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Judgment No. HB 58/15
Case No. 390/15
Xref No. 141/15 & HC 2167/14
TRIANIC INVESTMENTS (PVT) LTD
and
MEYER REOUVEN DRAY
versus
NQOBILE KHUMALO
and
FRANCESCA MUFAMBI
and
OFFICER-IN-CHARGE (FILABUSI)
ZIMBABWE REPUBLIC POLICE
HIGH COURT OF ZIMBABWE
MOYO J
BULAWAYO 3 AND 19 MARCH 2015
Urgent Application
N. Ndlovu for the applicants
N. Mugiya for the respondents
MOYO J: This is an urgent application. The interim relief sought is couched in the following manner:
1) That execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC 141/15.
2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.
3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC 2167/14 pending the application for rescission of judgment under HC 141/15.
The facts of the matter show that the dispute between the applicants and the respondents centre on a mine situated in Filabusi. Apparently in September 2014, the respondents filed an urgent chamber application and served it on the applicant’s legal practitioners. The applicant’s legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large in terms of the rules regarding the set down or otherwise of the matter.
Respondent claims that upon receipt of the provisional order they served same on the applicant’s legal practitioners and that no notice of opposition was filed to the confirmation of the provisional order leading them to confirm same on 15 January 2015.
In the confirmation proceedings they filed a certificate of service confirming that indeed the provisional order had been served on the applicants.
Prior to the confirmation of the provisional order, applicant’s legal practitioners were served by respondents’ legal practitioners with an affidavit of evidence and a notice of set down of the matter on the unopposed roll. Such service was effected on 9 January 2015.
Applicants filed an application for rescission of judgment on 21 January 2015. This is an application to rescind the confirmation of the provisional order. Applicants now seek to stay execution of the provisional order pending the hearing of their application for rescission of judgment.
They seek rescission on the basis that they were not served with the provisional order, and that they would want to be given an opportunity to challenge same. They further contend that the relief that was in the provisional order and the one that was obtained upon confirmation of same were materially different. The terms of the final order in the provisional order that was originally issued read as follows:
“a) The respondents be and are hereby ordered not to sale the mine in question.
b) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.
c) The respondents pay the costs of suit on an attorney and client scale.”
The terms of the final order granted on confirmation reads as follows:
1) The respondents be and are hereby ordered not to sell the mine in question
2) The respondents be and are hereby ordered not to interfere with the applicant’s operations at the mine and not to interfere with the equipment thereat.
3) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.
4) The respondents be and are hereby interdicted from going to the mine known as Eric 21, Trianic Investments Filabusi.
5) The respondents pay costs at an attorney and client scale.
The interim relief as per the provisional order that was granted on 20 November 2014 is as follows:
a) The respondents be and are hereby ordered not to interfere with the mine in question and the mining equipment thereof.
b) The second respondent to fourth respondents be and are hereby interdicted from interfering with whatever nature of threats upon their persons or their family. Respondents have challenged the order sought on the basis that the matter is not urgent.
I now turn to look at the issues in this application. I would first deal with the certificate of urgency. The certificate of urgency gives the following grounds of urgency.
1. The first and second respondents clearly fraudulently got an order which they are currently executing.
2. The first and second respondents are mining and exhausting gold resources at the applicants’ mine. Gold will be depleted if the respondent is not interdicted from executing the unlawful order.
3. The applicants are suffering great prejudice and irreparable harm in that all mining operations have been stopped based on an unlawful order which was granted based on fraud and due to first and second respondents’ misleading of this Honourable court.
4. The applicants have applied for rescission of the fraudulently gotten order under case number HC 141/15. The applicants will suffer irreparable harm if the conduct of the first and second respondents is not challenged.
Thus the final decision of this Honourable court under case number 141/15 will be rendered a brutum fulmen if the respondents are not interdicted.
5. The applicants have a legitimate fear that the mine can be exhausted at any time by the first and second respondents.
I am not sure if the certificate of urgency seeks to allege that even the provisional order issued on 20 November 2014 was a fraud as clearly the court record does not point at that. The only issues that perhaps applicants could contend were done unproceduraly would be the confirmation of the provisional order as they dispute receipt of the order. As for the issue of the provisional order on 20 November 2014, whilst there could have been a notice of opposition in the court record it is common cause that the learned judge was not compelled in terms of the rules to first set the matter down before granting it. The learned judge had a wide disrection in this regard.
This is clearly proper in terms of rule 246 (2) which provides as follows:
“Where in an application for a provisional order the judge is satisfied that the papers establish a prima facie case he shall grant a provisional order either in terms of the draft or as varied.”
The harm stated in the certificate of urgency in my view is not founded for the simple reason that the interim relief granted in the provisional order, which would be operative with or without the confirmation of the provisional order, had the effect of allowing respondent to take effective control of the farm from 20 November 2014 to date. That would mean, in my view that the confirmation or otherwise of the order did not bring anything new in, so far as applicants’ fears as stated in the certificate of urgency are concerned. If Respondent had effective control of the mine since 20 November then, they should have been mining there since then. Even if the terms of the final order which applicants allege were fraudulently gotten, were to be suspended, the interim relief which was seemingly obtained above board would still be operational. Applicants would still suffer the harm stated in the certificate of urgency as a result of operation of the interim relief which is an order of this court that was not obtained through unlawful means.
It would appear from applicants’ papers that they seek a provisional order that would counter and reverse the effects of the provisional order in HC 2167/14. This in my view is not desirable. This court can issue a provisional order denying applicants interference with a mine, and later issue a counter provisional now allowing the applicant’s interference and denying respondent same.
In my view if applicants are not satisfied with the relief sought and granted in HC 2167/14, they should seek rescission, but they can not seek another provisional order that renders ineffective the relief that respondents got from this court on 20 November 2014. Provisional orders can not be used in the rescission of an order, for the result would be that we now have two provisional orders, one giving rights to respondents, and a second one now taking away those rights from respondents and giving them to the applicants. This kind of approach would result in an absurdity. The only proper platform to challenge the confirmation of the provisional order would be through an application for rescission of judgment which applicants have correctly launched. The application has to fail for this reason.
The other issue is that of urgency. The applicants got to know of the imminent confirmation of the provisional order they were apparently not served with on 9 January 2015. They did nothing despite knowledge that the matter had been set on the unopposed roll since they had been served with a notice of set down.
It is important to note that the application for rescission of judgment was filed on 21 January 2015. However, the urgent application was filed on 16 February 2015, almost a month later. Counsel for the applicants sought to bring up the issue of the placement under curatorship of the firm Cheda and Partners. This however, he submits occurred on 30 January 2015, more than 9 days after the filing of the rescission of judgment, which itself was filed almost two weeks after applicants’ lawyers had been served with a notice of set down. Applicants have not sought to explain in the founding affidavit why no action was taken from 9 January.
In the case of Kuvarega vs Registrar General, 1998 (1) ZLR 188 (HC) the position regarding the undesirability of delaying to launch urgent applications was cogently stated at page 193 this is what the learned judge had to say:
“What constitutes urgency is not the only imminent arrival of the day of reckoning, a matter is urgent, if, at the time the need to act arises, the matter can not wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been a delay ---.”
In my view applicants’ inaction from 9 January 2015 to 16 February 2015 is found wanting. There is no explanation either in the certificate of urgency or the founding affidavit for this very long delay. The application does not in my view meet the test on urgency. It has to fail on that basis as well.
I accordingly dismiss the application with costs for the aforegoing reasons.
Messrs Cheda and Partners, applicants’ legal practitioners
Messrs Mugiya and Macharaga Law Chambers, 1st & 2nd respondents’ legal practitioners
