The applicant submits that it was not aware that there were court proceedings instituted in this Court which pertained to its claims. It only became aware of the case through the media when it was reported that the third respondent, Minister of Mines was found to be in contempt of court for failure to comply with the aforementioned court orders to transfer the claims to first respondent and was thus sentenced to 90 days imprisonment.</p> <p>                  It its founding affidavit the applicant submits that the order was granted in its absence. As the registered holder of the mining claims applicant’s rights and interest in those rights are affected by the order. Further, that the order was granted in error in that it directed second respondent to transfer the mining claims to first respondent when second respondent was not the registered holder of the rights. The applicant further submitted that had the Court known that the mining claims were registered in the applicant’s names it would not have granted the order to first respondent.</p> <p>                  The applicant further submits that it was not a party to the agreement between the first respondent and the second respondent. It was not bound by that agreement hence there was no cause for the transfer of its rights to first respondent. The applicant further submits that clause 4 of the agreement between first and second respondent showed that the agreement had expired by effluxion of time. The applicant thus argued, had the court known that the agreement did not bind applicant the registered holder of rights, and that the agreement between first and second respondent had expired it would not have granted the order. Mr <em>Lunga</em> for the applicant argued that it is because of the assertion by the first respondent that the second respondent was the holder of the mining claims that the court granted the order. He submitted that no court fully conversant of the state of affairs would have proceeded to grant the order had the full facts been known, as this goes against the principle that a party cannot transfer that it does not have.</p> <p>                  The first respondent opposed the matter. Its initial stance was that the claims, which the order pertains to, are in the names of the second respondent. This respondent stated that applicant wants to irregularly invite itself in a matter in which it has no legal interest. The court notes that in all its opposition papers in both HC 1380/20 and HC 1381/20 the first respondent denies that the claims stated in the orders belong to the applicant arguing that the claims are different. In HC 1380/90 there is outright denial that the claims are the same (see p 102 para 5-11). The first respondent categorically stating in para 11 that “The claims to which the order of the court pertains are in the name of second respondent. The order does not relate to claims which are in the name of the applicant.” These averments are maintained in HC1381/20 from para 5-11. This stance was maintained until the day of hearing when ultimately there was a concession that the claims are the same.</p> <p>The first respondent maintained in opposition that the agreement has nothing to do with the applicant and at any rate, the second respondent a party to the agreement refrained from raising any argument on the status of the agreement. The respondent further stated in the affidavit filed on its behalf that it is incompetent to seek a joinder consequent upon the granting of an order in terms of r 449 and prayed for the dismissal of the application with costs on a higher scale.</p> <p>            Mr <em>Mapuranga</em> for the first respondent argued that rule 449 is not applicable <em>in casu</em> in that the errors that the applicant seeks to rely on are not errors of form or procedure. He submitted that before the summons were issued it was verified with the Ministry of Mines and the respondent was advised that the claims were registered in North Rand’s names. This therefore was an error of substance so he argued<em>. </em>He further submitted that the option agreement was attached to the application hence the court should have been aware of the provisions of paragraph 4 which related to the expiry of the agreement. He argued that in any case it was the main agreement that it sought cancelled. That being so, the court was <em>functus officio.</em> Mr <em>Mapuranga</em> further submitted that paragraph 1 of the order that granted cancellation of the agreement cannot be rescinded as the second respondent, North Rand was duly served and it did not defend the matter. However, the order could be rescinded in part.</p> <p>    In what seems to be an about turn, Mr Mapuranga submitted that as the order seeks transfer of the claims in the name of North Rand and not in the names of any other party, if the claims are in a third party’s name the order will just be <em>brutum fulmen</em>.</p> <p>   In seeking rescission of judgment in terms of r 449 an applicant needs to satisfy the following requirements:</p> <ol> <li>That the judgment was erroneously sought and granted</li> <li>That the judgment was granted in its absence</li> <li>That the judgment affects its rights or interests</li> </ol> <p>            See <em>Tiriboyi </em>v<em> Jani &amp; Anor</em> 2004 (1) ZLR 470. Makarau JP as she then was held at p472 D-E that “the purpose of r449 appears to me to be to enable the court to revisit its orders and judgments to correct or set aside its orders or judgments given in error and where to allow such to stand on the excuse that the court is <em>functus officio</em> would result in an injustice and will destroy the very basis upon which the justice system rests.’’</p> <p>            The issue therefore is whether it is proper in the circumstances to revisit this judgment? Was the order given in error? Whether maintaining the order will result in an injustice. In making, this enquiry the court is conscious to the fact that it needs not enquire into the merits of the matter to find good cause. GUBBAY CJ (as he then was) held in <em>Grantully (Pvt) Ltd &amp; Anor</em> v <em>UDC Limited</em> 2000 (1) ZLR 361 (S) “For there is no requirement that an applicant seeking relief under Rule 449 must establish “good cause.” If a court establishes that a judgment or order was erroneously granted in the absence of a party affected, it may be corrected, rescinded or varied without further enquiry. It is apparent from the Summons upon which default judgment was obtained, that the first respondent claims to have transferred the mining blocks in issue to the second respondent. (See p 66 paras 4 and 7 of the declaration). Precisely paragraph 4 states:</p> <p>             “ The plaintiff entered into a Notarial Prospecting Contract and Option Agreement with       the       1st defendant on the 3rd October 1996 wherein it transferred various blocks of mining    claims attached hereto as “Annexure RZ1’’ to the first defendant.”</p> <p>            The above is further buttressed by the contents of paragraph 7 which states that upon the payment of the initial sum of US$1 000 000 (One million dollars) to 1st respondent, the 1st respondent Riozim “duly facilitated the transfer of the claims to first  defendant (second respondent North Rand). In the affidavit of evidence filed under the application for default judgment in HC 4945/18 the same averment is repeated in para 5 on p 38. Despite these assertions, it is common cause that 20 (twenty) out of the 50 (fifty) claims that are covered by the default judgment are in the name of applicant. The applicant provided proof of such ownership by way of certificates of registration. The court was thus made to believe that all the claims listed in the draft order were in the names of the second defendant. In that regard, retransferring them to the first respondent was legally proper. If therefore information had been placed before the court that twenty of the claims were in actual fact registered in the names of the applicant the order would not have been granted in the nature and form in which it is. There would not have been any <em>causa</em> or reason for the transfer in the absence of a contract or a legal obligation by applicant towards the first respondent. The issue of ownership was thus not placed before the judge which information was vital. The court thus erroneously granted the order in the absence of the other party who had a legal interest in the matter in so far as the subject pertained to it in terms of ownership rights. In the circumstances the court is not <em>functus officio</em>. To leave the order intact as the first respondent has suggested on the basis that the order is <em>brutum fulmen</em> is not proper. Litigants cannot send the courts on a wild geese chase and obtain orders, which they can then shelve because they are not executable.</p> <p>            The second argument by the applicants that the judgment was granted in error because the contract between the first respondent and the second respondent had expired cannot be sustained. This is because of the issue of privity of contract. The applicant is not a party to the contract and the concerned party did not defend the matter. As a third party the applicant cannot therefore seek to rely or base its case on the terms of a contract to which it is not party to. The applicant’s interest being limited to the protection of its assets.</p> <p>The applicant further seeks to be joined to the proceedings should rescission be granted. The application which has been combined with the one for rescission is clear that joinder is being sought in terms of Rule 87 Order 13. Whilst the court questions the wisdom of joining the applications it finds that it is not fatal as the averments pertaining to joinder are clearly distinct. Joinder is not being sought in terms of r 449. An application for joinder can be made at any stage. In <em>Shumbairerwa </em>v<em> Chiraramiro &amp; Ors</em> HH731/15 this court held that the purpose of r 87 (2) (b)</p> <p> “is to prevent unnecessary multiplicity of litigation and to facilitate the speedy and wholesale             resolution of disputes by ensuring that everyone whose legal interests are likely to be affected          by the outcome of the proceedings is joined as a party to the proceedings. This ensures that all interested parties are aware of the proceedings, and advised of the outcome, which gives them      an opportunity to protect their interests and fight for their rights…” </p> <p>           Thus the applicant needs to satisfy the following for them to be joined as a party:</p> <ol> <li>  A party must have a direct and substantial interest in the issues raised in the proceedings before the court; and that;</li> <li> His rights may be affected by the judgment of the court.</li> </ol> <p>            Given the facts of this matter the court is satisfied that the applicant has satisfied the requirements for joinder.The court finds that the applicant has a direct and substantive interest in the issues raised in the proceedings and not just a financial interest. It is the owner of 20 mining claims which are subject of the proceedings and its ownership rights are at stake. The court being satisfied that the requirements for rescission of the default judgment have been met and the grounds for joinder satisfied, it is justiciable that the applicant’s prayer for joinder be granted.</p> <p>            The court however finds merit in Mr <em>Mapuranga</em>’s argument that there cannot be a blanket rescission of judgment in this case. Clause 1 of the order in HC4945/18 provides for the cancellation of the agreement between the plaintiff (first defendant <em>in casu</em>) and the first defendant (second respondent). There is no need for the court to interfere with this relief as the applicant has no interest in that contract and furthermore the first defendant thereat had not defended the matter. It is clause 2 which needs to be set aside in so far as it relates to the applicant. This is a case which it was not necessary for the first respondent to go all out and defend as parties could have made necessary concessions and saved time and costs. For this conduct, the court would have ordered costs against the first respondent. However the  applicants have submitted that they will not insists on costs, so no order for costs will be issued.</p> <p>In view of the concession by the first respondent that if rescission of the order in HC 4945/18 is granted the rescission of the order in HC8198/18 automatically follows, the court therefore will grant the application as prayed for with necessary amendments.</p> <p>            In the result, the following order is made:</p> <ol> <li>Clause 2 of the order issued in default in HC4945/18 which reads:</li> </ol> <p>“The 2nd defendant shall transfer to the plaintiff all the mining claims registered in the 1st defendant’s name as of the date of this order and listed under annexures RZ3, which claims were transferred to the 1st defendant from the plaintiff pursuant to the agreement dated 3 October 1996” be and is hereby rescinded.</p> <ol> <li>Clause 3 of the same order pertaining to an award of costs is set aside.</li> <li>The applicant be and is hereby joined to the proceedings in HC 2587/18 as third defendant.</li> <li>The 1st respondent shall serve summons in HC 2587/18 upon the applicant within 5 days calculated from the first business day following the last day of the lockdown period.</li> <li>Thereafter the matter to proceed in terms of the rules.</li> <li>The application for rescission of the default order in HC 8198/20 be and is hereby granted.</li> <li>There is no order as to costs.</li> </ol> <p><em>Lunga Attorneys</em>, applicant’s legal practitioners</p> <p><em>Coghlan, Welsh and Guest</em>, 1st respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</em>, 4th 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/2021/19/2021-zwhhc-19.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32136">2021-zwhhc-19.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/2021/19/2021-zwhhc-19.pdf" type="application/pdf; length=448292">2021-zwhhc-19.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/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cancellation">Cancellation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach-one-party-obligations">breach by one party of obligations</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/parties-0">Parties</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><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/rescission-judgment">Rescission of judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-rescission-judgment">application for rescission of judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-rescission-judgment">principles (Rescission of judgment)</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/2004/117">Tiriboyi v Nyoni Jani and Another ( HH 117-2004 ) [2004] ZWHHC 117 (25 May 2004);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/731">Shumbairerwa v Chiraramiro &amp; Others (HH 731 -15 HC 1321/14 Ref Case No. HC 4963/13) [2015] ZWHHC 731 (17 September 2015);</a></div></div></div> Mon, 29 Mar 2021 09:11:49 +0000 Sandra 9986 at https://old.zimlii.org Mahudu & Anor v Gwishiri & 3 Ors; Gwishiri & Anor v Mahudu & 2 Ors (HH 64-21, HC 89/21) [2021] ZWHHC 64 (17 February 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/64 <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.         JOHN MAHUDU                                                                                             HC 89/21</p> <p>            and</p> <p>            CHABVONGA MINING SYNDICATE</p> <p>            versus</p> <p>            MELVIN GWISHIRI</p> <p>            and</p> <p>            PROVINCIAL MINING DIRECTOR</p> <p>            MASHONALAND EAST PROVINCE</p> <p>            and</p> <p>            MINISTER OF MINES AND MINING DEVELOPMENT</p> <p>            and</p> <p>            OFFICER COMMANDING ZRP CID FLORA AND FAUNA</p> <p>            MASHONALAND EAST PROVINCE</p> <p> </p> <p>2.         MELVIN GWISHIRI                                                                                                   HC 90/21</p> <p>            and</p> <p>            CHABVONDOKA MINING SYNDICATE</p> <p>            and</p> <p>            JOHN MAHUDU</p> <p>            and</p> <p>            ACTING PROVINCIAL MINING DIRECTOR</p> <p>            MASHONALAND EAST PROVINCE N.O</p> <p>            and</p> <p>            MINISTER OF MINES AND MINING DEVELOPMENT N.O</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZOFA J</p> <p>HARARE, 8 &amp; 17 February 2021</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p>MUZOFA J: This judgment disposes of two matters dealing with predominantly the same parties and the dispute relates to the same piece of land.</p> <p>At the centre of these two urgent chamber applications is a dispute in respect of a certain piece of land situate in the communal land of Madicheche, Pfungwe under Chief Chitsungo herein after referred to as the mining location. John Mahudu ‘Mahudu’ is the applicant in HC 89/21. He alleges that the land is part of his field and it is currently under cultivation. Mahudu discovered some gold deposits in the field. Together with some partners Mahudu constituted Chabvondoka Mining Syndicate (hereinafter referred to as the Syndicate) to process documents to lawfully extract the wealth in the land. To his chagrin Melvin Gwishiri prospected in the area and was subsequently issued with a Certificate of registration to mine gold within the precinct of the field. Eventually when Mahudu and the Syndicate submitted its application for registration it was rejected on account of the registration already issued to Gwishiri sometime in December 2021.</p> <p>Gwishiri hit the ground running he assembled equipment and the workforce and commenced mining activities on the mining location. All hell broke loose from then on. The dispute escalated to different offices until it found its way to this court. Mahudu filed a complaint with the Provincial Mining Director in Mashonaland East. It is not in dispute that on the 2nd of February 2021 a meeting was held. Both parties had two representatives in the meeting. An injunction was issued barring any form of mining at the mining location pending dispute resolution between the parties. Both parties did not file the copy of the injunction but there is no dispute about its existence. Both parties attached a letter addressed to the Officer Commanding Mashonaland East Province advising of the injunction. The police were requested to ensure compliance with the injunction.</p> <p>Despite the existence of the injunction that provided an adequate remedy to the parties’ interest until the dispute was resolved, the parties approached this court on an urgent basis seeking relief.</p> <p>In HC 89/21 the applicant, Mahudu seeks in the interim an interdict to compel Gwishiri to comply with the injunction, to vacate the mining location pending resolution of the dispute between the parties by the Provincial Mining Director and the police to assist in the enforcement of the injunction. In the final order the applicant seeks an order to interdict Gwishiri from mining until the dispute between the parties is resolved by the Provincial Mining Director.</p> <p>In HC 90/21 the applicant is Gwishiri and seeks in the interim the suspension of the injunction and to bar Mahudu and the Syndicate from interfering with his mining operations. The final order seeks the discharge of the injunction and an order barring the respondents from his mining operations.</p> <p>I comment in passing on the nature of relief sought by both parties in their provisional Orders. Increasingly courts are inundated by applications under cover of urgency whose interim relief is final in nature. Where such is the case the court may as well decline to deal with the matter on an urgent basis.</p> <p>In HC 89/21 the overarching relief is to enforce the injunction until the dispute is resolved. If this court grants such an order, there is no impetus to confirm the order since the interdict granted in the interim has no timeline and can operate in perpetuity. Similarly, in HC 90/21 where the applicant is legally represented the relief sought both in the interim and in the final is to set aside the injunction for the applicant to resume or continue his mining operations. Once the interim relief is granted and the applicant resumes mining operations, he has obtained the relief he wants. Despite that observation I shall not dispose these matters on this issue since both parties did not raise it.</p> <p>Both applications are opposed. I deal with urgency in both matters first before considering the issues raised by the parties.</p> <p>Mahudu is a self-actor. He filed a certificate of urgency under his name certifying the matter to be urgent. He states that he is the owner of the mining location and has always used it for farming. Gwishiri commenced mining operations in December 2020 without his knowledge or consent. On 2 February 2021, an injunction was issued by the Provincial Mining Director   to cease all mining operations at the mining location. Despite such an injunction, Gwishiri has continued with his mining activities. Gwishiri denies that mining operations have continued. That as it maybe, Mahudu states that the continued mining operations have degraded his fields with gullies and toxic chemicals. His crops have been destroyed. This court should issue the order sought on an urgent basis to stop this unlawful conduct.</p> <p>Gwishiri believes the matter is not urgent. Firstly, on account that he started mining operations in December 2020, but the applicant did not approach the court for relief. The delay for this non action was not explained. In my view the submission is informed by a sheer misunderstanding of Mahudu’s cause of action. The cause of action is that, after the Provincial Mining Director issued an injunction Gwishiri defied it and continued with mining operations and not the mere fact of Gwishiri’s mining activities. This point has no merit.</p> <p>I find meritorious the second issue on non-urgency raised by Gwishiri that an extant injunction exists therefore there is no urgency in the matter.</p> <p>A matter is urgent where the circumstances from the cause of action and the nature of the relief sought is such that it cannot wait for ordinary set down. The court will ordinarily consider the cause of action and ask itself if the circumstances require immediate intervention of the court or it can wait. There must be evidence of irreparable harm. The relief sought should be one meant to directly avert the harm threatened or to stop the unlawful conduct and its effects<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>. Courts have also declined to hear matters on an urgent basis for failure by the litigant   to act when the need act arose<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a>.</p> <p>In this case in both the certificate of urgency and the founding affidavit Mahudu avers that an injunction was issued by the Provincial Mining Director ordering stoppage of mining activities at the disputed mining location. In terms of section 354 (5) of the Mines and Minerals Act<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a>  ( the Act) the Mining Commissioner has the administrative power to issue injunctions to safeguard a party’s rights in any mining dispute. Mahudu filed a complaint that Gwishiri was mining in his field. Documents filed of record show that a meeting was held on the 2nd of February 2021 where the Provincial Mining Director recorded in essence that a dispute exists between a miner that is Gwishiri on the one side and Mahudu a farmer whose interests were through  Syndicate on the other. The Provincial Mining Director then advised the police to ensure that no mining activities take place at the mining location. In my view there is already a mechanism to protect Mahudu’s interests. Where an adequate remedy exists and the litigant fails to utilize it, urgency cease to arise. This is not the urgency contemplated at law. The fact that Gwishiri defied the order, which is actually denied does not in itself raise urgency. There is no evidence that the available mechanism has failed to provide effective protection to Mahudu’s interests until the resolution of the dispute. There is no indication that the police were notified about this defiance and nothing happened. The failure by Mahudu to use the available remedy to protect his interests amounts to self-made urgency. The court cannot come to his rescue on an urgent basis.</p> <p>On that basis I find no urgency in the matter.</p> <p>In HC 90/21 Gwishiri, the applicant seeks the suspension of the injunction issued by the Provincial Mining Director in terms of section 354 (7) of the Act and restoration of his mining activities. According to paragraph (7) of the certificate of urgency the injunction engendered illegal mining activities.  The matter is said to be urgent because the injunction issued by the Provincial Mining Director is unlawful since there is no dispute to deal with.  Provincial Mining Director rejected the Syndicate’s application for registration on the in the mining location.</p> <p>The two grounds for urgency set out do not constitute a sufficient basis for this matter to jump the queue and be heard ahead of other matters.</p> <p>The issue of illegal mining activities is already protected in terms of the injunction issued by the Provincial Mining Director. The letter to the Officer Commanding CID Mashonaland East is very clear, I relate to the relevant portion of the letter,</p> <p>‘… this office is hereby suspending all mining operations at the above-mentioned block pending dispute resolution.</p> <p>The Provincial Mining Office is requesting your assistance by ensuring that all mining operations and developments within the above-mentioned mining claim are stopped immediately’ (<em>underlining for my emphasis</em>)</p> <p>In my considered view the Police were requested to ensure not only that Gwishiri does not continue with his mining activities but that all mining activities should cease. That means Mahudu or any other illegal gold miner is not allowed to operate at this mining location. There is no indication that the remedy triggered by the injunction did not provide adequate protection to Gwishiri interests and none was alleged. There is no evidence that Gwishiri reported the issue to the police and they failed to protect his rights. In other words, the court cannot hear a matter on an urgent basis where a remedy already exists unless it is demonstrated that the remedy is not effective. For the same reasons I made out in HC 89/21 I find no merit in this issue.</p> <p>The second issue is that the injunction is unlawful therefore it should be discharged. The basis of the unlawfulness is that there is no dispute for resolution since Chabvondoka’s application for registration was rejected by the Provincial Mining Director. Numerous allegations and counter allegations are made by the parties ranging from corruption, forged signatures, and failure to make full disclosure to the court. I shall not be drawn to those until l dispose of urgency first.</p> <p>The certificate of urgency, the founding affidavit and the heads of argument do not show how the mere unlawfulness of the injunction raises urgency. The legal practitioner who certified this matter as urgent clearly did not address his mind fully to this issue. A matter cannot be urgent because some unlawful conduct has taken place otherwise all matters would be urgent. Courts s exist to deal with matters perceived to be unlawful by litigants. There must be something more besides the unlawfulness for a matter to be classified as urgent. That is the part that is lacking in this case. The heads of argument relied in the main on the judgment by Makonese J<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4">[4]</a>   a court application. It was not dealt with on an urgent basis.</p> <p>I revert to the letter by the Provincial Mining Director of the 2nd of February. The suspension of Reg No 1052 held by Gwishiri a dispute between a miner and a farmer I quote in part the portion relevant to the point I make,</p> <p>‘Following a written complaint by Chabvondoka Mining Syndicate that the mentioned miner has been issued a certificate of registration (ME 1052G) alleging that the certificate was issued on an area with a field belonging to John Mahudu’</p> <p>The letter is very clear that the claim by Mahudu is not that he holds mining rights on mining location but that rights to mine were granted to Gwishiri over his field. By the powers vested in him or her the Provincial Mining Director decided to suspend mining activities pending resolution of the dispute. Clearly the basis of the urgency is misdirected. In any event the administrative body has not delayed nor neglected to deal with the dispute. That has not been alleged. Considering that the decision was made on the 2nd of February and the application was filed on   bearing in mind the exigencies of the lockdown period it is just too much to ask of the administrative to have resolved the dispute. No urgency arises from these issues.</p> <p>From the foregoing clearly both matters lack urgency and the following order is made.</p> <ol> <li>HC 89/21 the matter lacks urgency and I is removed from the roll of urgent matters.</li> <li>HC 90/21 matter removed from the roll of urgent matters for lack of urgency.</li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Gama and Partners,</em> 1st Respondent’s Legal Practitioners.    </p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> Solta Group (Pvt) Ltd and Another v BP Zimbabwe (Pvt) Ltd and Another HH 802/15</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> Kuvarega v Registrar General and Another 1998 (1)ZLR 188 (H)</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> Chapter 21:05</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> Mugangavari v PMD Midlands N.O &amp; Another HB63/20</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/2021/64/2021-zwhhc-64.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28710">2021-zwhhc-64.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/2021/64/2021-zwhhc-64.pdf" type="application/pdf; length=357236">2021-zwhhc-64.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/personal-right-respect-immovable-property">Personal right in respect of immovable property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rights-and-immovable-property">Rights in and to immovable property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</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/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> Thu, 18 Mar 2021 09:47:38 +0000 Sandra 9973 at https://old.zimlii.org Probadek Investments (Pvt) Ltd v Redwing Mining Company (Pvt) Ltd (HH 75-21, HC 104/21) [2021] ZWHHC 75 (24 February 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/75 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>PROBADEK INVESTMENTS (PVT) LTD</p> <p>versus</p> <p>REDWING MINING COMPANY (PVT) LTD</p> <p>and</p> <p>BETTER BRANDS MINING (PVT) LTD</p> <p>and</p> <p>PRIME ROYAL (PVT) LTD</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI  J</p> <p>HARARE 15 February and 24 February 2021.</p> <p> </p> <p> </p> <p><strong>Urgent Chamber Application for leave to sue a company under corporate rescue in terms of section 126 (1) (h) of the Insolvency Act [<em>Chapter 6:07</em>] and for an Interdict in terms of Article 9 of the Arbitration Act [<em>Chapter 7:15</em>]  </strong></p> <p> </p> <p> </p> <p><em>B Makururu, </em>for the Applicant</p> <p><em>R Mukavhi, </em>for the 1st  respondent</p> <p><em>A Masiya</em>, for the 2nd respondent</p> <p><em>S Mpofu</em>, for 3rd respondent</p> <p> </p> <p> </p> <p>            CHITAPI J: The parties in this application as cited above are all duly incorporated and registered companies in terms of the laws of Zimbabwe. They carry out their business in Zimbabwe. From the nature of the dispute as revealed on the papers, the parties are running entities or have an interest in mining. The first respondent is however under a legal handicap in that it was placed under corporate rescue in terms of s 121 as read with ss 124 and 131 of the Insolvency Act, [<em>Chapter 6:07</em>] by the High Court at Mutare on 13 July, 2020. In consequence of the placement of the first respondent under corporate rescue as aforesaid, one Cecil Madondo was appointed the corporate rescue practitioner in the interim. As with the usual duties of a corporate rescue practitioner, Cecil Madondo in his capacity as such took over the administration of the first respondent. This would include, the preparation and consummation of a business plan to rescue the first respondent from going under and restore it to a healthy state businesswise.</p> <p>            At the route of the application is the allegation by the applicant company that it entered into a joint venture agreement with the first respondent on 15 October, 2020 in terms of which the applicant would invest in the first respondent for mutual benefit. The applicant and the first respondent followed up on the joint venture agreement by executing a tribute agreement on 30 November 2020, in terms of which the applicant was granted exclusive rights to mine certain listed claims of the first respondent. The applicant alleged that it then had a notarial tribute agreement prepared and registered with the Ministry of Mines and Mining Development. The respondent in their opposing papers took issue with the authenticity of the registration. I will not make a finding on this point of disagreement either way because of the manner that I have resolved to dispose of the application.</p> <p>            The applicant alleged in the founding affidavit that the first respondent reneged on the agreements aforesaid and concluded other agreements with the second and third respondents thus breaching the agreements which the first respondent had executed with the applicant. In paras 17 to 22 of the founding affidavit, the applicant averred that on an undisclosed date its director became aware that the corporate rescue practitioner Cecil Madondo had entered negotiations with the second and third respondents to have them also invest in the first respondent and was further trying to prevail upon one of the applicant’s directors Grant Chitate to amend the joint venture agreement with the first respondent in order to give room for the involvement of the second and third respondents as co-investors in the first respondent.</p> <p>            Consequent on the outlined developments, the applicant alleges that on 1 December, 2020, the applicant’s directors Grant Chitate held a meeting with Cecil Madondo where Cecil Madondo was alleged to have denied executing any agreements with the second and third respondents. It is alleged that on the following day, 2 December, 2020, the first respondent (sic) sent a text message on Grant Chitate’s phone confirming that “He indeed had signed a mining tribute agreement with the second and third respondents.” The applicant alleged that,</p> <p>             “This was done without the applicant’s consent or knowledge and despite the exclusive rights to     mine conferred on the applicant by the notarial tribute agreement.”</p> <p> </p> <p>            The applicant averred that it then contacted the legal practitioner for the first respondent’s workers and together with a workers representative they went to the offices of the first respondent. They obtained therefrom a copy of the tribute agreement between the first and second respondents in terms of which the latter was granted by the former mining rights to 45 gold claims already covered or included in the prior agreements between the applicant and the first respondent. The averment herein is made in para 19 of the founding affidavit. The applicant did not provide the date of this alleged meeting and its discovery of the tribute agreement annexure “E” to its papers. This annexure was however signed by both the first respondent represented by Cecil Madondo and the second respondent on 1 December, 2020.</p> <p>            The next development in the trail of events going by the applicant’s founding affidavit was the discovery by the applicant that the first respondent had executed another tribute agreement in respect to other claims already subject of the agreements between the applicant and the first respondent. The applicant once again did not state the exact date of the discovery, choosing to use the words “sometime in December, 2020”. The applicant however attached a copy of the tribute agreement between the first and the third respondent as annexure “F”. The copy of the attached agreement is not signed by the first respondent nor is it dated. I refrain from commenting on the agreement contents and its validity as this is unnecessary for purposes of my determination.</p> <p>            The next event was an alleged engagement between the applicant and the first respondent. The applicant deposed in para 21 of the founding affidavit the engagement (s) was “….for purposes of ensuring that the two tribute agreements entered with second and third respondents are rescinded..” The applicant in usual fashion did not give a date (s) of the meetings. The applicant alleged in the same paragraph 21 aforesaid that the first respondent wrote to the applicant, a letter dated 15 December 2020 wherein the first respondent gave the applicant notice to terminate the agreements between them. The applicant did not attach a copy of the letter of intention to terminate the agreement nor did the applicant set out details of its terms. The applicant did not explain what it did about the letter.</p> <p>            The next event according to the founding affidavit was that on 30 December, 2020 the corporate rescue practitioner Cecil Madondo invited the applicants representatives to a meeting to discuss the agreements executed between the first, second and third respondents including the notice of termination of agreements between the applicant and the first respondent. The applicant averred that a resolution was reached at the meeting that the subsequent agreements between the first, second and third respondents</p> <p>            “…had not been signed properly and that the applicant had not breached the J V agreement as it      had purchased machinery worth US$345 000 as appears from the invoice attached hereto as G and        had also paid creditors of the first respondent.”</p> <p> </p> <p>            It does not appear that there were any minutes of the meeting which were recorded as nothing was stated about them in the founding affidavit. Such minutes if available would have assisted the judge to appreciate the nature and content of the deliberations.</p> <p>            Lastly and in regard to the trail of events, the applicant averred in para 24 of the founding affidavit that after the applicant had noted that the first respondent had not advised what steps it had taken to cancel the agreements executed between the applicant and second and third respondents, the applicant instituted court proceedings by way of application under case number “HH (sic) 7276/20 but withdrew it due to technical issues.” In typical fashion of not being specific when alleging events and being coy with facts, the applicant did not give details of what the application was about nor who the parties were. The applicant did not incorporate the said application by reference nor ask the court to refer to it. It is not the duty of the court to dig out material to assist a party to prove its claim or defence as the case maybe. It is the duty of the litigant to place before the court all necessary evidence available to the litigant to advance its cause or defence.</p> <p>            In regard to the institution of this application, the applicant averred that it learnt through “rumours” “sometime in January 2021” that the second and the third respondents were carrying out mining activities despite the assurance by the first respondent that it would cancel agreements between it and second and third respondents. The applicant averred that on 12 January, 2021, it wrote a letter to the first respondent requesting the first respondent’s consent that their dispute be referred for arbitration as provided for in their agreement (s). A follow up letter was written on 18 January, 2021 following a lack of response to the letter of 12 January, 2021. The first respondent then responded on 19 January, 2021 wherein it refused to consent to arbitration. The applicant then deposed as follows in para 25 of the founding affidavit.</p> <p>            “….1st respondent only responded on the 19th of January, 2021 and refused to grant consent. He             resurrected the issue of breach of the J.V agreement. I then decided that the court has to be approached on an urgent basis as people were conducting mining activities and 1st respondent was          not willing to grant consent in terms of the Insolvency Act and to make matters worse, it had      resuscitated the issue of notice of termination, which had been discussed and agreed at the        meeting….”</p> <p> </p> <p>            After receiving the first response dated 19 January, 2021 the applicant decided to approach the court on an urgent basis as now done by this application. The applicant’s deponent to the founding affidavit averred that the applicant could not file the proposed urgent application because her co-director/partner was away in Dubai and she did not have his contact details. She deposed that upon the co-director’s return, he went into COVID 19 induced quarantine. A copy of the co-director’s passport annexed to the founding affidavit shows that the co-director Grant Chitate existed Zimbabwe on 23 December, 2020 and arrived in Dubai on 24 December, 2020. He exited Dubai on a date not clearly shown on the copies of the passport but entered Zimbabwe on 17 January, 2021. It was averred that a meeting could only be held between the applicant’s directors on 3 February, 2021. The meeting culminated in the filing of this application, eight days post the meeting. A resolution to sue the respondents had however been prepared on the day of the meeting on 3 February, 2021.</p> <p>            The applicant further averred that the urgency of filing this application had been informed by the arrest of the Cecil Madondo, the corporate rescue practitioner on 2 February, 2021 for “fraudulently giving second and third respondent mining claims  which belong to applicant.” It is of course false to state that the claims belonged to the applicant. The claims belong to the first respondent with the second and third respondents and applicant being granted rights to mine on the claims. The applicant averred that there was a risk or chances that the second and third respondents would continue to mine the claims without checks and the mined gold would not be accounted for to the prejudice of the applicant should the proposed arbitration be in its favour.</p> <p>            The applicant averred further  that the filing of this urgent application was motivated by the fact that on 3 February, 2021, it discovered that the tribute agreement between the first and second respondents had been approved by the Mining Affairs Board making it a legally binding document. Although the applicant did not state whether or not its own tribute agreement was approved to legalise its operation, it was accepted during the hearing that the applicant’s tribute agreement was yet to be approved by the Mining Affairs Board.</p> <p>            Against the above background facts, the applicant filed this urgent application claiming the following relief:</p> <p>            “TERMS OF THE FINAL ORDER SOUGHT</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.         The Provisional Order is hereby confirmed.</p> <p>            2.         Pending the determination of the dispute between the parties by the process of arbitration                             in terms of the provisions of the Arbitration Act, 1st Respondent shall not take any steps                               neither shall it act in any such manner as is inconsistent with the rights of the Applicant                                arising from the Joint Venture Agreement between the parties and shall not act in such a                               way unless entitled to so act in terms of any Arbitral award that may be handed down.</p> <p>            3.         2nd and 3rd respondents are hereby ordered not to exercise any rights flowing from their                                tribute agreements signed with 1st respondent unless entitled to so act in terms of any                                    Arbitral award that may be handed down.</p> <p>            INTERIM RELIEF GRANTED</p> <p>            Pending determination of this matter, the Applicant is hereby granted the following relief:</p> <p>            1.         Leave to sue the 1st Respondent be and is hereby granted</p> <p>            2.         2nd and 3rd Respondents or any other person be and are hereby interdicted from conducting             any exploration, mining or milling of any mineral from the registered mining claims                          belonging to Redwing Mining Company (Pvt) Ltd (under corporate rescue)</p> <p>            3.         The 1st respondent be and is hereby interdicted from cancelling the Joint Venture agreement                      entered into by and between Applicant and itself on the 15th of October 2020</p> <p>            SERVICE OF PROVISIONAL ORDER</p> <p>            That a copy of this Provisional Order shall be served on the Respondents by the Applicant’s legal             practitioners of record.”</p> <p> </p> <p>            The three respondents filed opposing affidavits and documents challenging the applicant’s application. They all took issue that the application was not urgent. The first respondent averred that the need to act arose on 15 December, 2020 when the first respondent wrote and directed a letter to the applicant wherein it gave the applicant a “notice to Remedy Breach and intention to terminate.” The notice was said to have placed the applicant on terms to remedy identified breaches of failing to provide proof of funding within fifteen days of signature of the joint venture agreement or provision of $USD 1 647 000.00 to provide for the joint venture budget. It was alleged that the breach had not been remedied despite the 30 days’ notice period given. The first respondent further alleged that the applicant on 4 January, 2021 responded to the first respondents letter of intention to terminate the agreement. On 12 January, 2021 the applicant wrote another letter to the first respondent and the first respondent replied that letter on 19 January, 2021. In the letter, the first respondents’ legal practitioners stated that-</p> <p>“We advise that our client is still intent on terminating the joint venture agreement should the breach complained about in the notice aforementioned remain as such by lapse of the notice period.”</p> <p> </p> <p>The first respondent averred that the need to act on the part of the applicant arose on 2 December, 2020 which is the date that it alleges as the first time that the applicant came to know that the second and third respondents had executed tribute agreements with the first respondent. The first respondent averred that the applicant being fully aware that a notice to terminate the agreement was in place and had not been rescinded did not do anything about securing its rights and in fact waited for 58 days post 2 December, 2020 to file this application. The date of filing the application was also about two weeks after the expiry date of the notice to terminate the agreement which the applicant had been granted as the final date by which the applicant should have remedied its alleged breach failing which the agreement would be terminated. The first respondent averred that there was no impediment to the applicant filing an urgent application at that time and that the applicant abstained from asserting its rights early by choice.</p> <p>In regard to the absence of a co-director of the applicant being out of the country and such absence being the cause of the applicant’s delayed filing of this application for want of a board resolution, the first respondent averred that the directors of the applicant being two could have held a virtual meeting but did not do so because they did not treat the matter as urgent. The first respondent averred that the applicant did not have to hope that the notice could be cancelled because the operation of the notice was repeated in the letter dated 4 January, 2021 from the first respondents legal practitioners to the applicants legal practitioners. Further, subsequent letters dated 19 and 26 January reiterated the operation of the notice to remedy being still in force.</p> <p>In relation to the urgency of the matter being based upon the realization by the applicant that the second and third respondents were now mining on the claims in dispute, the first respondent averred that no urgency arises from that realization because as far back as 2 December, 2020, the applicant was aware of the tribute agreements executed between the first, second and third respondents. The first respondent averred that the applicant should have taken action immediately upon its becoming aware of the tribute agreements. The first respondent averred further that it took the applicant two months from 2 December, 2021 to take action against the second and third respondents. Additionally, the first respondent averred that the applicant filed an application against the second and third respondents which application was withdrawn on 11 December, 2020. The first respondent averred that there was no new development post the withdrawal of that application which made the matter urgent.</p> <p>The first respondent also raised preliminary issues on firstly the non-joinder of the corporate rescue practitioner and submitted that the failure to cite the corporate rescue practitioner rendered the application invalid. Secondly the first respondent averred that it was improper for the applicant to seek an interdict in the same application for leave to sue the first respondent.</p> <p>The above points <em>in limine</em> require determination only after the application has been determined to be urgent. I therefore refrain from determining these points until I decide other preliminary issue of the urgency of the application.</p> <p>The second respondent similarly raised the issue of the application not being urgent. It made the same point made by the first respondent that the need for the applicant to act arose on 2 December, 2020 after the applicant as alleged by it, became aware that the first respondent had executed tribute agreements with the second and third respondents in breach of the applicant’s prior agreements with the first response. The second respondent also referred to a withdrawn application case No HC 7274/20. The second respondent referred further to a letter which it wrote to the applicants legal practitioners pointing out to irregularities in the citation of parties in addition to other areas of criticism like the want of leave to sue. The letter was dated 10 December, 2020. The withdrawal of application case No HC 7274/20 was not followed up by another application. The second respondent averred that there was no explanation for the non filing of the application from 3 February, 2021 when the applicants’ co-director arrived back in the country and the filing of this application on 11 February, 2020. The first respondent also took issue with the hybrid application wherein the applicant has filed an application for leave to sue whilst suing for substantive relief for an interdict before the grant of leave. I will again not delve into that because of the decision I have taken to dispose of the application.</p> <p>The third respondent also raised objection that the application is not urgent. By and large the third respondent raised the same points as raised by the first and second respondents on when the need to act arose. The third respondent submitted that the need to act arose on 2 December, 2020 when the applicant got knowledge of the tribute agreements between the first, second and third respondents. It was submitted that the applicant was in possession of the notice to terminate  but waited for the notice to terminate to lapse without seeking to assert its rights. The applicant also filed a defective application which it withdrew. The third respondent also submitted that the physical absence of a co-director of the applicant was not required for purposes of preparing a resolution to sue the respondent. There was a further submission made by the third respondent that the applicant upon the return of the absent co-director did not file the application for nine days post the director’s meeting and did not in that respect treat the matter as urgent.</p> <p>The subject of whether an application is urgent or not is a well travelled road for judicial officers and legal practitioners. There is so much case law on the subject that one would be excused to think that the law is not settled on the subject. I think the law is settled and the case of <em>Kuvarega </em>v <em>Registrar General and Anor</em> 1998 (1) R188 (H) is instructive. It has withstood the test of time and has been consistently followed in this jurisdiction and outside it. The learned Chatikobo J stated as follows;</p> <p>“What constitutes urgency is not only the imminent arrival of the day of reckoning. A matter is urgent if at the time the need to act arise, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay.”</p> <p> </p> <p>Having considered the parties submissions on urgency and considered the affidavits and document filed of record to the extent that they are relevant to the question of urgency, I have come to the conclusion that whilst there may have been engagements between the first respondent and the applicant concerning the agreements executed by the first and, second and third respondents there was no engagement between the applicant and second and third respondents. The need to act in relation to the second and third respondents would have been 2 December, 2020 when the applicant became aware that the first respondent had concluded tribute agreements with the second and the third respondents. The tribute agreements clearly interfered with the claims which were already allocated to the applicant. There is no reasonable explanation offered as to why the applicant did not sue the respondents immediately after it discovered, the existence of the agreement, copies of which were obtained from the offices of the corporate rescue practitioner.</p> <p>It was not disputed that the applicant filed a defective application before the court which it withdrew. After withdrawing it, a properly prepared application was not immediately filed. No explanation was given for leaving the withdrawn application to die a natural death without properly resuscitating. When an application is withdrawn because of irregularity of procedure but it was dealing with an urgent matter, a failure to then immediately pursue the same matter is a sign that the matter is no longer urgent from the applicant’s perspective.</p> <p>The applicant’s explanation that it could not file an application in the absence of a Board resolution is unreasonable. The meeting could have been virtually held or even discussions held over the phone. And at best the issue could have been discussed immediately upon the arrival of the co-director. The applicant averred that the co-director had to be quarantined upon his return and that the meeting could not be held before the co-director’s quarantine period was completed. Again this explanation is not reasonable. The quarantine status of the co-director would not have been a bar to holding a telephone or virtual meeting.</p> <p>The fact of this case clearly shows that there was no hurry or urgency of action taken by the applicant. If the applicant did not jump when the need to act arose, it cannot call upon the court to jump for it. An urgent matter is more like an emergency matter. One must act there and then to deal with the emergency. An urgent matter is one where had it to wait, there would be irreparable harm occasioned to the applicant. <em>In casu</em>, the applicant did not deal with the issue of irreparable harm in any detail save to State that without the corporate rescue practitioner being present to administer the first respondent since he had been arrested by police, there would be no accounting of mining proceeds from second and third respondents operations and that the first respondent would be prejudiced of the mining proceeds. It is unlikely that there would be no mining records produced and kept by the second and third respondents. Without more the argument is not persuasive.</p> <p>Resultantly, I am not persuaded that this application is urgent. The order I make is follows:</p> <p> </p> <p>                (i)         Application is not urgent</p> <p>            (ii)        Application is struck off the roll with the applicant to pay the wasted costs of each                        respondent.</p> <p> </p> <p><em>Makururu and Partners</em>, applicant’s legal practitioners</p> <p><em>Rubaya-Chinuwo Law Chambers</em>, 1st respondent’s legal practitioners</p> <p><em>Masiya-Sheshe and Associates</em>, 2nd respondent’s legal practitioners</p> <p><em>Munangati and Associates</em>, 3rd 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/2021/75/2021-zwhhc-75.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27263">2021-zwhhc-75.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/2021/75/2021-zwhhc-75.pdf" type="application/pdf; length=359952">2021-zwhhc-75.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/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/signature">Signature</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><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> Wed, 03 Mar 2021 18:32:58 +0000 Sandra 9969 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 Roselex Mining Syndicate v Gavi & 5 Ors (HH 680-20, HC 5811/20) [2020] ZWHHC 680 (16 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/680 <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>ROSELEX MINING SYNDICATE</p> <p>versus</p> <p>MR D GAVI THE REGISTERED HOLDER OF CONFIDENCE 12 MINE 7957</p> <p>and</p> <p>MINISTER OF MINES AND MINING DEVELOPMENT</p> <p>and</p> <p>DETECTIVE INSPECTOR WONDERFUL CHAPARIRA</p> <p>and</p> <p>SGT VINCENT PEPUKE</p> <p>and</p> <p>ZIMBABWE REPUBLIC POLICE</p> <p>and</p> <p>COMMISSIONER GENERAL – ZIMBABWE REPUBLIC POLICE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZHIOU J</p> <p>HARARE, 16 October 2020</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p><em>F.F. Hwenhira</em>, for the applicant</p> <p><em>B Maruva</em>, for the 1strespondent</p> <p><em>T Nyamukapa</em>, for the 2nd– 6threspondents</p> <p> </p> <p> </p> <p>            ZHOU J: This a is an application for a <em>mandament van spolie. </em>The application is opposed by the first respondent. The second respondent has advised that he elects to abide by the decision of this court. The third to sixth respondents have not contested the relief being sought.</p> <p>            The background facts to the dispute are as follows. There is a dispute which is pending between the applicant and the first respondent over the area described in the papers as Belingwe IA Mine, Mberengwa Game Reserve. The Provincial Mining Director for the Midlands Province in which the mine is located made a determination. The applicant is contesting that determination.</p> <p>            It is common cause that on 8 October 2020 the first respondent accompanied by some police officers went to the mine. The applicant’s security officers who were guarding the mine vacated the mine as a consequence of that visit. Applicant’s case is that the first respondent thereafter took occupation of the mine. These are the facts on which the <em>mandament</em>is being sought.</p> <p>            Apart from opposing the application on the merits the first respondent objected <em>in limine </em>to the determination of the merits on two grounds. These will be considered first.</p> <p>            The first ground of objection pertains to the legal status of the applicant and its competence to sue, the allegation being that by reason of not being a legal <em>persona </em>the applicant has no capacity to sue. The respondents concern in this respect is excusable given the manner in which the status of the applicant is presented in the founding affidavit and is cited in all the papers. While the applicant is cited as a syndicate, the founding affidavit in para 3 avers that it is “a company duly incorporated in terms of our laws.” The deponent then attaches a certificate of incorporation and a Form CR14 in respect of Roselex Mining (Pvt) Ltd. This is clearly a different entity. The matter is further obfuscated by the attachment of a resolution by the Board of Directors of Roselex Mining Syndicate (Pvt) Ltd. In all these documents the spellings vary. The court cannot but emphasis the need for lawyers to apply their mind to papers presented to them by clients before they prepare court papers. The approach in this case shows inattention which is potentially prejudicial to the client. Be that as it may, the deficiencies raised do not take away the entitlement of a syndicate to be cited in its name. Rule 8 provides that “associates may sue or be sued in the name of their association.” The definition of association in r 7 includes a syndicate. The documents attached show that the applicant as described herein is the entity in whose name the disputed mine was registered, see Annexure “C” to the founding affidavit and the various letters – annexures G.et seq., pp 22 – 32 of the applicant’s papers. For this reason, I see no reason why the applicant’s name cannot be cited as described. The objection is therefore dismissed.</p> <p>            The second ground of objection pertaining to the authority from Roselex Mining (Pvt) Ltd also fails because the Syndicate, not being a juristic <em>persona, </em>requires no resolution. This is so because in essence it is the associates suing in its name.</p> <p>            On the merits, the requirements for a <em>mandament van spolie </em>are settled. The applicant must allege and prove that </p> <p>(a)        he was in peaceful and undisturbed possession of the property, and</p> <p>(b)       that the respondent deprived him of such possession wrongfully and without his consent. </p> <p>Despite spirited attempts to deny that the applicant was in peaceful possession of the property, the first respondent contradicts himself by acknowledging the presence of the applicant’s security personnel at the disputed site on 8 October 2020. The presence of these security officers constitutes the applicant’s fact of occupation of the property. They were guarding the site as agents of the applicant, hence the applicant was in possession of the mine.</p> <p>            The applicant’s security personnel only vacated the property when the first respondent accompanied by police officers came to the property. There was a futile attempt by Mr Maruva for the first respondent to suggest that the security officers voluntarily vacated the mine. That assertion is contradicted by the conduct of the applicant in approaching this court on the following day. In any event, the consent which was required for the first respondent to be on the property lawfully is that of the applicant. First respondent has not shown that such consent was ever given. His presence on the property is an act of self-help. The act of self-help cannot be legalised by the use of members of the Zimbabwe Republic Police to take occupation of the mine. On these facts it is clear that the applicant was deprived of occupation of the mine wrongfully without his consent.</p> <p>            The fact that the first respondent has a determination by the Provincial Mining Director in his favour pertains to the merits of his title to the mine. That fact is irrelevant in considering an application for a spoliation order. The principle which underpins the <em>mandament van spolie</em>is incapsulated in the maxim <em>spoliatus ante ommia restituendus est </em>which means that the status quo ante or before the act of spoliation must be restored before the merits of the title can be considered.</p> <p>            In all the circumstances of the case, the applicant is entitled to the relief sought.</p> <p>            In the result, the provisional order is granted in terms of the draft order.</p> <p> </p> <p> </p> <p><em>B Chipadza Law Chambers</em>, applicant’s legal practitioners</p> <p><em>Zuze Law Chambers</em>, 1strespondent’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office, </em>2nd– 6threspondents’ 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/2020/680/2020-zwhhc-680.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=18297">2020-zwhhc-680.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/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</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/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/possession-protected-spoliatory-remedies">Possession protected by spoliatory remedies</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-spoliation">What is (SPOLIATION)</a></li></ul></span> Wed, 25 Nov 2020 08:19:05 +0000 Sandra 9950 at https://old.zimlii.org Sibanda v Dube & 5 Ors (HMA 44-20, HC 199/20) [2020] ZWMSVHC 44 (10 September 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/44-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>CHRISTINE MEYA SIBANDA</p> <p> </p> <p>Versus</p> <p> </p> <p>SMELLY DUBE</p> <p> </p> <p>AND</p> <p> </p> <p>MATOVU INVESTMENTS (PVT) LTD</p> <p> </p> <p>AND</p> <p> </p> <p>TEBEKWE SANDS (PVT) LTD</p> <p> </p> <p>AND</p> <p> </p> <p>THE PROVINCIAL MINING DIRECTOR, MIDLANDS (N.O)</p> <p> </p> <p>AND</p> <p> </p> <p>THE SHERIFF OF ZIMBABWE, GWERU (N.O)</p> <p> </p> <p>AND</p> <p> </p> <p>THE OFFICER COMMANDING, ZRP, SHURUGWI (N.O)</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>WAMAMBO J</p> <p>MASVINGO 20 AUGUST &amp; 10 SEPTEMBER, 2020</p> <p> </p> <p>                                                                </p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p> </p> <p><em>W.T Davira</em>, for the applicants</p> <p><em>M. Zinyakatira, </em>for the 1st and 2nd respondents</p> <p>No appearance for the 3rd and 5th respondents</p> <p>K. Munatsi for 4th and 6th respondents</p> <p> </p> <p> </p> <p> </p> <p>WAMAMBO J:          The applicants brought this application on a certificate of urgency seeking the relief as appears below: -</p> <p>            "<strong>TERMS OF THE FINAL ORDER SOUGHT</strong></p> <p>            That the 1st Respondent shows cause why a final order should not be made in the following terms: -</p> <ol> <li>That the 1st and 2nd Respondent and/or any of their agents be and are hereby interdicted barred and restrained from continuing with mining operations at Tebekwe 2, registration number 15926, Tebekwe  6, registration number 15915, Tebekwe 8 registration number 20820, Tebekwe 9 registration number 151913, Tebekwe 15 registration number 15914, Tebekwe 16 registration number 15944, Tebekwe 17, registration number 21353, Tebekwe 28 registration number 53281 BM, Tebekwe 38, registration number 21344, Tebekwe 39 registration number 21315, Tebekwe 40 registration number 21316, Tebekwe 41 registration number 21347, Tebekwe 42 registration number 21348, Tebekwe 43 registration number 21349, Tebekwe 44 registration number 21350, Tebekwe 45 registration number 21351, Tebekwe  46  registration number 21352 pending final determination by the 4th Respondent.</li> <li>In the event of the 1st respondent failing to comply with paragraph 1 hereof, the 5th Respondent be and is hereby authorised to take such lawful steps as may be, necessary to ensure that the mining activities are stopped forthwith.</li> <li>That the 1st respondent shall pay the costs of this application.</li> </ol> <p> </p> <p><strong>INTERIM RELIEF GRANTED</strong></p> <p>Pending the confirmation of the final order this Provisional Order shall serve as an interim order interdicting and directing that:</p> <ol> <li>That the 1st respondent be and hereby interdicted, barred and restrained from continuing with mining operations at Tebekwe</li> </ol> <p>2 registration number 15926, Tebekwe, 6 registration number 15915, Tebekwe, 8 registration number 20820, Tebekwe, 9 registration number 151913, Tebekwe, 15 registration number 15914, Tebekwe, 16 registration number 15944, Tebekwe, 17 registration number 21353, Tebekwe, 28 registration number 53281, BM, Tebekwe 38, registration number 21344, Tebekwe 39, registration number 21315, Tebekwe 40, registration number 21316, Tebekwe  41, registration number 21347, Tebekwe 42, registration number 21348, Tebekwe 43, registration number 21349, Tebekwe 44, registration number 21350, Tebekwe 45, registration number 21351, Tebekwe 46, registration number 21352 pending final determination by the 4th Respondent</p> <p> </p> <p> </p> <p><strong>SERVICE OF THE PROVISIONAL ORDER</strong></p> <p>Service of the Urgent Chamber application and the Provisional Order will be through the Additional Sheriff for Gweru or the applicant’s Legal Practitioner or their clerk."</p> <p>The background of the matter as enunciated in the founding affidavit can be summarised as follows: -</p> <p>Applicant and 1st and 2nd respondents hold mining rights for Tebekwe 2,6,8,9,15,16,17,28,38,39,40,41,42,43, 44,45,46</p> <p>Notably in paragraph 9 applicant adds Berea 17 and18 which do not appear in the draft order.</p> <p>Applicant on 7 August 2020 went to inspect her claims and was denied access by 1st and 2nd respondents who assaulted her leading to a case of assault being opened under Shurugwi CR 55/08/20. On 12 August 2020 applicant send her mining agents to commence mining at her claims and they were arrested on allegations of trespassing under Shurugwi CR 80/08/20. The charges were changed to committing the offence of public violence. The events above led to 1st and 2nd respondents continuing to mine to applicant’s exclusion while the partnership between applicant and 1st and 2nd respondents had not been dissolved. The partnership is encapsulated in Annexure A.</p> <p>Applicant prays for an order in terms of the draft. She avers that the matter is urgent as she has been barred from mining while the 1st and 2nd respondent continue being unjustly enriched. She also avers that the 1st and 2nd respondents are carrying on mining operating in a destructive matter.</p> <p>The first, second, third and fourth respondent filed notices of apposition. First and second respondents counsel raised a number of preliminary points as follows: -</p> <p>Applicant has no <em>locus standi</em> as the agreement Annexure “A” was between Glorry Investments and Tebekwe Sands (Pvt) Limited. There is no partnership agreement between 1st respondent and applicant; further that applicant has failed to produce a partnership agreement. it was averred that urgency has not been proven. It was alleged that it is unknown when the mining dispute arose and that applicant has not been mining on the dispute mines.</p> <p>It is also averred that applicant has not shown utmost good faith and has falsified information to mislead the court.</p> <p>It is also averred that Glorry Investments (Pvt) Limited should have been joined to she proceedings. Its non joinder is fatal to the proceedings so it is argued.</p> <p>A number of arguments are interwoven in the main preliminary points raised. It is one of these arguments that applicants can not enforce rights she does not have. In response to the preliminary points raised Mr Davira responded as follows: -</p> <p>A partnership existed and still exists between 3rd respondents on one hand and applicant and 1st respondent on the other hand. The 2009 agreement (Annexure A) was verbally extended to run beyond the 10 year period reflected in Annexure A.</p> <p>It is argued that applicant has no <em>locus standi </em>to sue in these proceedings as she could not sue in the partnerships name Glorry) because Glorry is made of 1st respondent and applicant, thus she could not obtain authority from 1st respondent to sue the same. Further that Glorry is not a registered company.</p> <p>It was argued that the matter is urgent as it was only on 12 August 2020 that the cause of action arose as more detailed above. Ms Munatsi on her part was of the view that the portion of the draft order reflecting as follows "pending final determination" by 4th respondent should be excluded as it is as internal matter to be resolved between applicant, 2nd and 3rd respondent. It was argued that the dispute in question is not covered in the Mines and Minerals Act <em>[Chapter 21:05] </em>as a dispute 4th respondent can resolve. Annexure “A” which is central to the issues raised in this case deserves closer scrutiny.</p> <p>Annexure “A” is titled" Deed of partnership". It is entered into between Glorry Investments (represented by applicant and 1st respondent) and 3rd respondent represented by Mike G. Hughes and Andrew Banda.</p> <p>Among the witness to the agreement are a Senator and the Midlands Provincial Governor of the day. Paragraph 9 of Annexure “A” reflects that the partnership shall run for 10 years subject to signing an addendum for extension. It reads fully as follows:</p> <p><em>"9. Partnership duration </em></p> <p><em>The partnership shall continue to run for a period of 10 (ten) years and will be subject to renewal by signing of addendum for extension of the period"  </em></p> <p>Annexure “A” reflects that the signatories thereto appended their signatures on 20 July 2009. There is no addendum that forms part of the record. The agreement Annexure “A” is specific that its extension should be encapsulated in an addendum. The implication following from the absence of an addendum which is specifically provided for in the agreement is not favourable to applicant.</p> <p>The applicant has not proven ownership of rights to the mining claims enumerated in the draft order. There is a discord on the mining claims in issue as reflected in the founding affidavit and draft order. This reflects that applicant is even unsure of which mining claims should be included in the order.</p> <p>The above factors to my mind reflect that applicant has failed on the first   hurdle. The applicant has failed to prove <em>locus standi</em> in this matter. There is no nexus between applicant his interests and the relief sought see <em>Greendale One District T/A 2 Mukuvisi Cooperative versus Caledonia Enterprise (Pvt) Ltd and others HH511-15.</em> It has not been proven <em>prima facie</em> why applicant should succeed to interdict 1st and 2nd respondents from continuing with their mining operations.</p> <p>Notably applicant in their founding affidavit do not reflect why they cited 3rd respondent. This is but one of the several flaws in the application. After the finding that applicant lacks <em>locus standi </em>I will not delve into the other preliminary points raised. To that end I uphold the point in <em>limine</em> of applicant’s lack of <em>locus standi</em></p> <p>I order as follows: -</p> <p>The application is dismissed on the point in<em> limine </em>with costs.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Gundu Dube and Pamanhede,</em> applicant’s legal practitioners</p> <p><em>Takaindisa Law Chambers,</em> 1st and 2nd respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office,</em>4th and 5th 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> </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/2020/44/2020-zwmsvhc-44_0.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=30814">2020-zwmsvhc-44.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/2020/44/2020-zwmsvhc-44_0.pdf" type="application/pdf; length=260287">2020-zwmsvhc-44.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/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</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/partnership">PARTNERSHIP</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-0">Locus standi</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></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/2015/511">Mukuvisi Cooperative v Caledonia Ent. (Pvt) Ltd &amp; Others (Ref Case No. 4187/15) [2015] ZWHHC 511 (09 June 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/1961/38">Mines and Minerals Act [Chapter 21:05]</a></div></div></div> Wed, 21 Oct 2020 15:05:33 +0000 Sandra 9895 at https://old.zimlii.org Maranatha Ferrochrome (Private) Limited v RioZim Limited (HH 482-20, HC 6774/18) [2020] ZWHHC 482 (23 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/482-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>MARANATHA FERROCHROME (PRIVATE) LIMITED  </p> <p>versus</p> <p>RIOZIM LIMITED</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J</p> <p>HARARE, 8, 22 &amp; 23 June 2020</p> <p> </p> <p><strong>Civil trial – absolution from the instance</strong></p> <p> </p> <p>Date of written judgment: 22 July 2020</p> <p> </p> <p> </p> <p><em>Adv F. Girach</em>, for the plaintiff</p> <p><em>Adv T. Zhuwarara</em><em>, </em>for the defendant</p> <p> </p> <p>MAFUSIRE J</p> <p>[1]       This is a civil trial. The defendant applies for absolution from the instance at the close of the plaintiff’s case. The plaintiff’s case against the defendant is for payment of a sum of money. The main claim is for USD450 000-00, alleged to be the replacement cost of an immovable property, and the improvements thereon, previously occupied by the plaintiff, but intentionally destroyed by the defendant. The alternative claim is for USD 143 588-22, allegedly for unjust enrichment.</p> <p>[2]       The plaintiff’s claim stems from a relationship, or association between the parties that had endured for fourteen years but had eventually dissipated. Ultimately it degenerated into a legal confrontation that is this case. I am told there is one other case. The facts of this case are these. The plaintiff and the defendant are duly registered companies in Zimbabwe. The defendant was formerly known as Rio Tinto Zimbabwe Limited. From the evidence so far, both parties are involved in mining or mining related activities. At all relevant times, the defendant was the owner of certain land in the Eiffel Flats area of Kadoma. On three sites it had put up several buildings for various uses. The one site was 3 856 m2 in extent. On it the defendant had built a block of offices. They were identified as the Rio Tinto Main Office. The second site was 5 144 m2 in extent. On it the defendant had put up an engineering block. It was identified as the Rio Tinto Old Engineering Block. The last site was 2 328 m2 in extent. On it the defendant had built another block of offices. It was identified as the Rio Tinto Old Accounts Office. The total area covered by these three sites was 11 328 m2.</p> <p>[3]       By a written agreement dated 3 June 2003 the defendant sold to the plaintiff these three sites as three separate subdivisions. The purchase prices were $42 278 000-00 for the first site; $52 429 000-00 for the second, and $23 174 000-00 for the last. The total purchase price was $117 881 000-00. This was in the then Zimbabwean currency. The plaintiff had paid it all off in accordance with the terms of the agreement.</p> <p>[4]       The defendant says there had been no proper subdivisions done to the land which could legally be sold as separate subdivisions. In the agreement of sale, each of the sites was described as “<em>A surveyed stand yet to be allocated a number, being a subdivision of Chemukute Township Lot 1 of Railway Farm 11 located on Eiffel Flats Road, Eiffel Flats …</em>”</p> <p>[5]       Prior to the formal sale agreement aforesaid, the plaintiff was already in occupation on a leasehold basis. The lease terminated upon payment of the full purchase price. In the area, the defendant does open cast mining. Its operations were expanding. In 2014 the parties entered into an agreement in terms of which the defendant leased back from the plaintiff some of the offices for a nominal rent. But the defendant could not pass transfer in terms of the sale agreement. Concomitantly, the plaintiff could not get title. A dispute arose.</p> <p>[6]       Matters came to a head in about 2016. The defendant’s open pit mining operations continued to expand. Transfer of the sites could not be passed. The parties engaged. Discussions centred on a number of options. As I have understood the evidence so far, one option was for the defendant to refund the purchase price paid by the plaintiff in an amount that would take into account, <em>inter alia</em>, the fact that the country had transformed into a multi-currency economy (following the demise of the local currency in 2009). Another option seemed to be that the defendant could simply buy back the sites. Yet another option seemed to be that the defendant could offer the plaintiff alternative sites on which it would construct similar structures for the plaintiff.</p> <p>[7]       Negotiations seemed protracted. There were several draft agreements produced by both parties with offers and counter-offers. Unfortunately, nothing was concluded. According to the plaintiff’s evidence, relations between the parties were completely shattered in February 2017 when the defendant, without warning, sent in its heavy-duty equipment comprising excavators, front-end loaders, dump trucks and the like, and started demolishing the buildings. The plaintiff’s staff on the ground raised an alarm. Its head office personnel in Harare engaged the defendant’s personnel. Nothing helped. The demolitions continued. The plaintiff’s staff on the ground was instructed to salvage such of the goods and materials as had been stored inside the buildings to avert any possible losses.</p> <p>[8]       In July 2018 the plaintiff issued a summons against the defendant claiming the sums of money aforesaid. The declaration refers to the 2003 sale agreement; the payment of the purchase price; the defendant’s failure to pass transfer; the forceful eviction of the plaintiff from the sites and its acceptance of the cancellation of the agreement. The amount of USD 450 000-00 is said to be the replacement cost of substitute buildings. The alternative claim for USD143 582-22 for unjust enrichment is said to be today’s equivalent of the purchase price paid by the plaintiff in 2003, calculated using the official exchange rate prevailing at the time.</p> <p>[9]       In its plea, the defendant has defended the plaintiff’s claim on the basis that the 2003 sale agreement was invalid and therefore unenforceable in that it was concluded in contravention of s 39(1) of the Regional, Town and Country Planning Act [<em>Chapter 29:12</em>], more particularly in that the three pieces of land in question had purportedly been sold without a subdivision permit. The defendant also defends the plaintiff’s claim on the basis that when the parties realised that the 2003 sale agreement was illegal, and could therefore not be consummated, they entered into another agreement whereby the old agreement would stand cancelled; the plaintiff would move off the sites, and the defendant would pay it an amount in the sum of USD 135 000-00 in full and final settlement of the parties’ rights and obligations towards each other in terms of the old sale agreement.  In the alternative, the defendant pleads that the plaintiff’s claims have become prescribed.</p> <p>[10]     In its amended plea, the defendant pleads that the claim by the plaintiff to be put back into the position that it would have been in had the allegedly illegal contract been performed, is not cognisable at law. It also pleads that the plaintiff lays no basis for denominating its claim in United States dollars and that, at any rate, the claim takes no account of the fact that the plaintiff was in occupation of the sites for well over a decade without paying any consideration or compensation.</p> <p>[11]     The plaintiff closed its case after leading evidence from three witnesses, namely:</p> <ul> <li>George Tichaona Mushawatu (“<strong><em>George</em></strong>”): From 2010 he was the plaintiff’s managing director. His evidence deals with the relationship between the parties before, during and after the agreement of sale; the lease agreement; the inconclusive negotiations to salvage some alternative form of relationship between the parties; the demolitions of the buildings without warning, and the quantum of the claims.</li> </ul> <p> </p> <ul> <li>Nikita Masaya: He is a registered estate agent. He was the one who, at the instance of the plaintiff, evaluated the three sites in question and the improvements thereon and prepared a report upon which the plaintiff’s claim for USD450 000-00 is predicated. He says he personally inspected the buildings and the sites and came up with three sets of values, namely USD330 000-00, being the estimated market value; USD450 000-00, being the gross replacement value, and USD215 000-00, being the depreciated replacement cost. He concedes he did not measure or survey the land on which the buildings had been situated, or examine the title deed description of the land.</li> </ul> <p> </p> <ul> <li>Tom Usupu: At all material times he was the plaintiff’s human resources manager stationed at the Eiffel Flats operations. He, together with the other members of staff for the plaintiff, witnessed the surprise demolitions of the buildings by the defendant. They made arrangements to salvage the plaintiff’s goods and materials.</li> </ul> <p>[12]     In its application for absolution from the instance, the defendant, in summary, argues that the 2003 sale agreement was <em>in fraudem legis</em>. It is unenforceable. No rights derive from it. The plaintiff is claiming the value or cost of a substitute building. In so doing, it is seeking to be placed in the same position that it would have been in had that agreement been performed. This position is in breach of the <em>ex turpi causa</em> rule. This rule admits of no exception. An illegal agreement is unenforceable. That is the end of the matter. At any rate, the plaintiff cannot found a claim on the basis of the destruction of the buildings. They belonged to the defendant. The Plaintiff never got title of the land. Thus, the defendant actually destroyed its own property. Nor can the plaintiff’s alternative claim for unjust enrichment be sustained. It is prescribed. The plaintiff paid the purchase price for the three sites in 2003. It immediately became entitled to transfer. That the agreement of sale was illegal appeared <em>ex facie</em> the document. It is immaterial that the plaintiff might have become aware of the illegality only much later. The <em>in pari delictum</em> rule does not apply.</p> <p>[13]     The plaintiff has opposed the claim for absolution from the instance. In summary, it says none of its witnesses, (evidently and primarily George), has admitted that the 2003 sale agreement was illegal. Even in its pleadings, the plaintiff challenges this assertion. It is the defendant which alleges an illegality on the basis of an alleged contravention of s 39 of the Regional Town and Country Planning Act. The onus to prove this purported illegality is on the defendant. It must call evidence. Furthermore, the defendant’s case in the plea is not that by reason of this alleged illegality the plaintiff is entitled to nothing. Rather, it is that the 2003 sale agreement was superseded by another agreement, an exit agreement, in terms of which the defendant would pay US$135 000-00 in full and final settlement of any of its obligations towards the plaintiff and in consideration of the plaintiff moving out of the premises to pave way for the defendant’s occupation. The <em>in pari delicto</em> rule applies. This is an appropriate case to call for its relaxation in order to do justice between the parties by ordering restitution of the purchase price paid by the plaintiff. On prescription, the defendant has not taken account of the exceptions in the Prescription Act [Chapter 8:11]. Section 16 sets out when prescription begins to run. A creditor must be aware of all the facts from which the debt arises. In this case both parties at all times proceeded on the basis that the plaintiff had become the owner of the property. In this regard, in 2014 the defendant even went on to lease a portion of the property from the plaintiff.</p> <p>[14]     Here now is my ruling. An application for absolution from the instance made by one party, for instance, the defendant, at the close of the case for the other party, i.e. the plaintiff, is a procedure designed to bring a speedy end to the proceedings where there is no evidence warranting the defendant going into its own case. To succeed, the defendant must show that the plaintiff has not established such facts as are supportive of his cause: see <em>Corbridge v Welch</em> (1892) 9 SC 277, or adduced such evidence as to warrant him taking the witness’ stand so as to rebut the plaintiff’s case, or to put across his own case. At this stage the plaintiff’s evidence must be assumed to be true unless very special circumstances exist, such as the inherent improbability of the evidence.</p> <p>[15]     Granting absolution from the instance is not the same thing as granting judgment for the defendant. The court is simply absolving or relieving the defendant of the burden of the plaintiff’s case so that he or she does not have to deal with his or her own. Absolution does not decide the matter finally. The plaintiff can go away and still bring back the same case next time but with better evidence.  </p> <p>[16]     In considering an application for absolution from the instance at the close of the plaintiff’s case, the onus on the defendant to persuade the court, manifestly to make short work of the plaintiff’s case, is much heavier. At this stage, the application is being made when only half the case has been heard. But comparatively, the onus is lighter if the application is made after all the evidence has been led, i.e. at the end of the entire case. The court uses different legal calipers or scales to measure or weigh the cogency of the evidence at these different stages. At the close of the plaintiff’s case, the enquiry is: what judgment <strong><em>might</em></strong> the court give? But at the end of the whole case the enquiry is: what judgment <strong><em>ought</em></strong> the court give? This implies that with “<strong><em>might</em></strong>” the judgment could well be mistaken, and therefore incorrect. But with “<strong><em>ought</em></strong>” the judgment could not be mistaken. It is the correct one: see <em>Supreme Service Station [1969] (Pvt) Ltd </em>v<em> Fox and Goodridge (Pvt) Ltd </em>1971 (1) RLR 1.</p> <p>[17]     The difference between <strong><em>might</em></strong> and <strong><em>ought</em></strong> is the difference between a <em>prima facie </em>case and a case on a balance of probabilities. In other words, at the close of the plaintiff’s case, all that the court looks at is whether the plaintiff’s evidence makes out such a <em>prima facie</em> case as to warrant the defendant taking the witness’ stand. But at the close of the whole case, the court looks at whether the plaintiff has made out such a case on a balance of probabilities as to warrant judgment in its favour. There is a glut of cases on the point. The following are just a sample: <em>Gascoyne </em>v<em> Paul and Hunter</em> 1917 TPD 170; <em>Claude Neon Lights (SA) Ltd </em>v<em> Daniel</em> 1976 (4) SA 403 (A); <em>Gordon Lloyd Page &amp; Associates </em>v<em> Rivera</em> 2001 (1) SA 88 (SCA); <em>Supreme Service Station [1969] (Pvt) Ltd, supra, </em>and <em>Standard Chartered Finance Zimbabwe Ltd </em>v<em> Georgias &amp; Anor</em> 1998 (2) ZLR 547 (H) and <em>Bailey NO </em>v <em>Trinity Engineering (Pvt) Ltd &amp; Ors</em> 2002 (2) ZLR 484 (H).</p> <p>[18]     Courts are chary of granting absolution at the close of the plaintiff’s case. They are loath to decide upon questions of fact without hearing all the evidence. As was pointed out in the <em>Supreme Service Station [1969]</em> case above, the practice in South Africa and in this jurisdiction has always been that, in case of doubt as to what a reasonable court <strong><em>might</em></strong> do, a judicial officer should always lean on the side of allowing the case to proceed. A defendant who might be afraid to go into the witness box should not be permitted to shelter behind the procedure of absolution from the instance.</p> <p>[19]     In this case, the defendant says the illegality of the 2003 sale agreement appears <em>ex facie</em> the document itself, i.e. the document identified in evidence as the “Broker’s Note”. But I do no think so. All that there is on that document, in relation to the three sites, is, as I have already highlighted above, a reference to “… <em>a surveyed stand yet to be allocated a number</em> …” This cannot be sufficient information to anyone that there was no sub-division permit.</p> <p>[20]     In its replication, the plaintiff denies that transfer could not be registered by reason of the fact that the property had not been subdivided. It avers that both parties believed at the time that the defendant was capable of passing transfer. George says much the same thing in his evidence. It is common cause that as late as 2014, the parties agreed to a lease. The defendant was the lessee or tenant. The plaintiff was the lessor or owner. Only on 4 March 2016, through a letter to George, penned by one Noah Matimba as Chief Executive, does the defendant, quite obliquely for that matter, broach the subject of the absence of a proper subdivision in relation to the three sites. In part the letter reads:</p> <p>“The above mentioned properties were subject to an Agreement of Sale entered into between Rio Tinto Zimbabwe Limited (now RioZim Limited) and Maranatha Ferrochrome (Private) Limited on 3 June 2003. It is common cause however that the properties were never assigned stand numbers of separate title and therefore despite the sale of the properties, transfer of the properties to Maranatha has not occurred.”</p> <p>[21]     That letter was in the context of an attempt to find common ground on the way forward, given the defendant’s expansion programme and its desire for more land. In his reply, George expresses dismay at the absence of a meaningful offer. On the question of a non-existent subdivision permit, he says:</p> <p>“The issues regarding the delayed transfer have been subject of previous discussions between the Legal Counsel of Gurta AG / Maranatha Ferrochrome (Private) Limited and your good offices. I would therefore prefer to leave issues on the legal implications of the delayed transfer to the legal teams.”</p> <p>[22]     Thus, that the 2003 sale agreement might have been a legal nullity does not appear either <em>ex facie</em> the documents, or from the plaintiff’s evidence. I agree with the plaintiff’s position that it is up to the defendant to lead evidence on these aspects. It is only after all the evidence has been led that the court can assess and consider the applicability or otherwise of the principles <em>ex turpi causa</em> and <em>in pari delicto</em> in relation to s 39(1) of the Regional, Town and Country Planning Act.</p> <p>[23]     The relevant portions of s 39(1) of the Regional, Town and Country Planning Act read:</p> <p>“<strong>39       No subdivision or consolidation without permit</strong></p> <p> </p> <ol> <li>“… …[N]o person shall –</li> </ol> <p>           </p> <p>(a)        subdivide any property; or</p> <p>           </p> <p>(b)        … … … … … … … …</p> <p> </p> <p>except in accordance with a permit granted in terms of section forty … …”</p> <p> </p> <p>[24]     In <em>X-Trend – A – Home </em>v<em> Hoselaw Investments</em> 2000 (2) ZLR 348 (S) the Supreme Court interpreted s 39 above to mean that what is prohibited is the agreement itself that may lead to a change of ownership of any portion of a property, irrespective of the time of signing that agreement. So, if parties enter into an agreement to buy and sell a portion of land which is part of a whole but without a subdivision permit, that agreement will be patently illegal. It is unenforceable. No rights or obligations derive from it. A court of law will not associate itself with, or relate to such an agreement. It is tough luck if one of the parties suffers loss by reason of anything done, or not done, in terms of that agreement, e.g. if the seller has already parted with possession of the property before the purchase price has been paid and now wants the property back, or conversely, if the purchaser has already paid the purchase price before taking transfer and now wants his or her money back. It is such an agreement as will be affected by the <em>ex turpi causa</em> and <em>in pari delicto</em> principles.</p> <p>[25]     The maxim <em>ex turpi causa non oritur actio</em> means “<strong>no action arises from an immoral cause</strong>”: see <em>Dube </em>v<em> Khumalo</em> 1982 (2) ZLR 103 (S), at 109D – F, and <em>Mega Pak Zimbabwe (Pvt) </em>v<em> Global Technologies Central Africa (Pvt) Ltd </em>2008 (2) ZLR 195. It is a rule absolute. It admits of no exception. Explaining the rationale for this rule, MAKARAU JP, as she then was, in the <em>Mega Pak Zimbabwe</em> case above, said<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>:</p> <p>“In my view, the general principle expressed in the maxim does not permit litigants to bring their ‘dirty’ transactions into the clean halls of justice. Justice will not soil its hands by touching such transactions. ‘Dirty’ in this regard not only refers to immoral transactions, contracts specifically prohibited by law but also includes transactions that seek to defeat the law.”</p> <p>In `<em>Jajbhay </em>v<em> Cassim</em> 1939 AD 537, at p 551, and quoting from <em>Collins </em>v<em> Blantern</em> [2 Wilson, 347] [1767], reference was made to “…<em> no polluted hand shall touch the pure fountains of justice.</em>”</p> <p>[26]     On the other hand, the <em>in pari delicto </em>principle [“<em>in pari delicto est conditio possidentis</em>”], in its classical form, says that in case of equal guilt, the loss stays where it falls; he who is in possession prevails: see <em>Schierhout </em>v<em> Minister of Justice</em> 1926 AD 99: <em>Dube </em>v<em> Khumalo</em>, <em>supra</em>; <em>Matsika </em>v<em> Jumvea Zimbabwe (Pvt) Ltd</em> 2003 (1) ZLR 71 (H) and <em>Gambiza </em>v<em> Taziva </em>2008 (2) ZLR 107 (H). The rationale is to discourage illegality by denying judicial assistance to persons who part with money, goods or incorporeal rights in furtherance of an illegal transaction: <em>Schierhout v Minister of Justice, supra</em>. But this principle is not as inflexible as the <em>ex turpi causa</em> doctrine.</p> <p>[27]     In <em>Honeycomb Hill (Pvt) Ltd </em>v<em> Herentals College (Pvt) Ltd</em> HH 265-16 (<em>unreported</em>) I said the <em>ex turpi causa</em> and <em>in pari delicto</em> doctrines seem to be cognates but that they are distinct. Whilst <em>ex turpi causa</em> is inflexible and admits of no exception, <em>in pari delictum</em> is flexible and is subject to exceptions, especially those grounded in public policy. In a nutshell, <em>ex turpi causa</em> prohibits the enforcement of immoral or illegal contracts. <em>In pari delictum </em>curtails the rights of the delinquents or offenders to avoid the consequences of their performance, or part performance of such contracts (per STRATFORD CJ in <em>Jajbhay </em>v<em> Cassim</em>, <em>supra</em>, at p 540 – 541).  In <em>Dube’s</em> case above, GUBBAY JA, as he then was, confirming the position that in suitable cases the courts will relax the <em>in pari delictum</em> rule, said that this is done “<em>…[to do] simple justice between man and man</em>” (also <em>Jajbhay</em>, <em>supra</em>, at p 544).</p> <p>[28]     <em>In casu</em>, I have already concluded that neither do the plaintiff’s pleadings nor its evidence show or admit that the 2003 sale agreement was a legal nullity, let alone that this was the view of either or both of the parties at any stage prior to the trial. As the plaintiff argues, the defendant does not, in its plea, take the view that the plaintiff is entitled to nothing. Its defence is essentially a confession and an avoidance. It relies on some exit agreement. It is the defendant saying the 2003 sale agreement is a legal nullity. Therefore, it is upon it to lead evidence. Absolution from the instance is not available to it at this stage. The plaintiff has laid out such a <em>prima facie</em> case as to warrant the defendant taking the witness’ stand.</p> <p>[29]     Furthermore, in view of the fact that the plaintiff had performed its side of the bargain by paying the full purchase price in terms of the agreement, but has not got the property, it would seem so unjust, on the face of it, to send it away empty-handed. Even if the defendant eventually succeeds in showing an illegality, it seems to me to be obliged to go further and show why the plaintiff cannot invoke the <em>in pari delictum</em> principle to recover the purchase price, despite the invalidity or unenforceability of their original agreement. It is the defendant, which, according to the evidence so far, unilaterally cancelled the 2003 sale agreement and, without any prior warning, went on to demolish the buildings that the plaintiff had occupied for fourteen years.  The question of prescription upon which the defendant relies to defeat the plaintiff’s alternative claim for unjust enrichment, is not clear cut on the papers, or from the evidence so far. It seems that up until the defendant’s actions above, both parties were treating the 2003 agreement as being valid, with all the attendant rights and obligations.   </p> <p>[30]     In all the circumstances therefore, the defendant’s application for absolution from the instance at the close of the plaintiff’s case is hereby dismissed. The costs shall be in the cause. The trial shall resume on a date, or dates, to be agreed upon by the parties in consultation with the Registrar.</p> <p> </p> <p>22 July 2020</p> <p> </p> <p><em>Kantor &amp; Immerman,</em> plaintiff’s legal practitioners</p> <p><em>Coghlan, Welsh &amp; Guest, </em>defendant’s legal practitioners</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> At p 197G – 198A</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/2020/482/2020-zwhhc-482_0.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=77281">2020-zwhhc-482.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/2020/482/2020-zwhhc-482_0.pdf" type="application/pdf; length=291348">2020-zwhhc-482.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/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</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/absolution-instance-%E2%80%93-principles">Absolution from the instance – principles</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-made-respect-ancillary-matter">application made in respect of ancillary matter</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/court-should-lean-favour-case-continuing">court should lean in favour of case continuing</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</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/2016/265">Honeycomb Hill (Pvt) Ltd. v Herentals College (Pvt) Ltd. (HH 265-16 HC 366/14) [2016] ZWHHC 265 (27 April 2016);</a></div></div></div> Mon, 19 Oct 2020 13:28:18 +0000 Sandra 9878 at https://old.zimlii.org Oozing Mining Syndicate v Tamuzi Mining Syndicate & Anor (HH 609-20, HC4996/20) [2020] ZWHHC 609 (25 September 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/609 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>OOZING MINING SYNDICATE</p> <p>versus</p> <p>TAMUZI MINING SYNDICATE</p> <p>and</p> <p>THE MINING COMMISSIONER N.O.</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J</p> <p>HARARE, 21 &amp; 25 September 2020</p> <p> </p> <p><strong>Urgent chamber application</strong></p> <p> </p> <p>Date of <em>ex tempore</em> ruling: 21 September 2020</p> <p>Date of written judgment: 25 September 2020</p> <p> </p> <p>Mr<em> T.S. Mujungwa</em>, with him, Mr <em>S. Machingauta</em>, for the applicant</p> <p>Mr<em> K. Maeresera</em><em>, </em>for the first respondent</p> <p>No appearance for second respondent</p> <p>MAFUSIRE J</p> <p>[1]        This is an urgent chamber application for interim relief. The applicant and the first respondent are mining syndicates. They are fighting over the rights of ownership, control and the enjoyment of a certain mine called Chigwell 56 (“<strong><em>Chigwell</em></strong>”), located in the Chegutu area of Zimbabwe. The applicant, Oozing Mining Syndicate, applies on an urgent basis for two remedies, one in the main, and the other as ancillary relief. The main relief is a stay of execution of a certain order of this court in HC 279/20, dated 2 September 2020. The ancillary remedy is for the restoration of occupation of Chigwell to the applicant. Verbatim, the relevant portion of the draft order reads:</p> <p>“<strong>TERMS OF THE INTERIM RELIEF GRANTED</strong></p> <p>Pending the return date in this matter, the following interim relief be and is hereby granted: -</p> <p>a)         The order issued under HC 2791/20 be and is hereby stayed pending the finalisation of the application for rescission filed under HC 4976/20.</p> <p>b)         The respondents be and are hereby ordered to restore occupation of mining location Chigwell 56 of Chigwell Farm, Chegutu to the applicant upon service of this order until HC 4976/20 is finalised.</p> <p>c)         The respondents to bear costs of suit of this application.”</p> <p>[2]        The order of this court on 2 September 2020 aforesaid, per PHIRI J, was issued at the instance of the first respondent herein, Tamuzi Mining Syndicate, which was the applicant therein. It was granted in default of appearance by the applicant, which was the respondent therein. The court issued two declaratory orders—</p> <ul> <li>cancelling the applicant’s mining licence (in respect of Chigwell), and</li> </ul> <p> </p> <ul> <li>declaring the first respondent the rightful owner of Chigwell.</li> </ul> <p> </p> <p>[3]        Verbatim the operative part of that order reads:</p> <p>“<strong>WHEREUPON</strong>, after reading documents filed of record, and hearing Counsel</p> <p><strong>IT IS ORDERED THAT </strong></p> <p>1.         1st Respondent’s Mining Licence Number 15965 be and is hereby cancelled.</p> <p>2.         Applicant be and is hereby declared the rightful owner of Chigwell 56.”</p> <p> </p> <p>[3]        In these proceedings, it is that order of 2 September 2020 the execution of which the applicant seeks a stay. It is said the stay is sought pending the determination of the application for rescission of judgment that the applicant has launched simultaneously with these proceedings. The grounds for relief alleged by the applicant in these proceedings are these. Until about May 2014 the first respondent was the registered owner of the mining rights over Chigwell. However, those rights were forfeited, following due process. Subsequently, the applicant successfully applied for the registration of the same rights in its name. But the first respondent, without a proper service of process, and surreptitiously, obtained those declaratory orders aforesaid. Afterwards, on the strength of that court order, and by means of self-help, the first respondent has seized control of the mining location and placed security guards to prevent the applicant from accessing the mine. Thus, the applicant concludes, it has “essentially” been evicted by the first respondent from the mine. The first respondent is now busy helping itself to some 30 tonnes of gold ore which belong to the applicant and which were awaiting milling and smelting. It is on that basis that the applicant seeks urgent relief as set out above.</p> <p>[4]        The first respondent opposes the application. It says the relief being sought is incompetent. It says the applicant should have proceeded by way of a court application for an interdict. On the merits, the first respondent denies the applicant’s allegations of spoliation and maintains that the applicant is still in occupation of the mine even despite the applicant’s knowledge that it no longer has any rights over it. The first respondent accuses the applicant’s deponent to the founding affidavit, one Margret Hlanganiso (“<strong><em>Margret</em></strong>”), of fraudulent concealment of material facts allegedly relating to the fraudulent manner in which she purported to acquire the mining rights over Chigwell, in the name of the applicant. The first respondent’s deponent to the opposing affidavit, one Jonathan Munemo (“<strong><em>Jonathan</em></strong>”), says he and others, including Margret’s late husband, and then subsequently herself, got together as a syndicate in the form of the first respondent to run Chigwell. The first respondent was the registered owner of the mining rights. Margret was responsible for the payment of the inspection licences. At some stage, the second respondent wrongfully ordered the forfeiture of the first respondent’s mining licence. Margret did not disclose this development to the rest of the members of the first respondent. Instead, she went on to apply for the same mining rights, in the name of the applicant. Jonathan says there is a criminal case pending at the police against Margret over her conduct.</p> <p>[5]        On the first day of argument I queried how the applicant could possibly seek a stay of execution of a mere declaratory order. Mr <em>Mujungwa</em>, for the applicant, readily conceded the irregularity, admitting that the main relief was incompetent. He abandoned it and amended the draft order to make the ancillary relief the main and sole relief sought. The interim relief sought in the amended draft order now read as follows:</p> <p>“Pending the return date in this matter, the following interim relief be and is hereby granted:-</p> <p>a)         The respondents be and are hereby ordered to restore occupation of mining location Chigwell 56 of Chigwell Farm, Chegutu to the applicant upon service of this order until matter under HC 4976/20 is finalised.</p> <p>b)         The respondents to bear costs of suit of this application.”</p> <p>[6]        The final order sought on the return date was couched as follows:</p> <p>“a)       The respondents be and are hereby ordered not to evict the applicant from mining location Chigwell 56 of Chigwell Farm, Chegutu without a valid court order for eviction through self-help (<em>sic</em>).</p> <p>b)         The respondents shall pay costs of suit.”</p> <p>[7]        I dismissed the application with costs soon after argument. It was incompetent. An order of spoliation is a final order. It is not interlocutory in nature: see <em>Mankowitz </em>v <em>Loewenthal</em> 1982 (3) SA 758, at 767F – H, and SILBERBERG &amp; SCHOEMAN’S <em>The Law of Property</em>, 5th ed., para 13.2.1.3 at p 292. So, the draft order, as amended, was defective in elementary respects.</p> <p>[8]        That the applicant’s draft order, as amended, was defective in elementary respects was not the only problem. In fact, it was hardly the main problem. In appropriate circumstances a draft order can always be amended or corrected. The major problem with the application, and which was the main reason for my dismissing it, was that spoliation was not proved. With spoliation, the applicant has to prove the two basic elements, namely, peaceful and undisturbed possession of the object, and the illicit deprivation of that possession by the respondent. The standard of proof is higher than that required for a temporary interdict. The standard of proof should be on a balance of probabilities. For an interim interdict, all that is required to be proved is a <em>prima facie</em> case. This is elementary.</p> <p>[9]        Spoliation is about the protection of possessory rights. Ownership does not come into consideration. Yet the averments in the founding affidavit were predominantly about proof of ownership of the mining rights over Chigwell: how initially those rights had been in the name of the first respondent; how the first respondent got to lose them, and how they had ended up being in the name of the applicant. At the hearing, Mr <em>Mujungwa</em> was clutching at straws. He failed to appreciate that the defect that I had raised concerning the impropriety or incompetency of seeking a stay of execution against a mere declaratory order could not be cured simply by dropping that remedy and pursuing spoliation. The requirements are different. The whole application had been premised on a stay of execution, which is a species of an interdict. The application was completely silent on <em>when</em> exactly the applicant had been illicitly deprived of possession and control of Chigwell. It was silent on who exactly was there at the mine at the time of the alleged eviction? Who for the respondent did it? How did he or she or they do it?</p> <p>[10]      At the hearing, we spent some appreciable time sifting through the averments in the founding affidavit in an effort to find the answers to the questions above. But there was nothing. Mr <em>Machingauta</em>, Mr <em>Mujungwa’s</em> principal with whom he sat, tried to intervene, encouraged by myself. The two had been wasting time, with Mr <em>Mujungwa</em> having to pause and defer to his principal who would whisper something into his ear each time I asked a question. But the intervention was no better. A concession could have preserved integrity. The sum total of Mr <em>Machingauta’s</em> submissions on intervention was that where the founding affidavit said Margret was a member of the applicant, and where the supporting twin affidavits by Njabulo Ndhlovu and Stanley Mlotshwa said they also are members of the applicant, I must read that to mean they are the people who were in possession at the time of the alleged spoliation! I was also urged to construe the date of the order by PHIRI J, namely the 2nd of September 2020, as the date when the alleged spoliation took place!     </p> <p>[11]      I could not grant spoliatory relief under such circumstance, especially given that the respondent vehemently denied that it had taken over the running of the mine. The respondent maintained the applicant was still there. In the end I dismissed the application with costs.</p> <p> </p> <p>25 September 2020</p> <p> </p> <p><em>Tavenhave &amp; Machingauta,</em> applicant’s legal practitioners</p> <p><em>Mangwiro Law Chambers, </em>first 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/2020/609/2020-zwhhc-609.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=66847">2020-zwhhc-609.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/2020/609/2020-zwhhc-609.pdf" type="application/pdf; length=419972">2020-zwhhc-609.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/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</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/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/stay-execution">stay of execution</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-should-execution-appeal-be-granted">when should execution appeal be granted</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/possession-protected-spoliatory-remedies">Possession protected by spoliatory remedies</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-spoliation">What is (SPOLIATION)</a></li></ul></span> Fri, 09 Oct 2020 09:52:23 +0000 Sandra 9866 at https://old.zimlii.org S v Chikukwa (SC 75-20, Criminal Appeal No. SC 661/18) [2020] ZWSC 75 (24 October 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/75 <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>REPORTABLE</strong><strong>        (65)</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>ARTHUR     CHIKUKWA</strong></p> <p><strong>v</strong></p> <p><strong>THE     STATE</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MAKARAU JA, HLATSHWAYO JA &amp; MAKONI JA</strong></p> <p><strong>HARARE:     24 OCTOBER 2019</strong></p> <p> </p> <p> </p> <p> </p> <p>Appellant In Person</p> <p>Mr <em>Mapfuwa</em>, for the respondent</p> <p> </p> <p> </p> <p>                        <strong>MAKONI JA:</strong>           This is an appeal against the whole judgment of the High Court dated 3 October 2016.  After hearing argument in the matter, we allowed the appeal and made the following order:</p> <ol> <li>The appeal be and is hereby allowed.</li> <li>The judgment of the court <em>a quo</em> is set aside and is substituted with the following, “The accused is found not guilty and is discharged.”</li> </ol> <p> </p> <p>We indicated that the reasons would follow. These are they.</p> <p> </p> <p>On 3 October 2016 the appellant was convicted of the offence of fraud as defined in s 136 (a) and (b) of the Criminal Law (Codification to Reform) Act [<em>Chapter 9:23</em>] and Money Laundering as defined in s 8(3) of the Money Laundering And Proceeds of Crime Act [<em>Chapter 9:24</em>]. For purposes of sentence, both counts were treated as one and he was sentenced as follows:</p> <ol> <li>“10 years imprisonment of which 2 years are suspended for 5 years on condition the accused is not convicted of any offence of which dishonesty is an element for which he is sentenced to imprisonment without the option of a fine.</li> <li>4 years imprisonment is suspended on condition the accused pays restitution of US$225 000.00 to the complainant through the Registrar of this court by no later than 31 December, 2017.</li> <li>Effective prison term to be served is 4 years imprisonment.</li> <li>An order of compensation is hereby granted to the complainant, Light Glass Enterprises (Pvt) Ltd in terms of s 362 of the Criminal Procedure &amp; Evidence Act, [<em>Chapter 9:07</em>] in the sum of US$54 118.57.”</li> </ol> <p> </p> <p>The court <em>a quo</em> found that the appellant on a date unknown but during the month of July 2014, whilst purporting to represent Rock Rabbit Investments (Private) Limited (Rock Rabbit Investment), approached the complainant, Robert Mhlanga, representing Light Glass Enterprise (Private) Limited (Light Glass) and sold a mining concession under Special Grant 5341 in the name of Rock Rabbit Investments.  The complainant and the appellant entered into a verbal agreement of sale of the mining concession. The complainant offered to pay in cash and in kind in the form of an immovable property and two motor vehicles (the property). The total purchase price was the sum of USD2 775 000.00 (two million seven hundred and seventy five dollars).</p> <p> </p> <p>In November 2015 when the complainant attempted to commence operations, he discovered that the appellant had no authority to dispose of the concession under Special Grant 5341. A report was made to the police and the appellant was arrested.  The total prejudice was USD2 775 000.00 and nothing was recovered.</p> <p> </p> <p> </p> <p> </p> <p>PROCEEDINGS BEFORE THE COURT <em>A QUO</em></p> <p>                        Before the court <em>a quo</em>, the respondent led evidence from three witnesses. These were, Robert Mhlanga, the complainant, Mr Salim Suleman Desai, a legal practitioner and Mr Hai Zhang, a director of Rock Rabbit Investment (Private) Limited.</p> <p> </p> <p>Robert Mhlanga’s evidence was that the appellant had misrepresented that he was a director of Rock Rabbit Investments (Private) Limited and had a mandate to sell or deal in the Special Grant 5341 issued to Rock Rabbit Investments. This induced him, in his capacity as the director of Light Glass (Private) Limited, to enter into a verbal agreement with the appellant on behalf of the company. He left the details of the agreement, particularly the legalities and the consummation of the agreement, to his lawyer, Mr Desai.</p> <p> </p> <p> It was his further evidence that the property was to be released to the appellant upon the production of title to the concession and a geological report detailing the quantities of the available coal. </p> <p> </p> <p>Next to testify was Mr Desai. He is a legal practitioner with Desai &amp; Associates. He engaged the accused in connection with the sale of the mining concession and was given some documents which included <em>inter alia</em>, the Special Grant 5341 issued to Rock Rabbit Investments by the Minister of Mines, a letter from the Chairman of the Mining Affairs Board addressed to the Directors of Rock Rabbit Investments to which was attached the Special Grant and the appellant’s passport.  He in turn handed over the property forming part of the purchase price of the mining concession to the appellant.  He then requested for the company registration documents and the geological report.  The appellant promised to produce the documents, but however failed to produce these despite numerous requests, phone calls and meetings.  He then demanded return of the property from the appellant who failed to do so.  He thereafter made a report to the police. </p> <p> </p> <p>Mr Zhang Hai is a director of Rock Rabbit (Private) Limited together with his father. He testified that he engaged the appellant as a consultant to apply for a Special Grant to mine coal in the name of Rock Rabbit Investments. The application was successful and they were granted Special Grant 5341. That was the only assignment that he asked the appellant to do on behalf of Rock Rabbit Investments. He produced company documents in the form of CR14 and CR6 which reflected the directorship of Rock Rabbit Investments. It was his further evidence that he never asked appellant to act on behalf of Rock Rabbit Investments in a transaction with Light Glass. On being asked whether the appellant owned 60 per cent shareholding in Rock Rabbit his response was, ”That would be funny.  It’s not possible at all.” He did not elaborate further.</p> <p> </p> <p>  Under cross examination, the witness however agreed that in his statement to the police he had stated that appellant initially came as a consultant but he had verbally agreed that he be appointed a director of Rock Rabbit Investments.  He also agreed that in the same statement he stated that the appellant was one of the directors of Rock Rabbit Investments.  He denied that he had used the appellant in other transactions. Upon being shown proof that he had mandated the appellant to identify investors to exploit another Special Grant, he admitted penning the document.  He however explained that he only engaged him as a consultant.</p> <p> </p> <p>At the close of the State case, the appellant unsuccessfully applied for discharge in terms of s 198(3) of the Criminal Procedure and Evidence Act Chapter. As a result, he was put to his defence.</p> <p>                        The appellant’s case was that he did not approach Robert Mhlanga intending to sell the Special Grant but was looking for an investor who could invest USD15 000 000.00 into the project.  The money would be used for exploration and to set up the mine.  Robert Mhlanga counter proposed that he buys a controlling stake of 60 per cent in the shareholding of Rock Rabbit Investments in the sum of USD8 000 000.00.  Robert Mhlanga did not have adequate funds and as a result offered to pay using the immovable property and the motor vehicles. This left a balance of USD 910 000.00. The companies’ lawyer, Mr Desai, paid the other USD100 000.00. With regard to obtaining the geological report as a condition of the sale, the appellant contended he needed money in order to process and obtain the report. He had used part of the money he received to pay one Nyandoro who had introduced him to Robert Mhlanga.</p> <p> </p> <p>                        It was his case that because of its change of fortunes, the complainant resorted to using the police to resile from the agreement.  It wanted to walk away from the agreement since it did not raise the capital required to move the project forward.</p> <p> </p> <p>                        He conceded that he did not appear in the company records of Rock Rabbit Investments as a director as he was appointed as a director verbally by Mr Zhang.</p> <p> </p> <p>                        On the basis of the evidence that was led before it, the  court <em>a quo</em> found that the appellant had misrepresented that he had a mandate to sell or deal in Special Grant 5341 issued to Rock Rabbit Investments and that he was a director of Rock Rabbit Investments. In this regard, it found that Mr Zhang had no motive to lie that the accused was not a director of Rock Rabbit.  It was satisfied that Mr Zhang had engaged the appellant only as a consultant to assist him to obtain the Special Grant.</p> <p>                        The court also found that once the appellant received the property and the money in issue through engaging in an activity of a criminal nature, the property became proceeds of a crime.</p> <p> </p> <p>                        It consequently found the appellant guilty and sentenced him as outlined above.  Aggrieved by the conviction and sentence the appellant filed the present appeal.</p> <p> </p> <p>THE APPEAL</p> <p>                        Notwithstanding that the appellant raised five grounds of appeal, this Court took the view that he was basically attacking the propriety of the conviction and the severity of the sentence.</p> <p> </p> <p>SUBMISSION BEFORE THIS COURT</p> <p>                        The matter was initially set down on 11 October 2019. When the appellant, a litigant in person, was called upon to address the court in connection with an application for condonation for late filing of Heads of Argument made by the respondent, he launched into an attack on the criminal justice delivery system in Zimbabwe and on the judicial officer who presided over his matter in the court <em>a quo</em>.  He raised serious allegations of impropriety on the part of the presiding officer. </p> <p> </p> <p>                        Since his utterances appeared out of turn and did not relate to the matter before the court, the matter was stood down to chambers wherein he was advised that the matter was to be postponed to enable him to raise his concerns with the administration of the judiciary.</p> <p> </p> <p>At the resumed hearing of the matter, the appellant contended that the conviction was not sustainable as the State had failed to establish the essential elements of fraud beyond a reasonable doubt.</p> <p> </p> <p>                        Mr <em>Mapfuwa</em>, for the respondent, submitted that the court <em>a quo</em> was correct in convicting the appellant. It was his further submission that the appellant had misrepresented that he owned Rock Rabbit Investments to Mr Mhlanga and had made the same misrepresentation to Mr Desai. The misrepresentation was revealed by the testimony of Mr Zhang who testified that the appellant was not a director of Rock Rabbit Investments.</p> <p> </p> <p>                        Mr <em>Mapfuwa</em> was engaged by the court as to the exact nature of the misrepresentation which the State alleged was made by the appellant. This was because the allegations were not clear. The charge sheet alleged that the appellant misrepresented that he had a coal mining concession in Tuli under Special Grant 5341 in the name of Rock Rabbit Investments and that he had a mandate to sell the special grant. Thus, the  allegations against the appellant from the manner in which the charge was framed was that he misrepresented that he had mining concession  in the name of Rock Rabbit (Private) limited which he was authorised to sell.</p> <p> </p> <p>The court <em>a quo</em> correctly identified the issue that fell for its determination in the trial <em>a quo</em>. It was whether the appellant was authorised to deal with the mining concession. Whether the appellant was a director of Rock Rabbit or had shares in the company, was not the dispositive issue in the matter.</p> <p> </p> <p>As the <em>ratio</em> for its decision to convict the appellant, the court <em>a quo</em> found as indicated above, that the respondent had proved beyond reasonable doubt that the appellant had misrepresented that he had the authority to deal with the mining concession.</p> <p> </p> <p>In coming to its conclusion, the court <em>a quo</em> relied on the evidence of Mr Zhang to the effect that the appellant was not a director of Rock Rabbit Investment (Private) Limited and had only been engaged by that company as a consultant.</p> <p> </p> <p>                        Mr <em>Mapfuwa</em> conceded that there were inconsistencies, which he termed ‘minor’, in the evidence of Mr Zhang.  On being asked by the court whether the court <em>a quo</em> was alive to these minor inconsistencies, his response was that seeing that the conviction was based on the evidence of an unreliable witness, Mr Zhang, the conviction might not have been safe.</p> <p> </p> <p>                        The concession made by Mr <em>Mapfuwa</em> is proper.  It is clear from the record that there were some material inconsistencies in the evidence of Mr Zhang.  In his evidence in chief he was categorical that he only engaged the appellant as a consultant to help him obtain the Special Grant 5341.  He had no further dealings with him. He even ridiculed the appellant’s suggestion that he was a director of Rock Rabbit Investments.  Under cross examination, it became apparent that he had not told the truth regarding his dealings with the appellant. A document he authored was produced indicating that he had also engaged the appellant and two others to be his agents for “the sole and exclusive purpose of seeking and, identifying any prospective partners and investors to jointly exploit and finance the exploration and other mineral resources to which Special Grant 5324, Gweru Mining District.”  The document is dated 17 May 2016 some two years after the Light Glass debacle.  It was the appellant’s case that the mandate given in respect of Special Grant 5324, is the same mandate that he got in respect of the Special Grant 5341. It further confirmed the appellant’s version that he (Mr Zhang) had verbally appointed him as a director of Rock Rabbit Investments.  This fact also appears in Mr Zhang’s statement which he made to the police.  He told the police that the appellant was a director of Rock Rabbit Investments.</p> <p> </p> <p>                        What is also apparent from the record is that the court did not assess the credibility of the witnesses appearing before it especially that of Mr Zhang on whose evidence the sole issue in the matter turned. All that it said about this witnesses’ evidence is that he had no motive to lie as against the appellant. It did not give any cogent reasons for its belief. From summarising the evidence of the witnesses the court <em>a quo</em> proceeded to make findings of fact and then the conclusion that the appellant was guilty. It did not assess the credibility of any of the witnesses.</p> <p> </p> <p>The effect of a courts’ failure to make findings on the credibility of witnesses has been laid out in several cases. In <em>Mazorodze v The State,</em> the court remarked thus:</p> <p>“The respondent did not comment on the credibility of witness for the prosecution.  It left that matter totally unaddressed.  The appellant’s criticism of the court <em>a quo</em>’s proceedings on the mentioned aspect has merit.</p> <p> </p> <p>Credibility of witnesses lies in the domain of the trial court.  The appeal court does not, as a matter of principle, interfere with the court a quo’s findings in respect of credibility of witnesses.  (See Beckford v Beckford, 2009 (1) ZLR 271 (S))</p> <p>...there are occasions when an appeal court may interfere with the court <em>a quo</em>’s reasoning on the issue of credibility of witnesses who will have testified before it. One such occasion is where, as <em>in casu</em>, the court <em>a quo</em> does not make any specific findings of fact as to the credibility of witnesses who testified before it. That is a misdirection which allows us to be at large and to re-assess the evidence of the witnesses. Our object would be to establish the witnesses’ credibility or otherwise” of those two witnesses and that none of them did have a reason to lie against the appellant.  He did not profer any cogent reasons for the belief which he entertained as regards the credibility or otherwise of those witnesses - and</p> <ul> <li>the respondent remained mute regarding the alleged misdirection.” (Emphasis added)</li> </ul> <p>In <em>Hwande v The State</em> MAKARAU J as she then was made the following pertinent remarks regarding the need for a trial court to assess the credibility of witnesses:</p> <p>“In assessing the cogency of the evidence that was before it at the end of the trial, the court <em>a quo</em> did not give its assessment of the credibility of this witness. It is important for trial courts to always assess the credibility of the witnesses appearing before it for the guidance of appeal courts. Where a finding of credibility has been done by the trial court, an appeal court is always slow to disregard such a finding. Where such a finding is however not made, the appeal court is placed in the less advantaged position of having to assess the credibility of the witness on the basis of the record without the “evidence of the demeanour of the witnesses, their candour or partisanship and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial”.</p> <p> </p> <p> </p> <p>Thus whilst an appellate court in such instances can make findings on the credibility of witnesses, it is at a disadvantage as such assessment is made based on the record without seeing and hearing the witnesses, observing the demeanour, candour or partisanship which is the preserve of the trial court.</p> <p> </p> <p>In <em>Charangwa v The State</em> the court emphasized the point that the judgment of a trial court must reflect the court’s appraisal of the credibility of each witness stating what evidence was accepted or rejected and giving reasons for its decision. It stated thus:</p> <p>“The reasons why the trial court rejected the appellant’s evidence are not apparent from the judgment. The court simply dealt with the state witnesses’ evidence and ended there. The trial court failed to analyse and give reasons for rejecting the appellant’s defence. The judgement does not deal at all with the testimony of the appellant. In S v Ncube HB 61/03 the court stated the following regarding the need to appraise each witness’s evidence;</p> <p> </p> <p>“…a court’s judgment in a criminal trial should contain a brief summary of the facts found proved and trial court’s appraisal of the credibility of each witness stating what evidence was accepted or rejected and giving reasons for its decision. What is required is a complete and meaningful judgement touching on all material evidence led at the trial.”</p> <p> </p> <p>See also the case of Clever Howard v The State HH 39/05.The court in this case also impressed on the need for a trial court to always assess the credibility of witnesses appearing before it.</p> <p>An offender who goes through a trial is entitled to know the outcome of his trial and the court’s findings on his credibility. Each witness’s evidence is required to be weighed and reasons given why the evidence has been accepted or rejected. Such an offender is also not just entitled to the outcome of the trial but to be furnished with the reasons why the defences he raised were rejected. A judgment should be well balanced and is required to include reasons showing that both the offender and the complainant’s versions have been considered. It must be shown that all the facts and issues raised have been considered and weighed. This judgment falls far short of requirements of a good judgment.”</p> <p> </p> <p> </p> <p> </p> <p>Failure to do so renders the judgment passed ‘bad’ so to say as highlighted in the <em>Charangwa</em> case <em>supra</em>.</p> <p> </p> <p>Thus, the conclusion reached by a trial court without assessing the credibility of witnesses or weighing such evidence constitutes a gross misdirection upon which an appellate court may allow the appeal and order a re-trial or in turn assess the evidence itself.</p> <p> </p> <p>Assessment of witnesses’ evidence and making findings on credibility is the yardstick with which it can be determined that a court of law has applied its mind to the case before it in a proper manner. This can be drawn from the findings of the court in <em>S v Singh</em> where it noted:</p> <p>“Because this is not the first time that one has been faced on appeal with this kind of situation, it would perhaps be wise to repeat once again how a court ought to approach a criminal case on fact where there is a conflict of fact between the evidence of the State witness and that of an accused. It is quite impermissible to approach such a case thus: because the court is satisfied as to the reliability and the credibility of the State witnesses that, therefore, the defence witnesses, including the accused, must be rejected. The proper approach in a case such as this is for the court to apply its mind not only to the merits and the demerits of the State and the defence witnesses but also the probabilities of the case. It is only after so applying its mind that a court would be justified in reaching a conclusion as to whether the guilt of an accused has been established beyond all reasonable doubt. The best indication that a court has applied its mind in the proper manner in the abovementioned example is to be found in its reasons for judgment including its reasons for the acceptance and the rejection of the respective witnesses.” (My emphasis)</p> <p> </p> <p> </p> <p>What comes out from the above authorities is that, the assessment of the credibility of witnesses is one of the key tasks of the trial judge. A trial judge must consider all the evidence, record any credibility findings and explain a logical and rational basis for those findings.  As such, it has been reiterated by this Court time and again that an appellate court is generally reluctant to interfere with a trial court’s decision on the credibility of witnesses unless it concludes that such findings cannot be supported. See<em> Mthimkhulu v Nkiwane &amp; Anor</em> S-136/01. Above all, the findings of credibility must be considered in the light of proven facts and probabilities. See <em>Gumbura v The State</em> SC 78/14.</p> <p> </p> <p>In <em>casu</em>, the court <em>a quo</em>, after outlining the evidence of the witnesses made a blanket statement that “The court has considered all the evidence led in this case as well as submissions made by both counsel.” It did not, in analysing the cogency of the evidence, assess the credibility of the witnesses. It did not set out why it accepted the evidence of the state witnesses and rejected that of the appellant and its reasons thereof.</p> <p> </p> <p>                        If the court <em>a quo</em> had properly applied its mind to the evidence of Mr Zhang and that of the accused, it would have arrived at a different conclusion as to whether the State had established, beyond a reasonable doubt, the guilt of the appellant.  It would have found that Mr Zhang was inconsistent in his testimony. His evidence in court differed in material respects from the statement he had given to the police confirming that the appellant was indeed a director of Rock Rabbit (Private) Limited, verbally appointed so by him although the official documents had not yet been amended to reflect the fact. It would have realised that it was unsafe to convict the appellant in the circumstances. It would have found that the evidence tendered before the court suggested the appellant was more than a mere consultant in respect of the mining concession. He had been instrumental in the issuance of the mining concession to Rock Rabbit Investments (Private) Limited and had in his custody the actual grant and the accompanying letter from the Ministry of Mines advising the Directors of Rock Rabbit Investments  (Private) Limited  of the issuance of the grant.</p> <p> </p> <p>                        The appeal had merit hence the order made by this Court.</p> <p> </p> <p><strong>MAKARAU JA</strong>                    I agree</p> <p> </p> <p><strong>HLATSHWAYO JA</strong>            I agree</p> <p> </p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p>HH 154/16</p> <p>HH 39/05</p> <p>See <em>S v Isano</em> 1985 (1) 62 (S)</p> <p>Per LORD MAcMILLAN in <em>Thomas v Thomas</em> [1947] 1 All ER 582.</p> <p>HH 664/15</p> <p>1975 (1) SA 227 (N) at 228</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/supreme-court-zimbabwe/2019/75/2020-zwsc-75.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=42664">2020-zwsc-75.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/supreme-court-zimbabwe/2019/75/2020-zwsc-75.pdf" type="application/pdf; length=290918">2020-zwsc-75.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/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</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/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/fraud-0">Fraud</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item even"><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/harare-high-court/2016/154">S v Mazorodze (HH 154-16 CA 1188/12) [2016] ZWHHC 154 (24 February 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/664">S v Charangwa (CA 610/14 CRB 1126/14) [2015] ZWHHC 664 (15 July 2015);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2014/78">S v Gumbura (SC 349/14) [2014] ZWSC 78 (15 October 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/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/4">Money Laundering and Proceeds of Crime Act [Chapter 9:24]</a></div></div></div> Thu, 20 Aug 2020 09:26:59 +0000 Sandra 9850 at https://old.zimlii.org Tshuma v Magwaza & 5 Ors (SC 108-20, Civil Application No. SC 249/20) [2020] ZWSC 108 (28 July 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/108 <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><strong>DISTRIBUTABLE</strong><strong>  (100)</strong></p> <p> </p> <p> </p> <p> </p> <ol> <li> </li> </ol> <p><strong>v</strong></p> <ol> <li> </li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HARARE: JULY 1 &amp; 28, 2020</strong></p> <p> </p> <p> </p> <p><em>K. Madzoka</em>, for the applicant</p> <p><em>M. Ndhlovu</em>, for the first respondent</p> <p><em>T. Deme, for</em> the second respondent</p> <p><em>V. Munyoro,</em> for third and fifth respondents</p> <p>No Appearance for fourth and sixth respondents.</p> <p> </p> <p> </p> <p> </p> <p><strong>CHAMBER APPLICATION</strong></p> <p> </p> <p> </p> <p>                   <strong>UCHENA JA:</strong> The applicant filed an urgent chamber application for the setting aside of para 11 of the High Court’s order made after hearing consolidated opposed applications in H/C 6272/19, H/C 6630/19 and H/C 6692.  In para 11 of its order the court <em>a quo</em> ordered that:</p> <p>“Notwithstanding any appeal that the first respondent may file against this order, the operation of this order shall not be suspended by the filing of such an appeal.”</p> <p> </p> <p> </p> <p>                   The court <em>a quo’s</em> order in para 11 was clearly intended to render the anticipated appeal by the applicant ineffective as regards the suspension of the orders it had granted.</p> <p><strong>BACKGROUND FACTS.</strong></p> <p>                   The parties filed three opposed applications before the court <em>a quo</em>. The applications were consolidated and set-down for hearing by the court <em>a quo</em>. The parties had filed a statement of agreed facts which formed the basis of the court <em>a quo’s</em> judgment. The applicant and the first respondent were disputing over who should have the control and right to mine at Etna Mine. The applicant and the second respondent had entered into a partnership agreement through which second respondent who was the registered owner allowed the applicant to conduct mining operations at Etna Mine after which they would share profits at agreed percentages. The partnership agreement was for a five year period running from September 2016 to September 2021.</p> <p> </p> <p>                   Subsequent to the partnership agreement and before the expiry of five years the second respondent who held a registration certificate over the mine sold it and the developments thereon to the first respondent.  Thereafter the applicant and the first respondent disputed over control of the mine leading to the hearing of the consolidated opposed applications. The consolidated applications were heard by two judges sitting as the court <em>a quo</em>. The applicant appealed against their judgment to this Court. After successfully noting the appeal the applicant filed this urgent application.</p> <p> </p> <p><strong>SUBMISSIONS BY THE PARTIES.</strong></p> <p>                   Mr <em>Madzoka</em> for the applicant in his submissions correctly submitted that the general rule is that a judge sitting in chambers cannot set aside an order of the court <em>a quo</em>. He however further submitted that he filed this application because such an application was granted in the case of <em>Zimbabwe Mining Development Corporation and Another v African Consolidated Resources plc and Others </em>2010 (1) ZLR 34 (S). A reading of that judgment confirms that a judge sitting in chambers set aside an order which had been granted by the High Court.</p> <p> </p> <p>                   Mr <em>Madzoka</em> did not rely on any other precedents or statute law to support his reliance on the Zimbabwe Mining Development case (<em>supra</em>). He instead eventually applied to amend the order sought by substituting it with one suspending the operation of para 11 of the court <em>a quo</em>’s order.</p> <p> </p> <p>                   Mr <em>Ndhlovu</em> for the first respondent submitted that a judge sitting in chambers does not exercise appellate jurisdiction. He submitted that appellate jurisdiction in civil matters is exercised by the Supreme Court constituted in terms of s 3, and exercising its jurisdiction in terms of s 21 of the Supreme Court Act (<em>Chapter 7:13</em>).  He further submitted that the power to set aside an order of the court <em>a quo </em>is exercised by the Supreme Court in terms of s 22 (1) (a).  He cited the cases of <em>Blue Ranges Estates (Pvt) Ltd v Muduviri and Another </em>2009 (1) ZLR 368 (S) and <em>Getrude P. S. Mutasa and Didymus N. E. Mutasa v The Registrar of the Supreme Court and Others</em> SC 27/18 as authority for his submission that a judge sitting in chambers cannot set aside an order of the court <em>a quo</em>. He submitted that the Blue Ranges case (supra) clearly states that a judge sitting in chambers cannot make an order striking off the roll an appeal pending in the Supreme Court. In respect of the Mutasa case (<em>supra</em>) he submitted that it was held that:</p> <p>“—once a matter has been filed with the registrar only that court can remove it from the roll on the basis that it does not comply either with the rules of the court or a statute.”</p> <p> </p> <p>                   Mr <em>Ndhlovu</em> in opposing the proposed amendment from setting aside para 11 of the court <em>a quo</em>’s order to the suspension of its operation submitted that the suspension of the operation of para 11 of the court <em>a quo’s</em> order suffers the same fate as it has the same effect of a determination being made on the court <em>a quo’s</em> order by a judge sitting in chambers.</p> <p> </p> <p>                   Mr <em>Ndhlovu</em> in conclusion submitted that the Zimbabwe Mining Development case (<em>supra</em>) is not reliable authority for a judge sitting in chambers to set aside the court <em>a quo’s</em> order. He submitted that the decision in that case is not supported by statute law or precedents from this Court.</p> <p> </p> <p>                   Mr <em>Deme</em> for the second respondent agreed with Mr <em>Ndhlovu</em>’<em>s</em> submissions. Mrs <em>Munyoro</em> for the third and fifth respondents submitted that the third and fifth respondents will abide by the decision of the court.</p> <p> </p> <p>                   Mr <em>Madzoka</em> in his reply sought to motivate the application for an amendment of the order sought from the setting aside of para 11 to the suspension of its operation. He did not respond to the effect of ss 3, 21, and 22 of the Supreme Court Act on the applicant’s application.</p> <p> </p> <p>                   The issue which falls for determination is whether or not a judge sitting in chambers has jurisdiction to set aside or suspend the court <em>a quo</em>’s order.</p> <p> </p> <p> </p> <p><strong>THE LAW</strong></p> <p>        Section 3 of the Supreme Court Act provides for the constitution of the Supreme Court. It reads:</p> <p>“For the purpose of exercising its jurisdiction in any matter the Supreme Court shall be duly constituted if it consists of not less than three judges of whom one shall be—</p> <p>(<em>a</em>) the Chief Justice; or</p> <p>(<em>b</em>) a judge of the Supreme Court other than an acting  judge of the Supreme Court.”</p> <p> </p> <p>                   Section 3 provides that for purposes of exercising appellate jurisdiction in any matter the Supreme Court shall be constituted by not less than three judges. This means a judge sitting in chambers cannot exercise the jurisdiction and powers conferred on the Supreme Court. Such jurisdiction or powers can only be exercised by the Supreme Court constituted by not less than three judges.</p> <p> </p> <p>                   The jurisdiction of the Supreme Court in civil appeals is provided for in s 21 as follows:</p> <p> </p> <p>“(1) The Supreme Court shall have jurisdiction to hear and determine an appeal in any</p> <p>civil case from the judgment of any court or tribunal from which, in terms of any other enactment, an appeal lies to the Supreme Court.</p> <p> (2) Unless provision to the contrary is made in any other enactment, the Supreme Court shall hear and determine and shall exercise powers in respect of an appeal referred to in subsection (1) in accordance with this Act.”</p> <p> </p> <p> </p> <p>                   It is apparent from a reading of s 21(1) that the Supreme Court has jurisdiction to hear and determine an appeal in any civil case from any subordinate court or tribunal.  A single judge sitting in chambers does not sit as the Supreme Court, but as a single Supreme Court judge whose role is to hear applications in terms of the Supreme Court Rules 2018, intended to facilitate compliance with procedural requirements for noting appeals and other preparatory issues pending the eventual hearing of appeals by the Supreme Court.</p> <p> </p> <p>                   Section 22 (1) (a) of the Supreme Court Act puts beyond doubt the fact that the power to set aside an order or judgment of the court appealed against was given to the Supreme Court properly constituted in terms of s 3. It provides as follows:</p> <p>          “(1) Subject to any other enactment, <strong>on the hearing of a civil appeal the Supreme </strong></p> <p><strong>            Court—</strong></p> <ul> <li><strong>shall have power to confirm, vary, amend or set aside the judgment appealed against or give such judgment as the case may require.”</strong> (emphasis added)</li> </ul> <p>                    </p> <p>                   It is clear that the Supreme Court on the hearing of an appeal can exercise the power to set aside an order of the court <em>a quo</em>. The Act does not give the same power to a judge sitting in chambers. A judge sitting in chambers does not hear appeals but hears applications intended to facilitate the hearing of appeals.</p> <p> </p> <p>                   The jurisdiction of a judge sitting in chambers is provided for by the Rules of the Supreme Court S.I 37/18, which rules are made in terms of s 34 of the Supreme Court Act.  Rule 5 provides for the hearing of chamber applications provided for by the rules as follows:</p> <p>“An application made to a judge under these rules may be heard either in chambers or in open court and at such time as the judge may determine”.</p> <p> </p> <p> </p> <p>                   Therefore the hearing of an appeal in terms of the Act by the Supreme Court and the hearing of a Chamber application by a judge in chambers in terms of the Supreme Court Rules cannot be equated or be mistaken to be one and the same thing. I therefore do not agree with the authority relied on by the applicant.</p> <p> </p> <p>                   I agree with the decision of this Court in <em>Blue Ranges (Pvt) Ltd v Muduviri (supra</em>) where MALABA DCJ (as he then was) at page 374 B to C said:</p> <p>“I agree with Mr Mlotshwa that a single judge of the Supreme Court sitting in chambers has no power, derived from any provision of the relevant statutes, to make an order striking an appeal pending in the Supreme Court off the roll. The answer to the question whether a single judge sitting in chambers has power to hear and determine an application for an order striking an appeal off the roll lies in the relevant provisions of the statute in terms of which the Supreme Court was created and the rules regulating its proceedings.”</p> <p> </p> <p> </p> <p>                   See also the Mutasa case (<em>supra</em>) where GUVAVA JA at pages 6-7 said:</p> <p>“In my view once the second respondent filed the notice of appeal within the prescribed time, it ceased to be an issue upon which the registrar’s decision could be questioned or one where a single judge of the Supreme Court could declare a nullity. I was thus not convinced by the argument that there was a distinction between this case and the Blue Ranges Case (<em>supra</em>) as the net effect of such an order would be the same. If the matter were to be struck off the roll it would no longer be before the court.”</p> <p> </p> <p> </p> <p><strong>APPLYING THE LAW TO THE FACTS.</strong></p> <p>                   In this case an appeal has been noted and is pending for hearing by the Supreme Court. It is at that hearing that the propriety of para 11 of the court <em>a quo</em>’s order will be determined. It is at that hearing by the Supreme Court when the applicant can seek the setting aside of that order.</p> <p> </p> <p>                   I fully appreciate the urgency created by the effect of the court <em>a quo’s </em>order. I also appreciate the effect of the applicant’s allegation that the order was granted without following correct procedures. The applicant’s plea for an urgent resolution of the situation is noted, but he may seek the setting aside of para 11 of the court <em>a</em> <em>quo’s</em> order by the Supreme Court on an urgent basis.</p> <p> </p> <p>                   If the applicant can prove the need for the urgent resolution of the situation created by the court <em>a quo</em>’s order he can by court application, apply for the urgent hearing of the appeal by the Supreme Court or apply for the setting aside of para 11 by that court. </p> <p> </p> <p>                   In the result the applicant’s application does not comply with the Rules. It is struck off the roll with costs.</p> <p> </p> <p> </p> <p><em>Ushewokunze Law Chambers</em>, applicant’s legal practitioners.</p> <p><em>Mutamangira and Associates</em>, 1st respondent’s legal practitioners.</p> <p><em>Thoughts Deme Attorneys</em>, 2nd respondent’s legal practitioners.</p> <p><em>The Attorney General (Civil Division),</em> 3rd and 5th 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/supreme-court-zimbabwe/2020/108/2020-zwsc-108.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=37364">2020-zwsc-108.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/supreme-court-zimbabwe/2020/108/2020-zwsc-108.pdf" type="application/pdf; length=420618">2020-zwsc-108.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/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</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/partnership">PARTNERSHIP</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/supreme-court-1">SUPREME COURT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/court%E2%80%99s-wide-powers-civil-appeal-supreme-court">court’s wide powers in civil appeal (Supreme Court)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/jurisdiction-supreme-court">Jurisdiction of Supreme Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/powers-supreme-court">Powers of Supreme Court</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/2018/27">Mutasa &amp; Another v The Registrar of the Supreme Court &amp; 2 Others (SC 27/18, Civil Appeal No. SC 173/17) [2018] ZWSC 27 (14 May 2018);</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/1981/28">Supreme Court Act [Chapter 7:13]</a></div></div></div> Mon, 17 Aug 2020 14:07:38 +0000 Sandra 9831 at https://old.zimlii.org Anjin Investments (Private) Limited v The Minister of Mines and Mining Development & 2 Ors (SC 39-20, Civil Appeal No. SC 549/18) [2020] ZWSC 39 (10 March 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/39 <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/supreme-court-zimbabwe/2020/39/2020-zwsc-39.pdf" type="application/pdf; length=541540">2020-zwsc-39.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/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</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/condonation-practice-and-procedure">Condonation (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-condonation">application for condonation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation-non-observance-any-time-limit">condonation of non-observance of any time limit</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/order-spoliation">Order (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/supreme-court-zimbabwe/2006/1">Tel One (Pvt) Ltd. v Communication and Allied Services Workers&#039; Union of Zimbabwe (37/05) ((Pvt)) [2006] ZWSC 1 (08 February 2006);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2014/76">Chimunda v Zimuto &amp; Another (SC 361/05) [2014] ZWSC 76 (29 September 2014);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2014/54">Banga &amp; Another v Zawe &amp; Others (Civil Appeal No. SC 74/12) [2014] ZWSC 54 (07 September 2014);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2018/34">Minister of Mines and Mining Development &amp; 3 Others v Grandwell Holdings (Private) Limited &amp; 2 Others (SC 34/18, Civil Appeal No. SC 165/16) [2018] ZWSC 34 (19 June 2018);</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/1961/38">Mines and Minerals Act [Chapter 21:05]</a></div></div></div> Fri, 19 Jun 2020 08:15:03 +0000 Sandra 9690 at https://old.zimlii.org