What can be gleaned from the
papers and submissions made by counsel is that the parties entered into some
kind of a partnership sometime in August 2009, which was not reduced to writing,
in terms of which they may have agreed to mine jointly at True Blue Mine in
Filabusi. The detailed terms of the Agreement are not clear but it would appear
that the two applicants were to operate or mine from certain mining dumps while
the respondent did the same on other dumps.
All the mining claims belong to
the respondent.
This understanding subsisted for
some time but a dispute has arisen between the parties which has propelled the applicants
to institute summons proceedings against the respondent out of this court under
case number HC1971/10 seeking confirmation of the existence of a partnership
and a debatement of the partnership accounts. Alternatively, they seek damages
for unjust enrichment.
The summons issued on 27
September 2010.
In their declaration in that
matter, the applicants allege that in terms of the Agreement the respondent was
required to contribute in the form of the mining dumps or plants under his
claim and accommodation for them. On their part they were to contribute capital
of $10,000=, expertise and labour.
They do not allege that they did
make the contribution in pursuance of the Agreement.
The applicants further allege, in
the declaration, that the respondent now denies the existence of the
partnership and has given them notice to vacate the house that they occupy and
to cease all operations on the unnamed mining dump which they operate.
The respondent has entered
appearance to defend that action but is yet to file a plea.
On 12 October 2010, the applicants
issued this urgent application which has been opposed by the respondent. The applicants
allege, in the founding affidavit deposed to by the first applicant and
verified by the second applicant, and is very brief indeed, as follows:
“(5). The facts which give rise
to the present application are that the Respondent has unlawfully and without
our consent taken possession of two mining plants which have always been under
the control of myself and the second Applicant. The mining plants which were
taken over are called the 'OFFICE PLANT' which the Respondent took over
sometime in June 2010 and the 'SPORO PLANT' which he took over on 2 September
2010. As a direct result of the Respondents takeover of the said mining dumps,
water supply to the mining plant called the 'DRC PLANT' which we are currently
working on will be cut as soon as Respondent starts operating the SPORO PLANT
which is likely to happen on the second or third week of October 2010. This
will gravely affect our mining operations as we need water for the cyanidation
process.
(6). I am advised, which advice I
accept, that in an application of this nature, which is for a spoliation order,
all I need to allege is that I was in undisturbed use, occupation or control of
certain property and that my use, occupation or control has been interfered
with. In that regard, I confirm that having been in undisturbed control of the
mining dump and the Respondent has, without my consent or that of the second
Applicant, taken it over.”
The affidavit ends there and is
signed before a Commissioner of Oaths.
How the applicants came to occupy
the dumps, what they did on it, and how the respondent has “despoiled” them is
not explained.
In his opposing affidavit, the respondent
says nothing about the existence of a Partnership Agreement between himself and
the applicants and any other relationship between them. By implication, he
seems to accept that the applicants once enjoyed possession of the two plants.
He, however, premises his opposition on the fact that the mining claims belong
to himself and his wife and that at the time he took them over the “applicants
were not working on them and had long abandoned them”. He seems to suggest,
without saying it though, that to the extent that the applicants had abandoned
the mines, himself as the owner of the claims, was at liberty to take over. He
then firmly maintains that the applicants lost possession, not through his
actions, but through their own conduct of abandonment…..,.
When the hearing, resumed on 19
October 2010, no further papers had been filed and counsel for the applicants
took the view that the applicants' papers, as they stood, made out a case for
the relief sought. He had no
explanation as to the alleged abandonment other than to argue that the onus to
prove that abandonment extinguished possession rested upon the respondent. For
that proposition he relied on the case of Quarrying Enterprises (Pvt) Ltd v
John Viol (Pvt) Ltd and Others 1985 (1) ZLR 77 (H).
In that case, EBRAHIM J…, stated…,
-
“Ownership is a fundamental
concept of our law. It is acquired and extinguished only in certain
circumstances. The Council maintains that it had the right to dispose of these
blocks because;
(a) They had been abandoned; and
(b) They were found on its land.
In order to prove that ownership
has been extinguished by abandonment, it is necessary to prove an intention to
abandon.”
We can easily dispose of that
argument as being without merit at all.
The Quarrying Enterprises
(Pvt) Ltd v John Viol (Pvt) Ltd and Others 1985 (1) ZLR 77 (H) case is
clearly distinguishable from the present case as it dealt with ownership and
not possession.
It was submitted, on behalf of
the respondent, that the remedy of spoliation, being a quick remedy, should be
resorted to immediately and cannot be brought several months after the alleged
spoliation took place.
I do not agree with this argument
because in Manga v Manga 1991 (2) ZLR 251 (S)…., the Supreme Court held that a
delay of five (5) months could not be regarded as acquiescence by a party to
dispossession. See also Botha and Another v Barrett 1996 (2) ZLR 73 (S)….,.
In Botha and Another v Barrett
1996 (2) ZLR 73 (S), the Supreme Court however stated…., that -
“Although, depending on the
length, the period of delay may not per se constitute a bar to the grant of a
spoliation order, it could well be a relevant factor, in deciding whether the
dispossession had been consented to.”
Which brings me to the issue of
whether the applicants have made a case for a spoliation order.
The requirements for such an
order to be granted are two fold and have to be proved for a spoliation order
to be granted. They were stated in Botha and Another v Barrett 1996 (2) ZLR 73
(S)…., as follows -
“(a) That the 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.”
See also Kramer v Trustees
Christian Coloured Vigilance Council, Grassy Park 1948 (1) SA 748 (C) 753.
A respondent in an application of
this nature can repel the application by raising essentially two defences. According to the learned authors SILBERBERG
and SCHOEMAN, The Law of Property, 2nd Edition, Butterworths….,.
–
“A respondent may, as a general
rule, raise only the following defences in spoliation proceedings:
(a) Applicant was not in the
peaceful and undisturbed possession of the thing in question at the time of
deprivation;
(b) Respondent has not committed
spoliation.
With regard to the first defence the
respondent may, in an appropriate case, prove that the applicant did not
exercise the measure of physical control which was necessary to acquire or
retain possession or that the intention to derive a benefit from holding the
thing was absent.
Regarding the second defence, the
respondent may, for instance, prove that his act of dispossessing the applicant
was in fact not unlawful in that it amounted to counter-spoliation, was
justified in terms of some or other statutory enactment or took place with the
consent of the applicant.” ….,.
In casu, the respondent
has argued that the applicants abandoned the mines and that at the time that he
took them over they were not in possession at all as a result of their own
conduct. The applicants were given an opportunity to file supplementary
affidavits to disprove this claim. They elected not to.
In law, this is a clear defence
to the application for spoliation.
I agree with counsel for the respondent
that the applicants have failed to prove a clear right as could be prosecuted
by way of spoliation application.
While the time they took to bring
this application may not, on its own, act as a bar to the grant of a spoliation
order (Botha and Another v Barrett 1996 (2) ZLR 73 (S)), it is relevant in showing
the applicants' disinterest in the mines.
It would appear that this
application was triggered by an unexplained fear that the respondent may cut
water supplies to the “DRC PLANT” which the applicants hold dear and not by the
takeover of the “OFFICE and SPORO PLANTS.” If, indeed, the takeover of these
plants had been an issue, the applicants would have protested at the time the
first takeover took place….,.
Having
come to the conclusion that the applicants have not been able to prove the
essentials of a spoliation application, it is not necessary for me to deal with
the other procedural issues raised on behalf of the respondent.
Accordingly, this application is dismissed with
costs.
