MATHONSI J: The applicant, a subsidiary of
the Reserve Bank of Zimbabwe, set up a diamond mining plant at Kleimport Farm
near Gweru. The plant itself is located
on claims known as 20 and 21 at the farm.
The applicant has been mining at the site and processing the diamonds at
the plant in question for 3 years.
It is alleged that the
Respondent, who is a member of Shuma Mining Syndicate, started intruding at the
processing plant belonging to the applicant sometime in May 2010. He is accused of forcibly taking away the
applicant's stock book and forcibly gaining entry into the plant. He announced to the employees that he had
taken over the mining operation of the applicant and got the employees to sign
new employment contracts to the effect that they are now employed by Shuma
Mining Syndicate of Gweru.
It has not been
disputed that Kleimport Farm on which the diamond plant is located was previously
owned by one Magiel Casper Jovner but was gazetted for compulsory acquisition
by the responsible Minister and it is now state land. Respondent has not denied intruding at the
diamond plant but has instead sought to argue extraneously that the farm
belongs to Jovner and that the applicant is mining without the approval of the said Jovner who
has since entered into a tribute agreement with Shuma Mining Syndicate. In Respondent's view, this entitles him to
move into the property.
In addition to that,
Respondent maintains that the Applicant is winding up operations and as such
the Governor of Midlands Province has allocated the mining claims occupied by
the applicant to Shuma Mining Syndicate and Women in Mining. He has not submitted any document, let alone
evidence to substantiate that claim.
Only an agreement entered into between one Magiel Casper Jovner and
Shuma Mining Syndicate has been produced.
The said Jovner has also deposed to a supporting affidavit claiming to
be the owner of the farm and the mining claims over it and alleging that the
applicant is in illegal occupation of the property.
The applicant seeks to
interdict the Respondent from entering its diamond processing plant and from
coming within 100m of the plant because the Respondent is interfering with its
operations. It obtained interim relief
on 2 July 2010 interdicting the Respondent from entering the processing plant
at Kleimport farm.
The requirements for an
interlocutory interdict were set out in Bozimo
Trade & Development Co (Pvt) Ltd
v First Merchant Bank of Zimbabwe Ltd & Others 2 000 (1) ZLR 1 (H) where Chatikobo J stated at page 9 E-G:
'' One must then recall the
traditional requirements for an interlocutory interdict. They were originally set out in Setlogelo v Setlogelo 1914 A 221 and
have been repeated in numerous subsequent cases. Stegmann J repeats them in Knox d' Arcy Supra at 593 C-D. What the applicant needs to establish is:
(a) a prima facie right, even if it is open to doubt.
(b) an infringement of such
right by the respondent or a well grounded apprehension of such an
infringement;
(c) a well-grounded
apprehension of irreparable harm to the applicant, if the interlocutory
interdict should not be granted and if he should ultimately succeed in
establishing his right finally;
(d) the absence of any other
satisfactory remedy; and
(e) that the balance of
convenience favours the granting of an interlocutory interdict.''
In casu I accept that the applicant has shown a prima facie right over the diamond plant at Kleimport farm. Not only did it set up the plant it has been
mining and operating from there for the past 3 years. The right to mine there may be in doubt but
that does not disentitle the applicant to peaceful and undisturbed possession.
I agree with Mr Ncube
who appeared for the Applicant that the Respondent has transgressed and / or
vilified the status quo by constantly
forcing himself onto the plant claiming ownership of same and even attempting
to take over the applicant's employees.
Whatever right the respondent may perceive he has, he cannot resort to
self-help by forcing the applicant out of the mining plant. That amounts to an infringement of the
applicant's rights.
It is apparent that
irreparable harm will result if the Respondent is allowed to do as he
pleases. The applicant's operations will
be disturbed and as it is in a situation where the respondent also claims to
employ the same people that the applicant has deployed at the plant, only chaos
will ensure. There can be no other
remedy except to prevent the respondent from continuing with his unwarranted
misadventures at the plant.
In any event, the
respondent and his syndicate have never conducted mining activities at that
site. They have not invested anything
and all they want is to take over what has been set up by the applicant. The Court will be failing in its duty if that
kind of anarchy is allowed to perpetuate.
If any claim to the property exists, the respondent should follow due
process. Meanwhile the balance of
convenience favours the granting of the interdict.
Mr Dube, for the
respondent argued that preventing the applicant from coming within 100m of the
plant would infringe upon his other rights to neighbouring claims. This argument is not contained in the
opposing affidavit and no supporting diagram showing how such infringement
would occur has been submitted. It seems
to me reasonable to direct the respondent to keep a safe distance from the
plant and 100m is safe indeed.
In the result the
provisional order issued on 2 July 2010 is confirmed in the following terms;
1. The Respondent, his agents and anyone acting on his instructions be
and are hereby permanently interdicted from entering the Applicant's diamond
processing plant at Kleimport farm Gweru or coming within 100 metres of the
said plant.
2. The Respondent shall bear the costs of this application.
Garikayi & Company, Applicant's Legal
Practitioners c/o James Moyo-Majwabu & Nyoni
Gundu & Dube,
Respondent's Legal Practitioners c/o Kossam Ncube & Partners
