Interim Interdict https://old.zimlii.org/taxonomy/term/6980/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 Pinkstone Mining (PVT) Limited & 2 Others v Lafarge Cement Zimbabwe Limited & Another (HH118-18, HC 1751/18) [2018] ZWHHC 118 (07 March 2018); https://old.zimlii.org/node/8791 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>PINKSTONE MINING (PVT) LTD</p> <p>and</p> <p>TIMOTHY MATANGI</p> <p>and</p> <p>AFRICAN MILLS &amp; MINERALS (PVT) LTD</p> <p>versus</p> <p>LAFARGE CEMENT ZIMBABWE LIMITED</p> <p>and</p> <p>MINISTER OF MINES AND MINES DEVELOPMENT</p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZHOU J</p> <p>HARARE, 2 &amp; 7 March 2018</p> <p><strong>Urgent Chamber Application</strong></p> <p><em>E. T. Muhlekiwa </em>for the applicants</p> <p><em>B. K. Mataruka</em>, with him <em>G. Ndlovu </em>for the first respondent</p> <p><em>M. Chimombe </em>for the second respondent</p> <p>ZHOU J: This is an urgent application for an order interdicting the first respondent from carrying on mining operations on the applicant’s mineral claims described in the papers as Contrica 9 Registered Number 23331BM; Contrica 21 Registered Number 24482BM; Contrica 45 Registered Number 24866BM; and Contrica 46 Registered Number 24867BM.  The order also seeks the barring of the first respondent from coming within two hundred metres of the mining claims referred to above.  The terms of the final order, in addition to seeking the interdict as recited above and costs of suit, asks the court to set aside the first respondent’s mining claims under Registration numbers 41334BM and 42332BM. The mining claims in dispute in an area falling under the Pfura Rural District Council. The application is opposed by the first respondent.  The second applicant through his legal practitioner advised that he would abide by this court’s decision.  The brief facts upon which the application is founded are as set out below,</p> <p>The third applicant is the holding company in the first applicant.  The first applicant is the holder of the mining claims described above.  It registered the claims in 1996.  The current certificates of registration and inspection are attached to the applicants’ papers.  At some point the applicants and first respondent had business dealings involving minerals from those claims.  It appears that the agreement was not pursued.  The respondent went on to register mining claims over a piece of land which included the claims already registered under the applicants’ names.  The applicants became aware of the first respondent’s intention to carry on mining operations on the claims in dispute on 19 February through an article which appeared in <em>The Herald </em>newspaper of 14 February 2018. The first respondent does not dispute that it has registered the claims in dispute.  It, however, contests the relief being sought in this application.</p> <p>The first respondent in its opposing affidavit took the point that the matter should not be heard on an urgent basis.  No submissions were made in support of that objection at the hearing.  Clearly this is a matter which is urgent. The applicants acted quickly by instituting the instant application within four days after becoming aware of the applicant’s claims to the disputed mining claims. Further, if the matter is not dealt with urgently and the applicant ultimately succeeds there will be irreparable prejudice as the first respondent has not stated that it will not proceed with carrying on mining activities on the disputed claims.  The fact that it has not yet started carrying on the mining work is not relevant as there is no undertaking that mining activities will not be undertaken pending the determination of the dispute. The matter is therefore urgent.</p> <p>The second ground of objection which is set out in the opposing affidavit is that the relief sought in the draft order is incompetent because, according to the respondent, it is final in its effect. That submission is incorrect as clearly the relief is being sought pending the determination of this matter on the return date. </p> <p>On the merits, the relief sought is an interim interdict. The requirements for such an interdict are settled.  They are:</p> <ul> <li>A clear right, or a <em>prima facie </em>right though open to some doubt. Where a clear right is established the applicant does not need to establish a well-grounded apprehension of irreparable harm. But where the right is only <em>prima facie </em>established, the second requirement must be established, namely,</li> <li>That there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and the applicant ultimately succeeds in establishing the right; and</li> <li>The balance of convenience favours the granting of interim relief; and</li> <li>The applicant has no other satisfactory remedy.</li> </ul> <p>See <em>Watson </em>v<em> Gilson Enterprises (Pvt) Ltd </em>1997 (2) ZLR 318(H).</p> <p>The applicants have produced the relevant documents to show title in the mining claims in dispute. The certificates of registration of transfer of the claims as well as the inspection certificates show that the applicants hold rights in the claims in question.  Their right is therefore clearly established.  The respondents have not placed any evidence before the court to contradict the title established by those documents. The first respondent clearly intends to mine on the same claims which are subject to the applicants’ rights. The fact that the first respondent has registered claims over the same area does not take away the extant rights of the applicants.  It is the policy of the law to give priority the first in title unless there are special reasons. No such special reasons have been shown by the first respondent but, in any event, that is a matter that is better left for a determination on the return date.  The first respondent suggested without evidence that the applicants probably failed to maintain their title in the claims as required by s 173 of the Mines and Mineral Act [<em>Chapter 21:05</em>]. The second respondent would not have issued the applicants with the documents of title and inspection certificates referred to above if that was the case. Even if the documents were to be taken as only <em>prima facie </em>evidence establishing the applicants’ rights, it is clear that the fear of irreparable prejudice is properly founded.  The first respondent evinces an intention to mine on the claims even though no actual mining activities have commenced. The applicants cannot wait until actual mining starts when there is evidence of an intention to mine on the disputed claims.</p> <p>In deciding whether the balance of convenience of convenience favours the granting of the interim interdict the court weighs the prejudice to the applicant if the interim relief is not granted against the harm to the respondent if the relief is granted.  The present situation is that the first respondent is not carrying on any mining activities on the claims.  It is therefore not prejudiced by the granting of the interim relief being sought which is essentially the maintenance of the <em>status quo</em>. The first respondent through its legal practitioner suggested in the alternative that an interdict could be granted stopping all mining activity by both parties until the dispute is resolved.  Such an order would unduly prejudice the applicant whose title to the claims has not been challenged, let alone set aside. </p> <p>Mr <em>Mataruka </em>for the first respondent submitted that there is an alternative remedy of approaching the Mining Commissioner. The remedy is not an alternative remedy to the interdict being sought in the present case as it does not achieve the same result.  It is doubtful that the suggested recourse would afford the applicants the relief of ensuring that the first respondent’s employees should not be allowed within two hundred metres of the mining claims.</p> <p>In the result, the application is granted in terms of the draft provisional order as amended.</p> <p><em>Muhlekiwa Legal Practice</em>, applicants’ legal practitioners</p> <p><em>Gill Godlonton &amp; Gerrans</em>, first respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney-General’s Office</em>, second respondent’s legal practitioners              </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/118/2018-zwhhc-118.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19748">2018-zwhhc-118.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/2018/118/2018-zwhhc-118.pdf" type="application/pdf; length=165934">2018-zwhhc-118.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/land-use">Land use</a></li><li class="vocabulary-links field-item odd"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</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/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rights-and-immovable-property">Rights in and to immovable property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/provisional-order-application">provisional order (Application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urgent-see-practice-and-procedure-urgent-application">urgent See PRACTICE AND PROCEDURE (Urgent application)</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 urgent application for an order interdicting the first respondent from carrying on mining operations on the applicants’ mineral claims. At some point, the applicants and the first respondent had business dealings involving minerals from those claims. The respondent then went on to register mining claims over a piece of land which included the first applicant’s mining claims. The respondent argued that the matter was not urgent, and that the relief sought was not competent as it was final in effect. </p> <p>The court considered whether the applicants had established a right to the relief sought. The court observed that the relief sought was an interim interdict, the requirements for which were: a clear right; irreparable harm; balance of convenience in favour of granting the relief, and no other satisfactory remedy. The court found that the respondent intended to mine on the applicants claim, and although the mining hadn’t commenced, the applicants could not wait until it acted and had established the prejudice likely to be suffered. </p> <p>In determining the balance of convenience, the court weighed the prejudice to the applicant if the interdict was not granted against the harm to the respondent if the relief was granted. In this instance, as the mining activities were not being carried on yet, there was no prejudice to the respondent. Accordingly, the court found that the requirements for the interdict were met and the application succeeded.</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/1961/38">Mines and Minerals Act [Chapter 21:05]</a></div></div></div> Tue, 15 May 2018 09:31:51 +0000 Sandra 8791 at https://old.zimlii.org Turfwall Mining (Pvt) Ltd. v Dube & Others (HB 102/17 HC 291/17 X REF HC 269/17) [2017] ZWBHC 102 (27 April 2017); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2017/102 <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<a name="OLE_LINK56" id="OLE_LINK56"></a></p> <p><a name="OLE_LINK56" id="OLE_LINK56">HB 102/17</a></p> <p>HC 291/17</p> <p>X REF HC 269/17</p> <p> </p> <p><strong>TURFWALL MINING (PVT) LTD </strong></p> <p><strong>t/a BEENSET INVESTMENTS</strong></p> <p> </p> <p><strong>versus</strong></p> <p> </p> <p><strong>SIPHIWE DUBE</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>PROVINCIAL MINING DIRECTOR</strong></p> <p><strong>MATABELELAND SOUTH (NO)</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>THE ZIMBABWE REPUBLIC POLICE OFFICER</strong></p> <p><strong>COMMANDING MATABELELAND SOUTH (NO)</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>THE COORDINATOR, MINERALS &amp; BORDER</strong></p> <p><strong>CONTROL UNIT MATABELELAND</strong></p> <p><strong>SOUTH PROVINCE (NO)</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>OFFICER IN CHARGE – ZIMBABWE REPUBLIC POLICE</strong></p> <p><strong>GWANDA (NO)</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>THE MINISTER OF MINES AND</strong></p> <p><strong>MINING DEVELOPMENT (NO)</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>TAKUVA J</p> <p>BULAWAYO 15 FEBRUARY &amp; 27 APRIL 2017</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p><em>Ms V. Chikomo &amp; B. Masamvu</em> for applicant</p> <p><em>V. Majoko</em> for the 1st respondent</p> <p><em>L. Musika, L. Dube, P. Taruberekera &amp; S. Lunga</em> for 2nd to 6th respondents</p> <p> </p> <p>            <strong>TAKUVA J:   </strong>This is an urgent application in which the applicant sought the following order:</p> <p>            “Terms of the final order sought</p> <p> </p> <p>            That you show cause to this honourable court if any, why a final order should not be made in the following terms:</p> <p> </p> <ol> <li>The 1st respondent and anyone in her employ be and are hereby interdicted from carrying on any form of mining activities on the following of applicant’s claims:</li> </ol> <ol> <li>Legion C under claim number 10244BM</li> <li>Legion D under claim number 10225BM</li> <li>Legion F under claim number 10226 BM</li> <li>Legion 13 under claim number 33216PM</li> <li>Legion 14 under claim number 33217PM</li> </ol> <ol> <li>That the costs be on attorney and client scale.</li> </ol> <p> </p> <p><strong>Interim relief granted</strong></p> <p> </p> <p>Pending the confirmation of the provisional order, the applicant be and is hereby granted the following relief:</p> <ol> <li>That pending determination of the parties matters under case number HC 2697/17 all forms of mining activities by the 1st respondent and anyone in her employ be and are hereby suspended.”</li> </ol> <p>The background facts are that the applicant is the registered holder of mining claims commonly known as Legion Mine in Gwanda.  These claims were transferred to the applicant from Falcon Gold Zimbabwe Ltd in 2012.  At the time of acquisition of the claims, the 1st respondent had a tribute agreement with Falcon Gold.  Applicant as “Grantor” entered into a tribute agreement with 1st respondent on 20 December 2012 which was to run for a three (3) year period commencing on 1 January 2013 to 31 December 2015.  In terms of the agreement the “Tributor” took five claims as listed above.  Also in terms of the tribute agreement clause 15 the tributor i.e. 1st respondent paid royalties to the applicant.</p> <p>As regards renewal of the tribute agreement clause 1 (b) of the agreement provides that:</p> <p>“(b)     The Tributor shall have the right to extent this period of the tribute for a further three years after the expiry of the above period provided he had complied with the terms of this tribute agreement and providing he gives notice of such intention to the Grantor as follows:</p> <p>At least three months prior to the 31st December 2015 (determination of the first period) the tributor shall give written notice to the Grantor stating whether he wishes to relinquish his tribute at the end of the 1st period or to exercise his right to extend this tribute agreement for the further period stated.”</p> <p>            Before the expiry of the tribute agreement on 31 December 2015, the 1st respondent did not notify the applicant in writing 3 months prior to that date of her election in terms of clause (1) (b) <em>supra</em>.  Despite this default, 1st respondent continued to mine on the claims without an agreement.  Applicant offered 1st respondent a new agreement but the latter refused to sign it prompting applicant to enlist the assistance of the Zimbabwe Republic Police to no avail.  Faced with this hurdle, applicant issued a written notice to vacate to the 1st respondent through her lawyers Majoko &amp; Majoko on 6 October 2016.  The 1st respondent’s lawyers responded to that notice in the following terms:</p> <p>“… A brief history, we believe, will assist in the understanding of our client’s position.  Our client has been mining from Legion since about 2003, having done so under tribute from Falcon Gold Zimbabwe Ltd.</p> <p> </p> <p>Discussions involving the Ministry of Mines and Mineral Development were held with Falcon Gold and our client as a result of which it was agreed that the claim would be registered in our client’s names and our client had and there is evidence of this written understanding, from so far back as 2007, been awaiting formal transfer and registration of the claims into her names.</p> <p> </p> <p>If there were any changes in this understanding it was not communicated to our client.  She has been in occupation and working the claims on the <em>bona fide</em> understanding that the claims were to all intents and purposes hers, awaiting only formalization of ownership of the claims.</p> <p> </p> <p>At no time was our client advised, as she would have been entitled, of any change in the ownership of the claims from Falcon Gold to yourselves.  You will appreciate, in the circumstances that our client cannot, without prejudicing her rights, accede to your demand that she vacate the claims, until she has received formal communication from the Ministry of Mines and Falcon, that what was agreed upon regarding the claims has since been changed.  On receiving such communication, if she will, our client will take advice and only then will she reply substantively to your demand.  Until then she will remain on the locations.”</p> <p>            This letter is dated 1 December 2016 and appears on page 35 of the record.</p> <p>            The parties continued to engage each other through their legal practitioners on 12 and 13 January 2017.  First respondent appeared to have accepted to negotiate terms of a new tribute agreement until 20 January 2017 when she refused the offers proferred by the applicant and insisted on her earlier position that she had a right to anticipate transfer of registration of the claims into her name.  Frustrated, applicant then filed this application on 30 January 2017 praying for the relief referred to above.</p> <p>            Before arguing on the merits, Mr <em>Majoko</em> took a couple of points <em>in limine</em>.  The 1st point was that the founding affidavit does not use the word “urgent” anywhere in its body.  Ms <em>Chikomo</em> conceded that there might have been an inadvertent omission of that word and applied that the court condones this departure in terms of R 4C of the Court’s rules.  In my view, the contents of the founding affidavit especially paragraphs 5.18 and 5.19 show clearly that the matter is urgent.  It is not just a regurgitation of words or phrases that matter but the import.  In terms of R 242 of this court’s rules it is the duty of a legal practitioner to certify that the matter is urgent, see also R 244.  I am satisfied that this is one of those harmless omissions which can be condoned in terms of R 4C in the interests of justice.  I therefore dismiss the 1st point <em>in limine</em>.</p> <p>            The second point was that the interim relief is the same as the final relief.  He relied on <em>Dodhill </em>v <em>Chikafu</em> 2009 (1) ZLR 293 in arguing that this is a fatal defect.  I disagree for the simple reason that what is sought in the interim is a suspension of mining operations, whereas the final order prays for a total and complete cessation of mining activities pending the finalisation of case number HC 269/17.  I must point out however that, the applicant conceded that there is a need to amend their terms to make them clearer.  The amendment sought however does not affect the essence of the relief sought.  Therefore the application cannot be dismissed solely on this ground because the respondent <em>in casu</em> has not been prejudiced by the applicant’s failure to put the relief in the proper form.  See R 229C of this Court’s rules.  In my view, the point was not well taken and it is hereby dismissed.</p> <p>            On the merits, Mr <em>Majoko</em> submitted that the applicant has not fulfilled the requirements of an interdict in that the applicant has an alternative remedy of damages which remedy they are pursuing in the summons.  Applicant has not claimed that 1st respondent is impecunious or that her assets are being dissipated.  He cited the case of <em>Bozimo Trade and Development Co (Pvt)</em> <em>Ltd </em>v <em>First Merchant Bank of Zimbabwe Ltd &amp; Ors</em> 2000 (1) ZLR (H).</p> <p>            As regards the availability of a satisfactory remedy, I prefer SACHS L J’s approach in <em>Evans Marshal &amp; Co Ltd</em> v <em>Bertola </em>SA [1973] IALL ER 992 (CA) at 1005d – e where the learned judge who was dealing pertinently with the enquiry as to whether damages were an adequate remedy said:</p> <p>“The standard question in relation to the grant of an injunction, are damages an adequate remedy? Might perhaps, in the light of the authorities of recent years, be re-written: is it just, in all the circumstances, that plaintiff should be confined to his remedy in damages?”  The touchstone in every case is to ensure that justice is done.  The test of the adequacy of damages is, however not conclusive in that even where an injury is capable of compensation the court will generally grant an interdict if:</p> <ol> <li>the  respondent is a man of straw, or</li> <li>the injury is a continuing violation of the applicant’s rights,</li> <li>the damages will be difficult of assessment especially damages in cases of continuing contractual breaches; or</li> <li>if the value of a damages award in several years’ time would be of questionable adequacy because of high inflation”.  See also C B Prest, <em>The Law &amp; Practice of Interdicts</em> Juta &amp; Co 1993 at p 46 – 47.</li> </ol> <p>I would also add that the court should guard against assisting confiscation of private rights by unnecessarily confining the applicant to damages.  <em>In casu</em>, it is common cause that the 1st respondent is carrying out mining operations on applicant’s claims without a valid tribute agreement.  Not only that, she is harvesting gold without paying royalties to the applicant.  Quite clearly, her conduct amounts to a continuing violation of applicant’s rights.  Such an injury, by its very nature, makes an accurate assessment of damages in lost mineral value extremely difficult.</p> <p>For these reason I find that it is not just that the applicant be confined to its remedy in damages as this would be unsatisfactory.</p> <p>It was also submitted on 1st respondent’s behalf that applicant has not shown that it would suffer irreparable injury.  Further, it was submitted that applicant repudiated the contract by letter dated 6 October 2016 and should therefore stop complaining about non-payment of royalties.  First respondent insisted that she would continue to mine because she got assurance from the Ministry of Mines that the claims will be registered in her name in due course.  Consequently, it was argued that a case for an interdict has not been set out in the papers and for that reason, it should be dismissed.</p> <p>The requisites for the right to claim an interdict are a well-beaten path.  In <em>Airfield Investments (Pvt) Ltd</em> v <em>Minister of Lands &amp; Ors</em> 2004 (1) ZLR 511 (S) they were put as follows:</p> <p>            “Briefly these requisites are that the applicant for such temporary relief must show-</p> <ol> <li>that the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear or if not clear, is <em>prima facie</em> established, though open to some doubt;</li> <li>that if the right is only <em>prima facie</em> established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;</li> <li>that the balance of convenience favours the granting of interim relief; and</li> <li>that the applicant has no other satisfactory remedy.”</li> </ol> <p>In the present case, the facts that cannot be disputed are that the applicant is the registered owner or holder of the claims in dispute.  The five certificates of registration are on pages 29 – 33 of the application.  Also in terms of the tribute agreement referred to earlier the applicant is the “Grantor” while the 1st respondent is the “Tributor”.  For approximately three and a half years, 1st respondent was working the same claims mining gold and other minerals there from against payment of royalties to the applicant.  She stopped paying in October 2016 following a dispute over the formular to be used to calculate royalties.  The parties then failed to reach an agreement and the applicant filed this application.</p> <p>On the other hand, 1st respondent claims to have a right to remain on the mine, courtesy of a promise from the Ministry of Mines.</p> <p>On these facts, there can be no doubt that the applicant has established the existence of a clear right.  Applicant is a holder of real rights over the mine.  This is in terms of the substantive law.  Surely, a real right cannot be super ceded by a mere promise.  C. B. Prest, <em>supra</em> at page 52 states;</p> <p>“Interdicts are based on rights, rights which in terms of the substantive law are sufficient to sustain a cause of action.  Such right may arise out of contract, or a delict; it may be founded in the common law or on some or other statute; it may be a real right or a personal right.  The applicant for an interlocutory interdict must show a right which is being infringed or which he apprehends will be infringed and if he does not do so, the application must fail.</p> <p> </p> <p>An applicant must establish ‘some just right’.  It must not be a mere moral right it must be a strict legal right.”</p> <p>            <em>In casu</em>, the right arises out of contract and I am satisfied that the 1st requirement of an interdict has been met on the facts.</p> <p>            In view of my finding on the existence of a clear right, it would not be necessary to establish a well-grounded apprehension of irreparable harm.  Assuming that I am wrong, I am convinced that <em>in casu</em>, there is a well grounded apprehension of irreparable harm in that it goes without saying that minerals extracted from the ground are irreplaceable.  Therefore, the financial loss to the applicant is irreparable.  The test for apprehension is an objective one.  Essentially, the applicant must show objectively that his apprehensions are well grounded.  A reasonable man faced with facts <em>in casu</em> might entertain a reasonable apprehension of injury.  In the circumstances, I find that the second requirement has been met.</p> <p>            The 3rd requirement is the balance of convenience.  Here, the court is required to weigh the prejudice the applicant will suffer if the interim interdict is not granted against the prejudice to the respondent if it is.  Where there is greater possible prejudice to the respondent, an interim interdict will be refused.  If however, the prejudice to the respondent is less than that of the applicant, the interdict will be granted.  Put differently, the essence of the balance of convenience is to assess which of the parties will be least seriously inconvenienced by being compelled to endure what may prove to be a temporary injustice until the just answer can be found at the end of the trial.</p> <p>            As I indicated above that the applicant’s right has been clearly established, it follows that it has strong prospects of success.  It is trite that the stronger the prospects of success, the less the need for such a balance to favour the applicant; the weaker the prospects of success, the greater the need for it to favour him.  In the present case, the continued contractual breaches will cause greater prejudice to the applicant if the interdict is not granted than the possible prejudice to the 1st respondent if it is granted.  From the totality of the circumstances in this case, there is a higher risk that injustice may result if an interdict is declined.  Accordingly, I find that the balance of convenience favours the granting of the interdict.</p> <p>            I have already discussed the 4th requirement.</p> <p>            Finally, I find that the applicant has established the requisites of an interdict.  Accordingly, I order as follows:</p> <p><strong>Interim relief granted</strong></p> <p>            Pending the confirmation of the provisional order, the applicant be and is hereby granted the following relief:</p> <ol> <li>that all forms of mining activities by the 1st respondent and anyone in her employ on the five disputed claims be and are hereby suspended.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Dube-Tachiona &amp; Tsvangirai</em>, applicant’s legal practitioners</p> <p><em>Majoko &amp; Majoko</em> 1st respondent’s legal practitioners</p> <p><em>Attorney-General’s Office</em>, 2nd – 6th 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/2017/102/2017-zwbhc-102.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24183">2017-zwbhc-102.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/2017/102/2017-zwbhc-102.pdf" type="application/pdf; length=429805">2017-zwbhc-102.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/injunction">Injunction</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/temporary-injunction">Temporary Injunction</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/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>In this High Court case, the applicant sought interim and final orders to the effect that the first respondent be stopped from carrying out mining activities on the disputed area. </p> <p>The applicant was a registered holder of Legion Mine in Gwanda (“mine”).  The respondents then entered into a three years’ tribute agreement with the first respondent. Terms of the agreement required the first respondent to pay royalties to the applicant.  However, after the three years expired, the first respondent refused to sign the new contract and to pay royalties to the applicant.</p> <p>The issue for determination was whether the final order and an interim injunction could be issued against the first respondent, as sought by the applicant.</p> <p>The respondent argued (1) that the damages suffered were reparable, and thus, a stop order could not be issued; (2) the affidavit was defective for failing (a) to indicate that the matter was urgent and (b) to make a distinction between payers that needed a final order and interim order. In response, the court held that (1) an interdict could be issued if the damages suffered are difficult to assess; (2) failure to title an affidavit as urgent does not make it defective if that could be read from the content of the affidavit; and (3)  the applicant's affidavit was clear that she wanted an interim injunction stopping the first respondent from carrying out mining operations and the final orders for a complete cessation of mining activities. </p> <p>Accordingly, the Court ordered the applicants prayers as sought. </p> </div></div></div> Sun, 07 May 2017 13:27:39 +0000 admin 8091 at https://old.zimlii.org Mixnote Inv. (Pvt) Ltd. v Majola & Others (HB 40/17 , HC 401/17 X REF 3062/16 ) [2017] ZWBHC 40 (02 March 2017); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2017/40 <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> HB 40/17</p> <p>HC 401/17</p> <p>X REF 3062/16 </p> <p> </p> <p><strong>MIXNOTE INVESTMENTS (PVT) LTD</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>EVANS MAJOLA</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>PROVINCIAL MINING DIRECTOR –</strong></p> <p><strong>MATABELELAND NORTH N.O.</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>MINES AND MINING DEVELOPMENT MINISTER</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MATHONSI J</p> <p>BULAWAYO 22 FEBRUARY &amp; 2 MARCH 2017</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p><em>P. Madzivire</em> for the applicant</p> <p><em>L. Mpofu</em> for 1st respondent</p> <p><em>L. Msika</em> for 2nd &amp; 3rd respondents</p> <p>            <strong>MATHONSI J:</strong>         The applicant is a mining concern which is involved in a mining dispute with the 1st respondent over mining claims situated at West Nicholson, Matabeleland South known as Ettrick Mine.  The applicant is the registered holder of 10 gold reef claims called Ettrick Mine while the 1st respondent is the registered holder of claims known as Sally 5 Mine.</p> <p>            In the course of their mining activities the two clashed resulting in the dispute being referred to the Provincial Mining Director, the 2nd respondent herein, for adjudication.  In response the 2nd respondent rightly commissioned a survey of the area which was carried out on 3 September 2014.  Following recommendations of the Principal Mining Surveyor the 2nd respondent issued a determination dated 17 October 2014 which reads in relevant part as follows:</p> <p>            “The Matabeleland South Province Mine Dispute Resolution Committee found out that:</p> <p> </p> <p>1.Both Sally 5 and Ettrick Mines were duly registered and maintained up to date</p> <p>-Sally 5 Mine was first registered on the 27th August 1999 by Faison Siduli and transferred to Evans Majola on 15 December 2000 and is currently held by Evans Majola.</p> <p>-Ettrick Mine was first registered on 17 August 1999 and transferred to Mixnote Investments (Pvt) ltd on 6 September 2011 and is currently held by Mixnote Investments (Pvt) Ltd to which Mr J. Chaya is a director.</p> <p>2.The two mines are +- 136m apart from the nearest points.  They do not have a common boundary.</p> <p>3.There are workings at both Sally 5 Mine and Ettrick Mine, but the Sally 5 workings are currently abandoned.</p> <p>4.Mrs E. Majola was working in Ettrick Mine shaft which is registered to Mixnote Investments (Pvt) Ltd instead of Sally 5 Mine.</p> <p> </p> <p><strong>Recommendations</strong></p> <p> </p> <p>Notwithstanding the fact that Mrs E. Majola has been working for many years at Ettrick Mine it does not change the fact that it is not her mine.  Mrs E. Majola should stop working at Ettrick Mine and concentrate her activities at Sally 5 Mine which is registered in her name, according to section 177 subsection (8) (a) and (b) of the Mines and Minerals Act Chapter 21:05.  The beacons of both Sally 5 Mine and Ettrick Mine must be established in their original positions as shown on the enclosed survey sketch plan and as lodged with Ministry offices at initial registration.  Any aggrieved party may appeal to the Ministry of Mines and Mining Development Mine Dispute Resolution Committee.”</p> <p>            It is the last sentence giving advice on where to appeal to which has escalated the litigation between the parties because the 1st respondent took that advice hook – line – and sinker.  The 1st respondent did appeal to the Ministry as advised.  The Secretary For Mines and Mining Development then dealt with the appeal and pronounced judgment contained in a memorandum dated 17 November 2016 addressed to the 2nd respondent.  It reads in pertinent part thus:</p> <p>“<strong>RE: APPEAL AGAINST THE DECISION MADE BY THE PROVINCIAL MINING DIRECTOR: MRS E. MAJOLA OF SALLY 5 MINE REG GA 2020 vs MIXNOTE INVESTMENTS (PVT) LTD OF ETTRICK MINE REG GA 1190</strong></p> <p> </p> <p>Reference is made to the above subject.  After receiving an appeal on this matter and all the necessary considerations having been made you are directed to effect the following decision by the Permanent Secretary Ministry of Mines and Mineral Development:</p> <p> </p> <p>1.Mixnote Investments should readjust their boundary so as not to encroach into Sally 5 Mine.</p> <p>2.The Provincial Mining Director to apply section 58 on impeachment so that Mrs Majola stays on her claim since she has been working there for the past 15 years.”</p> <p>To say that the decision on appeal is shocking would be an understatement.  It defies logic bearing in mind that the survey commissioned by the 2nd respondent had confirmed that there was not boundary dispute between the parties and therefore there was no need for the applicant to adjust its boundaries.  What the survey had shown was that the 1st respondent had “abandoned” her own Sally 5 Mine claim and was mining the applicant’s shaft at Ettrick Mine.  That notwithstanding the Secretary decided to invoke the provisions of s 58 of the Mines and Minerals Act [Chapter 21:05] on impeachment of title which applies to a mining location which has been registered for a period of 2 years.  The facts did not suggest that the 1st respondent had registered the claims which were already registered by the applicant.</p> <p>Even more shocking is where the Secretary derived appellate jurisdiction over such mining dispute which would have been resolved by the 2nd respondent.  Aggrieved by that turn of events, the applicant filed a review application in this court in HC 3062/16 arguing that the purported annulment of the Director’s decision was incompetent among other grounds.  The review application is yet to be determined by this court.</p> <p>Meanwhile the applicant has come back to this court on an urgent basis seeking the following relief:</p> <p>“Terms of final order sought</p> <p> </p> <p>1.Applicant and 1st respondent are hereby interdicted from carrying out mining activities on the disputed mining claim situated on Ettrick Mining claims in West Nicholson pending finalisation of case number 3062/16</p> <p>2.Costs shall be in the cause.</p> <p> </p> <p>Interim relief granted</p> <p> </p> <p>Pending determination of this matter and on the return day the applicant be and is hereby granted the following relief:</p> <p> </p> <p>Pending the outcome of this application 1st respondent should with immediate effect suspend all mining activities at 10 Gold Reefs, named Ettrick registered number GA 1190.”</p> <p> </p> <p>            In its founding affidavit deposed to by its director John Chaya the applicant complains that it has since discovered that despite the pending review application the 1st respondent continues to carry out mining activities at the disputed claim.  Considering that mineral deposits can be exhausted, the 1st respondent’s activities are highly prejudicial to the applicant in that by the time the review application is determined the mineral deposits may be seriously depleted if not exhausted completely.  For that reason the activities of the 1st respondent should be halted.</p> <p>            In his opposing affidavit the 2nd respondent makes the interesting point that he is “appointed by the Permanent Secretary who is the Mining Commissioner in terms of section 341 of the Mines and Minerals Act [Chapter 21:05].”  He goes on to say that he had no obligation to stop mining activities where an application for review has been lodged and that he could not do so because the matter has already been determined with the 1st respondent being given the green light to carry out her mining activities.  The 1st respondent also filed opposition protesting her entitlement to the mine.</p> <p>            In essence what the 2nd respondent is saying is that whoever is the mining commissioner has a second bite at the cherry as it were.  If the mining commissioner is the Permanent Secretary, it means that he has delegated his functions as such to the Provincial Mining Director who now adjudicates over mining disputes in terms of the Act, obviously on behalf of the real commissioner.  After the director has determined the matter exercising the powers reposed to the commissioner by the Act, the same commissioner who has delegated his powers to the director is still able to sit as an appeal court and determine the matter again.  The question which arises is: In terms of what law is the commissioner entitled to act in that way?</p> <p>            Section 341 which the 2nd respondent relies upon in making this strange argument provides:</p> <p> </p> <p> </p> <p>            “341    Administration of Ministry</p> <p> </p> <p>(1)The Secretary shall be and is hereby vested with authority generally to supervise and regulate the proper and effective carrying out of this Act by mining commissioners or other officers of the Public Service duly appointed thereto, and to give all such orders, directions or instructions as may be necessary.</p> <p>(2)The Secretary may at his discretion assume all or any of the powers, duties and functions by this Act vested in any mining commissioner, and may lawfully perform all such acts and do all such things as a mining commissioner may perform or do, and is further empowered in his discretion to authorize the correction of any error in the administration or in the carrying out of the provisions of this Act, or to perform any other lawful act which may be necessary to give due effect to its provisions.</p> <p>(3)The Secretary may exercise such of the powers by this Act vested in the Minister as may be delegated to him by the Minister.”</p> <p>No matter what rule of statutory interpretation one employs they cannot, by any stretch of the imagination, come up with the meaning which the 2nd respondent has sought to assign to this provision.  There is no way it could be understood to mean that the Secretary is the Mining Commissioner. While the Secretary is empowered to perform the functions of a mining commissioner at his own discretion, it cannot be said that he or she is a mining commissioner.  The Secretary supervises and regulates the functions of the mining commissioner but there is nowhere in the Act where it says that he has appellate jurisdiction over the court of the mining commissioner.</p> <p>In any event if the Secretary elects to perform the functions of a mining commissioner his or her powers remain governed by the Act.  In other words he shall deal with a dispute referred to him or her exercising judicial powers of a mining commissioner provided for in s 346 of the Act.  He would have to hold a court in the mining district of the mining commissioner appointed for that district and abide by that provision.</p> <p>It therefore means that s 361 of the Act applies to any decision made by the Secretary sitting as a court of the mining commissioner.  That section provides:</p> <p>“Any party who is aggrieved by any decision of a mining commissioner’s court under this Act may appeal against such decision to the High Court, and that court may make such order as it deems fit on such appeal.”</p> <p>            Clearly therefore an appeal against the decision of the mining commissioner does not lie in the office of the Secretary but to the High Court.  The 2nd respondent heard and determined the dispute of the parties as a mining commissioner.  It was therefore incompetent to advise the parties to appeal to the Secretary who clearly has no appellate jurisdiction.  This provision has been a subject of a number of judicial pronouncements.  See <em>Muzuva </em>v <em>Simbi</em>; <em>Simbi </em>v <em>Muzuva </em>2011 (2) ZLR 319 (H); <em>Rock Chemical Fillers (Pvt) Ltd</em> v <em>Bridge Resources (Pvt) Ltd &amp; Ors</em> 2014 (1) ZLR 30 (H); <em>Nyamupinga</em> v <em>Muzanywa &amp; Ors</em> HB-275-16.</p> <p>            In terms of the current provisions of the Act no appeal lies to the Secretary of Mines from a decision of a mining commissioner.  Any purported appeal to the Secretary is therefore a nullity and a determination made by the Secretary exercising appellate jurisdiction which he or she does not have is equally a nullity.</p> <p>            It has been suggested by the 2nd respondent that in determining what was clearly an appeal informed by advice given to the parties by the 2nd respondent to appeal to the Secretary, the latter was acting as the mining commissioner.  That assertion is completely without foundation because all the correspondence, some of which I have cited above refers to an appeal.  If the Secretary was acting as a mining commissioner that means he was sitting to determine an appeal against his own judgment.  There is no procedure for that and it would mean that he was already <em>functus officio</em> and could not have a second bite of the cherry as it were.</p> <p>            In my view, the applicant has an arguable case on review.  If the 1st respondent is allowed to continue extracting gold from the mine the applicant will suffer prejudice if the matter is eventually decided in its favour.  The solution is to stop all mining activities there until the review application is determined.</p> <p>            Accordingly the provisional order is hereby granted in terms of the amended draft.</p> <p> </p> <p><em>Joel Pincus, Konson &amp; Wolhuter,</em> applicant’s legal practitioners</p> <p><em>Malinga &amp; Mpofu Legal Practitioners</em>, 1st respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney-General’s Office </em>2nd &amp; 3rd 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/2017/40/2017-zwbhc-40.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22100">2017-zwbhc-40.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/2017/40/2017-zwbhc-40.pdf" type="application/pdf; length=415051">2017-zwbhc-40.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/judicial-review">Judicial Review</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/minerals-oil-and-gas">Minerals, oil and gas</a></li><li class="vocabulary-links field-item odd"><a href="/tags/el">EL</a></li></ul></span><div class="field field-name-field-search-summary field-type-text-long field-label-above"><div class="field-label">Search Summary:&nbsp;</div><div class="field-items"><div class="field-item even">Mines and minerals – mining dispute – resolution – decision of mining commissioner appeal from – appeal lying to High Court – Permanent Secretary in Ministry having no appellate jurisdiction </div></div></div><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 and first respondent were the registered holders of two respective mining claims when it became apparent that the first respondent had been mining on the applicant’s property under the mistaken belief that it was hers. The dispute was referred to the second respondent who made a determination and advised the parties of the right to appeal to the Secretary for Mines and Mining Development. On appeal, the Secretary made another determination on the dispute which prompted an application for review. </p> <p>The applicant contested the validity of the secretary’s decision and prayed for an interdict to restrain the first respondent from carrying on her mining activities pending the review.</p> <p>The court considered whether the application to the second respondent and subsequently to the Secretary were procedurally proper under the Mines and Minerals Act; in order to determine whether the applicant had an arguable claim for review. </p> <p>The court interpreted ss 341, 346 and 362 of the Act, and found that the second respondent heard and determined the dispute as a mining commissioner acting under delegated powers. It was also found that an appeal against the decision of the mining commissioner should lie to the High Court and not to the office of the Secretary. The court therefore held that the appeal to the Secretary was a nullity and that the applicant had established an arguable claim.</p> <p>Accordingly, the court granted the interim interdict pending determination of the matter.</p> </div></div></div> Mon, 10 Apr 2017 20:43:59 +0000 admin 8032 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 Tarathula v Techmate Engineering (Lilly Mine) Mine Manager & Others (HH 312-16 HC 4673/16) [2016] ZWHHC 312 (20 May 2016); https://old.zimlii.org/zw/judgment/harare-high-court/2016/312 <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><a name="OLE_LINK7" id="OLE_LINK7">HH 312-16</a></p> <p>HC 4673/16</p> <p> </p> <p>FAKAZI SONNY TARUTHULA</p> <p>versus</p> <p>TECHMATE ENGINEERING (LILLY MINE) MINE MANAGER AND TOM</p> <p>and</p> <p>MALVERN PATIRAO</p> <p>and</p> <p>LILLY MIN AND MILLS (TECHMATE ENGINEERING) PVT LTD</p> <p>and</p> <p>OFFICER IN CHARGE KADOMA RURAL POLICE</p> <p>and</p> <p>OFFICER IN CHARGE CID MINERALS</p> <p>and</p> <p>PROVINCIAL MINING DIRECTOR KADOMA (NO)</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANGOTA J</p> <p>HARARE,11 and 20 May, 2016</p> <p> </p> <p> </p> <p><strong>Urgent chamber application</strong></p> <p> </p> <p> </p> <p><em>F Misihairambwi</em>, for the applicant</p> <p><em>J Ndomene,</em> for the 1st – 3rd respondents</p> <p><em>T Tabana</em>, for the 4th – 6th respondents</p> <p> </p> <p>            MANGOTA J: On 26 December 2015, the applicant filed an urgent chamber application with the Magistrates’ Court, Kadoma. The application which was granted in his favour, on an interim basis, was filed under case number CGK 1813/15. He, in the application, moved the Magistrates’ Court to, <em>inter alia</em>:</p> <ol> <li>interdict the first, second and third respondents from carrying out mining operations at his Marcona Mine the registration certificate of which was given as 18037-and</li> <li>order the fourth and fifth respondents to assist him to clear all illegals who were working at the mine.</li> </ol> <p>The above mentioned order did not go down well with the first respondent in the case. He, for the reasons which he gave in his application, applied to the High Court in Bulawayo for a review of the order of the Magistrate’s Court. The application for review was filed under case number HC211/16.</p> <p> Whilst the review which he filed with the court at Bulawayo was pending at that court, the first respondent filed an <em>ex-parte</em> urgent chamber application under case number HC301/16. He, in the application, successfully moved the court to:</p> <ol> <li>order the applicant<em> in casu </em>and all those claiming title through him to stop mining operations at Marcona Mine, registration No. 18037, Kadoma District with immediate effect-and</li> <li>authorise the Deputy Sheriff, with the assistance of the police, to evict the applicant <em>in casu </em>and all those claiming title of Marcona Mine through him from Marcona Mine.</li> </ol> <p>It having been an <em>ex parte</em> urgent chamber application, the High Court in Bulawayo granted the order which the first respondent in the case prayed for. It granted the order, it was said, on the same day that the application was filed with it. The order is dated 8 February, 2016. The applicant said the order was served upon him on 14 February, 2016.</p> <p>It is pertinent that the history of this matter be traversed before the present application is considered.</p> <p>During submissions, the applicant produced, with the consent of the respondents, exh(s) 1 and 2. The first exhibit was a letter which the applicant addressed to the learned judge who granted the <em>ex parte </em>urgent chamber application to the first respondent. The second exhibit was what he termed an <em>“Urgent Chamber Application for Anticipation of a Return Date and Amendment of the Interim Relief”.</em></p> <p>In exh 1, the applicant advised the learned judge that the respondents did not have <em>locus standi</em> to challenge his mining rights. He said they did not have any certificate of registration in respect of the mine. He stated, in the exhibit, that the interim relief was based on inaccurate facts and that the relief allowed the respondents to take over his mine illegally.</p> <p>He raised concern on the interim relief which he said indirectly granted a final interdict to the respondents who, according to him, did not satisfy the requirements of such an interdict as outlined in<em> Setlegelo</em> v <em>Setlegelo </em>1914 AD 221. He moved the learned judge not to reward the respondents’ double dipping or forum shopping. He craved the indulgence of the judge to revisit, on an urgent basis, the order of his eviction from the mine.</p> <p>The applicant filed exh 2 with the court on 17 February, 2016. He filed it under case number HC 392/16. He served it on the respondents’ legal practitioners, Messrs Hore and Partners, on 19 February, 2016. He stated under para 9 of his founding affidavit as follows:</p> <ul> <li> </li> </ul> <p>This is an application for direction from the judge in chambers, not only for anticipation of a      return date but also for rescinding point 2 of the interim relief that gives an order for my       eviction from my lawfully registered mine Marcona Mine registered number 18037. The      order would purport to give my rights to 1st Respondent, 1st Respondent cannot take over both          my claim and my names as the registration papers read”</p> <p> </p> <p>He submitted, in the application, that he could not be evicted from his lawfully registered claim against someone who had not produced any registered title. He attached to the application his certificate of registration. He moved the court to grant him the earliest and most convenient return date and to strike out item two of the interim relief which the court granted to the respondents under case number 301/16.</p> <p>It was the applicant’s statement that his urgent chamber application which he filed under case number HC 392/16 was still pending at the Bulawayo High Court. He, <em>in casu</em>, moved the court to grant him the following relief:</p> <p>TERMS OF FINAL ORDER SOUGHT</p> <p>That you show cause to this Honourable Court why a final order should not be made   in the following terms:</p> <ol> <li>1st and 3rd respondents and all those claiming title through them be and are hereby ordered to stop any forms of violence and misuse of firearms at Marcona Mine registered 18037.</li> <li>1st and 3rd respondents and all those claiming tittle trough them be and are hereby ordered to leave applicant in peaceful possession of his duly registered claim Marcona Mine 18037.</li> <li>1st and 3rd respondents to jointly and severally with one paying the other to be absolved pay costs of suit on a legal practitioner and client scale.</li> </ol> <p>INTERIM RELIEF GRANTED</p> <ol> <li>1st and 3rd respondent (<em>sic</em>) and all those claiming title through them be and are hereby ordered to stop mining at Marcona Mine Registered 18037.</li> <li>1st and 3rd respondents and all those claiming title through them be and are hereby ordered to stop the misuse of firearms and deploy their employees in the area that they have always been operating from before the dispute.</li> <li>1st and 3rd respondents and all those claiming title through them to stick to their duly registered claims as in line the Mines and Minerals Act. (<em>sic</em>). Till the court make a determination.</li> <li>The applicant be and is hereby allowed to fully exercise his farming rights as granted through his offer letter.</li> </ol> <p>The interim order which the applicant moved the court to grant to him was premised on the applicant’s statement as contained in the current urgent chamber application. He stated that the first and third respondents <em>in casu</em> commenced working on his mining claims through violence. He said their employees shot one person with a gun in the eye aiming on the latter’s head. The shooting, he alleged, was with the intention to kill their victim. He stated that the gun wielding employees of the respondents constituted a real danger to villagers and miners who were /are in the area. He said villagers lived in fear and they could not search for their cattle which stray in the direction of the respondents’ employees as gun shots were fired randomly in an effort to protect the respondents’ illegal looting. He stated that the respondents were looting minerals in an indiscriminate manner. He said, if the respondents’ conduct remained unchecked, he stood to suffer irreparable financial harm as gold which they were mining was a non-renewable natural resource which the respondents were depleting at an accelerated speed. The respondents, he said, were destroying the pillars that held the mine shaft. He stated that the collapse of the shaft posed a real danger to some 40 or 50 persons who would be working in the shaft at any given time. These, he alleged, could be buried alive in the shaft. He stated that the respondents were undermining the authority of the court which ordered them not to carry out mining operations at his sites. He attached to his application the following annexures:</p> <p> (a) medical affidavits and a hospital card, Annexures A 1-2</p> <p> (b) his certificate of registration number 18037 – Annexure B</p> <p> (c) the third respondent’s opposing affidavit to the application which he filed under          case number HC 12588/15, – Annexure C – and</p> <p>(d) a letter dated 1 October, 2013 which the Ministry of Lands and Rural                                 Resettlement wrote showing that the applicant was allocated a 13.25 hectare, A 2          plot, No. 1 Kingchim in the Sanyati District, Mashonaland West Province for</p> <p>     Agricultural purposes, Annexure D.</p> <p>The court will refer to the annexures in the course of this judgment. It will, for the interim, proceed to examine the respondents’ attitude as well as response to the application.</p> <p>The first, second and third respondents put up a stiff opposition to the application. Mr <em>Tabana </em>who appeared for the fourth, fifth and sixth respondents submitted nothing for and on behalf of his clients. He stated that the sixth respondent instructed him to advise the court that he would abide by the decision of the court. He, therefore, was, to all intents and purposes, a spectator to the wrangle which the applicant and the first three respondents engaged themselves into.</p> <p>Although Mr <em>Ndomene </em>appeared for the first three respondents, the opposing affidavit which was filed with the court related to the first and third respondents more than it did to the second respondent. The affidavit in fact said nothing about the second respondent.</p> <p>One Zedias Nene, a director of the first and third respondents, was the deponent to the latter’s opposing affidavit. He stated, <em>in limine</em> and on behalf of the two respondents, that the applicant was granted the relief which he was seeking <em>in casu</em> when he successfully applied for the same relief at Kadoma Magistrates’ Court under case number CGK 1813/15. He stated, on the merits, that the current application was frivolous as the respondents were granted an interim relief by the court under case number HC 301/16. He said, in terms of the order which was granted to the respondents, the applicant and all those claiming title in Marcona Mine were ordered to stop mining and were evicted from the same. He stated that the applicant violated the court order. He said the applicant gathered thugs armed with machetes, catapults and stones to forcibly remove gold ore and takeover the mine. He stated that the security guards who were manning the mine, in execution of their duties, fired warning shots into the air at first but the thugs kept on advancing and were even determined to snatch the firearms. He alleged that the security guards fired shots into the ground and a few members of the group where (<em>sic</em>) grazed slightly by fragments and sustained minor scratches. He insisted that it was the applicant who was evicted and ordered to stop conducting any mining activities until the application for review was heard and finalised. He stated that the respondents were waiting patiently for the review of the matter to be finalised. He said the respondents were not conducting any mining operations at the mine. It was, according to him, the applicant and the latter’s employees who were violating the court order. He challenged the contents of annexure D. He said the annexure was not an offer letter as the applicant alleged. He said that the respondents put security measures in place to ensure that the applicant would not violate the court order and illegally extract gold ore from the mine. <em>He denied that the respondents were conducting any mining operations at the mine.</em> He stated that the application did not meet the requirements of an interdict. He said the applicant had a <em>prima facie</em> right only. He doubted whether the applicant had a real right over the disputed area. The applicant and his employees, he said, were violent towards the respondents. The violence, according to him, was the applicant’s protest against the interim order which the court granted to the respondents.</p> <p>The dispute which caused the applicant, on the hand, and the first and third respondents, on the other, to engage each other in court centred on the ownership of Marcona Mine [“the Mine”]. The ruling of the Magistrate’s Court, Kadoma and that of this court under case number HC 301/16 confused matters further than they already had been. Each of the parties to the legal divide hinged his, or their, argument on a court order which was entered in his, or their, favour. He, or they, therefore, claimed lawful occupation of the mine and he, or they, insisted that the other party was ordered out of the mine by a court of competent jurisdiction.</p> <p>            The order of the magistrate is the subject of a pending review at this court. Whether or not the review suspended the operation of the order remains a matter for debate.</p> <p>            The Magistrate’s Court [Civil] Rules, 1980 are silent on the matter. Order 33 of the High Court Rules, 1971 tends to suggest that the decision of the magistrate’s court remains suspended pending the review of its proceedings. Part V of the High Court Act [<em>Chapter 7:06</em>] [“the Act”] makes reference to the powers of this court to review proceedings and decisions of all inferior courts, tribunals and administrative authorities which are in this country. The court has, indeed, the power, jurisdiction and authority to review all proceedings and decisions of those. Section 27 of the Act spells out the grounds which an aggrieved party may advance for a review. One such ground is absence of jurisdiction on the part of the court, tribunal or authority concerned. The first respondent advanced that ground when he filed his application for review under case number HC 211/16. </p> <p>            The fact that s 28 of the Act confers on the court the power to either set aside or correct the proceedings and/or decision of the inferior court, tribunal or administrative authority constitutes ample evidence which shows that the decision of the magistrate’s court under case number CGK 18131/15 cannot be implemented until this court has reviewed the same. The review which the first respondent lodged with the court, therefore, places the applicant in an invidious position <em>vis-a-vis </em>the order which the magistrate’s court granted to him. He cannot, under the circumstances, exercise the rights which the magistrates court conferred upon him until the review has been heard and determined in his favour, if such is the outcome of the review. He cannot, in short, remain in occupation of the mine. Nor can he have the respondents ejected from the mine as was his desire when the magistrate’s court entered judgment, albeit on an interim basis, in his favour.</p> <p>            The order which the court granted to the respondents under case number HC 301/16 placed the applicant in a very precarious position. It took away from him the right to remain, or to carry out mining operations, at Marcona Mine.</p> <p>            The applicant claimed that he is the registered owner of Marcona Mine. He, in support of his claim, attached to his application Annexure B. the annexure is a certificate of registration. It certifies that the applicant is the registered holder of 1 x 10 gold reef claims named Marcona and registered under number 18037. The claims are situated on King Chim Farm about 1.6 km South East of T/beacon 750/S, according to the certificate which the Acting Mining Commissioner issued.</p> <p>            Annexure D which the applicant attached to his application showed that the District Lands officer for Sanyati District confirmed that Plot A2, No1 King Chim which is in the District of Sanyati under Mashonaland West Province was allocated to the applicant.</p> <p>            A reading of Annexures B and D showed that the applicant has a <em>prima facie</em> right to Marcona Mine. The observed matter is in consonant with what the respondents stated in their opposing papers. They stated in para 20 of the same that<em> the applicant</em> <em>has a prima facie right to the mine. </em>They, however, challenged the contents of Annexure D. They stated and, correctly so, that the annexure was not an offer letter.</p> <p>Whether or not the annexure is an offer letter is not the point. The real point is that the mine which is the subject of the parties’ dispute lies in the plot and that the applicant is, from a <em>prima facie perspective, </em>the registered owner of the same. The court’s observations in the mentioned regard find fortification from the contents of the supporting affidavit of one Chris Matemure. He said he was a resident of Last Mills which is adjacent to Marcona Mine, Pathway area. He stated that he lived in the area for fie (5) years and he has known Marcona Mine to be owned by the applicant. The respondents did not challenge his statement. The court, therefore, accepts it as a true reflection of the parties’ position on the matter which pertains to the applicant’s <em>prima facie </em>right to the mine.</p> <p>Annexure C which the applicant attached to his application is the third respondent’s opposing affidavit to the applicant’s application under case number HC 12588/15. The third respondent stated, in those papers, that it was the registered owner of Marcona Mine. It made reference to Annexure C which it said was its certificate of registration. It, for reasons known to itself, did not produce the certificate which it referred to in case number HC 12588/15. It did not state, <em>in casu</em>, that it had a certificate of registration in respect of the mine. All it said was that Marcona Mine was not pegged over anyone’s farm.</p> <p>The applicant’s statement was that the first and third respondents were violent at the mine. He, in support of his statement, attached Annexures A1 – 2 to his application. The annexures are a set of medical affidavits and a hospital card. The set showed that, on 28 April 2016, four or five people suffered injuries on their persons. The injuries, the applicant asserted, were at the hands of the respondents.</p> <p>One of the persons who suffered injuries was Mr Matemure. He deposed to an affidavit in support of the present application. His affidavit reads, in part, as follows:</p> <p>“I recall the 2th (<em>sic</em>) of April thereabout (<em>sic</em>) when I was walking on a path leading to the tarred road that (<em>sic</em>) I was shot in the eye, on the shoulder and chest by an employee of Techmate Engineering (Pvt) Ltd, as I went unconscious.</p> <p> </p> <p>            I was far from the shaft, the guard aimed for my head. I believe he wanted to kill me. I             sustained injuries on the eyelid, shoulder and chest; I was admitted in Kadoma             General            Hospital. I was then discharged, but now I suffer a severe headache and loss of memory,           doctors say I have to go to Harare for specialist treatment. I am trying to raise funds. I had      a normal health (<em>sic</em>) and did not complain of any headaches and memory loss before the shootings………”</p> <p> </p> <p>            The medical affidavits showed that the remainder of the persons who were mentioned in them suffered moderate injuries which were caused by brunt instruments. The contents of the affidavits showed further that the injuries did not pose a danger to the victims’ lives. They stated that there was no potential danger, or the possibility of permanent disability, to each of the affected persons.</p> <p>            The first and third respondents stated that the persons who got injured were part of the group whom the applicant commandeered to attack security guards who were manning the mine with a view to violently taking over the mine from which the applicant had been lawfully evicted. They submitted that, when the group approached the guards, the latter fired warning shots into the air and, later, into the ground with a view to preventing the group from taking over the mine in a violent manner. They stated that, if the guards had not acted as they did, the latter persons could have been disarmed, robbed and possibly killed.</p> <p>            The above described circumstances showed that there was violence at or about the mine on 28 April, 2016. The cause of the violence remained unclear. The applicant stated that the respondents caused it. The respondents counter-argued and asserted that the applicant caused it.</p> <p>            Whoever was the cause of the violence is not the issue. The issue is that peace should be allowed to prevail at the mine until the parties’ dispute which is pending at court has been resolved.</p> <p>            The order which the court granted to the respondents is silent on whether or not the latter can carry out mining operations at the mine. The applicant stated that the respondents are mining gold from the mine. He said their conduct caused him to suffer irreparable harm financially as what they take out of the ground cannot be replaced. He, accordingly, moved the court to, among other things, interdict the respondents from mining at the mine.</p> <p>            The respondents denied that they were carrying out mining operations from the mine. They said they would only do so when the dispute between the applicant and them has been resolved in their favour by the court. The parties were, to the stated extent, on the same page.</p> <p>            It is imperative that the hands of both parties be removed from the mine pending the resolution of their dispute which pertains to the ownership of the mine. It is also important that peace be allowed to prevail at or about the mine pending the resolution of the parties’ dispute.</p> <p>            The applicant, in the court’s view, was able to show that:</p> <p>            (i)        he has <em>a prima facie</em> right to the mine.</p> <p>            (ii)       he would suffer irreparable harm if the respondents, as alleged, continued to                carry out mining operations at the mine. A <em>fartiori </em>where the order which was                     granted to them under case number HC 301/16 did not, in specific terms,                                    authorise them to mine as they were alleged to be doing.</p> <p>            (iii)      he has no other remedy to which he can turn apart from the one which he is                     moving the court to grant to him. The respondents’ claim which was to the                   effect that he could claim damages did not hold. He would, for a start, incur                costly legal expenses in his effort to assert his rights where the court grants              him such. He is not guaranteed of the fact that, if judgment was to be entered                        in his favour, the respondents would have the means to pay damages to him                      whatever the <em>quantum</em> of the same may be.</p> <p>            (iv)      there is no doubt that, for the above stated reasons, the balance of convenience                favours the applicant who, effectively, was able to satisfy all the                                     requirements of an interdict.</p> <p>            The applicant proved, on a balance of probabilities, his case against the respondents. The application is, accordingly, granted as prayed. It is, in addition, ordered that, pending the resolution of the parties’ dispute by the court as to the ownership of the mine, security guards of the applicant work with security guards of the first and third respondents to:</p> <p>            (a)       guard Marcona Mine</p> <p>            (b)       ensure that neither the applicant nor the first and third respondents or their                            respective agents carry out mining operations at Marcona Mine, Kadoma.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>  <em>Lawman Chimuriwo Attorney at Law</em>, applicant’s legal practitioners</p> <p><em>Hore &amp; Partners</em>, 1st -3rd respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office, </em>4th-6th respondents’ legal practitioners</p> </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/interim-interdict">Interim Interdict</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/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 origin of the application is an interim interdict prohibiting the first, second and third respondents from carrying out mining activities and ordering the fourth and fifth respondents to clear illegals who were working at the mine. The first respondent sought a review of this order and got an interim interdict that ordered for the eviction of the applicant and prohibition from mining.</p> <p>This application arose when the applicant sought direction from the judges in chambers for anticipation of a return date and also rescinding the eviction order.</p> <p>The court applied Order 33 of the High Court Rules and held that the pending review suspended the operation of the order issued in the magistrate court. Consequently, the applicant could not exercise the rights conferred upon him unless the review was determined in his favor.<br /> The court found that the mine lies in the applicant’s plot. However, the court found it important for peace to prevail at the mine and that both parties be removed from the mine pending resolution of their dispute.</p> <p>The court held that the applicant was able to prove all the requirements of an interdict: he had a right to mine; he would suffer irreparable damage if the respondent continued with their mining operations; he had no alternative remedy and he proved his case on a balance of probabilities against the respondent.</p> <p>Accordingly, the interdict was granted pending the resolution of the dispute and the security guards of both parties were ordered to guard the mine jointly. </p> </div></div></div> Sun, 19 Jun 2016 05:18:58 +0000 admin 7300 at https://old.zimlii.org ETO Electricals & Rewinds (Pvt) Ltd v ZESA Holdings (Pvt) Ltd & Others (HC 5374/15) [2015] ZWHHC 547 (16 June 2015); https://old.zimlii.org/node/4238 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p class="rteright">1</p> <p class="rteright">HH 547-15</p> <p class="rteright"><a name="OLE_LINK331"></a><a name="OLE_LINK330">HC 5374/15</a></p> <p>ETO ELECTRICALS AND REWINDS (PVT) LTD</p> <p>versus</p> <p>ZESA HOLDINGS (PVT) LTD</p> <p>and</p> <p>THE OFFICER COMMANDING MINERALS UNIT, ZIMBABWE REPUBLIC POLICE, HARARE</p> <p>and</p> <p>THE COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE</p> <p>&nbsp;</p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZHOU J</p> <p>HARARE, 11 and 17 June, 2015</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>Urgent Chamber Application</strong></p> <p>&nbsp;</p> <p><em>N. Mashizha</em> for the applicant</p> <p><em>M. Baera </em>for the 1<sup>st</sup> respondent</p> <p><em>L. Mutambisi</em>, with him <em>K. Maodzwa</em> for the 2<sup>nd</sup> and 3<sup>rd</sup> respondents</p> <p>&nbsp;</p> <p>ZHOU J: The applicant is a company which is in the business of dealing in scrap metal.&nbsp; It holds a licence issued to it in terms of the provisions of the Copper Control Act [<em>Chapter 14:06</em>].&nbsp; The licence entitles it to, among other things, acquire, sell or otherwise deal in copper.&nbsp; Its business offices are at 50 Lytton Road, Workington, Harare.&nbsp; It has a warehouse at 102 Willowvale Road, Harare, at which it keeps some of its copper.&nbsp;</p> <p>On 5 June 2015 two officers of the Zimbabwe Republic Police accompanied by an employee of the first respondent attended at the applicant&rsquo;s warehouse and advised that they intended to search for certain materials which were suspected to have been stolen from the first respondent.&nbsp; The applicant&rsquo;s directors, Elliot Zhuwawo and Nathan Mnaba, were taken to Southerton Police Station where they were advised of an intended search of the applicant&rsquo;s warehouse.&nbsp; When they returned to the warehouse they found a security guard of the first respondent stationed at the premises.&nbsp; Two officers of the Zimbabwe Republic Police were also brought in to guard the warehouse.&nbsp; The applicant was advised that the intended search would commence on the following day.&nbsp; The applicant states that later that evening the private security guard engaged by it to guard the warehouse was asked to leave by the two police officers and the guard placed at the premises by the first respondent.&nbsp; On 6 June 2015 more employees of the first respondent and additional police officers were brought onto the applicant&rsquo;s premises.&nbsp; The applicant states that its directors and legal practitioner queried the presence of the first respondent&rsquo;s employees and police officers and the proposed search on the ground that the police officers had not exhibited a search warrant to them.&nbsp; The respondents were not deterred by the threat of litigation.&nbsp; On 9 June 2015 the applicant instituted the instant application under a certificate of urgency for a provisional order in the following terms:</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &ldquo;TERMS OF FINAL ORDER SOUGHT</p> <p>That you show cause to this Honourable Court why a final order should not be made in the following terms:</p> <ol> <li>1<sup>st</sup>, 2<sup>nd</sup> and 3<sup>rd</sup> respondents be and are hereby ordered to desist from interfering with the applicant&rsquo;s lawful business operations by not putting its armed security onto applicant&rsquo;s premises at Number 102 Willowvale Road, Harare or searching applicant&rsquo;s premises or seizing any of applicant&rsquo;s copper scrap without a warrant of Search and Seizure to that effect.</li> <li>1<sup>st</sup> and 2<sup>nd</sup> respondents be and are hereby jointly and severally, the one paying the other to be absolved, ordered to pay the costs of this application on an attorney-client scale.</li> </ol> <p>&nbsp;</p> <p>INTERIM RELIEF GRANTED</p> <p>Pending the determination of this matter, the applicant is granted the following relief:</p> <ol> <li>1<sup>st</sup>, 2<sup>nd</sup> and 3<sup>rd</sup> respondents be and are hereby ordered and directed to immediately remove their armed security personnel from applicant&rsquo;s premises being Number 102 Willowvale Road, Willowvale, Harare.</li> </ol> <p>&nbsp;</p> <p>SERVICE OF PROVISIONAL ORDER</p> <p>This provisional order be served on the respondents by the applicant&rsquo;s legal practitioners.&rdquo;</p> <p>&nbsp;</p> <p>The matter was heard on 11 June 2015. &nbsp;Mr <em>Mashizha </em>for the applicant submitted that the respondents&rsquo; conduct contravened the applicant&rsquo;s right to privacy enshrined in s 57 of the Constitution.&nbsp; The applicant had therefore established the existence of a right as well as an infringement thereof for the purposes of the interim interdict sought.&nbsp; He contended that there was no alternative remedy available to the applicant, and that the balance of convenience favoured the granting of the interdict.&nbsp; He submitted that the applicant was not so much worried about a search being conducted at its premises by the respondents&rsquo; officers than about the presence of armed officers and the displacement of its own private security personnel.&nbsp; The respondents did not file opposing papers but elected to make submissions based on the papers filed.&nbsp; At the time that the matter was heard it was pointed out by the respondents that a search warrant had been obtained, and that the searches conducted so far revealed that the applicant had in its possession certain materials believed to have been stolen from the first respondent.&nbsp; By agreement of the parties a copy of the search and seizure warrant was filed on 12 June 2015.&nbsp; The date stamp on the face of it shows that it was issued by the Provincial Magistrate at Harare on 11 June 2015, the date on which the matter was heard.&nbsp; The applicant accepted the existence of the warrant of search and seizure, but submitted that it was issued when the respondents had already placed their officers at the premises.&nbsp; The applicant does not, however, suggest that any searches or seizures of its property commenced before the warrant was issued.&nbsp; In fact, as noted above, the applicant did not object to the search being conducted at the premises.</p> <p>The requirements for an interim interdict to be granted are settled in this jurisdiction.&nbsp; They are:</p> <p>&ldquo;(1) that the right which is sought to be protected is clear; or</p> <ol> <li>&nbsp;&nbsp;that (a) if it is not clear, it is <em>prima facie </em>established, though open to some doubt; and (b) there is a well-grounded apprehension of irreparable harm if interim relief is not granted and the applicant ultimately succeeds in establishing his right;</li> <li>that the balance of convenience favours the granting of interim relief; and</li> <li>the absence of any other satisfactory remedy.&rdquo;</li> </ol> <p>&nbsp;</p> <p>See <em>Nyambi &amp; Ors </em>v<em> Minister of Local Govt &amp; Anor </em>2012 (1) ZLR 569(H) at 572D-E;&nbsp; <em>Econet (Pvt) Ltd </em>v<em> Minister of Information </em>1997 (1) ZLR 342(H) at 344G-345B; <em>Watson </em>v<em> Gilson Enterprises &amp; Ors </em>1997 (2) ZLR 318(H) at 331D-E; <em>Nyika Investments (Pvt) Ltd </em>v<em> ZIMASCO Holdings (Pvt) Ltd &amp; Ors </em>2001 (1) ZLR 212(H) at 213G-214B.</p> <p>The existence of a right is a matter of substantive law.&nbsp; Whether that right is clearly or only <em>prima facie </em>established is a question of evidence.&nbsp; In the instant case the applicant clearly has a right to the warehouse and the property therein.&nbsp; The right to the privacy of its property and not to have the premises or property entered or searched without its permission is protected by section 57 of the Constitution, which provides as follows:</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &ldquo;Every person has the right to privacy, which includes the right not to have &ndash;</p> <ol style="list-style-type:lower-alpha"> <li>their home, premises or property entered without their permission;</li> <li>their person, home, premises or property searched;</li> <li>their possession seized;</li> <li>. . .</li> <li>. . .&rdquo;</li> <li>&nbsp;</li> </ol> <p>Section 45(3) of the Constitution provides that juristic persons as well as natural persons are entitled to the rights and freedoms set out in Chapter 4 to the extent that those rights and freedoms can appropriately be extended to them.&nbsp; Put in other words, the applicant, which is an incorporated company, is entitled to the rights and freedoms set out in the constitution, just like a natural person.&nbsp; The right to privacy is one to which the applicant can lay claim, as it occupies the premises to which this application relates and has control over the items warehoused at those premises.&nbsp; Given the fact that the applicant&rsquo;s right is clearly established I need not consider whether there is a well-grounded apprehension of irreparable prejudice if the interim relief is not granted.&nbsp; It is necessary, however, to consider the question of the balance of convenience.</p> <p>In relation to the balance of convenience, the court is enjoined to weigh the prejudice to the applicant if the interim interdict is refused against the prejudice to the respondent if it is granted: <em>Nyambi &amp; Ors </em>v<em> Minister of Local Govt &amp; Anor (supra) </em>at 574G-H; <em>Knox d&rsquo;Arcy Ltd </em>v<em> Jamieson </em>1996 (4) SA 348(A) at 361D-F.&nbsp; The interim interdict sought by the applicant is for the respondents to forthwith remove the police officers and security officers of the first respondent placed at the applicant&rsquo;s warehouse.&nbsp; The purpose of placing those details at the premises is, no doubt, to secure the place, and ensure that no items are removed from the premises pending the investigations under way.&nbsp; If the relief sought by the applicant is granted then that protection will be lost.&nbsp; I cannot assume that the applicant which is the company under investigation would be entrusted with the responsibility to ensure that no items are removed from its warehouse.&nbsp; It clearly has an interest in the outcome of the investigation.&nbsp; On the other hand, I do not understand the applicant to be alleging that the security of the items in the warehouse is jeopardised by the presence of the police officers.&nbsp; No suggestion was made that they may conduct themselves in any manner that would irreparably prejudice the applicant&rsquo;s interests.&nbsp; Their interest is to ensure that the warehouse is secured during the period of the search.&nbsp; For those reasons, it seems to me that the balance of convenience does not favour the granting of the interim relief being sought by the applicant.&nbsp; I would have had no difficulty if the applicant had sought relief that its own security personnel be also allowed to be present during the search.&nbsp; But that is not what the applicant is asking for.</p> <p>Dealing in copper is a closely controlled trade, as shown by the provisions of the Copper Control Act [<em>Chapter 14:06</em>].&nbsp; A licence issued in terms of section 4 of that Act entitles the holder thereof to carry on the trade or business of a dealer upon the premises specified in the licence.&nbsp; The Act in s 7 imposes restrictions as regards the hours during which copper may be purchased or received in the course of trade or business, and prohibits the receipt or purchase of copper between the hours of nine o&rsquo;clock in the evening and seven o&rsquo;clock in the morning.&nbsp; Copper is a strategic metal as it is used by the first respondent which bears the primary responsibility to ensure that there is adequate supply of power in the country.&nbsp; This court must, therefore, be sensitive to the above considerations in considering whether or not to order that the police officers should leave the applicant&rsquo;s premises in circumstances where there are reasonable grounds for believing that the applicant has in its warehouse stolen copper belonging to the first respondent.&nbsp; The fact that a warrant of search and seizure has been issued and that some copper has been recovered which is believed to belong to the first respondent are factors which I have also taken into account in this matter.&nbsp; Whether the materials are eventually found to have been properly in the possession of the applicant is a matter which will be established through the process of investigation.&nbsp; I do not believe that the applicant would be irreparably prejudiced by allowing the police officers and a security detail from the first respondent to remain at the premises while the investigations are underway.</p> <p>The Copper Control Act requires the applicant as a dealer to keep proper records of the copper in its possession.&nbsp; It should, therefore, be easy to account for any loss which might be wrongfully occasioned by the processes being undertaken by the respondent.&nbsp; For that reason, the applicant is not without an alternative remedy which adequately protects its rights.</p> <p>Even if all the requirements for the granting of an interim interdict cited above had been established, this would be an inappropriate case for the court in the exercise of its discretion to grant the interdict sought.&nbsp; The law reposes in the court a general and overriding discretion whether to grant or refuse an application for an interim interdict even in circumstances where the requisites for that relief are found to exist.&nbsp; That discretion must be exercised judicially based on the circumstances of each case.&nbsp; See <em>Nyambi (supra) </em>at 575D-E; <em>Watson </em>v<em> Gilson Enterprises &amp; Ors supra </em>at 331E; <em>Olympic Passenger Service (Pty) Ltd </em>v<em> Ramlagan </em>1957 (2) SA 382(D) at 383E.&nbsp; As pointed out above, an order for the removal of the police guards would not be in the interests of the proper execution of the search warrant.&nbsp;</p> <p>I accept that properly the respondents should have sought and obtained the search and seizure warrant before they took guard of the premises in question, and will take that factor into account in relation to the question of costs.&nbsp; Ordinarily costs should follow the result.&nbsp; However, in view of the fact that the applicant moved onto the premises on 5 June and only obtained a search and seizure warrant some six days later on 11 June 2015, their conduct is unacceptable and should be penalised by a denial of costs.&nbsp; While the respondents did not conduct any search prior to obtaining the warrant that does not excuse their conduct of taking charge of the premises some six days prior to obtaining the search warrant in the circumstances.</p> <p>In the result, IT IS ORDERED THAT:</p> <ol> <li>The application be and is hereby dismissed.</li> <li>Each party is to bear its own costs.</li> </ol> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><em>Sachikonye-Ushe</em>, applicant&rsquo;s legal practitioners</p> <p><em>Baera &amp; Company</em>, first respondent&rsquo;s legal practitioners</p> <p><em>Attorney-General&rsquo;s Office</em>, second and third respondents&rsquo; legal practitioners &nbsp;&nbsp;&nbsp;&nbsp;</p> <p>&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p class="rteright">&nbsp;</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/2015/547/2015-zwhhc-547.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27789">2015-zwhhc-547.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/2015/547/2015-zwhhc-547.pdf" type="application/pdf; length=284699">2015-zwhhc-547.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/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 court considered an application for an interim interdict preventing the respondents from interfering with the applicant’s business and to remove their security personnel. </p> <p>The applicant held a licence to deal in scrap metal, particularly to acquire, sell or deal in copper. Police officers, accompanied by the 1st respondent attended at the applicant’s warehouse and advised of its intention to search for certain materials which were suspected to have been stolen from the 1st respondent. The 1st respondent ensured that security were placed at the premises to guard the warehouse until such time as the warrant had been obtained.</p> <p>The court stated that the requirements for an interim interdict were: 1) a clear right, 2) a well-grounded apprehension of harm if the relief was not granted, 3) balance of convenience, and 4) absence of any alternative remedy.</p> <p>The court found that there was an alternative remedy available since dealing in copper was a closely controlled trade and that a holder was obliged to keep proper records of the copper in its possession, thus it should have no difficult in accounting for any loss. </p> <p>The court weighed the prejudice to the applicant if the relief was refused against the prejudice to the respondent if granted. It observed that the purpose of placing the security was to ensure that the premises was safe and no items were lost. If relief was granted, this protection would be lost. Thus, the balance of convenience did not favour the applicant. Accordingly,  the application was dismissed.  </p> </div></div></div> Sat, 08 Aug 2015 12:11:09 +0000 Anonymous 4238 at https://old.zimlii.org Mushoriwa v City of Harare (HC 4266/13) [2014] ZWHHC 195 (29 April 2014); https://old.zimlii.org/zw/judgment/harare-high-court/2014/195 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p align="right">HH 195-14</p> <p align="right">HC 4266/13</p> <p align="right">&nbsp;</p> <p>&nbsp;</p> <p>FARAI MUSHORIWA</p> <p>versus</p> <p>CITY OF HARARE</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>HIGH COURT OF ZIMBABWE</p> <p>BHUNU J</p> <p>HARARE, 5 June 2013, 23 July 2013, 2 August 2013, and 30 April 2014.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>Urgent chamber application</strong></p> <p>&nbsp;</p> <p><em>T. Mpofu</em>, for the applicant.</p> <p><em>C. Kwaramba</em>, for the respondent.</p> <p>&nbsp;</p> <p>BHUNUJ: This is an urgent chamber application for a spoliation order coupled with an interdict. The Applicant seeks a final order as amended in the following terms:</p> <p>&nbsp;</p> <p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the termination by Respondent of the Applicant&rsquo;s water supplies on the basis of a disputed water bill and in the absence of a court order is unlawful self-help.</p> <p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Respondent and all its employees be and are hereby interdicted from interfering whatsoever with, disrupting or terminating Applicant&rsquo;s water supply without a court order.</p> <p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the respondents shall pay the costs of suit on the higher scale of legal practitioner and client scale only if it opposes the application.</p> <p>In the interim the Applicant seeks a provisional order directing the Respondent to reconnect water supplies at his premises. He also seeks an interim interdict barring the Respondent and its employees from interfering with his possession of the premises by interfering or terminating water supplies to the premises and costs at the higher scale</p> <p>&nbsp;The bulk of the facts giving rise to the application are not in dispute. The applicant is a lawful tenant and occupant of flat number 12 at Northcliff block of flats in the City of Harare. The respondent is the City of Harare, a municipal authority duly constituted in terms of the Urban Councils Act [<em>Cap</em> 29:15].It is the sole supplier of domestic water in the city including the Applicant&rsquo;s block of flats.</p> <p>&nbsp;</p> <p>Sometime in May 2013 the respondent sent the Applicant a bill of US$1 700-00 claiming payment for water services rendered. The Applicant flatly disputed owing the amount claimed or any other amount for that matter. He maintained that he had always paid his bills in full and on time. He has attached proof of payment to his application. He argued that the amount claimed pertains to a bulk meter not connected to his premises.</p> <p>On 31 May 2013 the Respondent without any further ado unilaterally and arbitrarily disconnected water supplies to the Applicant&rsquo;s premises prompting him to file this urgent chamber application the following day for a spoliation order directing the Respondent to restore water services pending resolution of the dispute by the courts.</p> <p>Having regard to the urgency of the case when seized with the matter I immediately ordered by consent of the parties restoration of the water services forthwith pending the determination of this application to avert a catastrophe as one cannot survive without water. The Respondent duly complied thereby ameliorating the urgency of the matter.</p> <p>Despite the existence of a lawful consent court order barring the Respondent from disconnecting water services from the Applicant&rsquo;s premises &nbsp;until the finalisation of this application, the Respondent still went ahead and defiantly disconnected water services from the Applicant&rsquo;s premises with impunity without any Court order or&nbsp; legal justification. In spite of the Applicant&rsquo;s pleas pointing out that the Respondent was in contempt of Court it insolently refused to reconnect water supplies to his premises. It had again to take the intervention of this Court and threats of imprisonment for contempt of court for the City Council authorities to restore water to the Applicant&rsquo;s premises.</p> <p>The Respondent raised a number of preliminary issues regarding the propriety of some issues placed by the applicant before this Court. Whatever complaints the Respondent might have had, have since been addressed by the amendments that I granted during the course of this hearing.</p> <p>The undisputed facts before me clearly establish that prior to the dispossession the Applicant was in peaceful and undisturbed possession of the water connection in dispute. The only issue that arises is whether such dispossession was lawful.</p> <p>There is no substance in the Respondent&rsquo;s claim that the Applicant was no longer in peaceful and undisturbed possession of the water connection because of its threats to disconnect water to the premises. That argument goes against public policy that no one should benefit from his own inequity. If its argument is sustained the Respondent stands to benefit from its own wrongs or inequities should the threats turn out to be unjustified or baseless.</p> <p>The doctrine against deriving benefit from one&rsquo;s own wrongs was amply articulated with characteristic lucidity in the famous American case of <em>Riggs </em>v<em>Palmer </em>(1899) 115 NY 506, NE 188. In that case the New York court had this to say:</p> <p>&ldquo;All courts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found his own claim upon his own inequity or to acquire property by his own crime.&rdquo;</p> <p>&nbsp;</p> <p>This Court came to the same conclusion in the case of <em>Wang &amp; Ors. </em>v<em>Ranchod &amp; Ors</em> 2005 (1) ZLR 415 where a wife who had shot and killed her husband wanted to be appointed executrix dative to his estate to the exclusion of his relatives.</p> <p>&nbsp;I accordingly hold that the matter is properly before me and proceed to determine the application on the merits.</p> <p>The dispute that has arisen between the parties has to do with their respective rights and obligations in respect of the provision of water to a citizen by a municipal authority such as the City of Harare. The parties are generally agreed that the Respondent has an obligation to provide water and the applicant in turn is obliged to pay for it. The point of departure is what happens in the event that there is a dispute regarding payment. In that case, is the respondent entitled to self-help and to unilaterally cut off water supplies to a citizen without recourse to law? Put differently is the respondent entitled to self help without recourse to the courts of law and be a law unto itself.</p> <p>The Respondent&rsquo;s argument is that by virtue of s 8 of the City of Harare&rsquo;s water by-laws S.I 164 of 1913 as read with s 198 (3) and s 69 of the third Schedule to the Urban Councils Act it is clothed with unfettered discretion to disconnect water supplies to a citizen at will without recourse to the courts of law. The by-law provides as follows:</p> <p>&ldquo;8. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The council may, by giving 24 hours&rsquo; notice, in writing <u>without paying compensation</u> and without prejudicing its rights to obtain payment for water supply to the consumer, discontinue supplies to the consumer:</p> <p>&nbsp;</p> <p>(a)&nbsp;&nbsp;&nbsp; If he shall have failed to pay any sum which <u>in the opinion of</u> the Council is due under the conditions or the water by-law.</p> <p>(b)&nbsp;&nbsp; &hellip;&rdquo;</p> <p>&nbsp;</p> <p>The Applicant has countered that the by-law relied upon by the Respondent is <em>ultra vires</em> section 198 as read with s 69 (2) (e) of the third schedule to the parent Act and s 77 of the Constitution.</p> <p>&nbsp;</p> <p>&nbsp;Section 198 (3) of the Urban Councils Act provides as follows:</p> <p>&nbsp;</p> <p>&ldquo;198</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Subject to this Act Council shall have power to do any act or thing &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; which, <u>in the opinion of</u> the Council is necessary for administering&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; or giving effect to any by- laws of the Council&rdquo;</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>Section198 is however subject to s 69 (2) (e) of the third Schedule to the Act that specifically provides for the disconnection of water supplies to a consumer. That section deliberately omits the words <em>&lsquo;</em><u>in the opinion of</u>&rsquo;.&nbsp; It reads:</p> <p style="margin-left:1in;">&ldquo;(2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Without derogation to the generality of subparagraph (1), by-laws relating to matters referred to in that subparagraph may contain provision for all or any of the following-</p> <p>&nbsp;</p> <p>(e)&nbsp;&nbsp;&nbsp; <u>Cutting off the supply of water after not less than twenty-four hours&rsquo; notice on account of failure to pay any charges which are due.</u></p> <p>&nbsp;</p> <p>It is abundantly clear that s 69 (2) (e) of the third Schedule to the Act which takes precedence over s198 (3) deliberately omits the words &ldquo;<u>in the opinion of</u>&rdquo;. The effect of that omission is to divest the Respondent of the unfettered discretion upon which it seeks to rely on in justifying its unlawful conduct. Thus the respondent retained the words &lsquo;<u>in the opinion of</u>&rsquo; in its by-law in order to unlawfully confer on itself a discretion not granted to it by the enabling parent Act.</p> <p>In other words, when it comes to disconnection of water on account of failure to pay, the City Council&rsquo;s opinion does not matter it can only disconnect water supplies on no less than 24 hours&rsquo; notice upon proof that the consumer has failed to pay any charges which are due.</p> <p>What this means is that the Respondent cannot lawfully disconnect water from a consumer unless it has established that the amount claimed is actually due. That then brings us to the question as to who is to determine whether or not the amount claimed is actually due.</p> <p>The Respondent has sought to arrogate to itself the right to determine when the amount claimed is due by simply laying claim to payment without proof by due process or recourse to the courts of law. What it seeks to do is to oust the jurisdiction of the courts so that it can operate as a loose cannon and a law unto itself. It seeks to extort money from the Applicant without the bother of establishing its claim through recognised judicial process. The disconnection of water supplies without recourse to the courts of law is meant to arm twist and beat the Applicant into submission without the bother of proving its claim in a court of law.</p> <p>The right to water is a fundamental right enshrined in s 77 of the constitution of Zimbabwe which provides as follows:</p> <p style="margin-left:.5in;">&nbsp;</p> <p><strong>&rdquo;77.&nbsp;&nbsp;&nbsp;&nbsp; Right to food and water</strong></p> <p>&nbsp;</p> <p>Every person has the right to-</p> <p style="margin-left:1in;">(a)&nbsp;&nbsp;&nbsp; Safe clean and portable water; and</p> <p style="margin-left:1in;">&nbsp;</p> <p style="margin-left:1in;">(b)&nbsp;&nbsp; Sufficient food;</p> <p style="margin-left:1in;">&nbsp;</p> <p>And the State must take reasonable legislative and other measures within the limits of the resources available to it, to have a progressive realisation of this right&rdquo;</p> <p>&nbsp;</p> <p>Section 44 of the Constitution imposes a duty on the State and all its institutions and agencies to respect fundamental human rights and freedoms. It reads:-</p> <p>&ldquo;The State and every person, including juristic persons and every institution and agency of the government at every level must respect, protect and fulfil the rights and freedoms set out in this chapter.&rdquo;</p> <p>&nbsp;</p> <p>The Respondent being a public body and institution of local government, it follows that it cannot deny a citizen water without just cause. It is trite that it is the function of the judiciary to interpret and enforce the law when a citizen complains that his human rights have been violated. Section 162 of the Constitution clothes this Court with judicial authority and s 165 (1) (c) provides that,</p> <p>&ldquo;The role of the courts is paramount in safeguarding human rights and freedoms and the rule of law.&rdquo;</p> <p>&nbsp;</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In the words of Francis Bennion in his book <em>Statutory Interpretation 1984</em>, the courts are best suited to interpret and give effect to the law when he says at page 50:</p> <p>&ldquo;A Court is an agency charged with the function of exercising the judicial power of the State. Only a court as thus defined has the power authoritatively to determine what the law is, and therefore what is the legal meaning of a relevant enactment.&rdquo;</p> <p>&nbsp;</p> <p>Those sentiments accord with s 171 of the Constitution.</p> <p>In terms of s 171 of the Constitution this Court as the High Court of Zimbabwe has full original jurisdiction over all civil and criminal matters throughout the country. It has unlimited jurisdiction save where its power has expressly been curtailed by Parliament for instance in labour matters see <em>Tuso</em> v<em>City of Harare </em>2004 (1) ZLR 1 (H)</p> <p>This court having been conferred with the necessary jurisdiction to hear and determine this matter by the supreme law of the land it cannot abdicate its function on account of an illegal municipal by-law crafted by municipal authorities contrary to the constitution and the enabling statute.&nbsp;</p> <p>Above all, it is the function of the court to do justice according to law so that justice may be seen to be done and that the question of the law in dispute may be known.</p> <p>Section 8 of by-law 164 of 1913 contradicts both the Constitution and the enabling statute in more respects than one. Firstly, it authorises the Respondent to arbitrarily deprive citizens of their fundamental right to water without compensation contrary to s 85 of the Constitution which entitles an aggrieved person to appropriate compensation whenever his fundamental human rights have been violated.</p> <p>Secondly, in the event of a disputed bill it unlawfully confers the respondent with the sole jurisdiction to arbitrarily determine the dispute without recourse to the courts of law contrary to the provisions of s 69 of the third schedule to the Act as read with s 165 (1) (c) of the Constitution. By so doing the by-law allows the Respondent to be the sole arbiter in its own case contrary to the well-established common law maxim that no one should be a judge in his own case.</p> <p>It is a basic principle of our legal policy that law should serve the public interest.&nbsp; 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 will without recourse to the law and the courts.</p> <p>While the City Council has a right to collect its debts it cannot do so by resorting to unlawful means for every person including the City Council is subject to the law.</p> <p>I take comfort in that the Supreme Court of South Africa in a related case of <em>City of Cape Town </em>v<em>Strumpher </em>(104/11) (2012) ZASCA 54 came to the same conclusion on facts that are on all fours&nbsp; with this case.</p> <p>The respondent&rsquo;s conduct in terminating water supply in the face of a binding court order was contemptuous of the Court and unbecoming of the Respondent and its officials. The court expresses its displeasure by awarding costs at the punitive scale.</p> <p>I must however comment counsel for the Respondent <em>Mr. Kwaramba</em>, for taking prompt and appropriate action to avert a nasty standoff between the Respondent and the Court in which someone was likely to emerge badly bruised as the courts derive their authority from the people of Zimbabwe in terms of s 162 of the Constitution and to that extent court orders must be honoured and respected. They can only be defied at one&rsquo;s peril because they have the full support of the State&rsquo;s entre enforcement machinery.</p> <p>Those in the corridors of power must not abuse their authority by usurping the functions of the courts to the detriment of innocent members of society as happened in this case.</p> <p>In the final analysis the application can only succeed. It is accordingly ordered that a provisional order be and is hereby granted in the following terms:</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>TERMS OF THE FINAL ORDER SOUGHT</strong></p> <p>That you show cause to this Honourable Court why a final order should not be made in the following terms:&ndash;</p> <p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the termination by the Respondent of the Applicant&rsquo;s water supplies on the basis of a disputed water bill and in the absence of any order of Court is unlawful self-help.</p> <p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That respondent and all its employees be and are hereby interdicted from interfering whatsoever with, disrupting or terminating Applicant&rsquo;s water supply without the authority of a Court Order.</p> <p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the Respondent shall pay costs of suit on the higher scale of legal practitioner and client only if it opposes this Application.</p> <p>&nbsp;</p> <p><u>INTERIM RELIEF GRANTED</u></p> <p>Pending determination of this matter, the Applicant is granted the following relief &ndash;</p> <p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That Respondent be and is hereby ordered to immediately restore water supply to the Applicant&rsquo;s rented premises being 12 Northcliff Flats, Harare.</p> <p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That pending finalisation of this matter, Respondent and its employees and assigns be and are hereby interdicted from interfering with applicant&rsquo;s possession of the premises by interfering with or terminating water supply.</p> <p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the Respondent shall pay costs of suit on a legal practitioner client scale.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><em>Nyamayaro Makanza &amp; Bakasa</em>, applicant&rsquo;s legal practitioners.</p> <p><em>Mbidzo Muchadehama &amp; Makoni</em>, respondents&rsquo; legal practitioners.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</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/2014/195/2014-zwhhc-195.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=37476">2014-zwhhc-195.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/2014/195/2014-zwhhc-195.pdf" type="application/pdf; length=471293">2014-zwhhc-195.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/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/freshwater-use">Freshwater use</a></li></ul></span><div class="field field-name-field-search-summary field-type-text-long field-label-above"><div class="field-label">Search Summary:&nbsp;</div><div class="field-items"><div class="field-item even"></div></div></div> Sat, 08 Aug 2015 12:05:53 +0000 Anonymous 3684 at https://old.zimlii.org Gulmit Investments ( Private) Limited v Ranchville Enterprises (Private) Limited and Others (HH 94-2004) [2004] ZWHHC 94 (13 April 2004); https://old.zimlii.org/zw/judgment/harare-high-court/2004/94 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>&nbsp;</p> <p>GULMIT INVESTMENTS ( PRIVATE) LIMITED&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>versus&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>RANCHVILLE ENTERPRISES (PRIVATE) LIMITED</p> <p>and</p> <p>C.R.G. QUARRIES (PRIVATE) LIMITED</p> <p>and</p> <p>KEELY GRANITE (PRIVATE) LIMITED</p> <p>and</p> <p>MINERALS MARKETING CORPORATION OF</p> <p>ZIMBABWE</p> <p>and</p> <p>NATIONAL RAILWAYS OF ZIMBABWE</p> <p>&nbsp;</p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAKARAU J</p> <p>HARARE 14 April, 2004</p> <p>&nbsp;</p> <h1> Urgent Chamber Application</h1> <p>&nbsp;</p> <p>Mr<em>E Morris, </em>for applicant</p> <p>Mr<em>N Madya,</em> for 2<sup>nd</sup>respondent</p> <p>Mr<em>P Masamba,</em> for 4th respondent</p> <p>Mr<em>G Chikumbirike,</em> for&nbsp; 6th 7th and 8th respondents.</p> <p>The 1<sup>st</sup>3<sup>rd</sup>and 5th respondents in default.</p> <p>&nbsp;</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; MAKARAU J: After hearing the parties in the above matter, I dismissed the application on the turn with costs in favour of the second respondent and indicated that my reasons would follow. I now set them out.</p> <p>The facts of this matter are common cause. The first respondent had an agreement with the applicant in terms of which the applicant had the right of first refusal over the first respondent&rsquo;s black granite. The agreement also provided for the financing of the operations of the first respondent by the applicant and the future shareholding of the first respondent in which applicant had a 70% stake. The agreement was concluded in May 2003.</p> <p>On 1 March 2004, the applicant received information that the first respondent was moving 41 blocks of black granite from its mine in Mutoko to Harare. This was without the knowledge of the applicant or of the first respondent&rsquo;s Finance Director with whom the applicant worked closely. It soon emerged that the blocks were being moved on behalf of the second respondent, which had purchased the blocks from one Crymble, the</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>Managing Director of the first respondent. The third respondent had been engaged by the second respondent to move the stones from Mutoko to Makon siding where they would be loaded onto the fifth respondent&rsquo;s wagons enroute to the port at Beira.</p> <p>Armed with this information, the applicant filed this urgent application seeking an order setting aside the sale of the blocks to the second respondent and compelling the first respondent to offer the blocks to the applicant in terms of their agreement. As interim relief, the applicant prayed for an order that the blocks be kept at the third respondent&rsquo;s leased premises at Makon siding at the expense of the applicant.</p> <p>The respondents&rsquo; legal practitioners all took turns to attack the procedure adopted by the applicant in bringing this application on an urgent basis. It was argued that the applicant became aware of the movement of the granite blocks from the first respondent&rsquo;s mine in Mutoko on 1 March and only filed the urgent application on 30 March 2004, some 30 days later. By this delay, the argument proceeded, the applicant created the urgency in the matter and is thus abusing court process by approaching the court on an urgent basis.</p> <p>This court has held that an application is urgent when if at the time the cause of action arises, determination of the matter cannot wait. (See <em>Kuvarega v Registrar-General</em> &amp; <em>Another </em>1998 (1) ZLR 188 (HC)). In such a case, the filing of an application with the court immediately the cause of action arises acts to underscore the urgency of the matter and the vigilance of the applicant.&nbsp; A delay may however occur between the cause of action arising and the filing of the application with the court. Where the urgency of the matter is born out of that delay, then unless the delay is satisfactorily explained, the non- action on the part of the applicant until his or her legal position is altered by some other vigilant person cannot constitute urgency for the purposes of the rules of this court. Where however the delay in bringing the matter to court does not create the urgency nor further complicates the matter, in my view, this should not be held to detract from the urgency of the matter, especially where the delay in approaching the court for relief is not inordinate.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>In <em>casu,</em> the urgency of the application has not been created by the delay of the applicant in filing this application. The situation that prevailed on 1 March was pretty much the same as on 30 March 2004 when the application was filed.&nbsp; This is so because the second respondent purchased the granite from the first respondent on 6 February 2004. That the need to act manifested itself on 1 March when the applicant became aware of the movement of the granite cannot be denied. In my view, the delay between 1 and 30 March did not create the urgency nor did it complicate matters any further.&nbsp; The matter remained urgent after 1 March and the delay in bringing the application to court does not appear to me to be inordinate in the circumstances of this matter. At the time of the hearing of the application, the granite had not been removed from Zimbabwe and if the applicant is entitled to protection of its rights, in my view, it is the duty of this court to ensure that the matter is determined urgently.</p> <p>The applicant as the holder of a right of first refusal to the granite blocks, is in law placed in the same position as a prior purchaser. It has been argued and accepted as the correct position in law that the holder of a pre-emptive right who has not yet exercised the right is in the same legal position as one who has exercised the right or has actually purchased the property to which the right relates. (See <em>Le Roux v Odendaal and Others</em> 1954 (4) SA 432 (NPD) and <em>Sawyer v Chioza and Others </em>1999 (1) ZLR 203 (HC)).</p> <p>The legal situation presented by the facts of this matter thus gives rise to the typical double sale scene. The first respondent, bound in contract to offer its granite to the applicant, sold and delivered the stone to the second respondent.</p> <p>The principles that apply where a person has sells a property to two or more persons have been set out clearly in <em>Crundall Brothers (Private) Limited v Lazarus NO &amp; </em></p> <p><em>Another</em>1991 (2) ZLR 125. These principles have been followed in a line of decisions in this jurisdiction. (See <em>Charuma Blasting and Earthmoving Services&nbsp; (Private) Limited v Njainjai &amp; Others</em> 2000 (1) ZLR 85 (SC) <em>Barros and Another v Chimponda</em> 1999 (1) ZLR 58 (SC).</p> <p>In my view, the position is so well settled that it can now be taken as trite that where A sells to B and to C and C takes transfer without knowledge of B&rsquo;s right or claim to the property, then C acquires an indefeasible right and B is left to claim damages</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>against A. The same position obtains in respect of movable property that has been delivered to C.&nbsp; It is a common position at law that transfer of ownership in respect of movable property is effected by delivery of the property.</p> <p>The applicant can only advantageously rely on its status as the &ldquo;prior purchaser&rdquo; of the granite if it can show that the second respondent was aware or ought to have been aware of its prior right or claim to the stone. In this event, the applicant will be relying on the maxim <em>qui prior est tempore potior est jure, </em>giving priority to the first purchaser<em>. </em>Mindful of this requirement, Mr Morris for the applicant sought to impute knowledge on the part of the second respondent. This he did by arguing that the second respondent must have been put on guard when the first respondent sold it the stone instead of exporting the stone for its own benefit. I must confess that the argument loses me. It is not disputed that the first respondent was in the business of selling the stone. It had an agreement to offer the stone to the applicant for sale first.&nbsp; Presumably, where the applicant did not for any reason exercise its right, the first respondent was at liberty to sell the stone to any other party. In these circumstances, I do not see how the fact that the first respondent was selling the stone and not exporting it for itself should have put the second respondent on guard and cause it to inquire into the internal arrangements that the first respondent might have had with its shareholders.</p> <p>The second respondent has specifically denied that it had knowledge of the agreement between the applicant and the first respondent. When confronted by the applicant&rsquo;s representative over its possession of the stone, it did not seek to hide anything from the applicant, but even made available to the applicant the invoice that it had received from Crymble, issued in the name of the first respondent but with different telephone and fax numbers. These were not the actions or responses of someone acting <em>mala</em> fide and in concert with the first respondent to defeat the just claims of the applicant.</p> <p>It is therefore my finding that the second respondent took delivery of the stone in the absence of any knowledge of the prior rights of the applicant.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>In the absence of any prior knowledge on the part of the second respondent, I see no basis upon which the title received by the second respondent from the first respondent can be impugned. It is indefeasible.</p> <p>Mr <em>Madya </em>argued that the second respondent became the owner of the stones upon delivery of the stone to it. Its right in the stones is real as opposed to the personal right that the applicant may have against the first respondent in terms of the agreement between the parties.</p> <p>It would appear self evident that a personal right as the applicant has must yield to the real right that the second respondent has in the stone. &nbsp;This is however not the basis upon which such issues are resolved. It is not a question of a greater right yielding to a lesser right or a personal right yielding to a real right. The emphasis in the authorities is clearly on the manner in which the second purchaser acquires rights in the property in dispute rather than on the content of that right. The authorities are clear that if the second purchaser acquires tittle to the property innocently and without prior knowledge of the rights of the first purchaser, then his title in the property is good and cannot be defeated by rights stemming from the first purchaser&rsquo;s status as the prior purchaser.</p> <p>Thus, while it is correct that the second respondent did acquire ownership in the stones when it received delivery of the stones, the basis of its protection at law is not the right of ownership but the manner in which it acquired that right in competition to the applicant. That this is the correct position in law is in my view confirmed by the fact that one may have a prima facie right against an owner. It is therefore not the content of the rights one has in relation to the property that matters but the manner in which that right is acquired in competition with the competing party.</p> <p>Further and in any event, the issue between the parties cannot be resolved on the basis of determining which of the parties has an indefeasible right against the other. This matter came to me by way of an urgent application for an interim interdict. I had to determine whether the applicant is entitled to the interdict that it seeks.</p> <p>It is a settled position in our law that for a temporary interdict to issue, the applicant must show that he has a clear right or a prima facie right to the relief sought and</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>that there is imminent harm to that right. That is the approach Mr Morris took in arguing this matter. He conceded that the applicant does not have a clear right but has a <em>prima facie</em> that is open to doubt. He then proceeded to address the issue of irreparable harm that will ensue if the applicant&rsquo;s <em>prima facie</em> right is not protected by highlighting how an award of damages will be inequitable in the hyperinflation characteristic of the environment.</p> <p>The issue that exercised my mind to some extent is whether in the circumstances of this matter, it can be said that the applicant has a prima facie right to the stone for the purposes of the issuance of a temporary interdict in its favour.</p> <p>It appears to me that the applicant&rsquo;s right to the stone cannot be determined in isolation and without considering the competing rights of the second respondent. It further appears to me that because the second respondent has acquired an indefeasible right to the stone in competition to the applicant, the applicant cannot have a prima facie right to the same stone. The two appear mutually exclusive to me and on that basis alone, the dismissal of the application would be justified.</p> <p>Although convinced that the applicant has no right capable of protection as against the second respondent because of the indefeasible right that the second respondent has acquired in the stone, and consequently that the balance of equities should not come into play as between the applicant an the second respondent, I took the approach of GILLESPIE J In <em>Watson v Gilson Enterprises &amp; Others</em> 1997 (2) ZLR 318 (H), and considered all the circumstances of the matter to decide whether, on a balance, I could still exercise my discretion in favour of granting the interdict sought.&nbsp;</p> <p>The circumstances that I took into the balance are:</p> <ol> <li> That the applicant&rsquo;s loss can be made good by an award of damages for the alleged breach of contract. In this respect, the applicant does have a suitable alternative remedy. The fact that the damages will be claimed and collected in a hyperinflationary environment does not in my view satisfy the requirements of the law that the applicant must show an absence of an alternative remedy.</li> </ol> <p>&nbsp;</p> <p>&nbsp;</p> <ol> <li> The second respondent has already sold the stone to its customers in Italy and has received payment for the stone. The balance of convenience is heavily in its favour. Were I to grant the interdict, the business reputation and integrity of the second respondent would have been severely compromised.</li> </ol> <p>Considering these two factors, I used my discretion to withhold the granting of the temporary interdict in favour of the applicant. The balance of convenience is clearly in favour of the second respondent in this matter.</p> <p>In view of the conclusion I reached in this matter, it became unnecessary in my view to deal with the other issues arising from this application.</p> <p>Regarding costs, I made an order of costs in favour of the second respondent, as it has been successful in its opposition of the application.</p> <p>The applicant did not seek an order against the 4th respondent and its filing of opposing papers and appearance at the hearing was thus unwarranted. It is not entitled to any costs.</p> <p>The sixth to eighth respondents applied to be joined to the application only when the mandate of Mr <em>Chikumbirike</em> to appear on behalf of the first respondent was challenged. Although the application for joinder was allowed by consent, the sixth to eighth respondents, being the Managing Director, Operations Director and minority shareholder in the first respondent had no independent interest to protect in the matter. No specific order was prayed against them and their opposition and appearance at the hearing wee also unwarranted. They are not entitled to costs for the application for joinder or for the opposition to the application.</p> <p>It was for the above reasons that I dismissed the application on the turn and made the order of costs that I did.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><em>Coghlan Welsh &amp; Guest</em>, applicant&rsquo;s legal practitioners</p> <p><em>Wintertons</em>, second respondent&rsquo;s legal practitioners</p> <p><em>Dube Manikai &amp; Hwacha</em>, 4th respondent&rsquo;s legal practitioners</p> <p><em>Chikumbirike &amp; Associates</em>, 6th, 7th and 8th respondent&rsquo;s legal practitioners.</p></div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/rtf" src="/modules/file/icons/application-octet-stream.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2004/94/2004-zwhhc-94.rtf" type="application/rtf; length=27212">2004-zwhhc-94.rtf</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/2004/94/2004-zwhhc-94.pdf" type="application/pdf; length=348123">2004-zwhhc-94.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/injunction">Injunction</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/minerals-oil-and-gas">Minerals, oil and gas</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>This was an application seeking an order setting aside the sale of granite blocks to the second respondent. The application also sought to compel the first respondent to offer the blocks to the applicant in terms of a ‘right of first refusal’ agreement between them. The application was filed following reception of information that the first respondent was moving granite after a sale to the second respondent without their knowledge.<br /> The application was brought on an urgent basis by the applicant.</p> <p>The court had to determine whether the matter was urgent and whether the applicant had a claim against the second respondent for granite sold and whether to interdict further movement of the granite in question.</p> <p>The court held that at the time of the hearing, the granite had not been removed from Zimbabwe and if the applicant was entitled to protection of its rights, it was the duty of the court to ensure that the matter was determined urgently.</p> <p>It also held that any claim that the applicant had to the right of first refusal would depend on whether it can show that the second respondent was aware or ought to have been aware of its prior right or claim to the stone. The claim fell away as the conduct of the second respondent did not show any mala fide intention.</p> <p>The interdict application was thus denied because the applicant had no rights to enforce against the second respondent. </p> </div></div></div> Sat, 08 Aug 2015 11:52:01 +0000 Anonymous 3237 at https://old.zimlii.org