1

HH 72 - 17

HC 12266/15

NIXRIS INVESTMENTS PRIVATE LIMITED

versus

CHINHOYI UNIVERSITY OF TECHNOLOGY

and

DAVID JAMBGWA SIMBI (N.O)

HIGH COURT OF ZIMBABWE

MATANDA-MOYO J

HARARE, 23 November 2016 and 8 February 2017

Opposed Matter

K Kachambwa, for the applicant

S Mushonga, for the respondents

            MATANDA-MOYO J: On 8 January 2016 this court granted a provisional order in favour of the applicant in the following;

1.         That the first respondent and all those claiming occupation through it, be and are hereby       barred from interfering, interrupting, disturbing and hindering the use and possession by       the applicant, of Hunyani 30 Mine Hunyani Farm, Mashonaland West, pending the return        date.

2.         That the return date shall be a date not more than ninety days from the date of this order.       If neither party sets the interim order down for its confirmation, it shall automatically lapse by effluxion of time, when the ninety day period expires.

3.         That the respondents shall pay costs.

            Thereafter the respondent filed a notice of opposition to the confirmation of the above provisional order. The applicants have taken issue with the filing of such papers without leave of court. The applicants fell into the common error that this is an ordinary application. This matter initially came before this court as an urgent matter. Such urgent matter was heard before this court culminating in the granting of the provisional order above. It is well within the respondents’ rights to file any opposition to the confirmation of the provisional order. They need no leave of court to do so. Rule 235 as quoted by the applicant is not applicable see Walsh v Kugar 1965 (2) SA 756 E. The respondent should be given an opportunity to oppose the confirmation of a provisional order granted. The respondent can only do so by filing opposition to confirmation. The applicant had a right to respond to such opposition had he wished. The cases cited by the applicants are distinguishable in that they were all ordinary applications.

            The respondent also took a point in limine that the applicant is seeking confirmation well after the 90 day period provided for in the order. I am being called upon to determine the dies induciae within which this matter ought to have been set down. Should weekends and holidays be excluded in the counting of the 90 days? The respondent submitted in favour of including weekends and holidays whilst the respondent argued otherwise.

            Section 336 of the Constitution of Zimbabwe deals with reference to time. It provides;

            “(1)      In this constitution, whenever a period is expressed –

             (a)       to begin on or to be reckoned from a particular day, that day is not to be included in the                         period

            (b)        to end on or to be reckoned to a particular day, that day is to be included in the period.

            (2)        Subject to this constitution, whenever the time for doing anything in terms of this                              constitution ends or falls on a Saturday, Sunday or public holiday, the time extends to and                  the thing may be done on the next day that is not a Saturday, Sunday or public holiday.

            (3)        A reference to this Constitution to a month is to be construed as a reference to a calendar                                 month, and a period of months is to be reckoned from the date when the period begins to                                 the corresponding day of the month when the period ends….”

            Section 33 of Interpretation of Acts [Chapter 1:01] provides that a “weekday shall be

construed as a reference to any day which is not a Saturday or Sunday”.

            From a reading of the Constitution and the Interpretation of Statute Act it is clear that once a period is stated in days, Saturdays and Sundays are excluded. Rule 4A of the High Court rules provides:

            “4A.     Reckoning of time

                        Unless the contrary intention appears, where anything is required by these rules or in any                                   order of the court to be done within a particular number of days or hours, a Saturday,                             Sunday or public holiday shall not be reckoned as part of that period.”

            I am thus of the view that in calculating the 90 day period, Saturdays, Sundays and public holidays are excluded. The parties are in agreement that should the court adopt the above then the point in limine falls away. Accordingly the point in limine falls away.

            This is an application for confirmation of the provisional order. The requirements for a final interdict are;

            1.         A clear right which must be established on a balance of probabilities.

            2.         Irreparable injury actually committed or reasonably apprehended; and

            3.         The absence of a similar protection by any other remedy, see Setlogelo v                                                 Setlogelo 1914 AD 221 and ZESA Staff Pension Fund v Clifford Mushambadzi                                   SC 57/2002, Universal Merchant Bank Zimbabwe Limited v The Zimbabwe                          Independent and Another 2 000 (1) ZLR 234 (HC).

            The applicant submitted that the applicant has a clear right to the land as the lawful holder of a mining block consisting of 10 gold reef claims. The certificate of registration registered number 45315 refers. Such certificate of registration confers rights upon the applicant. In terms of s 47 of the Mines and Minerals Act the applicant can,

“47 (2) ….peg on ay ground open to prospecting in the vicinity of such location a site or sites for the purpose of erecting thereon residencies for himself or his employees, for a mill or other machinery required for the efficient working of his location, or for tailings or waste rock dumps…”

            I am of the view that the applicant as a holder of certificate of registration has managed to prove on a balance of probabilities a clear right.

            See V and A Waterfront Properties (Pty) Ltd and Another v Helicopter and Marine Services (Pty) Ltd and Others South Africa of Appeal of South Africa 392/2004, Van Molke v Costa Areosa (Pty) Ltd 1975 (1) SA 255. The mere fact that the applicant has issues with EMA has no effect on the certificate of registration which has not been cancelled. The second requirement that applicant must show is irreparable injury actually committed or reasonably apprehended. It has already been found by this court that the property belonging to applicant namely parameter fence, guardroom infrastructure amongst others, was damaged due to the first respondent’s conduct. The applicant still has property on the premises which require protecting.

            Coming to the third and final requirement it is common cause there is no other satisfactory remedy other than interdicting the respondents from further causing damage to the applicant’s property. I am thus satisfied that the applicant has made out a case for the granting of the final interdict.

            Accordingly I order as follows;

1. That the 1st respondent and all its functionaries are permanently interdicted from in any manner or form interfering, interrupting, disturbing or hindering the activities of the applicant or its functionaries at Hunyani 30 Mine, Hunyani Farm, Mashonaland West.  
2. That the 1st respondent pays costs of this application.

Dube, Manikai & Hwacha, applicant’s legal practitioners

Mushonga, Mutsvairo & Associates, respondent’s legal practitioners