Judgment No. HB 74/06

                                                                                    Case No. HC 933/06

KNOBTHORN MINING COMPANY (PVT) LTD

Versus

THE MINING COMMISSIONER

And

THE REGIONAL MINING ENGINEER

And

THE OFFICER-IN-CHARGE, MASHAVA POLICE STATION

And

LAMONA INVESTMENTS

IN THE HIGH COURT OF ZIMBABWE

BERE J

BULAWAYO 5 MAY & 20 JULY 2006

Advocate P Dubefor the applicant

D Mwonzorafor the respondents

Urgent Chamber Application

            BERE J:         Applicant has filed an urgent chamber application seeking interim relief couched in the following terms:

            “Interim Relief

            Pending the return date the following interim relief is granted:

1. The respondents be and are hereby interdicted from carrying out any eviction at all of the applicant and/or any parties claiming occupation through the applicant from Lenox Mine.
2. The respondents be and are hereby ordered, if the eviction has already taken place, to restore applicant and all its employees and agents to peaceful occupation of Lenox Mine.
3. The respondents be and are hereby ordered to keep peace towards applicant and its employees and agents, and to refrain from harassing or interfering in any way with the said employees and agents, and further interdict from in any way interfering with the applicant’s operations and Lenox Mine.

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Service of the order

This provisional order shall be served on all parties cited herein by Deputy Sheriff, provided that a copy of this order shall be kept at the offices of applicant at Lenox Mine, and be exhibited to, and/or brought to the notice of any of the respondents as may call at that place.”

            The respondents adopted a two-pronged position in opposing the application filed by the applicant.  Through the affidavit of one F G Moyo the director of the fourth respondent, it was sought to demonstrate that the applicant has no legitimate right to bring the action as the applicant’s occupation was in violation of the Mines and Minerals Act.  It was argued that since the Tribute Agreement expired in 2004, it follows that the applicant was illegally conducting mining activities at the mine.

            That might be so, but I did not understand counsel for the respondents to be arguing that if one were to accept the position taken by the fourth respondent, the applicant, having been in occupation and operating for so long could be evicted in the manner detailed by the applicant.  The manner in which the applicant’s eviction, threatened or otherwise was certainly not in accordance with civilised approach to litigation and would not be acceptable.

            The other position adopted by the respondents which runs through the submissions made by MrMwonzora was that the applicant’s apprehension was misplaced and that the requirements of an interdict as perceived by counsel had not been satisfied.

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            It is clear from the applicant’s founding affidavit that the application it sought was largely prompted by the Mining Commissioner’s letter of 21 April 2006 (Annexure F) as well as the subsequent events of 28 April 2006 fully captured in paragraph 26 of the applicant’s founding affidavit.

            For the avoidance of doubt paragraph 26 of the applicant’s founding affidavit reads:

“1^strespondent has however, today the 28^thApril 2006, directed that the police, the Regional Engineer and Geologist superintend the eviction of applicant from the mine.”

            In my  view the averments in the paragraph were consistent with the definitive letter of 21 April 2006.

            As rightly argued by Advocate Dube, for the applicant, it is clear Annexure F demanded that applicant moves out of Lenox Mine.  It would have been naïve for the applicant to continue operating at Lenox Mine without taking reasonable steps to safeguard its position.  The applicant was not expected to wait until the day of eviction to take action to protect its rights.  See the view of CHATIKOBOJ (as he then was) in Kuvarega v Registrar-General and Anor 1998 (1) ZLR 188H at p 193F-G.

            It is my considered view that the action taken by the applicant, given its circumstances was clearly merited and cannot be faulted by any fair-minded person.

            I propose to deal with the issue of costs.

            Both counsel agreed with me that since all the parties were given an opportunity to present arguments before me, I was at liberty to

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either grant the final order or a provisional order.  I prefer to grant a final order.

            In terms of the final order sought by the applicant, the applicant sought to get costs from the first and fourth respondents jointly and severally.

            I will to deal first with the issue of costs in so far as they affect the fourth respondent.

            From the papers filed, particularly Annexure F, which I hold to be central to these proceedings, it would appear that the applicant would want the fourth respondent to be burdened with an order for costs merely because the first respondent has decided in its own wisdom to allocate Lenox Mine to it.  If indeed, Lenox Mine has been allocated to fourth respondent, why should that respondent be ordered to pay costs occasioned by the irrational behaviour of the first respondent?  I am satisfied it would be unreasonable to follow that route.

            That leaves me to consider costs as regards the first respondent.

            I t was argued by Mr Mwonzora that it was not sufficient for the applicant to merely cite the first respondent because it is only the implementing arm of the Ministry of Mines and Mineral Resources.  It was imperative that the applicant should have cited the parent Ministry of the first respondent.  I find the argument quite persuasive and acceptable.

            I make the following final order:

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1. That the respondents be and are hereby ordered not to evict the applicant from Lennox Mine, save by reason of an order of a court.
2. That each party bears its own costs.

Webb Low and Barry,applicant’s legal practitioners

Mwonzora and Associates,respondents’ legal practitioners