1

HH 538-15

HC 4413/15

 

                                                                                                                                                                                                                                                                                         

OSCAR KURASHA

versus

TSITSI CHIPENDO

and

MOFFAT BARADZANWA

And

MILTON HOSHO

And

ALEX MARUMAHOKO

And

ALFRED HOSHO

And

EDSON CHINAWA

And

VINGIRAI VENGEANCE GANDA

 

 

 

HIGH COURT OF ZIMBABWE

CHIGUMBA J

HARARE, 19, 21 May 2015, 17 June 2015

 

Urgent Chamber Application

 

 E.Nyambuya, for applicant

T. K.Chamutsa, for 1^st - 5^th  respondents

T. Tabana, for 6^th and 7^th respondents

 

 

CHIGUMBA J. This matter came before me via the urgent chamber book on 19 March 2015. It was postponed by the consent of the parties, to the 21^st of May, to enable the respondents to file their opposing papers. The application was placed before me in chambers on the strength of a certificate of urgency which alleged that the applicant’s mine known as VAN WYK V Registration number 45271 of Olympus estate in Chinhoyi had been summarily invaded by the respondents. It was alleged further, that the respondents were happily looting massive quantities of gold ore, to the applicant’s prejudice, and that applicant’s workers had been chased away and denied access to the premises. The certificate of urgency implied that spoliatory relief was required, to restore the status quo ante. A perusal of the relief sought however, revealed a fundamental confusion between the mandament van spolie, and an interdict. The applicant applied for an interdict as an interim order, and ‘an order that the respondents and all those claiming through them must not despoil the applicant’.

According to the applicant’s founding affidavit, the parties to this dispute all reside in or around the Chinhoyi area. Applicant became the registered owner of Van Wyk Mine on 31 January 2014. According to the certificate of registration issued in terms of the Mines and Minerals Act, a block of 5 gold reef claims was issued to the applicant, under certificate of registration number 45271, and licence number 006840. The applicant averred that, on or about the 1^st of March 2015, the first respondent came to demand access to the mine on the basis that she was a war veteran who had registered title to it.  The sixth and seventh respondents allegedly regularly accompany her to the mine, and assist her to illegally take gold ore, using a Bedford truck registration number ACU 5565. The second to the fifth respondents allegedly also accompanied the first respondent and assisted her to invade the mine. On being informed of these developments by his mine manager, applicant approached the Provincial Mines director, who, on 6 March 2015 confirmed that applicant is the duly registered owner of the mine.

The letter was addressed to the C.I.D. Mineral Unit in Chinhoyi, the officer in charge. The letter stated that applicant was allowed to resume operations as opposed to the first respondent whose application for registration had been rejected because the land in question was not open to prospecting and pegging. Despite this, the sixth and seventh respondents allegedly continued to assist the first respondent to loot gold ore from the mine, and to ‘invade’ it, from the 1^st week of April, to date. The applicant contends that he was in peaceful and undisturbed possession of Van Wyk mine before the respondents allegedly took the law into their own hands and despoiled him of it. The applicant’s workers are allegedly being threatened with unspecified acts of violence, mining activities have stopped, gold ore is being looted, and the respondents have taken the law into their own hands with impugnity. The applicant seeks a return to the status quo ante.

On urgency, applicant averred that dispossession through self help, mixed with use of violence and or threats of violence and intimidation, the summary seizure of his property without his consent is unlawful. On irreparable harm, the applicant contended that he is being unlawfully deprived of gold ore on a daily basis, and that, if he keeps haemorraghing the ore, he will suffer great financial prejudice. On 21 May 2015, opposing papers were filed on behalf of the first to the fifth respondents. The first respondent took ‘a point in limine’ that the matter was not urgent. She said that the applicant’s founding affidavit gave two different versions of events, and two different dates for the alleged invasion, the first of March 2015 and the first week of April 2015. She accused the applicant of being dishonest and of hiding information and misleading the court. She attached a letter from the Mining Commissioner’s Office dated 19 June 2014 as proof that the dispute between her and the applicant did not arise in March or April 2015, but in 2014. She averred that, even if the dispute arose in March or April 2015, the applicant had failed to act when the need to act arose and that consequently the requirements of urgency had not been met in this matter.

The sixth - seventh respondents opposed the application on 21 May 2015. The opposing affidavit was deposed to by a Detective Inspector in the Zimbabwe Republic Police currently stationed at Chinhoyi Criminal Investigations Department as the Officer in charge, Edson Chinawa. He contended, in limine, that the sixth and seven respondents ought not to have been cited in their personal capacities because they were at Van Wyk Mine purely for purposes of conducting police investigations. They failed to found any reasonable suspicion that an offence had been committed and disengaged. It was their Constitutional mandate to investigate reports that criminal offences were being committed. The applicant justified his citation of these respondents in their personal capacities by averring that these police officers were acting in common purpose and cahoots with the first respondent. In fact he went on further to allege that these police officers were the ones who were assisting the first respondent to loot and remove gold ore from Van Wyk Mine. It is curious that neither the sixth nor the seventh respondents themselves deposed to any affidavits in which they denied or refuted these allegations. While the officer in charge Chinhoyi police station is to be commended for defending the Constitutional mandate of police officers, at this juncture, the court must merely be guided by what its rules say in relation to joinder of parties.

Although Order 13 Rule 87 of the High Court Rules 1971 appears to be tailor made for the trial procedure, in my view it is equally applicable to issues of joinder in the application procedure. Order 13 r 87  (2) (a) provides as follows:

87. Misjoinder or nonjoinder of parties

(1)        …..

 

(2)        At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either of its own motion or on application—

 

(a)   order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

 

(b)    …..

(3)…

 

From the opposing affidavit of the Officer in Charge, it is not clear to me that the sixth  and seventh respondents were improperly cited as parties to these proceedings. Prima facie evidence was placed before the court via the certificate of urgency and the applicant’s founding affidavit, that these policemen were in cahoots with the first to fifth respondents. It was alleged that they escort the lorry that is looting gold ore from Van Wyk Mine. The permit to transport ore that is attached to the opposing papers was granted to Peggy Chipendo who is not a party to these proceedings. It authorizes her to transport ore from Gondia 51 to Kampco Resources Private limited in Banket. Surely it is not being suggested that this permit is the basis on which the sixth and seventh respondents allowed and assisted the first respondent to occupy and loot gold ore from Van Wyk Mine. The court is perturbed to say the least. In the absence of affidavits by the sixth and seventh respondents themselves denying the allegations of connivance with the first respondents, the court must allow the prima facie evidence set out in the founding papers to stand.  Accordingly the court finds that there is no misjoinder. The point in limine is dismissed for want of merit.

Before considering the merits of the application before the court, let us look at whether the requirements of urgency have been met in this matter. The test for urgency is settled.

It has been held that:

“Applications are frequently made for urgent relief. What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules”. See [1] .

 

It has also been held that:

               

“For a court to deal with a matter on an urgent basis, it must be satisfied of a number of important aspects. The court has laid down guidelines to be followed. If by its nature the circumstances are such that the matter cannot wait in the sense that if not dealt with immediately irreparable prejudice will result, the court can be inclined to deal with it on an urgent basis. Further, it must be clear that the applicant did on his own part treat the matter as urgent. In other words if the applicant does not act immediately and waits for doomsday to arrive, and does not give a reasonable explanation for that  delay in taking action, he cannot expect to convince the court that the matter is indeed one that warrants to be dealt with on an urgent basis…” See [2] And[3], and[4].

 

In my view, which I previously expressed in the case of Finwood Investments Private Limited & Anor v Tetrad Investment Bank Limited & Anor [5],in order for a matter to be deemed urgent, the following criteria, which have been established in terms of case-law, must be met:

A matter will be deemed urgent if:

“(a) The matter cannot wait at the time when the need to act arises.

(b)  Irreparable prejudice will result, if the matter is not dealt with straight away without delay.

(c)  There is prima facie evidence that the applicant treated the matter as urgent.

(d)  Applicant gives a sensible, rational and realistic explanation for any delay in taking action.

(e) there is no satisfactory alternative remedy.”

             It is my view that the need to act arose in this matter, when the applicant’s gold claim was ‘invaded’. The certificate of urgency filed of record is clear that the applicant and his workers were rendered helpless, that they are failing to access the mine, and that they have ceased their mining operations because of the unlawful conduct of the respondents. The applicant’s founding affidavit is equally clear, that the first respondent demanded access to the mine on or about the first of March 2015 on the basis that she was a war veteran. The applicant took action on hearing the reports from his manager. He approached the Provincial Mining Director who wrote to Chinhoyi police station confirming that he was the duly registered owner of Van Wyk Mine. Paragraph 22 of the founding affidavit states unequivocally that the invasion took place in the first week of April 2015. The applicant treated the matter as urgent when he sought assistance from the police. When that failed to produce results he filed this application on 14 May 2015. I find that this matter could not wait at the time when the need to act arose, in the first week of April 2015.  The first respondent did not deny that she ‘invaded’ Van Wyk mine. She did not deny that gold ore is being removed from the premises using the motor vehicle identified by the applicant in his papers. For that reason, this court is persuaded that irreparable prejudice will result, if the matter is not dealt with straight away without delay.

           On the question of whether there is a satisfactory alternative remedy, we run into muddy waters. As previously stated the applicant sought an interdict as his interim relief, and a spoliation order as its final relief. The point taken on behalf of the first - fifth respondents,  was that if the facts of this matter entitle the applicant to both orders, then it cannot be said that there is no satisfactory alternative relief. In that case, where satisfactory alternative relief is available, then the applicant should not be heard as a matter of urgency, because that requirement of urgency will not have been met. Counsel for the applicant, during the hearing of the matter submitted that what the applicant was seeking was spoliatory relief, as evidenced by the founding affidavit and the certificate of urgency. Naturally the respondents were opposed to this apparent shifting of goal posts, their contention being that they were now not sure what they were defending themselves against.

             The requirements of an interdict are as follows:

1. A clear or definitive right-this is a matter of substantive law.
2. An injury actually committed or reasonably apprehended-an infringement of the right established and resultant prejudice.
3. The absence of similar protection by any other ordinary remedy-the alternative remedy

       must be; adequate in the circumstances; be ordinary and reasonable; be a legal remedy;  

      grant similar protection. See Tribac (Pvt) Ltd v Tobbacco Marketing Board[6], Setlogelo v

      Setlogelo[7],Flame Lily Investment Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd &

      Anor[8], Boadi v Boadi & Anor [9], Diepsloot Residents’ and landowners’ Association &

     Anor v Administrator Transvaal [10]

             The law that applies to the remedy of mandament van spolie is settled. In Nino Bonino v Delange 1906 TS 20, The general principle was stated by Innes CJ as follows:

"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 any inquiry or investigation into the merits of the dispute.”

 

In Diana Farm Private limited v Madondo N.O & Anor 1998 (2) ZLR 410 @413 the court set out the authorities as follows:

“The law relating to the basis on which a mandament van spolie will be granted is well settled. In  Davis v Davis 1990 (2) ZLR 136 (H) at 141 Adam J quoted with  approval the following statement by HERBSTEIN J in Kramer v Trustees Christian Coloured Vigilance Council, Grassy Park 1948 (1) SA 748 (C) at 753:

 

“... two allegations must be made and proved, namely (a) that applicant was in peaceful and undisturbed possession of the property, and (b) that the respondent deprived him of the possession forcibly or wrongfully against his consent”.

 

The court went on to say that:

 

“The onus is on the applicant to prove the two essential elements set out above. Part of the second element is lack of consent. See also Botha & Anor v Barrett 1996 (2) ZLR 73 (S) at 79-80, it was said by GUBBAY CJ:

 

In the case of Commercial Farmers Union & 9 Ors v The Minister of lands & Rural Resettlement &

6 Ors[11],  the Supreme Court said that:

 

 “…Spoliation proceedings cannot confer jurisdiction where none exists.   A court of law has no jurisdiction to authorise the commission of a criminal offence.  

The respondents did not deny that they forcibly occupied Van Wyk Mine. They did not deny that they chased away the applicant’s workers. They did not deny that they are currently looting gold ore from this mine and transporting it under a licence that was issued to someone who is not a party to these proceedings. This court cannot sit idly by and twiddle its fingers whilst the respondents engage in renegade acts of wanton illegality. In the case of Swimming Pool & Underwater Repair & 3 Ors v Jameson Rushwaya & Anor [12]   at p 7 it was held that it  is trite that the onus to prove dispossession rests with the applicants. The applicant in this case has successfully proven that he was dispossessed by the respondents acting in concert. The court also said that in the case of applications for spoliatory relief, the onus is on a balance of probabilities given that the relief is final in effect.  The court is satisfied that the applicant has discharged this onus on a balance of probabilities.    

            An interdict and a spoliation order have separate and distinct requirements. The difference between the two remedies is that, in order to qualify for spoliatory relief, one does not need to allege or prove that one has a clear right. All that one has to do is to prove possession, that one was in peaceful and undisturbed possession of the res at the relevant time .I am inclined to allow the applicant to amend his draft order in favour of granting spoliatory relief on an interim basis. This course of action is supported by the time honoured legal principle that an application stands or falls on the basis of its founding affidavit. In the case of Mangwiza v Ziumbe NO & Anor[13] it was held that in application proceedings the cause of action must be set out fully in the founding affidavit and new matters should not be raised in an answering affidavit. The court relied on the ancient case of Coffee, Tea and Chocolate Co Ltd v Cape Trading Company 1930 CPD 81, as authority for that proposition. What then does this legal principle require to be done in practical terms? It has been interpreted to mean that, it is a well established principle of procedural law that, generally, an applicant must stand or fall on his founding papers and that an applicant may not raise a different cause of action in his answering affidavit. See Bopoto v Chikumbu & Ors [14]. In the case of Mobil Oil (Pvt) Ltd v Travel Forum (Pvt) Ltd[15], it was held that;

 

“The well-established general rule of practice that the cause of action must be  fully set out in the founding affidavit is, like other procedural rules, subject to the overriding discretion of the Court”.

 

Paragraphs 23-28 of the applicant’s founding affidavit in my view establish the basis for the granting of a spoliation order. The necessary averments are made, that the respondents invaded applicant’s mine, when he was in peaceful and undisturbed possession of Van Wyk, that the respondents had no lawful authority to do so, that their conduct is unlawful, that they have taken the law into their own hands, and that the assistance of the court is required to restore the status quo ante. Similarly, paragraphs 3-6 of the certificate of urgency at p 8 of the record, buttresses the applicant’s request for a spoliation order. The case of action is thus satisfactorily established by the founding papers, and so is the basis for the relief sought. The court sees no ‘good cause’ or reason why it should not exercise its discretion in the applicant’s favour and allow him spoliatory relief by amending  and ordering the respondents and all those claiming through them to immediately and forthwith give vacant possession of Van Wyk Mine to the applicant and his agents. The first to fifth respondents shall pay the costs of this application. In the event that the respondents are still in occupation of van Wyk Mine seven days after being served with a copy of this judgment, then in that event, the Officer in charge Chinhoyi police station be and is hereby ordered to provide the necessary police escort to the messenger of court Chinhoyi to oversee the eviction of the respondents from Van Wyk Mine. It is so ordered.

 

 

 

 

      

 

 

Messrs Hamunakwadi, Nyandoro, & Nyambuya, applicant’s legal practitioners

Messrs Chamutsa & Partners, 1^st-5th respondents’ legal practitioners

Civil Division of the Attorney General’s office, 6^th & 7^th respondents’ legal practitioners