Abuse of Process https://old.zimlii.org/taxonomy/term/6921/all en Forbes & Thompson (Bulawayo) (Pvt) Limited v ZINWA & Another (HB 147-18, HC 1148-16) [2017] ZWBHC 147 (08 June 2017); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2017/147 <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>FORBES &amp; THOMPSON (BULAWAYO) (PVT) LTD</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE ZIMBABWE NATIONAL WATER AUTHORITY</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>TIMOTHY KADYAMUSUMA</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 2 &amp; 8 JUNE 2017</p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>W. Ncube</em> for applicant</p> <p><em>Dondo</em> for the respondents</p> <p>            <strong>MAKONESE J:        </strong>This matter came before this court by way of an urgent chamber application held on 6 May 2016.  The applicant sought and obtained urgent relief against 1st and 2nd respondents directing them to immediately reconnect the pipes and restore water supply from Blanket Dam in Gwanda to Vumbachikwe Mine which respondents had disconnected.  The applicant additionally sought an order interdicting respondents from terminating the water supply without a court order pending the return date of the provisional order.</p> <p>            On the 26th May 2016 the respondent filed opposing papers in which they confirmed the essential facts which had been placed before the court by the applicant but disputed applicant’s entitlement to the relief sought.  The terms of the order sought are in the following terms:</p> <p>            “Terms of final order sought</p> <p> </p> <ol> <li>The disconnection by the first and second respondents of the applicant’s water supply from Blanket Dam, Gwanda, without a court order amounted to self help and was unlawful.</li> <li>That first respondent, its employees or assigns, including second respondent be and are hereby interdicted from interfering with or terminating applicant’s water supply from Blanket Dam without a court order.</li> <li>The first and second respondents jointly and severally the one paying the other to be absolved, shall pay the costs of suit of this application.</li> </ol> <p> </p> <p>Interim relief granted</p> <p> </p> <p>Pending the return date, the applicant is granted the following relief:</p> <p> </p> <ol> <li>The first and second respondents be and are hereby ordered to immediately reconnect the pipes and restore the supply of water from Blanket Dam in Gwanda, by interfering with or terminating the water supply without a court order.</li> <li>The first and second respondents, jointly and severally the one paying the other to be absolved, shall pay costs of suit of this application.</li> </ol> <p>The admitted facts surrounding this matter are that the applicant had been drawing water from Blanket Dam long before the contractual relationship between the parties, and had provided all the equipment for the pumping of the water from the dam.  Once pumped the water is then purified by the applicant and reticulated to the employee’s compound at the Vumbachikwe Mine and for the applicant’s mining operations.  Applicant and first respondent entered into a written agreement for the period 1st of April 2015 to 31st March 2016.  I shall not comment further, regarding the authenticity and validity of the written contract as both parties appear to have been content to be bound by the terms of the written agreement.  However, I need to point out as I must that parties to written agreements must take seriously how such contracts are signed, by whom, they are signed, when and where they are signed.  Parties who append their signatures to written documents signify their desire to be bound by the contractual terms appearing above their signatures.  In this matter it would appear that applicant signed the written agreement and was not handed the document signed by the first respondent.  It appears to me that the document presented in court by the first respondent was signed after the fact.  This is not desirable.  By the time the disconnection was effected the written water supply agreement had expired and has not been renewed.  However, the disconnection was not on the grounds of the expiration of the written agreement but was on ground of alleged non timeous payment of water bills.  The respondent contends that the disconnection of water supplies was occasioned by a breach of section 22 of the water supply agreement which provides as follows:</p> <p>“… notwithstanding the foregoing, in the event of the customer failing to pay the charges due in terms hereof by the due date and not having rectified such a breach within thirty (30) days receipt from ZINWA or committing any breach of any of the terms and conditions of this agreement, or failing, in the opinion of the Chief Executive Officer, whose decision shall be final, to make beneficial use of such water, then and in such event ZINWA shall have the right summarily to cancel this agreement, or to discontinue the supply of water to the customer for such period as it may think fit.  Such cancellation or discontinuance shall be without prejudice to the right of ZINWA to recover from the customer such sums as may be due by way of charges, damages or otherwise and ZINWA shall not be responsible for any loss or damage direct or consequential arising out of such termination or suspension …”</p> <p>            The respondents aver that the disconnection of water supplies to the applicant without a valid court order is permissible in terms of the water supply agreement.  The respondents contend that the disconnection of water supplies without recourse to court process is lawful and does not amount to self help and is not unconstitutional.</p> <p>            The respondents concede, however, that section 77 of the Constitution of Zimbabwe (Amendment No. 20/2013) provides that every person has a right to safe clean and portable water and sufficient food, and that the state must take reasonable legislative and other means within the limits of the resources available to achieve the progressive realization of this right.  In the same breath and context the respondents deny that they violated the relevant provision of the Constitution by “merely disconnecting” water supplies for reasons of non payment for water already consumed by applicant.  The respondents contend that the water supply agreement provides that the first respondent would supply applicant with water for a charge to the consumer and the applicant was obliged to pay for the water supplied.  I must point out here that the precise provisions of the agreement provided for payment of a water levy and council tax.  Section 4 of the Water Supply Agreement provides as follows:</p> <p>            <strong>“Charges for water</strong></p> <p>            …</p> <p>            The water charge shall consist of:</p> <ul> <li><strong>Water Levy</strong></li> </ul> <p>That the customer shall pay a water levy based on its consumption of water in accordance with the provisions of Statutory Instrument 95 of 2000 or any amendments thereto, $0,25/m3.</p> <ul> <li><strong>Sub-catchment Council Rate</strong></li> </ul> <p>That the customer shall pay as stipulated by the sub-catchment council, a rate set from time to time by the said council –</p> <p>            (c)        <strong>VAT</strong></p> <p>                        …”</p> <p>            Respondents aver that a party who is in default by reason of non-payment cannot invoke the provisions of section 77 of the Constitution to support the argument that the disconnection of water supplies was unlawful and unconstitutional.  It is contended on behalf of the respondents that such an argument would be tantamount to saying that businesses must give away their products such as water and food for free since every person has a right to water and sufficient food.  It is important to observe, however, that the application before the court is not predicated on the assumption that goods and services should be given away for free.  The analogy given may not serve to illustrate the respondent’s argument because the respondents do not in fact sell water as a commodity in the strict sense of the word.  In terms of the water supply agreement the respondents levy its consumers and impose a council rate for the consumption of water.</p> <p>            I must now determine whether the conduct of the respondents is contrary to the provisions of the Constitution.  There is no dispute that the respondents are constitutionally bound to ensure that applicant’s constitutional right to clean and portable water is respected.  The respondents’ actions in disconnecting water supplies quite clearly, in my view, violates the applicant’s right to safe, portable and clean water.  It is a basic principle of our legal system that the law should serve the public interest.  It follows therefore, that it is not in the public interest that an institution or agency of the government can deny its citizens water arbitrarily without recourse to the law and the courts.  In this regard, the remarks in the case of <em>City of Cape Town</em> v <em>Strumpher </em>(104/11 (2012) ZASCA 54 are relevant.  In this matter reference to section 27 (1) of the South African Constitution which is similar to section 77 of the Constitution of Zimbabwe is made and it was stated thus:-</p> <p>“<em>It follows from the above statutory and constitutional provisions that the right to water claimed by the respondent when he applied for a spoliation order, was not based solely on the contract which he concluded with the City, but was underpinned by the constitutional and statutory provisions discussed above.  This view was fortified by the decision of this court in Impala Water Users Association v Lourens NO and Others 2008 (2) SA 495 SCA.”</em></p> <p>            In <em>Mushoriwa</em> v <em>City of Harare</em> 2014 (1) ZLR 515, BHUNU J (as he then was), in coming to the same conclusion stated that:</p> <p><em>“It is a basic principle our legal policy that law should serve the public interest.  As we have already seen, every person has a fundamental right to water.  It is therefore, clearly not in the public interest that a city council can deny its citizens water at all without recourse to the law and the courts.  While the City Council has a right to collect its debts it cannot be so by resorting to unlawful mean for every person including the City Council is subject to the law.”</em></p> <p>            I would, in this event, associate myself with the views expressed in these cases.  As a matter of law resort to self help without the authority of a court order is <em>ipso facto</em> unlawful moreso when such resort has the effect of infringing a constitutionally guaranteed right.</p> <p>            The respondents have largely placed reliance on the cases of Augustine <em>Runesu Chizikani</em> v <em>Agricultural Finance Corporation</em> SC-1234-95.  In the <em>Nyamukusa </em>v<em> AFC SC-174-94 </em>matter the court had this to say:</p> <p><em>“In the circumstances where the provisions of the said clause 6 are incorporated in the loan agreement as was in this case, the respondent is entitled to proceed in terms of s40 (2) and 22a of the said Act.  It is worthy of note that these powers are in addition to those under s40 (1) of the Act.”</em></p> <p>            It is not in doubt that the cases cited by the respondents are distinguishable from the facts of this matter.  The Supreme Court in those decisions was dealing with loan agreements and the rights of parties to take possession of the property hypothecated without recourse to the law.  The circumstances in this case are covered and governed by the provisions of section 77 of the Constitution.  In my view, the cases referred to by the respondents related to seizure of property in terms of a loan agreement, and whether such seizure without recourse to a court order violated the provisions of section 16(1) and 18(a) of the old Constitution.  The cases cited by respondents are not relevant to the facts of the present matter.</p> <p>            In respect of the issue of spoliation it is fairly well established in our law that for a party to succeed it must show that:</p> <ul> <li>the party was in peaceful and undisturbed possession.</li> </ul> <p>See <em>Wino Bonino</em> v <em>De Longe</em> 1906 TS 120 at 122, where the principle was laid down in the following terms:</p> <p><em>“it is a fundamental principle that no man is allowed to take the law into his own hands, no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable.  If he does so, the court will summarily restore the status quo ante, and will do that as a preliminary to an inquiry or investigation into the merits of the dispute.”</em></p> <p>            See also <em>Chisveto </em>v <em>Minister of Local Government and Town Planning</em> 1984 (1) ZLR 284 (H)</p> <p>            It seems to me that it is not open to doubt that when respondents disconnected water they did so without any valid court order.  The disconnection was carried out to compel the applicant to settle outstanding bills.  The applicant does not dispute owing some amount to the respondents.</p> <p>            In disconnecting the pipes from the dam, 2nd respondent’s intention was to deprive the applicant access to the water in the dam.  2nd respondent clearly and unlawfully disconnected water supply to Vumbachikwe Mine which is operated by applicant.  Applicant has been drawing water from Blanket Dam in Gwanda for several years without disturbance and has provided all the equipment for the pumping of water from the dam.  1st respondent, through 2nd respondent, unlawfully interrupted that <em>status quo</em>, thereby leading to these legal proceedings.  2nd respondent placed locks on the pump house preventing applicant from accessing and reconnecting the water in order to carry out its operations and to service its employees in the mine compound.  The disconnection of water supplies led to the creation of a possible health hazard and is in direct violation of the fundamental right to clean, safe and portable water as provided under section 77 of the Constitution.</p> <p>            The second paragraph of the final relief sought by the applicant is for an interdict prohibiting the respondents from interfering with or terminating applicant’s water supply from Blanket Dam, Gwanda, without a court order.  The practical effect of the interdict sought is to prohibit the respondents from interfering with applicant’s possession of access to its pump house at Blanket Dam, Gwanda by interfering with or terminating the water supply without a court order.  The requirements for an interdict in our law are well settled and can be summarised thus:</p> <ul> <li>the existence of a clear right which must be established on a balance of probabilities.</li> <li>Irreparable injury actually committed or reasonably apprehended.</li> <li>The absence of an alternative satisfactory remedy available to the applicant.</li> </ul> <p>See <em>ZESA Staff Pension Fund</em> vs <em>Mashambadzi</em> SC-57-02 and <em>Setlogelo</em> v <em>Setlogelo</em> 1914 AD 221</p> <p>The facts of this matter show that applicant has a clear right to water that is enshrined in the Constitution under section 77.  Moreover, there is a statutory obligation for 1st respondent to supply water to the applicant.  The 1st respondent is entitled to levy the applicant for the consumption of water supplied and consumed.  Applicant has evidently suffered irreparable harm as a result of respondents’ actions.  The disconnection has impacted negatively on the health of thousands of applicant’s workers and their families who reside in the compound.  Production at the mine has been severely affected.  There could be no suitable remedy to prevent the respondents from unlawfully disconnecting water.  The respondents have asserted in several communications with the applicants that they will resort to the disconnection of water supplies “as a tool” of compelling settlement of their bills.</p> <p>            I am satisfied that the state and quasi state institutions cannot abrogate  their constitutional obligations and duties by alleging that by entering into a water supply agreement, the applicants contracted themselves out of constitutional provisions.</p> <p>            In the circumstances, the applicants are entitled to the final order sought and I accordingly make the following order.</p> <ol> <li>The disconnection by first and 2nd respondents of the applicant’s water supply from Blanket Dam, Gwanda, without a court order amounted to self help and was unlawful.</li> <li>First respondent, its employees or assigns, including second respondent be and are hereby interdicted from interfering with or terminating applicant’s water supply from Blanket Dam, Gwanda, without a court order.</li> <li>First and second respondents, jointly and severally, the one paying the other to be absolved shall pay the costs of suit.</li> </ol> <p><em>Messrs Dube-Manikai &amp; Hwacha c/o Mathonsi Ncube Law Chambers</em>, applicant’s legal practitioners</p> <p><em>Dondo &amp; Partners c/o Moyo &amp; Nyoni</em>, respondents’ 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/bulawayo-high-court/2017/147/2017-zwbhc-147.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22924">2017-zwbhc-147.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2017/147/2017-zwbhc-147.pdf" type="application/pdf; length=202797">2017-zwbhc-147.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/abuse-process">Abuse of Process</a></li><li class="vocabulary-links field-item odd"><a href="/tags/injunction">Injunction</a></li><li class="vocabulary-links field-item even"><a href="/tags/interim-interdict">Interim Interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li><li class="vocabulary-links field-item even"><a href="/tags/freshwater-use">Freshwater use</a></li><li class="vocabulary-links field-item odd"><a href="/tags/el">EL</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The applicant in this High Court case moved the court to issue an interdict order against the first and second respondent. The applicant needed the court to compel the respondents to restore the supply of water that they had disconnected to the applicantÕs mine.  The interim relief had been issued in a previous application, but the applicant additionally sought an order interdicting the respondents from terminating the water supply. </p> <p>The first and second respondent disconnected the water supply that fed the applicants mine and the neighbouring community. The applicant argument was that the respondents infringed its right to water under s77 of the Constitution of Zimbabwe. The respondents argued that they were entitled to disconnect the water supply as the applicant failed to pay the water bills, thereby ending their contract.</p> <p>Thus, the issue for determination was whether the applicant satisfied the requirement for an interdict to be issued.</p> <p>The court held that in the issue of spoliation, it is established in law that for a party to succeed it must show that the party was in peaceful and undisturbed possession. The court was satisfied that the applicant was constitutionally entitled to water supply, and that interference with this right without a court order was unlawful.</p> <p>As a result, the interdict was allowed pending the main trial.</p> </div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Fri, 13 Jul 2018 07:55:06 +0000 Sandra 8974 at https://old.zimlii.org Hippo Valley Estates Limited & Another v Minister of Environment, Water & Climate (HH 235-18, HC 7770/16) [2018] ZWHHC 235 (03 May 2018); https://old.zimlii.org/node/8842 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HIPPO VALLEY ESTATES LIMITED</p> <p>and</p> <p>TRIANGLE LIMITED</p> <p>versus</p> <p>MINISTER OF ENVIRONMENT, WATER AND CLIMATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANGOTA J</p> <p>HARARE, 20 February, 2018 and 3 May, 2018</p> <p> </p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p> </p> <p><em>T Magwaliba</em>, for the applicants</p> <p><em>E Mukucha</em>, for the respondent</p> <p> </p> <p> </p> <p>            MANGOTA J: The applicants are sister companies. They are into sugar-cane growing and sugar processing. They operate in the Southern part of Zimbabwe’s lowveld.</p> <p>            The respondent is the Minister of Environment, Water and Climate. She is the one to whom the President of Zimbabwe assigned the Zimbabwe National Water Authority Act out of which the Zimbabwe National Water Authority [“ZINWA”] was born. ZINWA is a statutory body.</p> <p>            The applicants concluded two agreements with ZINWA’s predecessors. The agreements related to the supply of raw water to the applicants. They were signed in 1961.</p> <p>            The agreements provide that the parties - i.e. the applicants and ZINWA- would jointly review charges for raw water and the respondent would fix the charges if the parties failed to agree. One of the agreements provides that any new charges would take effect in the succeeding year. The other provides that new charges would take effect after a period of two months.</p> <p>            On 17 December, 2015 ZINWA’s Chief Executive Officer, one Sakupwanya, addressed a letter to the applicants. The letter which the applicants attached to the application as Annexure C referred to the review of raw water tariffs. It reads, in part, as follows:</p> <p> </p> <p>            “RE: REVIEW OF RAW WATER TARIFFS</p> <p> </p> <p>            This serves to advise that Government, through the recent National Budget pronouncement, has reviewed water tariffs for Commercial Agriculture (Estates) from $9.45 per megalitre to           $12-00 per megalitre.</p> <p>            The new tariffs are with effect from December 1, 2015” [emphasis added].</p> <p> </p> <p>            Following the above-mentioned letter, the respondent published the Zimbabwe National Water Authority [Raw Water Tariffs] Regulations, Statutory Instrument 48 of 2016 [“the regulations”]. She did so on 6 May, 2016.</p> <p>            The regulations are the subject of this application. The applicants applied to have them set aside. They submitted that these were <em>ultra vires</em> the enabling Act, violated their rights, were discriminatory in nature and were, therefore, invalid.</p> <p>            The respondent opposed the application. She stated, <em>in limine</em>, that the deponent to the applicants’ founding affidavit did not have the latter’s authority to depose to the same. She stated, on the merits, that she published the regulations in terms of s 50 of the Zimbabwe National Water Authority Act. The Act, she insisted, confers power upon her to make regulations which provide for a tariff of water charges. She submitted that the regulations did not violate the applicants’ rights. She averred that she could set the tariff notwithstanding the agreement which the applicants concluded with ZINWA’s predecessors in 1961. She insisted that the agreements which the applicants referred to were governed by s 39 (7) of the Water Act [<em>Chapter 20:24</em>]. She moved the court to dismiss the application with costs.</p> <p>            The applicants abandoned the <em>in limine</em> matter which they had raised in their answering affidavit. The preliminary matter pointed at the fact that the notice of opposition had been filed out of time. They had insisted that the respondent had been barred and should not, therefore, be heard.</p> <p>            The respondent’s <em>in limine</em> matter which related to the authority of the deponent’s deposition of the founding affidavit was disposed of by the applicants. They attached to the answering affidavit two resolutions. They called these Annexures A1 and A2. The annexures showed that the deponent had the applicants’ authority to depose to the affidavits for and on their behalf.</p> <p>            The <em>in limine</em> matter of non-joinder of ZINWA to the application which the respondent raised in her Heads was devoid of merit. She knows as much as the court and the applicants do that the issue of non-joinder cannot kill an application or a court action.</p> <p>            Reference is made in this regard to r 87 (1) of the High Court Rules 1971. The rule reads in, part, as follows:</p> <p>            “(1) No cause or matter shall be defeated by reason of the misjoinder or non-joinder          of any party….”</p> <p> </p> <p>            Whilst it was desirable for the applicants to have joined ZINWA to the application which they filed against the respondent, its non-joinder did not, however, cause the application to be fatally defective. In any event, it is not ZINWA which made the regulations which gave birth to this application. The respondent made them. She was, therefore, correctly sued. She is as the author of the applicants’ complaint.</p> <p>            The letter, Annexure C, which ZINWA addressed to the applicants is quite revealing. It states, in clear and categorical terms, that Government reviewed raw water tariffs for the applicants’ operations upward. It does not say ZINWA reviewed the water tariffs.</p> <p>            Paragraph 9 of the agreement which the first applicant signed with ZINWA’s predecessor in 1961 says of the subject which is under consideration:</p> <p> </p> <p>            “9. REVIEW AND AMENDMENT OF CHARGES</p> <p> </p> <p>            That ZINWA may review the price of water supplied, including the water levy, at any time. The consumer shall be advised, in writing, of any such variation in charges consequent upon      such review and the said variation in charges shall take effect after a notice period of      two months.” (emphasis added).</p> <p>            Paragraph 8 of the agreement which the second applicant concluded with ZINWA’s predecessor, on the issue of the review of water tariffs, reads:</p> <p>            “Review and Amendment of Charges …..</p> <p> </p> <p>            8.         The charges described in clause 7 hereof shall be subject to review in accordance</p> <p>with the following provisions:</p> <p> </p> <ul> <li>Until the 15th June, 1966 the said charges may be reviewed at any time but only at the request of the consumer. Upon such review the said charges shall be fixed by agreement between the parties, and failing such agreement shall be determined by the Minister.</li> <li>As from June 1966, the said charges may be reviewed at any time at the instance of either party prior to the end of each year, commencing with the period ending on the 31st March, 1967. Upon such review -</li> </ul> <p> </p> <ul> <li>The said charges shall be agreed between the parties and failing agreement shall be determined by the Minister, and any variation of the said charges consequent upon such review shall take effect as from the beginning of the next succeeding year.” (emphasis added).</li> </ul> <p> </p> <p>It is evident, from the foregoing, that the power to review the water tariffs rests with ZINWA in so far as the case of the first applicant is concerned. The same power lies with ZINWA and the second applicant in so far as the second agreement is concerned. The respondent has no power at all to review the water tariffs in the first agreement. She reviews the water tariffs in the second agreement where ZINWA and the second applicant have failed to agree on the tariff which must apply to the latter’s consumption of water for its operations.</p> <p>            The respondent acted <em>ultra vires</em> the agreements when she reviewed the water-tariffs for the applicants. She had neither the power nor the authority to do what she did. A <em>fortiori</em> when she acknowledges, as she does, the existence and, by necessary implication, the binding nature of the agreements which ZINWA’s predecessors signed with the applicants.</p> <p>The agreements are in tandem with s 30 of the Zimbabwe National Water Authority</p> <p>Act, [<em>Chapter 20:25</em>] (“the Act”). It reads, in part, as follows:</p> <p>“30      Water and other charges</p> <p> </p> <ol> <li>The Authority may, with the approval of the Minister and subject to the Water Act [<em>Chapter 20:24</em>], fix charges for –</li> </ol> <p> </p> <ul> <li>the sale of raw or treated water from water works operated or controlled by the Authority; and</li> <li>…………..; and</li> <li>…………..; and</li> <li> </li> </ul> <p> </p> <ol> <li>When seeking the approval of any charge in terms of subsection (1) or an increase in any charge, the Authority shall apply to the Minister in writing, setting the full details of any proposed charges or increase therein and the basis of the proposal.</li> <li>The Minister shall consider forthwith any application in terms of subsection (2) and, if he is satisfied that the proposed charge or increase therein is fair and reasonable having regard to –</li> </ol> <ul> <li>………..; and</li> <li>………..; and</li> <li>any other relevant economic factors justifying the proposed charge or increase therein, he shall approve the charge or increase therein sought”[emphasis added].</li> </ul> <p> </p> <p>It is evident, from the foregoing, that the respondent cannot <em>mero motu</em> increase the</p> <p>water tariffs. It is also clear that he/she cannot increase the water tariffs which ZINWA puts forward to him/her for his/her consideration unless he/she is satisfied with ZINWA’s reasons for the increase.</p> <p>            ZINWA has to file a written application to him/her. It has to state its reasons for the proposed increase. Its reasons must satisfy the respondent. It, in short, engages in a formal process which the respondent has the discretion to approve or disapprove.</p> <p>            It is not within the respondent’s power to act in terms of s 50 of the Act without ZINWA having made any written representations to him/her on the issue of the proposed increase. Any action by him/her along the suggested lines would be <em>ultra vires</em> the Act.</p> <p>            There is, <em>in casu</em>, no evidence that ZINWA applied to the respondent to consider any proposed increase. There was, in fact, no proposed increase of water tariffs at all.</p> <p>            The letter, Annexure C, which ZINWA addressed to the applicants forms the basis of increase of water tariffs. The letter has the footprints of the Minister of Finance and Economic Development. It does not have the footprints of the respondent or those of ZINWA.</p> <p>            There is, therefore, no doubt that the respondent acted outside s 30 of the Act when she published the regulations. Her conduct was <em>ultra vires</em> the enabling Act, so to speak.</p> <p>            Given the above-described set of circumstances, the complaint of the applicants cannot be faulted. They submitted, and correctly so, that the respondent violated the <em>audi alteram partem </em>rule. They said they were not consulted by ZINWA or the respondent when the latter published the regulations.</p> <p>            The <em>audi alteram partem </em>rule is a principle of natural justice. It enjoins decision-makers to hear the other side before he/she makes a decision which adversely affects the rights of the other party. The principle has its origins in the biblical story of Adam and Eve when they partook of the forbidden fruit. God did not just impose a punishment against them for having failed to obey the rule which he had directed them to obey at all times. He called upon them, each in turn, to justify his/her conduct. He only imposed the punishment upon each one of them when each failed to acquit himself or herself.</p> <p>            The above-mentioned principle became part of modern Zimbabwe’s law. It was born under the Administrative Justice Act, [<em>Chapter 10:28</em>]. Section 3 of the mentioned Act is pertinent. It reads, in the relevant part, as follows:</p> <p>“3.       Duty of Administrative Authority</p> <p>(1)        An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectation of any person shall–</p> <p>                        (a)        act lawfully, reasonably and in a fair manner; and</p> <p>            (b)        ---; and</p> <p>            (c)        ---.</p> <p>(2)        in order for an administrative action to be taken in a fair manner as required by paragraph (a) of subs (1), an administrative authority shall give a person referred to in subs (1) –</p> <p>                        (a)        adequate notice of the nature and purpose of the proposed                 action; and</p> <p>                        (b)        a reasonable opportunity to make adequate                                         representations; and</p> <p>                        (c)        adequate notice of any right of review or appeal where                                  applicable.”</p> <p> </p> <p>            There is no doubt that the respondent violated paras (a), (b) and (c) of subs (2) of s (3) of the Administrative Justice Act. Contrary to the agreements which required the applicants and ZINWA to discuss and agree a review of the water tariffs, the respondent simply increased the same. She did not notify the applicants of the increase. She did not afford them an opportunity to make representations. She simply published the regulations as a bombshell. The publication adversely affected the applicants’ rights. It was, at any rate, not within the scope of her work to review the water tariffs. That work was for ZINWA to perform. Her work was to either approve or disapprove what ZINWA would have placed before her.</p> <p>            Judicial notice is taken of the fact that Government and ZINWA are two separate and distinct authorities. The respondent falls under the executive arm of Government. She, it has already been stated, administers the Act under which ZINWA falls. ZINWA, on the other hand, is a statutory body. It is a parastatal which has its own structure which is separate and different from Government. ZINWA, and not Government, should have reviewed the water tariffs. Government, however, reviewed these. Reference is made in this regard to the contents of Annexure C. These state, categorical terms, that Government reviewed raw water tariffs for the applicants’ operations.</p> <p>            The respondent’s statement which was to the effect that the agreements which the applicants concluded with ZINWA’s predecessors were governed by s 39 (7) of the Water Act [<em>Chapter 20:24</em>] was totally misplaced. The section does not deal with the current subject – matter. It deals with the reallocation of water. It, therefore, does not apply to the issue which is before me.</p> <p>            The applicants stated, and correctly so, that s 56 of the Constitution of Zimbabwe grants all persons equality before the law. They insisted, and again correctly so, that it grants to all persons the right to equal protection and benefit of the law. The section, they state, outlaws  discrimination which is based on <em>class </em>or <em>economic </em>or<em> social status.</em></p> <p>            That the respondent violated s 56 of the Constitution requires no debate at all. She singled out the operations of the applicants only and published regulations for those alone. All other sectors, amongst them mining and industry, had their charges reduced or maintained. The annexures which the applicants attached to the application bear testimony on the above observed matter. The respondent failed to justify the discrimination which she caused the applicants to suffer.</p> <p>            The regulations which the respondent published violated:</p> <ul> <li>the agreements which the applicants and ZINWA’s predecessors concluded.</li> <li>section 30 as read with s 50 of the Act.</li> <li>section 56 of the Constitution of Zimbabwe.</li> </ul> <p> </p> <p>They are unlawful in every respect of the word. They cannot stand. The respondent’s opposition to the application was completely devoid of merit.</p> <p>            The applicants proved their case a balance of probabilities. The application is, accordingly, granted as prayed.</p> <p> </p> <p><em>Scanlen &amp; Holderness</em>, applicant’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</em>, respondent’s legal practitioners</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/harare-high-court/2018/235/2018-zwhhc-235.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28937">2018-zwhhc-235.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/2018/235/2018-zwhhc-235.pdf" type="application/pdf; length=326563">2018-zwhhc-235.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li><li class="vocabulary-links field-item odd"><a href="/tags/judicial-review">Judicial Review</a></li><li class="vocabulary-links field-item even"><a href="/tags/abuse-process">Abuse of Process</a></li><li class="vocabulary-links field-item odd"><a href="/tags/freshwater-use">Freshwater use</a></li><li class="vocabulary-links field-item even"><a href="/tags/public-utilities">Public utilities</a></li></ul></span><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/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-decisions-and-acts">Administrative decisions and acts</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/decision-adverse-applicant">decision adverse to applicant)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/statutory-requirements">statutory requirements</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/audi-alteram-partem-rule">Audi alteram partem rule</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/natural-justice">Natural justice</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rules">rules of</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The court considered an application to set aside the National Water Authority Regulations and tariffs on the ground that they were ultra vires and violated the applicants’ rights. </p> <p>The applicants’ business operations involved sugar-cane growing and sugar processing. They concluded two agreements with the Zimbabwe National Water Authority (ZINWA), which related to the supply of water. It was a term of the agreement that the parties would, together, review charges for raw water, and should they fail to agree, the respondent would fix the prices.  Subsequently, ZINWA addressed a letter advising the applicants of their intention to review the charges. The respondent unilaterally increased the tariffs and failed to notify the applicants. The respondent argued that in terms of the ZINWA Act, she had the authority to impose tariffs for water charges and that the regulations did not violate the applicants’ rights. </p> <p>The court considered whether the respondent had acted lawfully in imposing the water tariffs. It found that the government reviewed the water charges, and not ZINWA which was lawfully established to review the tariffs in as far as the applicant was concerned.  </p> <p>The court found that the respondent could not unilaterally increase water tariffs, unless ZINWA had made application to it to justify the increase. In this case, the respondent failed to notify the applicants, nor did she give them an opportunity to respond. The court concluded that the respondent acted ultra vires by increasing the tariffs and her actions were unlawful. Accordingly, the application was upheld</p> </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/1998/31">Water Act [Chapter 20:24]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/12">Administrative Justice Act [Chapter 10:28]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 21 May 2018 13:48:32 +0000 Sandra 8842 at https://old.zimlii.org Mabwe Minerals (Pvt) Ltd. & Others v Valentine & Another (HH 793/16 HC 1514/16) [2016] ZWHHC 793 (08 December 2016); https://old.zimlii.org/node/7941 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1</p> <p>HH 793/16</p> <p>HC 1514/16</p> <p> </p> <p>MABWE MINERALS (PRIVATE) LIMITED</p> <p>and</p> <p>TAPIWA GURUPIRA</p> <p>and</p> <p>TAG MINERALS ZIMBABWE (PVT) LTD</p> <p>and</p> <p>JOHN RICHARD NEEDHAM GROVES</p> <p>versus</p> <p>PETER VALENTINE</p> <p>and</p> <p>BASE MINERAL ZIMBABWE (PRIVATE) LIMITED</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANGOTA J</p> <p>HARARE, 10 October AND 8 December 2016</p> <p> </p> <p> </p> <p> </p> <p><strong>Opposed Matter </strong></p> <p> </p> <p> </p> <p> </p> <p><em>R. F Mushoriwa</em>, for the applicants</p> <p><em>S. T Mutema</em>, for the respondents</p> <p> </p> <p> </p> <p>            MANGOTA J: The applicants applied for a decree of perpetual silence against the respondents. They submitted that these constituted a nuisance to them. The respondents, they said, took them to the magistrates’ courts, this court and the Supreme Court with no end in sight. They stated that the respondents took them to court on not less than forty (40) occasions. They averred that they have been subjected to a series of abusive criminal and civil proceedings. They said, despite repeated dismissal of their claims by the courts, the respondents maintained the position that the judgments which were entered against them were ineffectual. They complained that the respondents were harassing and vexing them. They insisted that the court should protect them as well as itself from the abusive conduct of the respondents. They moved the court to grant them the decree.</p> <p>            The respondents opposed the application. They moved the court to examine the cases which formed the basis of the application in relation to their cause.  They denied that they were always in the driving seat when the cases which the applicants made reference to found their way to the court(s). They stated that the applicants filed some of the cases with the court(s). They said all the cases upon which the current application rests had a bearing on a mine tribute agreement which the fourth applicant concluded with the second respondent. The fourth applicant, they said, concluded the tribute agreement with them through his Chiroswa Minerals (Pvt) Ltd [“the company”]. They submitted that they should not be silenced for their effort to assert their right in the tribute agreement. They moved the court to dismiss the application with costs.</p> <p>            At the centre of the parties’ dispute is Dodge Mine [“the mine”]. It lies in Shamva District under Mashonaland Central Province. It has six claims. These are lucrative, according to the evidence filed of record.</p> <p>The fourth applicant and his partner used to own and work the mine. They worked it under the name Chiroswa Syndicate. The fourth applicant later sold the mine to the first applicant. This was after his partner had left the syndicate. The first applicant is currently the owner of the mine.</p> <p>            The issue of the mine has seen the parties take each other to court on thirty (30), and not forty (40), occasions. The applicants filed actions and/or applications against the respondents on nine (9) occasions. The respondents filed actions and/or applications on sixteen (16) occasions. The following five (5) cases were not accounted for: HC 233/13, HC 5669/13, HC 5460/13, HC 6842/14 and HC 308/12. The court could not tell which party filed what action or application in respect of the mentioned five (5) cases. What it could tell, however, was that the parties have been in and out of courts on thirty (30) occasions.</p> <p>            The relief which the applicants moved the court to grant to them is not new to the jurisdiction of this court. In <em>Mhini</em> v <em>Mupedzamombe</em>, 1999 (1) ZLR 561, 566 E Garwe J (as he then was) had the occasion to deal with an issue which was similar to the present one. The learned judge quoted with approval what Curlewis J said in <em>Brown </em>v <em>Simon</em>, 1905 TS 311, 322 wherein he remarked that the procedure:</p> <p>“… affords a useful means of bringing to a conclusion all threatened actions, and in our opinion, it is applicable under due safeguards not only to cases where a claim has been made or an action threatened publicly, but to every case where by demand or threatened action there has been a disturbance of, or interference with, the quiet enjoyment of another’s rights. [emphasis added].  </p> <p> </p> <p>            In <em>Corderoy</em> v <em>Union Government </em>[<em>Minister of Finance</em>] 1918 AD 512 which Garwe J was pleased to make reference to in <em>Mhini</em> v <em>Mupedzamombe</em> (<em>supra</em>) the South African Appellate Division held that when there has been repeated and persistent litigation between the same parties, in the same cause of action and in respect of the same subject – matter, the court can make a general order prohibiting the institution of such litigation without the leave of the court but that power extended only to prevent abuse of its own process without being concerned with the process of other courts.</p> <p>The paucity of case authorities on the current subject is ample evidence of the fact that the relief, whilst recognised at law, is seldom resorted to. It is only granted where a party succeeds in showing the court that the defendant or respondent is a serial litigator who has the tendency to abuse not only the court but also its process and his adversary.</p> <p>            It is important for the court to examine and establish the fact of whether or not the respondents fall into the category of serial litigators who abuse the applicants, the court(s) and their processes.</p> <p>            The dispute of the parties has its origin in the Judgment of Patel J (as he then was). The learned judge had the occasion to hear and determine the matter in which Chiroswa Minerals (Pvt) Ltd [“the company”] and the second respondent brought before him under case number HH 2612/11. The company and the second respondent had sued the following three parties – the Minister of Mines, one Morris Tendayi Nyakudya and the latter’s company, Vambo Mills (Pvt) Ltd. They succeeded in having Mr Nyakudya and Vambo Mills (Pvt) Ltd evicted from the mine where they were operating in terms of an expired tribute agreement. They successfully moved the court to order the Minister of Mines to refer the tribute agreement which they had concluded between them to the commissioner of mines for approval and registration.</p> <p>            A reading of Patel J’s judgment under HH 261/11 tends to suggest that it was Chiroswa Minerals (Pvt) Ltd which entered into the tribute agreement with Morris Tendayi Nyakudya and his Vambo Mills (Pvt) Ltd. It is also not a far-fetched suggestion that Chiroswa Mills (Pvt) Ltd moved to enter into the second tribute agreement of the mine with the second respondent.</p> <p>            The abovementioned observations find support from the fact that it is Chiroswa Minerals (Pvt) Ltd, and not Chiroswa Syndicate, which moved for the eviction of Mr. Nyakudya and his Vambo Mills (Pvt) Ltd from the mine. The company worked hand-in-glove with the second respondent to achieve its desired end-in-view.</p> <p>The impression which the company created in the mind of the respondents, at the time, was that it owned the mine. It could not successfully evict those from the same if it was not the owner of the mine. It would have had no <em>locus standi</em> to do so.</p> <p>            It is common cause that the fourth applicant owned Chiroswa Minerals (Pvt) Ltd. He, in appreciation of his good working relationship with the first respondent, donated 50% of his shares in the company to the first respondent. The first respondent, it is not in dispute, was or is the managing director of the second respondent.</p> <p>            The above observed matters do, in the court’s view, account for the misunderstanding which later ensued between the fourth applicant and the respondents. These, the first respondent in particular, must have laboured under the genuine but mistaken belief that they, or he, as a 50% holder of shares in Chiroswa Minerals (Pvt) Ltd, had a substantial interest not only in the company but also in the mine which the company owned.</p> <p>            The first respondent’s belief in the mentioned regard finds support from a reading of Matanda-Moyo J’s judgment under case number HH 557/14. The first respondent had, in the case, sued the first, second and fourth applicants. He moved the court to set aside the agreement of sale of the mine which the fourth applicant had concluded with the first and the second applicants. He claimed that he owned 50% of the mine. He challenged his omission from participating in the sale of the mine. He insisted that the sale was, on the mentioned basis, null and void and had, therefore, to be set aside.</p> <p>            It is such belief as has been stated in the foregoing paragraphs which caused the respondents to file one suit after another with the courts. They worked on the impression which had been created. They believed that they, or one of them, owned 50% of the shares in the company which owned the mine. They, therefore, made every effort to assert what they believed belonged to them.</p> <p>            The respondents’ belief was shattered when Matanda-Moyo J ruled, to their disappointment, that Chiroswa Syndicate, and not Chiroswa Minerals (Pvt) Ltd, owned the mine. The respondents could not, under the stated circumstances, be said to have engaged themselves in a wild goose chase, as it were. They honestly believed, in the court’s view, that they were pursuing a genuine cause. They believed, further, that the fourth applicant and the company were treating them unfairly. They, therefore, made effort to have their case determined by the courts.</p> <p>            The respondents’ unrelenting effort to assert their right in what they believed belonged to them took their case to a higher level in 2013. In a matter which Chiroswa Minerals (Pvt) Ltd and the second respondent filed under case number HC 5208/13, Takuva J remained alive to the judgment which Patel J delivered under HH 261/11. The learned judge ordered the Minister of Mines, one Obert Mpofu, and the Commissioner of Mines, a Mrs E Kahonde, to process the tribute agreement which Chiroswa Minerals (Pvt) Ltd and the second respondent concluded as at the time of Patel J’s judgment and to have the same registered at the offices of the mining commissioner. The order contained a stiff sanction which the minister and the commissioner would suffer if they did not comply with it. They would each be held to have been in contempt of court and be committed to thirty (30) days imprisonment.</p> <p>            It was as a result of Takuva J’s order that the mining commissioner did, on 13 February 2014, register a tribute agreement in favour of the second respondent. The fourth applicant represented the company and Chiroswa Syndicate in the tribute agreement which the parties registered with the mining commissioner. The first respondent represented the second in the same. The tribute was or is to endure for a period of three years. It would, therefore, expire       on 13 February, 2017.</p> <p>            Given the above described set of circumstances, it would be difficult, if not impossible, for one to suggest, as the applicants did, that the respondents were or are a nuisance to them. The applicants, the fourth applicant in particular, conveyed an impression to the respondents. These believed him only to discover, at a later stage, that he was hunting with the hounds and running with the hares, so to speak. He dined and wined with them, as it were. He later switched his allegiance from them and proceeded to work with the applicants against them.</p> <p>            The fourth applicant was undoubtedly the main cause of the parties’ misunderstanding. He, through his Chiroswa Minerals (Pvt) Ltd, worked with the second respondent to evict persons who were at the mine from the same. He agreed to enter into a tribute agreement of the mine with the second respondent. He sold the mine to the first applicant. He sold his 50% shareholding in Chiroswa Minerals (Pvt) Ltd to the third applicant. He consulted no one in this complicated matrix which he created not for himself but for the respondents.</p> <p>            The court was not amused by the fourth applicant’s manner of dealing with his business partners. It viewed the applicants’ effort to conceal certain matters from it with serious disquiet. They attached to the application a wrong tribute agreement. The agreement showed its life span as commencing on 14 December 2011 and expiring on 14 December, 2014. They did not make any reference to the correct tribute agreement which was registered at the mining commissioner’s offices on 13 February, 2014. They plucked off the last page of Patel J’s judgment i.e. the page on which the learned judge’s order was recorded. They made an effort not to disclose the existence of Takuva J’s order under HC 5208/13.</p> <p>            In acting as they did, the applicants’ aim and object were to paint the picture which showed that the respondents were a rogue element which must be placed under leash all the time, so to speak. They, unfortunately for themselves, over-did their trick to a point where their story remained difficult, if not impossible, to believe. They were ably legally represented in this and other actions or applications. Their legal practitioner should have been more candid with the court than he did. The court, therefore, viewed the conduct of the applicants and their legal practitioner with displeasure.</p> <p>            The respondents could not be faulted for having made an effort to assert their right in what they believed belonged to them. They cannot be blamed for asserting their right in the tribute agreement which was registered in the second respondent’s favour on 13 February 2014. That agreement is still extant. It will only expire on 13 February, 2017.</p> <p>            The application cannot, on the basis of the foregoing, be allowed to stand. A decree of perpetual silence, as I understand it from the papers which were placed before me, is a very extra-ordinary remedy. It seeks to make a person not deaf but dump before the court which perpetually silenced him. Its aim and object are to bar him from instituting any criminal or civil proceedings against the party in whose favour the bar operates. It bars him from litigating or prosecuting except with the leave of a judge or the court and for good cause shown as well as on notice to his adversary. It sees him as a serial litigator who abuses the court, its process and his adversary with no end which is of any benefit to him being ever in sight. Its extra-ordinary character lies in that, once it is granted, it deprives a person of his constitutional right to litigate or to prosecute. It can, for the mentioned reasons, be granted only in exceptional circumstances.</p> <p>            The respondents <em>in casu</em> were not shown to be a set of serial litigators. They were not shown to have been suing or prosecuting the applicants with no end in sight which was not of benefit to them. They had, and still have, a clearly defined cause which they were, and are, enforcing. They took the long road to realise their intended benefit because of unsound advice which their esterwhile legal practitioner continued to dish out to them. He made them use the wrong method to achieve their lawfully acquired right. They should not, therefore, be made to suffer for the sins of their legal practitioner. Indeed, the courts expressed their displeasure against the legal practitioner when they ordered him to pay costs on two separate occasions. Such was the height of the courts’ lack of amusement on the work of the respondents’ legal practitioner. If he had sat down to reflect as he should have, he would have realised that something was not sticking in the manner that he approached the case of his clients.</p> <p>            The court has considered all the circumstanced of this case. It is satisfied that the applicants were not able to discharge the <em>onus</em> which rested upon them. Their application stood on nothing. They made their case less credible by concealing vital evidence which related to the application. The application is, accordingly, dismissed with costs on a higher scale.</p> <p> </p> <p> </p> <p> </p> <p><em>Mushoriwa Pasi Corporate Attorneys</em>, 1st and 2nd applicants’’ legal practitioners</p> <p><em>Stanslous &amp; Associates</em>, respondents’ legal practitioners</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2016/793/2016-zwhhc-793.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=31106">2016-zwhhc-793.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/2016/793/2016-zwhhc-793.pdf" type="application/pdf; length=298529">2016-zwhhc-793.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li><li class="vocabulary-links field-item odd"><a href="/tags/abuse-process">Abuse of Process</a></li><li class="vocabulary-links field-item even"><a href="/tags/attribution-costs">Attribution of Costs</a></li><li class="vocabulary-links field-item odd"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>This was an application for a decree of perpetual silence against the respondents for engaging in lawsuits aimed at harassing the applicants. The dispute between the parties emanated from certain claims in a mine, which resulted in over 30 court applications between the parties.</p> <p>The court first dealt with the nature of the relief sought by the applicants. The court after citing authorities pointed out that the relief is recognised in the jurisdiction of the court. The court pointed out that in cases where repeated and persistent litigation between parties, in the the same cause of action, the court can make a general order prohibiting the institution of such litigation without the leave of the court. It was noted that such a remedy is extraordinary as it makes a person deaf before the court. The court also pointed out that the remedy is only granted where a party demonstrates to the court that the defendant or respondent is a serial litigator, with a tendency to abuse the court, the court process and the other party.</p> <p>In dismissing the application, the court dealt with the history of the litigants and concluded that the respondents had a defined cause and were not serial litigators. </p> <p>The court dismissed the application with costs on a higher scale.</p> </div></div></div> Sun, 19 Mar 2017 22:19:08 +0000 admin 7941 at https://old.zimlii.org Marange Resources (Pvt) Ltd. v Core Mining & Minerals (Pvt) Ltd. (IN LIQUIDATION) & Others (SC 37/16 Civil Appeal No. SC 208/13) [2016] ZWSC 37 (22 July 2016); https://old.zimlii.org/node/7629 <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>Judgment No<a name="OLE_LINK6" id="OLE_LINK6">. SC 37/16</a></strong></p> <p> <strong>Civil Appeal No. SC 208/13</strong></p> <p> 1</p> <p> </p> <p><strong>REPORTABLE</strong><strong>         (32)</strong></p> <p> </p> <p><strong>MARANGE     RESOURCES     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <ol> <li><a name="OLE_LINK5" id="OLE_LINK5"></a><a name="OLE_LINK4" id="OLE_LINK4"><strong>CORE     MINING     &amp;     MINERALS     (PRIVATE)     LIMITED     (IN      LIQUIDATION),</strong></a></li> <li><strong>MOSES     CHINHENGO,     (RETIRED     JUDGE)     N.O,</strong></li> </ol> <p><strong>(3)     PRESIDENT     OF     THE     LAW     SOCIETY     OF     ZIMBABWE     N.O</strong></p> <p><strong>(4)     ATTORNEY     GENERAL     OF     ZIMBABWE     N.O.</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>BEFORE: <a name="OLE_LINK8" id="OLE_LINK8"></a><a name="OLE_LINK7" id="OLE_LINK7">MALABA DCJ, HLATSWAYO JA AND GUVAVA JA</a></strong></p> <p><strong>HARARE, 11 FEBRUARY 2014 AND JULY 22, 2016</strong></p> <p> </p> <p><em>T Mpofu, </em>for the Appellant</p> <p><em>L Uriri, </em>for the first Respondent</p> <p>No appearance, for the second to fourth Respondents</p> <p> </p> <p><strong>HLATSWAYO JA:   </strong>This is an appeal against the whole judgment of the High Court of Zimbabwe. The order sought to be impugned reads as follows:</p> <p>“I am not satisfied that the matter is urgent. This application fails. It will not be necessary to decide all the other issues raised. In the result, the application is dismissed with costs on an Attorney and Client scale<em>.”</em></p> <p> </p> <p>The chronicle of events are common cause and succinctly set out in the judgment <em>a quo</em>.</p> <p> </p> <p>A joint venture and shareholders’ agreement was entered into on 14 August 2009 between Marange Resources (Pty) Ltd (the appellant), the Zimbabwe Mining development Corporation (ZMDC) and Core Mining and Mineral Resources (Pty) Ltd.  A dispute then arose between the parties over the participation of the first respondent (Core Mining and Mineral Resources (Pty) Ltd) in the affairs of the joint venture company. The appellant’s position was that the agreement between the parties was void <em>ab initio</em>. The first respondent, on the other hand, arguing for the upholding of the compact, filed an application under HC 8410/10 seeking an order declaring the agreement valid.  On 10 February 2012 the first respondent was placed under winding up by an order of a South African Court and joint liquidators were duly appointed. At the instance of the liquidators, the first respondent’s legal practitioners addressed a letter to the appellant with a request for negotiations within a 30 day period. Having heard nothing from the appellant or its legal practitioner within the 30 day period, the first respondent wrote a letter dated 27 November 2013 to the Commercial Arbitration Centre requesting three names of arbitrators so that they could choose one. Negotiations to appoint an arbitrator failed resulting in the first respondent’s legal practitioners writing a letter to the third respondent (President of the Law Society of Zimbabwe) who then appointed the retired Judge, Moses Chinhengo, the second respondent, as arbitrator.</p> <p> </p> <p>On 12 April 2013 a pre-arbitration meeting was convened which the appellant boycotted. The meeting, however, proceeded and preliminary issues were identified and an order was made directing parties to file submissions. On the 23 April 2013 appellant filed an urgent application in the court <em>a quo</em> seeking to interdict the arbitration proceedings. The court <em>a quo</em> held that the matter was not urgent and in any event the appellant had other available remedies under the Arbitration Act [<em>Chapter 7:15</em>].  Subsequently, the appellant requested to be heard on an urgent basis which request was granted.</p> <p> </p> <p>At the hearing the appellant raised a preliminary issue of whether first respondent was properly before the court given the mis-citation of first respondent.  The matter is outlined in the judgment as follows:</p> <p>“The first respondent’s first preliminary point relates to the citations of the respondent.  <em>Mrs Mtetwa</em> submitted as follows.   The first respondent has been cited as Core Mining and Minerals (Pvt) Ltd (In Liquidation).  The final winding order from the Gauteng High Court refers to a company cited as Core Mining and Mineral Resources (Pty) Ltd ….  This application was served at <em>Messrs Mtetwa and Nyambirai </em>ostensibly as representatives of the first respondent.  She (<em>Mrs Mtetwa)</em> submitted that Core Mining and Minerals (Pvt) Ltd (In Liquidation) is not a party to these proceedings and is not represented by the said law firm.  The first respondent is a South African registered company and it has been (wrongly) cited as Core Mining and Minerals (Pvt) Ltd (In Liquidation) instead of Core Mining and Mineral Resources (Pty) Ltd.  Although it is apparent from communication regarding the arbitration proceedings that the company involved is Core Mining and Mineral Resources (Pty) Ltd, the applicant cited the company as a (Pvt) company.  The first respondent conceded that the citation of Core Mining as a (Pvt) company by the applicant was in error and that this was a common error as even the arbitrator made the same error in the pre-hearing meeting minutes ….  The respondent has no objection in having the error corrected.  The applicant has declined the offer to rectify its papers and amend the citation.  The first respondent submitted that the applicant has adopted the illogical position that its own self-created error in the citation of first responded entitles it to the relief on the basis that there is no opposition before the court.  The first respondent maintained that the application is a nullity on the basis that first respondent is a non-existent company and their intervention is to protect their client’s interests and is permissible under the rules of court.” at page 4</p> <p> </p> <p>Upon the appellant’s refusal and failure to amend its papers and on the strength of the decision in <em>Mudzengi &amp; Ors v Hungwe &amp; Anor</em> 2001 (2) ZLR 1275 at 182-D-E, the court held that the appellant could not benefit from its wrong doing as it failed to amend its papers despite an invitation by the first respondent to do so.  The court went on to state that even if it was wrong on the preliminary point, the matter was still not urgent hence its dismissal of the matter was inevitable. Aggrieved by the decision <em>a quo</em>, the appellant approached this court on the following grounds:</p> <ol> <li>Having found as she did, albeit wrongly, that the matter is not urgent, the leaned judge erred in dismissing the whole cause and not striking it off the roll.</li> <li>The learned judge erred and misdirected herself in dismissing the Urgent Chamber Application on the ground that it was not urgent when she had already delved into the merits of the matter and ought to have made a decision on the merits.</li> <li>The court <em>a quo </em>erred and fell into error at law by making a finding that the application was properly opposed in the absence of the authority required at law for a <em>peregrinus</em> company in final liquidation to institute or defend proceedings.</li> <li>The court <em>a quo</em> erred and misdirected itself in failing to find that the matter was urgent that the need to act arose on the 23 April being the date by which the illegality which appellant complained of manifested.</li> <li>The learned judge erred in making a finding that an arbitrator has the power to determine the validity or otherwise of an agreement in terms of which he is appointed, which determination could only be made by the court.</li> <li>The court <em>a quo</em> grossly misdirected itself in countenancing the abuse of its process by the arbitrator in that he proceeded with the hearing notwithstanding the pendency of the matter before the High Court and so erred in failing to confirm the interim order which it had previously granted on the 10 of May 2013.</li> <li>The court <em>a quo</em> erred in failing to make a finding that applicant had properly cited the first respondent as the party who had instituted the arbitration proceedings which were subject to the Urgent Chamber Application.</li> <li>The learned judge seriously misdirected herself in dismissing the application with a punitive order as to costs without any justifiable basis for so doing.</li> </ol> <p> </p> <p>The relief sought by the appellant is crafted as follows:</p> <p>Appellant seeks the following relief:</p> <ol> <li>That the instant appeal succeeds with costs.</li> <li>That the judgment of the court <em>a quo</em> be overturned to read as follows:</li> </ol> <p>“Pending the final determination of Case No HC 8410/10 and criminal trial under Case No CRB/10, 1st, 2nd, 3rd and 4th Respondents be and are hereby interdicted from instituting and proceeding with Arbitration Proceedings in terms of the Joint Venture Agreement and Shareholders Agreement between the applicant and the 1st Respondent dated the 14th of August 2009 that the applicant is a party (to).”</p> <p> </p> <p>It is critical to point out that the relief sought above is not in line with the order of the court <em>a quo</em> impugned in the appeal.  The operative part of the judgment <em>a quo</em> dismissed the application on the basis that it was not urgent. In the relief sought in this appeal, the appellant does not pray for the substitution of the decision <em>a quo </em>with an order reflecting that in fact the matter was urgent as would have been expected. The relief sought has no <em>nexus</em> with this ground of appeal. In fact, the relief sought would, if granted, have the effect of interdicting all respondents, which decision relates to the merits of the case and which merits a court deciding on urgency alone must not make an order on. See <em>Air Zimbabwe (Private) Limited (2) Air Zimbabwe Holdings (Private) Limited v Stephen Nhuta</em> <em>&amp; Others</em> SC 65/14.  If the relief was based on the ground that the court <em>a quo</em> should have decided the matter on the merits, having delved into the dispute, then this should have been made clear or such relief should have been couched in the alternative.</p> <p> </p> <p>The relief sought by the appellant also forcefully brings to the fore the issue of mis-citation once more<em>.  </em>Mr<em>. Mpofu</em>, for the appellant, devotes the first five pages of his 11- page heads of argument to this point, twisting and turning the argument to urge the conclusion that the matter must be disposed of as undefended.</p> <p>  However, the undeniable fact is that the appellant seeks to have the terms of the joint venture and shareholding agreement entered into by a party whose proper and correct citation it assiduously refused to effect, affected by the order of this court.  That proper party is technically not present in these proceedings except to the extent of protecting its interests which it is entitled to do in terms of rules of court. It is common cause that the appellant in the court <em>a quo</em> cited the first respondent as CORE MINING AND MINERALS (PVT) LTD instead of CORE MINING AND MINERAL RESOURCES (PTY) LTD. Called upon to amend the mis-citation, the appellant flatly refused even when assured that such an amendment would not be resisted.  It is clear on the record that the party which the appellant would not name, i.e., resists to properly cite, is the only party on liquidation and its identity is stated in the liquidation order.  The appellant has no qualms in using the fact of a liquidation to silence the director of the first respondent on the basis that he cannot represent a company in liquidation and yet refuses to acknowledge the true identity of the very entity in liquidation!  In my view, this kind of sophistry, which the respondent, in the light of the parties’ previous dealings characterises as “convenient amnesia”, comes very close to what has been termed ‘fraudulent diligence in ignorance’.</p> <p> </p> <p>  The subsequent action of the appellant of seeking to have the matter disposed of as unopposed on the basis of its own failure to properly cite the first respondent is the kind of abuse of court process which I had occasion to remark about in the case of <em>Mudzengi &amp; Others v Hungwe &amp; Another</em> 2001 (2) ZLR 179 (H) at 182 D-E, thus:</p> <p>“I found this to be a rather startling and unusual objection, coming as it did from a party that had cited the Respondents in the first place as having the necessary <em>locus standi</em> to defend the application. Surely, an applicant who cites a party lacking in legal authority cannot rely on that incapacity to have the matter resolved in his favour. Rather, if the applicant knowingly cites a party lacking in <em>locus standi</em>, then the matter will not be properly before the court and it must be dismissed with costs on a higher scale. Ordinarily it would be the Respondents who would raise their own lack of capacity, or indeed applicant’s lack of capacity, as a defence in <em>limine</em>.”</p> <p> </p> <p>In raising the preliminary point of its own mis-citation of the first respondent and seeking to benefit from the same, the appellant, the very party who had refused to correct the mis-citation, undoubtedly seeks to benefit from its own wrong. This court has had occasion to reiterate on the common law position that no one maintains an action arising out of his own wrong. See <em>Standard Chartered Bank Zimabbwe Ltd v Matsika</em> 1997 (2) ZLR 389 (SC). Thus, the court <em>a quo</em> was quite correct in holding that the citation of the first respondent as a Private Limited (Pvt) company instead of a Proprietary Limited (Pty) company was a material mis-description resulting in an existing company being incorrectly cited or a wrong party being brought to court. (Pvt) denotes a private company as envisaged under Zimbabwean law whilst (Pty) denotes a proprietary company as described under South African Law.<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a></p> <p> </p> <p>The need for the proper citation of parties is highlighted in, Cilliers, A.C. et al in <em>Herbstein &amp; van Winsen’s The Civil Practice of the High Courts of South Africa</em>, 5th ed, vol.1 page 143 as follows:</p> <p>“Before one cites a party in a summons or in application proceedings, it is important to consider whether the party has <em>locus standi</em> to sue or be sued (<em>legitima persona standi in judicio</em>) <strong><em>and to asceratain what the correct citation of the party is</em>.” </strong>(emphasis added)</p> <p> </p> <p>Expounding on the same theme, the writer, Peter van Blerk, in <em>Legal Drafting: Civil Proceedings</em>, Juta and Company Ltd, 2014, remarks:</p> <p>“Generally speaking, it is the practitioner representing the plaintiff who is required to take the initiative in identifying parties to the action. This function must also receive the consideration of the defendant’s legal practitioner. It happens from time to time that, to use the colloquial expression, the plaintiff has sued the ‘wrong party’ or even, although less frequently, that the ‘wrong plaintiff’ has sued.  A practitioner faced with one or the other of these situations must identify precisely what has occurred. In the case of the so-called ‘wrong defendant’, the first question to be asked is on whom the summons was served.  Is it the party cited in the summons?  If so, the second question is whether the cause of action relied upon by the plaintiff is one that lies against the defendant cited by the plaintiff.  If the party served with the summons is correctly described (ignoring spelling errors or minor immaterial mistakes), then one should admit the allegations concerning the identity of the defendant and deny the appropriate allegations regarding the cause of action.  If the description of the defendant clearly does not apply to the person on whom the summons is served, the person served has, technically speaking, no duty to oppose the proceedings.” At page 13.</p> <p> </p> <p>The present matter before the court is one where the description of the respondent does not apply to the person on whom process was served and therefore, technically speaking, on whom no duty to defend the proceedings arises, but for the obvious compromise of the first respondent’s interests as already noted in the terms of the draft order sought and the consequent entitlement to intervene.</p> <p> </p> <p>As for the legal consequences of wrong citations, understandably very few situations of ‘wrong defendants/respondents’ or ‘wrong plaintiffs/applicants’ have had to be decided in our jurisdiction, as such errors, I believe, are routinely rectified in consultation between the parties.  <em>See</em> also, for comparison, Paterson TJM<em>, Eckard’s Principles of Civil Procedure,</em> Juta and Company Ltd, 2005, 5th ed(2012) p.184 where it is stated: “In the event of these pleas (non-joinder and mis-joinder) being successful, the court will order a stay in the proceedings so that the pleadings can be amended  so as to bring the proper parties before the court.”</p> <p>The case of <em>CT Bolts (Pvt) Ltd v Workers Committee</em> SC 16/12 involved a ‘wrong respondent’ and it was held that a “workers committee” “not being a legal <em>persona</em>, is not properly before this court.  The proceedings before the Labour Court and prior to that, the arbitrator, were similarly void”.</p> <p> </p> <p>Again a wrong party, this time an applicant, sued in <em>Gweru Water Workers Committee v City Of Gweru</em> SC 25/15 and MALABA DCJ remarked as follows:</p> <p>“The appellant claimed on behalf of the employees.  A worker’s committee can only represent the interests of the employees who appointed or elected it at the workplace.  It cannot substitute itself for the employees and claim their rights in litigation.  The right to sue accrues to the employees and the employees in their individual capacities can enforce the rights.  The employees would be claiming rights under contracts of employment with their employer.  A <em>universitas personarum</em> would not have a right to sue for those rights when it is not privy to any of the contracts of employment.  Representation in terms of s 24(1) of the (Labour) Act does not mean that a person or body would have the right to substitute itself in place of the employees as a party to proceedings.”</p> <p> </p> <p>Thus, the fate of an application where a wrong party is cited is clear.  The proceedings cannot be sustained.  <em>In casu</em>, the wrong citation was compounded by the appellant’s stubborn refusal to rectify the error even when assured by the other side that such an application would not be opposed.  This application should therefore suffer not only the general fate consequent upon such errors, but also an exemplary order of costs wrought by the appellant’s unhelpful attitude. The other matters raised in the appeal necessarily fall away in the light of this conclusion.</p> <p> </p> <p>Accordingly, the appeal not being properly before this court, it is hereby ordered as follows:</p> <ol> <li>The appeal is struck off the Roll.</li> <li>The appellant shall pay to Core Mining and Mineral Resources (Pty) Ltd (In Liquidation) as represented by Mtetwa and Nyambirai Legal Practitioners the costs of this appeal on the legal practitioner-client scale.</li> </ol> <p> </p> <p> </p> <p><strong>MALABA  DCJ:                    I agree</strong></p> <p> </p> <p><strong>GUVAVA JA:                        I agree            </strong></p> <p> </p> <p><em>Chambati &amp; Matake Attorneys<strong>, </strong></em>appellant’s legal practitioners</p> <p><em>Mtetwa &amp; Nyambirai<strong>, </strong></em>respondent’s legal practitioners</p> <p>           </p> <p> </p> <p> </p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> Companies Act (Act No. 71 of 2008) section 11(2)(b)(i).</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/2016/37/2016-zwsc-37.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=48821">2016-zwsc-37.docx</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li><li class="vocabulary-links field-item odd"><a href="/tags/injunction">Injunction</a></li><li class="vocabulary-links field-item even"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li><li class="vocabulary-links field-item odd"><a href="/tags/abuse-process">Abuse of Process</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The court considered an appeal against the High Court’s decision not to interdict arbitration proceedings. </p> <p>The facts leading to the appeal were that a joint venture was entered into by the appellant and two mining companies. A dispute subsequently arose which the appellant claimed rendered the contract void ab initio. The first respondent sought a declaration that the contract was valid and soon after, referred the dispute to arbitration. However, the parties failed to agree on an arbitrator and one was appointed by an arbitral institution. Although the appellant boycotted a pre-arbitration meeting, the arbitrator proceeded, identified preliminary issues, and ordered the parties to file submissions. This prompted the appellant to file an urgent application to prevent the arbitration proceedings. The High Court’s refusal grant the interdict is what the appellant appealed against.</p> <p>Before considering the appeal, the court observed that it was strange that the there was no nexus between the relief sought in the court below and that sought on appeal. The court went on to point out that the appellant refused to correct an error in its citation of the respondent in the proceedings but instead sought to hold out the matter as undefended. This was an abuse of court process. On this basis alone the proceedings could not be sustained.</p> <p>Accordingly, the appeal was dismissed. The court held that the wrong citation was compounded by the appellant’s refusal to rectify the error and made an order for exemplary costs. </p> </div></div></div> Wed, 05 Oct 2016 23:33:02 +0000 admin 7629 at https://old.zimlii.org Forbes & Thompson (Byo) (Pvt) Ltd. v ZINWA & Another (HB 154-16 HC 1148-16) [2016] ZWBHC 154 (16 June 2016); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2016/154 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1</p> <p> </p> <p>HB 154-16</p> <p>HC 1148-16</p> <p> </p> <p>FORBES &amp; THOMPSON (BULAWAYO) (PVT) LTD</p> <p><strong>versus</strong></p> <p>THE ZIMBABWE NATIONAL WATER AUTHORITY</p> <p>and</p> <p>TIMOTHY KADYAMUSUMA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MOYO J</p> <p>BULAWAYO 11 MAY AND 16 JUNE 2016</p> <p> </p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p> </p> <p><em>W. Ncube</em> for the applicant</p> <p><em>Adv. L. Nkomo</em> for the respondent</p> <p> </p> <p> </p> <p><strong>MOYO J:       </strong>This is an urgent application wherein the applicant seeks the following interim relief:</p> <p>“Pending the return date, the applicant is granted the following relief:</p> <ol> <li>The 1st and 2nd respondent be and are hereby ordered immediately to reconnect the pipes and restore the supply of water from Blanket Dam in Gwanda to Vumbachikwe Mine which they disconnected</li> <li>Pending the return date, the 1st respondent, its employees and assignees including 2nd respondent, be and are hereby interdicted from interfering with applicant’s possession of and access to its pump house at Blanket Dam, Gwanda, by interfering with or terminating the water supply without a court order.</li> <li>The 1st and 2nd respondents, jointly and severally, the one paying the other to be absolved, shall pay costs of suit for this application.”</li> </ol> <p>I granted applicant the interim relief and stated that my reasons would follow, here are they:</p> <p>The basis of the application was that the second respondent, representing first respondent, had entered the area where applicant’s pumps for water to the mine and its residents were, and had placed their own locks over the applicant’s locks, making it impossible for the applicant to pump water from the dam.  The applicant had a long standing agreement with first respondent which was being renewed annually wherein applicant reticulated water supplies from a dam under the first respondent’s authority, and would pump water from there and pay levies to the first respondent.  Currently the agreement they had expired but by conduct both parties continued in the spirit of the contract and were actually involved in negotiations on renewing that contract.    </p> <p>Second respondent allegedly disconnected water supplies to applicant and the mine as well as applicant’s employees for outstanding levies that have not been paid as applicant is in arrears.  At the hearing of the matter respondents presented the argument that the applicant was in arrears, and that they disconnected water supplies on that basis, as well as that applicant no longer had a valid contract to draw water from the dam, its contract having expired on 31 March 2016, with applicant dilly dallying on the issue of renewing the contract.</p> <p>Applicant on the other hand presented the argument that whilst they were in arrears, they were in discussion with respondents on how to make good those arrears and that they were making frantic efforts to have the contract renewed and were not getting any joy from respondents.  The application has attached to it various correspondence between the parties.</p> <p>There is an email by second respondent addressed to applicant’s representative and it reads as follows:</p> <p>“We would like to inform you that Vumbachikwe mine owes ZINWA $40000-00 and the authority intends to disconnect you on 5 May if the money is not paid in full.  We are also advising you to avail the keys for your pump house so that we can gain entrance to it.    Failure to comply to <em>(sic)</em> this may lead us to break through.”</p> <p> </p> <p>The wording of this email shows clearly that second respondent had decided to take the law into his own hands, instead of suing applicant for a debt he believes is owed to the first respondent, he in fact threatens to take the law into his own hands.  The same date, applicant responded trying to show the unlawfulness of such conduct as was threatened by the respondents.</p> <p>Applicant’s case is that it has a right to water in terms of the Constitution of Zimbabwe.  In fact section 77 of the constitution of Zimbabwe provides as follows:</p> <p>“Every person has the right to</p> <ol> <li>Safe, clean and portable water, and</li> <li>Sufficient food, and the state must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realization of this right.”</li> </ol> <p>The state in terms of the constitution has a duty to provide water to citizens, applicant, has joined hands with the state in making the realisation of this goal by reticulating water supplies from the dam.  On the face of it, it would not be constitutional for the state to neglect its duty in terms of section 77 of the constitution, simply because there are outstanding levies owed to first respondent.  Respondents in my view should sue applicant for any dues rather than resort to self-help and in so doing abdicate their constitutional mandate.</p> <p>A <em>prima facie</em> right has thus been established in my view, the right to water.  The respondents resorted to self-help which cannot be allowed by this court and as matters stand, applicant has no water supplies to its mine and its residents, they have no alternative remedy except through an order of this court.  The balance of convenience therefore favours the applicant.  Applicant, in my view has satisfied the requirements for an interdict which are:</p> <ol> <li>A <em>prima facie</em> right</li> <li>A reasonable apprehension of irreparable injury</li> <li>No other alternative</li> <li>And the balance of convenience favouring the granting of the interdict.</li> </ol> <p>Refer to <em>Zesa Staff Pension Fund</em> v <em>Mashambadzi</em> SC 57/02</p> <p>I have not accepted respondent’s contention that there is justification for the disconnection as applicant is in arrears and that currently there is no valid contract between the parties, for the following reasons:</p> <p>1)         Respondents are not allowed at law to resort to self-help.  Refer to the case of <em>Mushoniwa  </em>v <em>City of Harare</em> HH 195/14</p> <p>2)         The applicant was in peaceful and undisturbed possession of the pumps and the water supplies, they were thus despoiled by the respondents and all an applicant in an action for spoliation has to prove is that they were in peaceful and undisturbed possession of the property in question prior to being despoiled by the respondents.  The lawfulness or otherwise of the possession is neither here nor there.  Refer to the case of <em>Yeko</em> v <em>Qona</em> 1973 (4) SA 735 (A).  Refer also to the case of <em>De Jager</em> v <em>Favah and Nestadt</em> 1947 (4) SA 28 (W) MILLIN J said the following at page 35;</p> <p>“What the court is doing is to insist on the principle that a person in possession of property, however unlawful his possession may be and however exposed he may be to ejectment proceedings, cannot be interfered with in his possession except by due process of the law, and if he is so interfered with the court will restrain such interference pending the taking of action against him by those who claim that he in wrongful possession.”</p> <p>            At the beginning of the matter counsel for the respondent sought to object to the proceedings as not being urgent, I advised him that in my view the matter was urgent hence my decision to set it down.  It cannot be said where mine or a community has water supplies cut off arbitrarily that matter is not urgent.  Again, spoliation proceedings are by their very nature urgent.  Refer to the case of <em>Willovale Estates CC and Another</em> v <em>Bryan More Estates Ltd</em> 1990 (3) SA 954 (W) at page 961 where KIRK-COHEN J stated thus:</p> <p>“---- a spoliation must be adjudicated upon ante omnia and thus speedily.  Speedy relief is given upon the simple facts of possession and dispossession.”</p> <p> </p> <p>            I accordingly formulated the view that applicant had indeed made a case for the relief sought and I thus granted the provisional order for the aforestated reasons.</p> <p> </p> <p><em>Dube-Manikai &amp; Hwacha C/o Mathonsi Ncube Law Chambers</em>, applicant’s legal practitioners</p> <p><em>Dondo &amp; Partners, C/o Moyo &amp; Nyoni</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/bulawayo-high-court/2016/154/2016-zwbhc-154.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25029">2016-zwbhc-154.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2016/154/2016-zwbhc-154.pdf" type="application/pdf; length=223089">2016-zwbhc-154.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/abuse-process">Abuse of Process</a></li><li class="vocabulary-links field-item odd"><a href="/tags/injunction">Injunction</a></li><li class="vocabulary-links field-item even"><a href="/tags/interim-interdict">Interim Interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li><li class="vocabulary-links field-item even"><a href="/tags/freshwater-use">Freshwater use</a></li><li class="vocabulary-links field-item odd"><a href="/tags/el">EL</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The applicant in this High Court case was seeking interim orders that (1) the first and second respondent be ordered to restore the supply of water from Blanket Dam in Gwanda to the applicant’s mine; (2) the first and the second respondent be interdicted from interfering with the applicant’s possession of his water supply infrastructure without obtaining a court order to that effect. </p> <p>The facts were that the first and second respondent disconnected the water supply that fed the applicants mine and the neighbouring community. The applicants argued that the respondents infringed its right to water under s77 of the Constitution of Zimbabwe. The respondents, on the other side, argued that the matter was not urgent, and they were entitled to disconnect the water supply as the applicant failed to pay the water bills, thereby ending the contract between them.</p> <p>Thus, the main issue for determination was whether the applicant had satisfied the requirement for an interim order to be issued; </p> <p>On the first issue, the Court held that the applicant had satisfied the requirements for an interim order which are, (i) prima facie right; (ii) reasonable apprehension of irreparable injury; (iii) no alternative relief available; (iv) and the balance of convenience favouring the granting of the interdict. </p> <p>As a result, the interim order was allowed pending the main trial and the hearing of the interdict.</p> </div></div></div> Sat, 24 Sep 2016 10:43:23 +0000 admin 7548 at https://old.zimlii.org Moyo v Freda Rebecca Gold Mine Ltd. & Another (HH 280-16 HC 3736/16) [2016] ZWHHC 280 (11 May 2016); https://old.zimlii.org/node/7327 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1</p> <p>HH 280-16</p> <p>HC 3736/16</p> <p> </p> <p>                                                                                                                                                                                                                                                                     </p> <p>PATSON MOYO</p> <p>versus</p> <p>FREDA REBECCA GOLD MINE LIMITED</p> <p>and</p> <p>ZHOMBE COMMUNITY DEVELOPMENT TRUST</p> <p>and</p> <p>WEIGHT GWESELA</p> <p>and</p> <p>MAKOMBE</p> <p>and</p> <p>CHARLES PARADZA</p> <p>and</p> <p>DESIRE TSHUMA</p> <p>and</p> <p>ALLAN (FODWILL MINE MANAGER)</p> <p>and</p> <p>BRAVE (TREASURER OF ZHOMBE DEVELOPMENT TRUST)</p> <p>and</p> <p>MINISTER OF MINES AND MINING DEVELOPMENT</p> <p>and</p> <p>MINISTER OF HOME AFFAIRS</p> <p>and</p> <p>COMMISSIONER-GENERAL OF POLICE</p> <p>and</p> <p>THE OFFICER COMMANDING CID BORDER CONTROL AND MINERALS UNIT, KWEKWE</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZHOU J</p> <p>HARARE, 27 April &amp; 11 May 2016</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p><em>T. Moyo </em>for the applicant</p> <p><em>C. Kwirira </em>for the respondent</p> <p> </p> <p>ZHOU J: On 8 April 2016 the applicant instituted the proceedings <em>in casu </em>by urgent chamber application seeking the following provisional order:</p> <p>                        “TERMS OF THE FINAL ORDER SOUGHT</p> <ol> <li>It is hereby declared that the first and second respondents have no right or title over Antelope 68 Mine.</li> <li>The first to the eighth respondents are ordered to pay costs of suit on a higher scale.</li> </ol> <p>INTERIM RELIEF GRANTED</p> <ol> <li>The first to eighth respondents are and are (<em>sic</em>) hereby provisionally ordered to vacate the applicant’s mining claims which are located at Antelope 68 Mine with immediate effect.</li> <li>The first to the eighth respondents are interdicted from vandalising the applicant’s mine and mining equipment and to, within forty-eight hours of this order repair or cause to be repaired any and all of the applicant’s property which they vandalised.</li> <li>The respondents are provisionally ordered to allow the applicant peaceful and undisturbed use, possession and control of its mine.</li> <li>The tenth and eleventh respondents are ordered to facilitate/assist in ejecting/removing the first to the eighth respondents respectively from the applicant’s mining claims with immediate effect.</li> <li>The first to the eighth respondents respectively are provisionally ordered not to visit Antelope 68 Mine or to interfere directly or indirectly with the operations of the mine.</li> </ol> <p>SERVICE OF THE PROVISIONAL ORDER</p> <p>This order may be served on the respondents by the applicant, applicant’s legal practitioner or any interested party to the case.”</p> <p>The application is opposed by the first and second respondents. In addition to contesting the application on the merits, the two respondents in their notice of opposition objected <em>in limine </em>to the determination of the application on the merits on three grounds.  The first ground of objection is that the certificate of urgency is invalid because it was executed by a legal practitioner who is employed by the firm of attorneys which represents the applicant.  The second ground of objection is that on the facts alleged and disclosed the matter is not urgent and must not be entertained on an urgent basis. The third ground of objection is that the matter ought not to be entertained because the applicant did not exhaust the domestic remedies provided by the Mines and Minerals Act.</p> <p>Before adverting to the above matters I need to say something about the draft provisional order as observations in relation to the terms recited above are a common feature in many urgent applications.  Rule 247 (1) requires that a provisional order be in Form 29C.  That form should be the starting point when preparing a draft provisional order. In the present case there is no attempt to relate to some aspects of that form with the result that other than the subheadings there is really nothing to distinguish the interim relief from the final relief which is being sought.  The repeated use of the expression “provisionally ordered” would not necessarily clothe the relief sought which is otherwise final in effect with an interim status.     </p> <p>Turning now to the first ground of objection raised by the respondents, reliance was placed on the case of <em>Chafanza v Edgars Stores &amp; Anor </em>2005 (1) ZLR 301 (H).  Mr <em>Kwirira </em>for the respondents conceded that the reasoning in that judgment was not followed by subsequent judgments in which the issue arose.  See <em>Mudekunye &amp; Ors </em>v<em> Mudekunye &amp; Ors </em>HH 190 – 2010; <em>Route Toute BV &amp; Ors </em>v<em> Sunspan Bananas (Pvt) Ltd &amp; Ors </em>HH 27 – 2010.  The rules do not preclude a legal practitioner from a law firm which represents the applicant from certifying that a matter is urgent.  A certificate of urgency differs fundamentally from an affidavit.  The role of a legal practitioner as commissioner of oaths is regulated by the provisions of the Justices of Peace and Commissioners of Oaths Act [<em>Chapter 7:</em>09] which does not apply to the preparation and signing of a certificate of urgency.</p> <p>In any event, it seems to me that the time has come for the provisions relating to certificates of urgency to be reflected upon and, possibly, revisited in the light of the purpose for which the requirement for such certificates was provided for.  Judging by the number of matters accompanied by certificates of urgency which are adjudged to be not urgent it is doubtful that the certificate still retains the value ascribed to it at the time that the requirement for it was enacted. The court can readily assess for itself by reference to the affidavits and annexures filed whether a matter is urgent without being impeded by the absence of a certificate of urgency which is essentially an opinion of the legal practitioner which is not necessarily binding upon the court.  Further, it seems that in terms of the rules the certificate of urgency is required only where an applicant has not served the chamber application on the respondent. Order 32 Rule 242 (1) requires every chamber application to be served on all interested parties unless, among the other situations explicitly stated, the applicant reasonably believes one or more of the matters set out in para(s) (a) to (e) of that subrule.  Subrule 2 provides the following:</p> <p>“Where an applicant has not served a chamber application on another party because he reasonably believes one or more of the matters referred to in paragraphs (a) to (e) of subrule (1) –</p> <ol> <li>He shall set out the grounds for his belief fully in his affidavit; and</li> <li>Unless the applicant is not legally represented, the application shall be accompanied by a certificate from a legal practitioner setting out, with reasons, his belief that the matter is uncontentious, likely to attract perverse conduct or urgent for one or more of the reasons set out in paragraphs (a), (b), (c), (d) or (e) of subrule (1).”</li> </ol> <p>In the instant case the chamber application was served upon the respondents.  This is not therefore a matter in which the absence of the certificate of urgency would have invalidated the matter or rendered it defective.</p> <p>The second objection is that the matter is not urgent. In the case of <em>Kuvarega </em>v <em>Registrar-General &amp; Anor </em>1998 (1) ZLR 188 (H) at 193F-G, Chatikobo J said:</p> <p>“What constitutes urgency is not 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 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>In <em>Dilwin Investments (Pvt) Ltd t/a Formscaff </em>v<em> Jopa Engineering Co. (Pvt) Ltd </em>HH 116 – 98, at p. 1, Gillespie J (as he then was) highlighted the fact that a party who institutes proceedings by way of an urgent chamber application gains an overwhelming advantage over the other litigants whose matters are dealt with as ordinary court applications.  For that reason such a party must show good cause for that preferential treatment to be availed, as dealing with an urgent matter means that a judge has to leave aside all the other matters in order to consider the urgent chamber application.  Such treatment cannot be granted as a matter of course or upon the mere request for it.  See also <em>Pickering </em>v<em> Zimbabwe Newspapers </em>(1980)<em> Ltd </em>1991 (1) ZLR 71(H).</p> <p>The applicant states that it owns some sixteen mining claims known as Antelope 68.  In February 2016 the first to eighth respondents forcibly and without the applicant’s consent occupied the mining claims and stopped mining operations. In March 2016 the same respondents occupied the applicant’s mine again. On both occasions the respondents only vacated the mines after the intervention of the police.  The instant application was filed on 8 April 2016.  According to the applicant’s founding affidavit there were other invasions which followed in respect of which the police refused to assist him to eject the persons who invaded the mine. The dates of those invasions are not detailed in the affidavit.  The latest invasion which triggered the present application is said to have taken place on 7 April 2016. The applicant alleges that as with the other invasions the police did not assist him in removing the invaders on the ground that the dispute was one of ownership of the mining claims.</p> <p>Other than the 7th of April 2016 which is mentioned in para 16 of the founding affidavit, the applicant conspicuously omitted to mention the other dates on which the alleged invasions took place. What is clear, however, is that the dispute over the mining claims has been on-going from February 2016. The alleged invasions took place on not less than one occasion. While in the first two alleged instances the applicant alleges that he got the police to eject the invaders from the disputed claims, it is clear that after early March 2016 they continued to come.  The applicants states that: “The police in Kwekwe have been asked on several occasions to assist but they have failed or denied to provide assistance.  At every stage, the respondents have returned . . .” The applicant has clearly not accounted for his failure to seek relief on an urgent basis at the very latest soon after the early March invasion when the respondents continued to go to the mine.  The need to act certainly arose after the February 2016 invasions.  If it be accepted that the assistance of the police constitutes “an explanation of the non-timeous action”, the applicant has not explained his failure to act when the invasions continued in March and the police refused to assist him. Two letters written by the applicant in February 2016 (annexures AM2 and AM3,) show that during the month of February 2016 the disturbances were continuing. Those interferences would have caused the applicant to approach the court for relief. The applicant states that on 8 March 2016 the Provincial Mining Director for the Midlands Province requested the police to assist the applicant to remove the respondents. From about that time the alleged invaders have, according to the applicant, remained in occupation of the mine. Thus, for about a month the applicant was aware of the facts upon which the urgency is founded but did not act. </p> <p>For those reasons, the matter lost its urgency when the applicant failed to treat it as urgent.  In the circumstances, I come to the conclusion that the matter is not urgent and must be struck off the roll of urgent matters.</p> <p>Having found that the matter is not urgent, it is not necessary for me to consider the issue of exhausting local remedies. </p> <p>In the result, IT IS ORDERED THAT:</p> <p> </p> <ol> <li>The matter be and is hereby struck off the roll of urgent matters.</li> </ol> <p> </p> <ol> <li>The applicant shall pay costs.</li> </ol> <p> </p> <p> </p> <p><em>Tamuka Moyo Attorneys</em>, applicant’s legal practitioners</p> <p><em>Magwaliba &amp; Kwirira</em>, 1st and 2nd respondents’ 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/2016/280/2016-zwhhc-280.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26247">2016-zwhhc-280.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/2016/280/2016-zwhhc-280.pdf" type="application/pdf; length=235392">2016-zwhhc-280.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li><li class="vocabulary-links field-item odd"><a href="/tags/interim-interdict">Interim Interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags/abuse-process">Abuse of Process</a></li><li class="vocabulary-links field-item odd"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The applicant instituted proceedings by urgent chamber applications seeking interim relief against the respondents relating to mining activities in Antelope 68 Mine.</p> <p>The court ruled on three preliminary objections by the first and second respondents that opposed the validity of the certificate of urgency, the urgency of the matter and that domestic remedies provided in the Mines and Minerals Act were not exhausted.</p> <p>Firstly, the court noted that a certificate of urgency differs from an affidavit. It was held that the rules allowed the execution of a certificate of urgency by a legal practitioner who is employed by the firm of attorneys which represents the applicant. It was further noted that the validity of the certificate urgency is a cause of concern only when a chamber application is not served to the respondent.</p> <p>Secondly, the court found that a party must show good cause for preferential treatment that comes with certifying a matter as urgent. The court held that the applicant failed to account for his failure to seek relief on an urgent basis at the very latest soon after the early March invasion when the respondents continued to go to the mine.  Consequently, it was held that the matter lost its urgency when the applicant failed to treat it as urgent.</p> <p>Accordingly, the court ordered that the matter be struck off the roll of urgent matters and did not find it necessary to deal with the third objection. The applicant was also ordered to pay costs.</p> </div></div></div> Sun, 19 Jun 2016 19:09:39 +0000 admin 7327 at https://old.zimlii.org