In March 2016, the applicant, Grandwell Holdings (Grandwell), which owns a 50% shareholding in Mbada Diamonds [Private] Limited (Mbada), a joint venture initiative for diamond mining in Chiadzwa, obtained an interim order under HC1977/16 (HH193-16).
The other 50% shareholding in Mbada is owned by Marange Resources [Private] Limited (Marange), a Government-owned company.
According to the applicant, the elements of the order which was granted entitled its security personnel, and its entire chain, to return to Chiadzwa in order to safeguard its assets. Among these are said to be diamond ore and unprocessed diamonds that are kept in a vault. The diamond ore, which has been crushed, awaits removal of diamonds.
What is not in dispute is that from March last year, the applicant's security personnel went on site as per the order by the court in HC1977/16.
What has brought the applicants back to court, on an urgent basis, is its allegation that their security personnel at the diamond site have now been removed and that massive looting of their diamond ore has taken place at the instance of the first respondent, Zimbabwe Consolidated Diamond Company Limited (ZCDC), and continues to take place - aided and abetted by the Zimbabwe Republic Police (the police), as the second respondent.
The ore is said to being loaded without any recording or chain of command making it impossible to ascertain what is being taken.
With the core mingling of the diamond ore with that being mined by the Zimbabwe Consolidated Diamond Company Limited (ZCDC), the fear is that it would be impossible to tell which diamonds come from which ore and that therein lies the irreparable harm.
Mbada Diamonds [Private] Limited's security personnel have been sterilised by these actions of ZCDC.
To compound the problem, the Zimbabwe Consolidated Diamond Company Limited (ZCDC) is said to have brought onto the mining site security personnel previously hired by Mbada Diamonds [Private] Limited who know how to open the vault locks. As such, a real fear is that of the diamonds being stolen.
Further, if the ore and the diamonds are taken, an equally real fear is that the pending appeal before the Supreme Court would be rendered nugatory.
Having invested US$100m in Mbada Diamonds [Private] Limited, Grandwell Holdings says it has a real and substantial interest in protecting the interests of Mbada Diamonds and its own investment.
An attempt is said to have been made to file the application on behalf of Mbada Diamonds [Private] Limited, but, it had failed to secure the signatures of representatives on the Board of Mbada Diamonds who represent Marange Resources [Private] Limited.
Grandwell Holdings, being a 50% shareholder in Mbada Diamonds [Private] Limited had therefore brought a derivative action to enforce the rights of Mbada Diamonds and to seek a possessory remedy to restore possession.
The basis upon which Grandwell Holdings says that Mbada Diamonds [Private] Limited has been despoilt is paragraph 7 of the Order that was granted in HC1977/16. The paragraph was couched as follows:
“Paragraph 7
For the purposes of safeguarding assets, all of the fifth respondent's security personnel, with all their chain of command, shall be entitled, authorised, and empowered to remain at the fifth respondent's mining site at Chiadzwa Diamond Concession, as directed in paragraph 2 of the order of this court on 29 February 2016, until the resolution of this matter.”
The police, as second respondents, were said not to have appealed against the order, whilst the Zimbabwe Consolidated Diamond Company Limited (ZCDC) which had indeed appealed, had only done so against the finding that it had committed acts of spoliation.
The appeal was therefore said to be in part, leaving paragraph 7, in essence, extant.
In addition, the fact, that, there was no appeal against the presence of security personnel, as per the court order, which is said to be extant, was said to be supported by the fact, that, for almost a year Mbada Diamonds [Private] Limited's security personnel remained firmly on site even as the appeal was pending.
However, the Zimbabwe Consolidated Diamond Company Limited's position is that any removal that has taken place has been as per the court order and arises from the fact, that, the mining grants which were acknowledged to have expired in the said order of the court have not been renewed.
Spoliation per se is denied.
The police say they are there in terms of their constitutional mandate, in section 219 of the Constitution, to maintain peace and order and safeguard property. They have asserted, that, they cannot be interdicted from carrying out a lawful mandate. Furthermore, their standpoint is that no police report was made regarding any theft to diamonds.
They too, essentially, deny despoiling Mbada Diamonds [Private] Limited.
Points in Limine
Several technical points in limine were raised on behalf of the Zimbabwe Consolidated Diamond Company Limited (ZCDC) and the Commissioner of Police....,.
Counsel for the second respondent queried the certificate of urgency on account of it being dated 9 February when the actual founding affidavit in the matter was only signed on the 10th. He therefore asserted, that, there was no proper application before me on account of the certificate of urgency predating the founding affidavit.
The case of Condurago Investments (Pvt) Ltd v Mutual Finance (Pvt) Limited HH630-15 was cited.
The explanation given in casu by counsel for the applicant for the eventuality that had occurred was that the legal practitioner in question had read the application and completed the certificate of urgency whilst the application itself had had to be mailed to Cape Town as a matter of urgency as that is where the directors of Grandwell Holdings are based.
Furthermore, a supplementary certificate of urgency was filed at the hearing bearing a date that was post the return of the affidavit. The content of the affidavit, as regards urgency, had not in any way changed.
In my view, the explanation given, that the legal practitioner would have had sight of the affidavit before it was dispatched is plausible and would explain why its content, and that of the affidavit, indeed speak to the same exigencies.
Another objection taken to the application is the non-use of the relevant form in the application as required by Rule 241(1) of the High Court Rules 1971.
As stated in the case of Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Company Zimbabwe Ltd and Anor 2015 (2) ZLR…, whilst it is critical for legal practitioners to follow rules, ultimately, it may be in the interests of justice to use Rule 4C which allows a condonation of departure from the rules where the facts permit.
In casu, where, at the heart of the application is spoliation, involving undisclosed though evidently considerable sums of money since diamonds are involved, it would, in my view, be inane to insist on the technicality of a form when this is clearly an instance that calls for the justified use of Rule 4C.
The issue of the certificate of urgency, and the non-use of the relevant form for urgent applications, as modified, is therefore condoned, in this instance, in terms of Rule 4C(a).
