The
first and third respondents are business partners. Some time ago, the date has
not been specified, the two agreed to enter into a joint venture involving gold
mining in the country. The first respondent, a foreign national, then joined
forces with the third respondent, and others, culminating in the formation of
the second respondent and its subsequent incorporation as a limited liability
company. There is some dispute as to whether or not the third respondent is a Director
in the second respondent, but, in my view, that dispute is not pertinent for
the resolution of this application. At any rate, the first respondent is a Director
in second respondent.
In
his founding affidavit, the applicant avers that he was, in September 2009,
approached by the third respondent who advised him that, he, the third
respondent, and his “partners” in the second respondent had purchased gold
claims in Masvingo. The third respondent had revealed that his “partners” had
abandoned the venture and that the claims were about to be forfeited due to non-payment
for statutory licences to the Ministry of Mines. The applicant avers that he
had been advised by the third respondent that the second respondent, the first
respondent, and two others, had purchased mining claims from one Elborn Tinago
in October 2007 but that the foreign Directors and the first respondent had
lost interest in the venture and had consequently pulled out of it. The third
respondent advised the applicant that in total only US$15,000= had been
invested in the venture by the first respondent and the partners to the
venture. The third respondent confirmed his interest within the second
respondent by exhibiting share certificates to the applicant which information
he verified with the Registrar of Companies. The applicant, thereafter, visited
the site and ascertained that there was no activity. He then entered into an
agreement with the third respondent which resulted in him purchasing the
latter's shareholding in the second respondent on 7 September 2009. The 500,000
shares which the third respondent held in second respondent were then
transferred to the applicant. Because there was an imminent threat of
forfeiture the applicant paid the fees for the licences with the Ministry of
Mines. Thereafter, the applicant proceeded to pay out monies for the
development of the site, purchasing equipment and ensuring that environmental
impact reports were done. He also engaged forty locals to work at the site.
On
5 May 2010, the second respondent was, under case number HC2813/10 granted a
provisional order by PATEL J. The interim relief granted by his Lordship was in
the following terms-
“Pending
determination of this matter, the applicant is granted the following relief:
1.
That upon service of this order the respondent and anyone claiming occupation
through him be and is hereby interdicted from mining, milling of gold ore, or
from being within 5,500 metres of the
Gold Reef claims known as 20, 21 and 6 being claim numbers 7651, 8804 and 8817
situate at Avonmore Farm near Masvingo town.
2.
That the respondent and anyone claiming occupation through him be and are
hereby interdicted upon service of this order from removing the electric
transformer, building materials, the bore mill and any material currently being
utilized at the aforesaid claims until the determination of the court
application lodged with this Honourable court in case number HC2814/10.
3.
That in the event that the respondent disobeys this order the officer in charge
ZRP Masvingo Central Station be and is hereby directed with the powers bestowed
upon the police to stop disobedience of this order and to arrest any culprit
for contempt of court.”
The
third respondent herein was the only respondent cited under that case number,
the applicant was not a party.
The
applicant, then, in turn under case number HC3604/10 approached the court,
again on a certificate of urgency, citing the second and third respondents
herein as parties thereto.
This
application was for directions in respect of an application for joinder filed
by the applicant under case number HC3603/10. The terms of the interim relief
granted to the applicant are as follows:
“2)
Pending the finalization of this matter, application is granted to the
following interim relief:
(a)
The court application for joinder filed under HC3603/10 be and is hereby
allowed to be heard urgently with the parties being directed as follows:
(i)
The respondents are to file their opposing papers three (3) working days after
being served with the application.
(ii)
The applicant be and is directed to file his answering affidavits, if any,
within two (2) working days after service upon his legal practitioners of the
respondent's Notice of Opposition.
(iii)
The applicant be and is hereby directed to file his Heads of Argument within
three (3) working days after filing the answering affidavit, if any, is to be
filed or alternatively within five (5) days after receiving the notice of
opposition.
(iv)
The respondents be and are hereby directed to file their heads of arguments
within two (2) working days after receipt of the applicants heads of arguments.
(v)
The Registrar of the High Court is to set the matter down before the duty Judge
within five (5) working days from the date of filing of heads of arguments for
the respondents absence of which within five (5) days of filing of the
applicant's heads of arguments.
(b)
The provisional order granted under HC2813/10 be and is hereby deemed to be in
operational against the applicant and or his agents, employees or assignees
pending the finalization of the urgent chamber application.”
The
applicant avers, in his founding affidavit, that the provisional order of 5 May
2010 did not bestow any rights of occupation on the first and second
respondents but that it simply interdicted mining operations by the third
respondent and all those claiming occupation through him. The applicant averred,
further, that in terms of the provisional order that he sought and obtained on
1 June 2010 the status quo ante was restored between them meaning that whilst
the third respondent could not carry out any mining operations at the site, he,
the applicant, could, in terms of the provisional order of 1 June 2010, in
particular the paragraph reading as follows: “that the provisional order
granted under Case No HC2813/10 be and is hereby deemed to be in operational
against the applicant or his agents, employees or assignees pending the
finalization of the urgent chamber application.”
The
applicant has now approached this court seeking an order for restoration of
peaceful and undisturbed possession of the Gold Reef claims, a temporary
interdict against interference in mining operations by the first and second
respondents, an order that they keep the peace, and an order for their eviction
from the premises.
Counsel
for the first and second respondents raised two points in limine; firstly that
the matter was not urgent and secondly that the application was inappropriate….,.
I
turn to the second point raised in limine, that of the propriety of the
application.
The
applicant accepts, in his founding affidavit, that the initial order by PATEL J
under case number HC2813/10 is still extant. That order interdicted the third
respondent and anyone claiming through him, from mining, milling of gold ore
and further prevented the third respondent and anyone claiming through him from
approaching within 500 metres of the claims. The applicant herein was not cited
as a party to that dispute but as he claimed occupation through the third
respondent the provisional order perforce applied to him. There is no legal basis
upon which he could claim immunity from the operation of the order.
Counsel
for the first and second respondents contends that whilst the application
before me purports to be one for a mandament van spolie, the real issue is the
order granted on 1 June 2010 in that the applicant seeks to contend that in
terms of the order of 1 June 2010, if it deems so, it is submitted that the
order of 5 May 2010 does not operate against the applicant.
In
his submissions, counsel for the applicant contended that the applicant has
been in possession of the site since buying shares from the third respondent
and has been on a massive development program on the site and that everything
thereon, except for the transformer, belongs to the applicant. He contended
that the applicant was never removed from the site, and that the respondents
simply came on his own and imposed persons unknown onto the site.
It
seems to me that the submissions by the applicant's counsel are basically
skating over the facts. In his founding affidavit the applicant makes the
following averment -
“5.2.
On the strength of its urgent application, the first respondent obtained a
provisional order the terms of which basically interdict the third respondent
and all those claiming occupation through him from carrying on any mining
operations and occupying claims number 7651, 8817 and 88094 otherwise known as
Good 20, 21 and 6 situate in Masvingo. Further it stops anyone from removing
any equipment thereat.”
The
applicant was obviously aware of the terms of the order of 5 May 2010. He was
aware that it sought to interdict the third respondent and himself not only
from carrying out mining operations but from approaching within 500 metres of
the disputed mining site. Under case number HC3604/10 this fact appears in the
certificate of urgency filed in accompaniment of the application. The pertinent
part of the certificate reads-
“1.The
applicant is running a mining operation situate in Masvingo under Gold Reef
claims known as 20, 21 and 6 being claim Reef claims known as number 7651, 8804
and 8817 of Avonmore Farm. This operation employees 40 people and only the
applicant is running operations. It has, however, been stopped from operating
by virtue of an interim provisional court order of this Honourable court granted
on 5 May 2010 under case number HC2813/10. The applicant is not a party to
those proceedings, though he is the sole operator of the mining operations…,.”
It
seems to me that on the strength of the statements in the certificate I can
safely conclude that the applicant had sight of the provisional order and
became aware of the terms thereof, to wit, that neither himself nor the third
respondent could operate the site and mine thereon. He was also aware that he
and the third respondent were prohibited from approaching within 500 metres of
the site. This is the reason why he sought the provisional order of 1 June 2010
in an effort to avoid the interdict. It is not my mandate to interpret the
terms of the order that the applicant sought and obtained and indeed it is not
pertinent that I do so for the determination of this point in limine.
As
the matter stands, the order by PATEL J interdicting him from mining, milling
gold ore or from being within 500 metres of the claims, is extant and has not
been set aside. If I were to grant the provisional order that he seeks, that is
“restoring him possession” of the site, this would be tantamount to a review of
that order.
Both
PATEL J and myself are judges of this court and hence we enjoy parallel
jurisdiction. I cannot give an order that seeks to vary or alter an order of a
judge of the High Court. Although the order in question is a provisional order,
it is still a judgment of this court and cannot generally be varied or altered.
In Matanhire v BP Shell Marketing Service (Pvt) Ltd 2005 (1) ZLR 140 (S)…,
CHIDYAUSIKU CJ stated -
“The
only jurisdiction that a court has is to make incidental or consequential
corrections. The position was stated as follows in the case of Kassim v Kassim
1989 (3) ZLR 234 (H) at p242C-D where it was stated that:
“In
general, the court will not recall, vary or add to its own judgment once it has
made a final adjudication on the merits. The principle is stated in Firestone
South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306, where TROLLIP
JA stated:
'The
general principle, now well-established in our law, is that, once a court has
duly pronounced a final judgment or order, it has itself no authority to
correct, alter, or supplement it. The reason is that it thereupon becomes functus
officio: its jurisdiction in the case having been fully and finally exercised,
its authority over the subject matter has ceased.'”
In
Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A)…, the court
further stated that -
“The
principal judgment or order may be supplemented in respect of accessory or
consequential matters, for example costs or interest on the judgment debt which
the court overlooked or inadvertently omitted to grant.”
Further
on, at 307C-G, the court went on to say -
“The
court may correct a clerical, arithmetical or other error in its judgment or
order so as to give effect to its true intention…,.The exception is confined to
the mere correction of an error in expressing the judgment or order; it does
not extend to altering its intended sense or substance.”
In
West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173 it was stated
that -
“The
court can, however, declare and interpret its own order or sentence, and
likewise correct the wording of it, by substituting more accurate or
intelligent language so long as the sense and substance of the sentence are in
no way affected by such correction; for to interpret or correct is held not to
be equivalent to altering or amending a definitive sentence once pronounced.”
The
above principles were fully reaffirmed in Thompson v South African Broadcasting
Corporation 2001 (3) SA 746 (SCA)…,: See also…, Brightside Enterprises (Pvt)
Ltd v Zimnat Insurance Co 1998 (2) ZLR 229 (H)…,.
In
S v Wells 1990 (1) SA 816 (A) the principles were stated as follows -
“According
to the strict approach a judicial official is functus officio upon having
pronounced his judgment which is a sentential stricti juris, and, as such,
incapable of alternation, correction, amendment or addition by him in any
manner at all…,. A variant of this strict approach permits a judicial officer
to effect linguistic or other minor corrections to his pronounced judgment
without changing the substance thereof…,.The more enlightened approach,
however, permits a judicial officer to change, amend or supplement his
pronounced judgment, provided that the substance of his judgment is not
affected thereby (at 819-820).
In
Parker v Parker & Ors 1985 (2) ZLR 79 (H), it was held that
an order giving directions is not an incidental order and that a judge of the
High Court cannot vary or alter an order of a judge of parallel jurisdiction,
short of expanding on it (see at pp 84-85).”
I
find that there is, therefore, merit in the submissions by counsel for the
first and second respondents that the import behind this application is not
that of spoliation but an attempt, on the part of the applicant, to avoid the
interdict granted by PATEL J in favour of the second respondent on 5 May 2010.
The application, in fact, seeks a variation of the order by PATEL J permitting
the applicant, his employees and assignees to bypass the interdict and continue
operations on the site on the basis of an order of this court. As the third
respondent has disposed of his entire shareholding in the enterprise to the
applicant herein, the effect of an order in the terms sought by the applicant
would be to nullify the interdict granted in favour of the first and second
respondents.
A
morass of conflicting orders from this court can only result in confusion, and,
in my view, would not result in justice being done between the parties.
This particular application has been brought in
an inappropriate, and, in my view, dishonest manner and cannot be entertained. I
therefore uphold the second point in limine, and, on that basis, the
application is dismissed with an appropriate order for costs.
