Interim Interdict Pendente Confirmation or Discharge Proceedings re: Approach, Return Date and the Prima Facie Concept

HH54-09 : ROGERS DHLIWAYO vs SHAUN MANDAA KUDINGA AND TWO OTHERS
Ruled By: MAKONI J

On 25 January 2008, the first respondent obtained a certificate of ejectment from the Rent Board. On 18 February 2008 the applicant appealed to the Administrative Court against the issuance of the certificate. On 17 March 2008 the applicant was granted a rule nisi for stay of execution of the certificate of ejectment until the ...

SC32-12 : SWIMMING POOL & UNDERWATER REPAIR PL and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL and PATTERSON TIMBA vs JAMESON RUSHWAYA and ANNIE RUSHWAYA
Ruled By: CHIDYAUSIKU CJ

I now turn to deal with the application for interim relief to stop the Rushwayas from conducting mining operations and their eviction from the mine pending the hearing of the appeal. This relief is at the core of the ownership wrangle between the parties, who are Shareholders and Directors of the company that owns the mine. A similar ...

I now turn to deal with the application for interim relief to stop the Rushwayas from conducting mining operations and their eviction from the mine pending the hearing of the appeal.

This relief is at the core of the ownership wrangle between the parties, who are Shareholders and Directors of the company that owns the mine.

A similar application was made to MUSAKWA J in case no. HC6007/11. The learned Judge has this to say…,:

"It is not in dispute that when the first respondent made the decision that is being challenged, he did not hear the applicants. Based on the complaint he received from the third respondent, he made the drastic decision of closing mining operations without hearing the other side. That is not in conformity with principles of natural justice.

There is also the additional factor that the first respondent's decision amounts to a determination of a contractual dispute between the feuding parties. There does not appear to have been a basis for the first respondent to entertain a contractual dispute between the parties.

The requirements for an interdict, as set out in Setlogelo v Setlogelo 1914 AD 221, are -

(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.

(d) The absence of any other satisfactory remedy.

(e) That the balance of convenience favours the granting of the interlocutory interdict.

All the above requirements are met in the present application. As evidenced by the memorandum of agreement of sale that was entered into between the parties it is noted, in clause 2.2 thereof, that the assets constituting the subject matter of the sale, including the gold mining claims, were to be immediately transferred to the third applicant before payment. Therefore, it cannot be the case that the fourth applicant, who has interests in the third applicant, has no rights to protect. The parties to this agreement must seek proper ways of enforcing the contractual obligations arising from that agreement without needlessly involving the first respondent.

In the result, the application is granted in terms of the amended draft order."

I agree with the learned Judge's statement of the law. In particular, I agree with the essential elements for the entitlement of an interim interdict set out in Setlogelo v Setlogelo 1914 AD 221. I, however, respectfully disagree with the conclusion of the learned Judge that the applicants are entitled to an interim interdict.

I have not had access to the record of proceedings in case no. HH6007/11 as I am sitting as a Judge in Chambers and not as an appeal court. It may well be that the facts before the learned Judge justified such a conclusion. It would appear, however, that the judgment of MUSAKWA J is seriously flawed, in that there is no link between the interim relief granted and the final relief to be granted on the return day. The final order sought by the applicants on the return day is that the order of the Mining Engineer, suspended in the interim, should be confirmed. There is nothing in the judgment itself to indicate that the issue of the contractual rights of the respective parties will be determined on the return day. The issue of the contractual rights of the respective parties appears to me determinable only after a proper trial dealing with the issue of the contractual rights of the parties. This raises the question of whether the interim interdict evicting the Rushwayas and excluding them from the management of the company is an interim interdict pending what and when?

I am unable to grant the interim interdict sought in paragraphs 4.1 and 4.2 of the draft order for the following reasons -

(a) There is no averment that the company that owns the mine (the issue of who owns the mine appears to be in dispute) has resolved, proof of which is usually in the form of a company's resolution, that the respondents be stopped from being involved in the mining and administration of the mine and be evicted from the mine. The averments and arguments seem to centre on locus standi.

(b) At the hearing of the appeal, the Supreme Court will be seized with the issue of spoliation and not the litigants' respective rights of ownership of the mine and the right to administer and operate the mine.

(c) An Agreement of Sale, purporting to define the respective rights of the parties, was produced during submissions by the applicants' counsel. The applicants' case stands or falls on the founding affidavit. The applicants' case in the founding affidavit was predicated on the averments that they were despoiled and not on a breach of the Agreement of Sale. In fact, there was no reference to the breach of the Agreement of Sale in the cause of action. Even if I were to accept that the applicants' rights in terms of the Agreement of Sale were pleaded by implication and therefore provide a basis of the prima facie right entitling the applicants to the interim interdict, I am not satisfied that the Agreement of Sale is valid and enforceable for the following reasons –

(i) For an Agreement of Sale to be valid and enforceable, the parties have to be ad idem on the merx, the price and method of payment. In the Agreement of Sale in casu, the parties are ad idem on the merx, the shares that are being sold. There is no agreed price. The parties agree to agree on the price;

(ii) The method of payment is equally uncertain;

(iii) Apart from the above, there is no averment that the conditions precedent have been fulfilled to activate the Agreement of Sale;

(iv) There is no averment that the parties seeking to enforce the Agreement of Sale have performed their part of the bargain.

In my view, the Agreement of Sale produced by counsel does not provide a prima facie right for any of the parties.

Having concluded that the applicants have no prima facie case and that the Supreme Court will not be seized with the issue of ownership and administration of the mine on appeal, I have come to the conclusion that the applicants are not entitled to the interim interdict sought in the draft order….,.

I would have been inclined to order a cessation of all mining operations pending the resolution of the dispute over the control and ownership of the mine. That course has not been ventilated in this application and could have serious consequences for both parties as the mine would, according to the applicants, simply flood with water and a considerable number of workers would lose their jobs. This mine appears to be a going concern with a production history that can be used to assess damages to whichever party may prove the damages in future. I accordingly do not think that the issue of irreparable harm arises.

In the result, the application is dismissed with costs.

SC13-09 : CALISTO CHIRENJE vs VENDFIN INVESTMENTS (PRIVATE) LIMITED AND TWO OTHERS
Ruled By: CHIDYAUSIKU CJ, SANDURA JA and MALABA JA

Before a court can grant an interim interdict, it is necessary for the applicants to establish a prima facie case, that is to say, the applicants must aver facts which if proved in the main action will constitute a cause of action.

HH192-12 : NATIONAL AIRWAYS WORKERS' UNION AND AIR TRANSPORT UNION vs AIR ZIMBABWE HOLDINGS (PVT) LTD AND NATIONAL HANDLING SERVICES (PVT) LTD AND THREE OTHERS
Ruled By: MUTEMA J

The requisites for a temporary or interim interdict are these;- (i) That the right sought to be protected is clear; or (ii)(a) If not clear, it is prima facie established, even though open to doubt; and (ii)(b) There is a well-ground apprehension of irreparable harm if the relief is not granted and the applicant ultimately succeeds in establishing ...

HH36-09 : T NYIKADZINO vs JOHN ASHER and MUSUNGA & ASSOCIATES and THE DEPUTY SHERIFF and THE MINISTER OF STATE FOR LANDS AND RURAL RESETTLEMENT
Ruled By: MAKARAU JP

It is trite that a provisional order granted under Rule 246(2) of the High Court Rules 1971, is granted upon the judge, sitting in chambers, being satisfied that the papers filed disclose a prima facie case....,.A provisional order granted under the Rules is always subject to confirmation or discharge before ...

HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU
Ruled By: MAWADZE J

This is an urgent chamber application for a provisional order whose interim relief sought is stated as follows:“INTERIM RELIEF GRANTEDPending determination of the lawful owner of ANSH NORTH situated on the following map coordinates;Point A 0187976 ...

This is an urgent chamber application for a provisional order whose interim relief sought is stated as follows:

“INTERIM RELIEF GRANTED

Pending determination of the lawful owner of ANSH NORTH situated on the following map coordinates;

Point A 0187976
7820147

Point B 0188251
7820232

Point C 0188307
7820018

Point D 0188139
7820018

The first and second respondents be and are hereby barred and interdicted from carrying out any mining operations on ANSH NORTH and coming within one hundred metres of the coordinates stated above.

SERVICE

Service of this provisional order to be effected by a clerk in the employ of Messrs Chinyama and Partners Legal Practitioners.”

The terms of the final order sought are in the following terms;

“TERMS OF FINAL ORDER SOUGHT

1. The applicant be and is hereby declared the sole and lawful holder of title over six gold reef claims knows as ANSH NORTH situated on the following map coordinates:

Point A 0187976
7820147

Point B 0188251
7820232

Point C 0188307
7820018

Point D 0188139
7820018

2. The first and second respondents be and are hereby barred and interdicted from entering and mining on ANSH NORTH on the map coordinates stated in (1) above.

3. The first and second respondents to pay the cost of suit on a legal practitioner to client scale.”...,.

I turn to the facts of the matter giving rise to this application.

It is common cause that the applicant and the first respondent are registered owners of mining claims in the Midlands Province, being ANSH NORTH 28896 for the applicant, and ANSH BLUE 4 29220 for the first respondent. Both the applicant and the respondent have attached their respective registration licences or certificates.

The applicant's claim was registered on 10 December 2010 and there is also the applicant's inspection certificate indicating that the next inspection is due on 10 December 2012. The first respondent's certificate of registration, of ten (10) good reefs, is dated 7 July 2011. The first respondent has also attached Annexure D to the notice of opposition which shows the map of the first respondent's claim ANSH NORTH BLUE 4.

The map coordinates for the claims for both the applicant and the first respondent are not in issue and can be illustrated as tabulated hereunder;

Applicant 1st Respondent

Point A 0187976 0188899
7820147 7820142

Point B 0188251 01889302
7820232 7820441

Point C 0188307 0189378
7820018 7820263

Point D 0188139 0188957
7820018 7819944

The applicant, in her founding affidavit, stated that she has been carrying out mining operations on her claims since December 2010. According to the applicant, what has led to this urgent application for an interdict is that on or about 20 November 2011 the first and second respondents, both residents of Number 6120 Gwee Street, South Downs, Gweru descended on or invaded the applicant's claim, ANSH NORTH, and started to mine gold ore to the exclusive benefit of the first and second respondents.

According to the applicant, she protested against this blatant disregard of her mining rights and produced her certificates of registration for the six (6) gold reefs ANSH NORTH claim and the inspection certificates to the first and second respondents.

The applicant stated that the first respondent countered this by producing his own certificate of registration dated 7 July 2011 but was unable to produce the map coordinates for their alleged claims.

The second respondent had no certificate of registration.

The applicant alleges, therefore, that the first and second respondents are mining within the applicant's map coordinates illegally.

It is the applicant's contention that the certificates of registration bestows upon her the legal right to be at ANSH NORTH gold claims in terms of the Mines and Minerals Act [Chapter 21:05] (hereinafter the Act).

The applicant avers, in her founding affidavit, that she has been carrying out mining operations lawfully, in a peaceful and undisturbed manner, from December 2010 until about 20 November 2011 when the first and second respondents unlawfully came on to her claims thereby taking the law into their own hands and imposing themselves on the applicant's mining claims.

The basis for the urgent application, according to the applicant, is that the unlawful conduct by the first and second respondents is ongoing and that there is no other remedy available to the applicant as the first and second respondents are not accounting for the gold mined at the applicant's claims hence the applicant would not be able to sue for damages.

It is the applicant's belief that since the injury perpetrated by the first and second respondents is on-going in nature, this matter cannot await the normal court processes to be heard as irreparable harm would be occasioned to the applicant.

It is trite law that the requirements for an interdict are as follows;

(i) A prima facie right even if it is open to doubt;

(ii) An infringement of such right by the respondent or a well-grounded apprehension of such infringement;

(iii) 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;

(iv) The absence of any satisfactory remedy; and

(v) That the balance of convenience favours the granting of an interlocutory interdict.

See Bozimo Trade & Development Company (Pvt) Ltd v First Merchant Bank of Zimbabwe Limited & Ors 2000 (1) ZLR 1 (H)…,.

The applicant's contention is that she meets all the above requirements.

The certificate of registration of her claim, ANSH NORTH, confers upon her a prima facie right. Her view is that the injury caused to her by the first and second respondents is clear as the first and second respondents are infringing upon her right to own the mining claims by extracting gold ore on her claim in quantities unknown to her, illegally, and to the sole benefit of the first and second respondents.

The applicant's view is that her fear of irreparable harm is well grounded as the gold extracted by the first and second respondents is not quantifiable and proceeds thereof remain unaccounted for. This would make it difficult, if not impossible, for the applicant to claim for damages. As a result, the applicant strongly feels that there is no other satisfactory remedy available to her save to seek the protection of the law through the interlocutory interdict.

Lastly, the applicant contends that the balance of convenience favours the granting of an interlocutory interdict on the basis that she was granted the certificate of registration in December 2010 ahead of the first respondent who was granted his certificate of registration in July 2011; that she has been on site earlier than the first and second respondents and is unable to quantify the loss occasioned to her by the first and second respondents even if she would opt to sue for damages.

Counsel for the first and second respondents did not seek to challenge the applicant's perception of the law as already articulated. Instead, the first and second respondents opposed this application on basically two grounds;

(i) Firstly, that this matter is not urgent as the applicant has not been able to explain why this application was not timeously made on 20 November 2011, or soon thereafter, which is the period within which the alleged dispute arose.

It is not in issue that this application was only made on 9 December 2011.

The applicant, in her founding affidavit, has not proffered any explanation as to why the applicant failed to act when the need to act arose, on 20 November 2011 or soon thereafter.

(ii) The second basis upon which the argument by the first and second respondents is premised is that the applicant's request for an interlocutory interdict lacks merit and is based on false allegations of facts.

The first and second respondents averred, in their respective opposing affidavits, that the applicant's founding affidavit is fraught with material omissions which borders on deliberate misrepresentation of facts and falsehoods.

The question of what constitutes urgency, in my view, is now no longer an issue for debate in our law. See Kuvarega v Registrar General & Anor 1998 (1) ZLR 188.

In the case of Mathias Madzivanzira & 2 Ors v Dexprint Investments (Pvt) Ltd Anor HH145-05…, NDOU J made reference to remarks by PARADZA J in the case of Dexprint Investments (Pvt) Ltd v Ace Property & Investment Company HH120-02 in discussing what constitutes urgency in an application of this nature as follows:

“For a court to deal with a matter on an urgent basis, it must be satisfied of a number of important aspects. The court has laid down the guidelines to be followed. If, by its nature, the circumstances are such that the matter cannot wait, in the sense that if not dealt with immediately irreparable prejudice will result, the court can be inclined to deal with that on an urgent basis. Further, it must also be clear that the applicant did, on his own part, treat the matter as urgent. In other words, if the applicant does not act immediately and awaits for doomsday to arrive and does not give a reasonable explanation for that delay in taking action, he cannot expect to convince the court that the matter is indeed on that warrants to be dealt with on an urgent basis.”

See also the apt remarks by KUDYA J in Gifford v Muzire & Ors 2007 (2) ZLR 131 (H)…, in which the learned judge had this to say:

“All that the applicant has to show is that the matter cannot wait the observance of normal procedures and time frames set by the rules of the court for ordinary applications without rendering nugatory the relief that he seeks.”

According to the applicant, the first and second respondents invaded her mining claims on 20 November 2011 but she only filed this application on 9 December 2011 - after about a period of 18 days.

As already stated, there is no explanation by the applicant for this delay of eighteen (18) days in the applicant's founding affidavit which is quite lengthy (it covers five printed pages and thirteen paragraphs).

On that account alone the applicant's case should fail. The inference which can be drawn, in the absence of a plausible explanation for such a delay of about eighteen (18) days, is that the matter is not urgent.

I am also inclined to dismiss this application for not only the lack of merit but that the applicant has not been candid with the court.

In the case of Graspeak Investments (Pvt) Ltd v Delta Corporation (Pvt) Ltd & Anor 2001 (2) ZLR 551…, NDOU J dealt with the question of material non-disclosure, mala fides or dishonesty in urgent applications and how this should impact upon the case of the offending litigant.

The learned judge had this to say:

“The courts should, in my view, discourage urgent applications, whether ex parte or not, which are characterised by material non disclosures, mala fides or dishonesty.

Depending on the circumstances of the case, the court may make adverse or punitive orders as a seal of disapproval of mala fides or dishonesty on the part of litigants.

In this case, the applicant attempted to mislead the court by not only withholding material information but also by making untruthful statements in the founding affidavit. The applicant's non-disclosure relates to the question of urgency.

In the circumstances, I find that the application is not urgent and dismiss the application on that basis.”

In casu, the applicant has withheld material information in the founding affidavit both in relation to the question of urgency and the merits of the matter.

Counsel for the applicant could not make meaningful submissions in that regard.

Let me deal with the material non-disclosure by the applicant which only became apparent after the first and second respondents had filed opposing affidavits and relevant annexures.

The applicant did not disclose, that, when this dispute arose, between the applicant and the first and second respondents, she referred the dispute to the Mining Commissioner, Gweru, Midlands possibly in terms of the Mines and Minerals Act [Chapter 21:05] (hereafter the Act).

The Mines and Mineral Act provides various remedies in sections 345, 346, 348, 353 and 354. I find no cause to refer in any detail to these provisions – suffice to state that some of the provisions relate to jurisdiction of the Mining Commissioner to investigate and determine complaints, the judicial powers bestowed upon Mining Commissioners, the procedure in summary hearing of complaints by Mining Commissioners, powers of the Mining Commissioner to deal with disputes relating to encroachment, and the power to grant injunctions in appropriate cases.

The Mines and Minerals Act, therefore, provides various domestic remedies which an aggrieved party may elect to pursue before approaching this court.

The applicant, in a very dishonest manner, has decided to approach both the Mining Commissioner and this court with the same dispute without making/noting that disclosure to this court, a phenomenon generally described as double dipping or forum shopping.

When the Mining Commissioner received the applicant's complaint, a letter was written, by the Mining Commissioner, to the officer in charge CID Minerals Gweru on 2 December 2011 which letter was copied to the applicant and the first respondent. The letter acknowledges the receipt by the Mining Commission of the complaint by the applicant that the first and second respondents were mining gold ore on the applicant's claim, ANSH NORTH, and that the Mining Commissioner was in the process of examining all relevant documents pertaining to the claims owned by the applicant and the first respondent and to also visit the disputed area to ascertain, physically, the location of the claims.

Lastly, the Mining Commissioner requested the police to stop mining operations at the disputed site until the matter is finalised and that anyone claiming the area must approach the Mining Commissioner first for verification and clearance.

All this material information was not disclosed by the applicant and no explanation was proffered for that.

If indeed the Mining Commissioner is seized with the matter, and had stopped mining operations at the disputed site until further notice, what would be the basis for the applicant to seek an interlocutory interdict?

My view is that the applicant decided not to reveal this vital information in order to create the urgency now averred in the application and justify the basis to seek the provisional order.

This letter was written eight days before the applicant approached this court.

The applicant did not even deem it proper to refer to or attach a copy of the complaint she referred to the Mining Commissioner.

The Mining Commissioner, three days later, on 5 December 2011, well before this application, wrote another letter to officer in charge CID Minerals Shurugwi making reference to the letter dated 2 December 2011 written to CID Minerals Gweru. The contents of the letter are self-explanatory and are as follows:

“Be advised that there should be no dispute on these mines at all as according to records in this office 28896 ANSH NORTH is to the east of the Shurugwi-Zvishavane highway and 299220 ANSH BLUE 4 is to the west of the same highway. Whoever is mining on the wrong side of the highway must be stopped.”

This letter is copied to the applicant, the first respondent, and officer in charge, CID Minerals Gweru.

Again, the applicant chose not to refer to this vital information in her founding affidavit. Such disclosure would have compelled the applicant to explain the current situation obtaining on the site.

In a letter dated 14 December 2011, the Mining Commissioner advised the first and second respondents counsel of the coordinates for corner beacons for the first respondent's claim 29220 ANSH BLUE 4 as already explained. The mala fides on the part of the applicant is also apparent in this letter to which a copy of the map of the first respondent's claim was attached. The relevant part reads as follows:

“Loreen Mushangwa (applicant) refused to produce the plan endorsed by this office. However, her 28896 (ANSH NORTH) is approximately 800 metres south west of homestead PL4–Shurugwi and falls east of Shurugwi-Zvishavane highway while Bhadhi (first respondent claim) falls west of the same highway.”

The effect of the non-disclosure of this material information, by the applicant, is that the applicant has not explained, in the founding affidavit, the current nature of the dispute warranting the granting of the relief sought in view of the explicit explanations and orders issued by the Mining Commissioner.

The applicant did not even disclose the outcome of findings, if any, made by the Mining Commissioner.

The urgency referred to by the applicant is therefore perjured and self-created as there is no evidence that the first and second respondents have defied the instructions by the Mining Commissioner and the police.

Further, on the facts before me, there is no basis for the claim or remedy sought.

I am therefore inclined to make an adverse finding in relation to the applicant's cause as a seal of my disapproval of her mala fides, material non-disclosure, and apparent dishonesty.

Lastly, I now deal with the issue of costs.

Counsel for the respondents sought an order for costs on a higher scale and counsel for the applicant was of the view that there is no basis for punitive costs.

My view is that the manner in which the applicant has conducted herself shows a wanton abuse of the court process. This application is not informed by the applicant's genuine desire to enforce her rights but rather to mislead the court and possibly win at all costs.

The relief sought was apparently granted by the third respondent at the behest of the applicant. There is no evidence that the order or directive given by the third respondent is no longer in force. In fact, the applicant chose to conceal all these facts from the court. There is therefore no need for this application besides wasting the court's valuable time and compelling the first and second respondents to defend themselves in this court.

All in all, the applicant has not been open, candid, honest, and sincere with the court.

The decision by the court to set a matter down on an urgent basis is informed, mostly, by the applicant's founding affidavit. In my view, it is high time that litigants should be made aware that they should not abuse this procedure and that such conduct would invariably be visited with a punitive order of costs.

Accordingly, the application is dismissed with costs on a legal practitioner and client scale.

HH32-09 : MAFOSHORO FARM (PVT) LTD vs HURBERT NYANHONGO and TENDAI MBEREKO
Ruled By: CHITAKUNYE J

The applicant is a company with limited liability which purports to own all agricultural equipment and implements and runs farming operations at ELDORADO OF GWINDINGWI commonly known as MAFOSHORO FARM (PVT) LTD.The first respondent is a beneficiary of land wherein he was offered the “whole of Eldorado of Gwindingwi in ...

The first respondent is a beneficiary of land wherein he was offered the “whole of Eldorado of Gwindingwi in Mutare District of Manicaland Province.”

The farm is approximately 472.46 hectares in extent. He has an offer letter dated 25 September 2007 in respect thereof.

The second respondent is said to be the first respondent's Farm Manager.

On the third of July 2008 the applicant obtained a provisional court order against the respondents. The order was in the following terms:

“First respondent and all those claiming and/or acting through him be and are hereby ordered to refrain from:-

1.1. Using applicant's farming implements and equipment.

1.2. Reaping bananas from applicant's farm.

1.3. Barricading applicant's access road to the farm.

1.4 Barring applicant's directors and employees from entering the farm.”

The applicant has approached this court on a complaint that the respondents are in contempt of court in that they have not complied with that court order.

In paragraph 8 of his founding affidavit, Johannes Jacobus W Vorster, the applicant's Director, stated that despite the respondents' having been duly served with the provisional order and being aware of the contents of the said order they have continued to deny the applicant's directors and employees access to the farm.

Such access was denied even when they went in the company of the Deputy Sheriff and the police.

The respondents have, instead, continued to harvest the applicant's bananas. The respondents have continued to use the applicant's equipment and implements and material contrary to the provisional order.

Some of the occurrences in Johannes' affidavit are supported by affidavits from Brian Mwaonga and Liberty Dzarira both police officers based at Mutare Police Station.

The net effect of their affidavits was to confirm accompanying the Messenger of Court/ Deputy Sheriff to Mafoshoro Farm whereat a copy of the provisional order was served on one Tendai Mbereko. They also observed that despite the service and explanation of the terms of the order by the Messenger of Court/Deputy Sheriff the first respondent's employees did not stop harvesting and loading bananas onto trucks that they found there. They also confirmed that when Mr Mbereko was confronted, he categorically indicated that he would not stop unless so instructed by the first respondent.

The applicant therefore prays that, in these circumstances, the respondents be found to be in contempt of court and be sentenced to a term of six (6) months imprisonment.

The first respondent opposed the application, contending that he is not in contempt of the provisional order. He indicated that on the occasions the applicant said he was denied access he was not at the farm, and, as per the applicant's affidavit, it was his employees who are alleged to have denied him access and not himself. He contended that the conflict is on the applicant wanting to carry out operations.

On the question of bananas, the first respondent contended that as bananas are perishables they cannot be kept on the trees for long hence admitting harvesting the bananas.

He also argued that the applicant no longer owned the farm, and so, as the beneficiary of the farm, he was entitled to the bananas as this was no longer the applicant's farm but State land.

On the continued use of implements and equipment he conceded that his employees may have used them before he had advised them about the provisional order. In any case, he has received implements and inputs of his own from Government and so he is no longer using the applicant's implements.

The major issue for determination was whether the applicant was in contempt of the provisional order.

Civil contempt is basically the willful or mala fide failure to comply with an order of court. There are three basic requirements for contempt procedure that need to be proved, namely:-

1. That an order was granted by a competent court.

2. That the respondent was indeed served with the said order or that it was brought to his attention; and

3. That the respondent has either disobeyed it or has neglected to comply with it.

See Consolidated Fish Distributors (Pty) Ltd v Zive and Ors 1968 (2) SA 517…,.

In Scheelite King Mining Co. (Pvt) Ltd v Mahachi 1998 (1) ZLR 173 (H)…, GILLESPIE J noted that;

“Before holding a person to have been in contempt of court, it is necessary to be satisfied both that the order was not complied with and that the non-compliance was willful on the part of the defaulting party.”

In Haddow v Haddow 1974 (1) RLR 5…, GOLDIN J had this to say:-

“In my respective view, whenever an applicant proves that the respondent has disobeyed an order of court which was brought to his notice, then both willfulness and mala fides will be inferred. The onus is then on the respondent to rebut the inference of mala fides or willfulness on a balance of probabilities. Thus, if a respondent proves that while he was in breach of the order his conduct was bona fide, he will not be held to have been in contempt of court because disobedience must not only be wilful but also mala fide.”

Wilfulness connotes a deliberate decision not to comply with the order. Mala fides connotes bad faith.

If it is proved that the first respondent, being aware of the terms of the provisional order, deliberately chose not to comply with them then he would be guilty.

It is common cause that the basis of the application is the provisional order granted by this court on the 3rd July 2008. That order stated, in clear terms, what the respondent was required to do and not to do.

From the papers filed of record, and the submissions by counsel, it is common cause that the order was served on the respondents. The order was served on the first respondent at his residence here in Harare and it was also served at the farm in question. The first respondent had the opportunity to comply with the order.

There is therefore no denying that the first two requirements were met.

The major issue is whether the first respondent complied with the terms of the provisional order.

The applicant, in its application, alleged that access to the farm has not been granted and the respondents have not stopped using the applicant's equipment and machinery. The respondents have continued to harvest bananas contrary to the terms of the order.

The first respondent contended that he complied with the order to the extent possible.

In seeking to defend himself, the first respondent points at the fact that, in his view, the provisional order is in violation of the constitutional law on land in that it recognizes the applicant's ownership on land acquired by the State.

The first respondent appears to confess and avoid the contempt. Thus, he says, in paragraph 7 of his opposing affidavit -

“7. As indicated above, the provisional order granted is in violation of constitutional law on land in that it recognizes applicant's ownership on land acquired by the State. The provisional order pre-supposes ownership of the farm by applicant which is not the case anyone (sic) by virtue of the compulsory acquisition that took place at the farm.”

And, in paragraph 10, that;

“10. I do respect the courts and the laws of this country and certainly abide by them. I am informed and advised that, for my defence to succeed in this application, I must proved (sic) not to be acting mala fide and I content I am not acting so but in fact it is the circumstances surrounding this matter and the conflicting positions between the law of the land and the provisional order granted that has resulted in the situation I now find myself in.”

Apparently, the situation the first respondent finds himself in is one of not complying with the provisional order in full.

(i) Firstly, in paragraph 11 of his opposing affidavit he confirms that bananas are being harvested when he says that;

“Bananas, by their nature, are perishables and cannot be kept on the trees for long. When they are ripe they have to be harvested. It is for this reason that they were harvested…,.”

(ii) Secondly, on the question of access, he also seemed to confess such has not been granted in paragraph 14 of his affidavit when he says that;

“The applicants cannot operate on a farm that is no longer theirs. The provisional order was cunningly drafted by applicant's legal practitioners. It orders me to grant applicant access to the farm but not for them to carry out operations on the farm. It is clear from para 8 of applicant's affidavit that his intention on coming to the farm is to 'operate', which was never part of the order that applicant sought and obtained from the court. In fact, if it had been made clear to the court, the court would not have granted the access as it is in clear violation of laws on land acquisition by the Government. In any event, the order does not order me to vacate or stop operations, hence, if applicant was to come and carry out operations it would obviously clash with the operations I am carrying out. This is why applicant is alleging I am acting in disregard of the court order.”

It would appear that because the first respondent believes the applicant wants to come and operate he won't let that happen.

Though at some stage he stated that access was granted, this seemed to have been done begrudgingly and clearly not in terms of the provisional order.

The general tenor of the first respondent's position seems to be of trying to justify his failure to abide by all the terms of the provisional order and not that he has fully complied.

He confirms this when, in paragraph 25, he states that;

“As indicated before, I am complying with the interim order in as far as I can. Where it is impossible to comply with (sic) order I am unable to do so.”…,.

The extent of compliance is premised on his contention that the applicant no longer owns the farm and the bananas being harvested are not on the applicant's farm. He could only be in contempt if the bananas were on the applicant's farm.

This, in my view, is an argument in futility.

There is no confusion regarding the farm and the bananas the provisional order related to. The first respondent is fully aware that the order related to Mafoshoro Farm and the banana plantation on this farm. The first respondent's attempt at justifying his continued harvest of bananas is clearly contrary to the order.

If, as the first respondent seems to be saying, he was not happy with the terms of the order, there are legal or lawful steps he should have taken rather than defy clear terms of a court order.

Our courts have made it abundantly clear that a party's dissatisfaction or disagreement with a court order is no defence to contempt proceedings.

In Whata v Whata 1994 (2) ZLR 277 (S)…, GUBBAY CJ quoted with approval what was held in S v Mushonga 1994 (1) ZLR 296 (S) that:

“Generally, a person may not refuse to obey an order of court merely because it has been wrongly made; for, to do so would be seriously detrimental to the standing and authority of the court…,.

The proper approach was for the person, first, to obey the supposed invalid order, and, thereafter, to seek redress, if any, by way of appeal or review.

It was not for him to determine for himself whether the order ought not to have been made. He should come to court for relief if advised that it was invalid. The exception being where the order was blatantly absurd in its command and would itself tend to weaken respect for the administration of justice. Only in that remote eventuality would disobedience not be regarded as contemptuous.”

The crime of contempt of court is committed intentionally and in relation to the administration of justice in the courts. This is so because as was held in Scheelite King Mining Co. (Pvt) Ltd v Mahachi 1998 (1) ZLR 173 (H);

“Although the primary purpose of contempt procedure is to compel compliance with the court's order; in such proceedings, the court will also have an interest in protecting and upholding the dignity and respect of the court and the legal process.”

In Moyo v Macheka SC55-05…, ZIYAMBI JA. quoted with approval the words of GOLDIN J in Haddow v Haddow 1974 (1) RLR 5 wherein he said that:

“The object of proceedings for contempt is to punish disobedience so as to enforce an order of court and in particular an order ad factum praestandum, that is to say, orders to do or abstain from doing a particular act. Failure to comply with such order may render the other party without a suitable or any remedy, and, at the same time, constitute disrespect for the court which granted the order.”

In casu, if the first respondent seriously believed that the provisional order conflicted with the law on land, and that it posed great difficulties for him, he had the option to anticipate the return date so that the matter is heard earlier.

If the respondent felt that the bananas needed to be harvested by him and not the applicant and that the provisional order is not practical to enforce and was in conflict with what he terms the laws of the land he had this option.

I did not hear any submission to the effect that, upon realizing the difficulties in complying with the order, the first respondent took any steps to have the matter heard earlier.

Instead, he contended that the applicant is delaying finalization of the main matter so as to use the provisional order indefinitely by his application.

In terms of the High Court Rules, the first respondent need not wait for the applicant to set the matter for hearing - he can take that initiative himself.

Rule 236 of the High Court Rules states that;

“Where the respondent has filed a notice of opposition and an opposing affidavit, and, within one month thereafter, the applicant has neither filed an answering affidavit nor set the matter down for hearing, the respondent, on notice to the applicant, may either -

(a) Set the matter down for hearing in terms of Rule 223; or

(b) Make a chamber application to dismiss the matter for want of prosecution, and the judge may order the matter to be dismissed with costs or make such other order on such terms as he thinks fit.”

Rule 236(4) goes on to state that:-

“Where the applicant has filed an answering affidavit in response to the respondent's opposing affidavit but has not, within one month thereafter, set the matter down for hearing, the respondent, on notice to the applicant, may either -

(a) Set the matter down for hearing in terms of Rule 223; or

(b) Make a chamber application to dismiss the matter for want of prosecution, and the judge may order the matter to be dismissed with costs or make such other order on such terms as he thinks fit.”

Rule 247, on Provisional Orders, states, in subrule 2, that -

“(2) Rules 231 to 240 shall apply mutatis mutandis to the enrolment and hearing of a matter consequent upon the issue of a provisional order referred to in sub-rule (1).

Provided that where a legal practitioner has certified in writing that a matter is urgent, giving reasons for its urgency, the court or a judge may direct that the matter be set down for hearing at any time, and, additionally, or alternatively, may hear the matter at any time and place, and in such event the ordinary periods of notice to the Registrar and to any other party shall not apply to the matter.”

It is clear from the above Rules that the first respondent had adequate avenues to take to ensure that the provisional order was dealt with expeditiously, if, as he said, the applicant was delaying the finalization of the matter.

In fact, the Provisional Order is also instructive to the respondent on the this, on the front page last paragraph, where it is stated that;

“If you wish to have the provisional order changed or set aside sooner than the rules of court normally allow, and can show good cause for this, you should approach the applicant/applicant's legal practitioner to agree, in consultation with the Registrar, on a suitable hearing date. If this cannot be agreed or there is a great urgency, you make a Chamber application, on notice to the applicant, for directions from a judge as to when the matter can be argued.”

As already alluded to, he chose none of the avenues to have the provisional order dealt with expeditiously. He, instead, opted not to comply with those terms of the order he did not agree with.

I am of the view that the first respondent is in contempt of the provisional order.

He has deliberately not complied with the terms of the provisional order despite having been served with the order. His wilful disregard of the court order is certainly inexcusable. He has not shown that his breach of the order was bona fide.

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

Rule 246(2) of the High Court Rules, 1971 provides as follows:“(2) Where, in an application for a provisional order, the judge is satisfied that the papers establish a prima facie case he shall grant a provisional order either in terms of the draft filed or as varied.”This means an application ...

HH01-08 : SIMON FRANCIS MANN vs THE REPUBLIC OF EQUATORIAL GUINEA
Ruled By: MAKARAU JP and PATEL J

In my view, the concept of a prima facie case is one of those legal concepts that are easier to recognize than to define. The concept eludes definition not only due to the fact that it deals with subjective measures of the cogency of evidence presented before a trier of fact, but also because the term ...

In my view, the concept of a prima facie case is one of those legal concepts that are easier to recognize than to define.

The concept eludes definition not only due to the fact that it deals with subjective measures of the cogency of evidence presented before a trier of fact, but also because the term is used loosely in both civil and criminal proceedings without a distinction having been attempted.

It appears to me that in civil cases, our courts have adopted the attitude that for interim protection by the court in the form of an interdict pending the determination of some other suit between the parties, a prima facie case is established once a cause of action is established even where the chances of the applicant to succeed in sustaining the cause of action are open to doubt. See Bozimo Trade and Development Co (Pvt) Ltd v First Merchant Bank of Zimbabwe Ltd & Ors 2000 (1) ZLR 1 (HC); Cooper v Leslie & Ors 2000 (1) ZLR 14 (HC); Charuma Blasting & Earthmoving Services (Pvt) Ltd v Njainjai & Ors 2000 (1) ZLR 85 (SC).

That a prima facie case in civil suits, for the obtaining of interim protection, is simply the setting out of facts establishing a possible and plausible claim against the respondent without the evidence necessary to prove such a claim appears to me clearly from the following remarks by CHATIKOBO J…, in Sultan v Fryfern Enterprises (Pvt) Ltd & Anor 2000 (1) ZLR 188 (HC):

“I have deliberately refrained from making definitive findings of fact because it may well be that further affidavits (if any are filed for the return date) or oral evidence may justify a different conclusion. At this stage I am concerned only with the question whether a prima facie case has been shown. I am satisfied it has.”

It then appears to me that a different test is used when a prima facie case has been established by a plaintiff in a civil trial to avoid absolution from the instance being granted at the close of his or her case. The test requires the establishment of more than a cause of action. Evidence must be adduced to prove the cause of action and must be so cogent as to enable a court to give judgment on it in favour of the plaintiff unless it is successfully rebutted.

It is my view that the test used to establish a cause of action at the end of the plaintiff's case is the same used to establish a case at the end of the prosecution case to avoid a discharge of the accused person. It is the adducing of evidence upon which a court may convict unless such evidence is rebutted. See Kachipare v S 1998 (2) ZLR 271 (S). Obviously, the different burdens of proof applicable in civil and in criminal proceedings apply in establishing prima facie cases in both proceedings. The test however appears the same to me.

HH113-09 : DIDYMUS MUTASA vs NGONI NDUNA N.O. and ATTORNEY-GENERAL and COMMISSIONER-GENERAL OF POLICE and ROBERT MCKERSIE
Ruled By: PATEL J

The applicant herein is the Minister of State responsible for Presidential Affairs. He was formerly the Minister responsible for Land Reform and Resettlement. The applicant originally sought an order, inter alia, staying and eventually setting aside the execution of a warrant of arrest issued against him on the 6th of October 2009.

The warrant of arrest was then cancelled on the 9th of October, on the very day that this application was filed, and is no longer of any concern.

Nevertheless, the applicant still seeks an interim order barring the first respondent, who was the presiding magistrate in a criminal matter before the Chinhoyi Magistrates Court, from compelling him to testify in that matter. He also seeks a final order setting aside the subpoena issued on the 2nd of October 2009 for him to attend and testify in the criminal matter.

The latter involves the prosecution of the fourth respondent under the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and has been set down to resume on the 4th of November 2009.

Objections in Limine

Counsel for the fourth respondent has raised several objections in limine:

(i) Firstly, that the applicant's plea on the merits is one of State privilege, and, as such, it must be raised by way of a sworn affidavit from the head of the Ministry concerned, viz. the Ministry responsible for land resettlement, and not by the applicant himself;

(ii) Secondly, that the applicant's founding affidavit, and his lawyer's supporting affidavit, must both be disregarded as the former contains no substantive averments and the latter cannot be used in support of an affidavit that avers nothing of substance.

As regards the first objection, counsel relies on FELTOE: A Guide to Administrative and Local Government Law in Zimbabwe (2006)…,.

While I have no doubt that the learned author is correct in his general statement of the procedure to be applied, I am not persuaded that his proposition necessarily and invariably applies to every claim of privilege by a witness in terms of section 295 of the Criminal Procedure and Evidence Act [Chapter 9:07], viz. on the grounds of public policy and/or public interest.

In my view, the form in which the privilege is claimed would depend upon the nature of the evidence in question and the context in which the evidence is called for.

In the instant case, it seems to me that the privilege has been appropriately raised through the supporting affidavit of the applicant's lawyer. Accordingly, the fourth respondent's objection in this regard cannot be sustained.

Turning to the second objection, it appears that the deponent to the supporting affidavit, Itayi Ndudzo, personally attended the Magistrates Court on the 6th of October 2009 and had personal knowledge of the relevant proceedings and the record thereof.

As is correctly conceded by the fourth respondent's counsel, a legal practitioner can depose to issues of procedure and issues of fact that only he and not the client can depose to.

The applicant himself had no knowledge of what transpired at the Magistrates Court, except by way of hearsay, and properly associates himself with the averments contained in Itayi Ndudzo's affidavit on the basis that the latter was fully seized with the matter and in attendance at the court at the relevant time.

It follows that the preliminary objection on this point must also fail.

Basis of Application

The present application is by way of criminal review in terms of section 29 of the High Court Act [Chapter 7:06].

It was raised, in the course of argument, by counsel, that, the application is formally defective in that it has not been brought as a court application pursuant to Rule 256 of the High Court Rules, 1971 and that the review jurisdiction of this Court must be exercised with the concurrence of another judge.

As regards the first point, I take the view that Rule 256 is confined to civil matters and proceedings and does not apply to criminal reviews. In any event, it seems unnecessary for me to decide the point for present purposes, as I am inclined to entertain this matter on the robust approach adopted in State v Strowitzki 1995 (2) SA 525…, to wit:

“It is not the form of the procedure used which matters so much as the nature and substance of the application itself.”

As for the second point, the final order sought by the applicant requires the setting aside of the subpoena issued by the Magistrates Court.

This clearly falls within the purview of subparagraph (ii) of section 29(2)(b) of the High Court Act and would require the concurrence of another judge by virtue of the peremptory proviso to section 29(5)(b): see Attorney-General v Makamba 2004 (2) ZLR 63 (S)…,.

On the other hand, the interim relief sought herein is to bar the first respondent from compelling the applicant to testify pending the granting of the final order.

This relief, in my view, lies within the ambit of the general powers conferred by subparagraph (vi) of section 29(2)(b) and can be granted by a single judge in terms of section 29(5)(b) of the High Court Act.

Propriety of Application

Section 229 of the Criminal Procedure and Evidence Act [Chapter 9:07] regulates the process for securing the attendance of witnesses as follows:

“(1) In this section —

'prescribed officer' means the registrar, assistant registrar or clerk of the court or any officer prescribed by rules of court.

(2) Either party desiring to compel the attendance of any person to give evidence or to produce any books, papers or documents in any criminal case may take out of the office prescribed by rules of court the process of the court for that purpose.

(3) When the accused desires to have any witnesses subpoenaed and satisfies the prescribed officer of the court that —

(a) He is unable to pay the necessary costs and fees; and

(b) Such witnesses are necessary and material for his defence; the prescribed officer of the court shall subpoena such witnesses.

(4) In any case, where the prescribed officer of the court is not so satisfied, he shall, upon the request of the accused, refer the application to the judge or magistrate who may grant or refuse such application or may defer giving his decision until he has heard the other evidence in the case or any part thereof.”

It is averred, on behalf of the applicant, that, the subpoena that is impugned in casu was issued as an order of court and not merely through the office of the clerk of court. Accordingly, the first respondent was functus officio vis-à-vis the subpoena and his decision in that regard is properly reviewable by this Court.

In his affidavit, filed at the direction of the Court, the first respondent affirms that the subpoena was originally issued by the Clerk of Court at the request of the fourth respondent. Subsequently, following the reluctance of the police to serve the subpoena, the first respondent directed that the subpoena be “reissued to the police to serve the witnesses for the defence today.”

The first respondent's position is that, in essence, he merely ordered the police to serve the subpoena originally issued by the Clerk of Court.

Assuming that this evidence accurately reflects what transpired in the issuance and re-issuance of the subpoena, the subpoena was issued, not by the first respondent but by the Clerk of Court acting in terms of subsections (2) and (3) of section 229 of the of the Criminal Procedure and Evidence Act.

It follows that the validity of the subpoena, on its merits, was never canvassed before the first respondent and, therefore, he cannot be said to be functus officio in that regard.

Ordinarily, the applicant's claims of privilege and the validity or otherwise of the subpoena should, in the first instance, be ventilated before the Magistrates Court. Nevertheless, on the basis that the subpoena was originally issued by an officer of the court and subsequently reissued by order of the court, it may properly be regarded as an order of the court itself.

Moreover, whether the subpoena is regarded as an administrative order issued by the clerk or as an order of the court, this Court is endowed with the requisite jurisdiction in either case, by virtue of its inherent jurisdiction at common law as well as its statutory jurisdiction under section 26 of the High Court Act, “to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe.”

I therefore deem it perfectly appropriate to deal with the merits of this application in order to avoid further delays in the administration of justice.

Merits of Application

According to the fourth respondent, the evidence of the applicant is necessary for the purposes of his defence in his prosecution before the Magistrates Court under section 3 of the Gazetted Lands Act.

His defence, in essence, is that he was given an “offer letter” by the applicant which constitutes the requisite “lawful authority” entitling him to remain in occupation of the farm without contravening section 3 of the Gazetted Lands Act. His evidence is that this offer letter was returned to the applicant in order to correct a spelling error in his name and that the letter was then never handed back to him. He now wants the applicant to testify on his behalf by confirming that the offer letter was in fact originally issued to him.

The applicant challenges the propriety of his testimony on several grounds:

In particular, he relies on the grounds of inadmissibility of evidence and non-compellability of witnesses as set out in sections 252, 295 and 297 of the Criminal Procedure and Evidence Act [Chapter 9:07]. These sections provide as follows:

“252. No evidence as to any fact, matter, or thing shall be admissible which is irrelevant or immaterial and cannot conduce to prove or disprove any point or fact at issue in the case which is being tried.”

“295. No witness shall, except as in this Act is provided, be compellable or permitted to give evidence in any criminal proceedings as to any fact, matter or thing, or as to any communication made to or by such witness, as to which, if the case were depending in the Supreme Court of Judicature in England, such witness would not be compellable or permitted to give evidence by reason that such fact, matter or thing or communication, on grounds of public policy and from regard to public interest, ought not to be disclosed and is privileged from disclosure: Provided that…,.”

“297. No witness in any criminal proceedings shall, except as provided by this Act or any other enactment, be compelled to answer any question which, if he were under examination in any similar case depending in the Supreme Court of Judicature in England, he would not be compelled to answer by reason that his answer might have a tendency to expose him to any pains, penalty, punishment or forfeiture or to a criminal charge or to degrade his character: Provided that…,.”

The applicant's reasons for not testifying in the fourth respondent's criminal trial are threefold:

(i) Firstly, that the evidence sought does not constitute a valid defence to the charge and is therefore irrelevant and inadmissible;

(ii) Secondly, that he cannot be compelled to divulge matters involving land allocation as these are privileged by dint of public policy and public interest; and

(iii) Thirdly, that he is only being called as a witness in order to degrade his character and he cannot be compelled to do so.

By virtue of section 3(1) of the Gazetted Lands Act, “no person may hold, use or occupy Gazetted land without lawful authority.”

The term “lawful authority” is defined in section 2(1) of the Gazetted Lands Act to mean;

“(a) An offer letter; or

(b) A permit; or

(c) A land settlement lease” and “offer letter” means “a letter issued by the acquiring authority to any person that offers to allocate to that person any Gazetted land, or a portion of Gazetted land, described in that letter.”

As recent case authority demonstrates, mere verbal authority to occupy Gazetted Land or a general policy statement to that effect does not satisfy the requirement of lawful authority for the purposes of section 3 of the Gazetted Lands Act: see Chirikure & Others v Kenmast Farming (Pvt) Ltd & Others HH106-05; Chimuka & Others v Minister of Lands & Others HC4837/07.

The accused occupier must provide proof of a valid offer letter, permit, or land settlement lease.

Generally speaking, the mere production of an offer letter would, unless the origin or authenticity of the letter is questioned, avail as a complete defence to a charge of contravening section 3 of the Gazetted Lands Act.

However, where the offer letter in question is lost or destroyed, the evidence of the issuing authority or other public official may be necessary in order to establish that the letter was in fact issued to the occupier concerned at the relevant time. Such evidence would undoubtedly constitute the requisite lawful authority and a valid defence against a charge of contravening section 3 of the Gazetted Lands Act.

Having regard to the foregoing, I am satisfied that the testimony required from the applicant, as to whether he did or did not issue an offer letter to the fourth respondent in relation to the land in question, is highly relevant and clearly admissible for the purposes of the fourth respondent's acquittal or conviction under section 3 of the Gazetted Lands Act.

Moreover, given that such evidence is to be elicited from the applicant in relation to what he himself did or did not do vis-à-vis the fourth respondent as the authority responsible for issuing offer letters, there can be no question of him having to divulge any official secret or other confidential information inimical to public policy or the public interest.

I am therefore quite unable to perceive any logical basis for the privilege claimed by the applicant on the facts of this case.

As for the possible degradation of his character, there is nothing meaningful in the founding papers to substantiate the apprehended attack on his character. Ultimately, any such apprehension must be weighed against the constitutional right of every accused person to be afforded a fair criminal trial as enjoined and guaranteed by section 18(3) of the Constitution, and, in particular, the right “to obtain the attendance and carry out the examination of witnesses to testify on his behalf.”

It follows that the applicant has failed to establish any basis for justifying the interim relief that he seeks. Accordingly, this Court cannot interfere with the subpoena issued by the Chinhoyi Magistrates Court by barring the first respondent, or any other magistrate, from compelling the applicant to testify at the fourth respondent's criminal trial.

As regards costs, the applicant's counsel conceded, at the hearing of this matter, that the first respondent should not have been cited in his personal capacity and that he was entitled to his wasted costs, including the costs of appearance by counsel.

It is accordingly ordered that the applicant shall pay the first respondent's costs on a legal practitioner and client scale.

As for the other respondents, although the applicant has failed on the merits of his application, I am not persuaded that his approach to this Court was so unjustified or unnecessary as to warrant a punitive award of costs.

The second, third, and fourth respondents are therefore only entitled to their costs on the ordinary scale.

In the result, this application is dismissed with costs as aforesaid.

HB02-09 : NDUMISO DUBE vs LEONARD DUBE
Ruled By: KAMOCHA J

The applicant seeks an order in the following terms – “It is hereby ordered that: 1. The first respondent be and is hereby interdicted from carrying out construction work of any sort on Stand Number 16764 Romney Park, Bulawayo, until the proceedings in case number 1276/06 are finalised; 2. The first respondent be and is hereby interdicted from selling ...

HB25-09 : MEKIYA NYATHI vs JOYCE MUVEZWA and B. TADERERA and SENDRA MUVEZWA and THE REGISTRAR OF DEEDS (BULAWAYO)
Ruled By: CHEDA J

This is an urgent application barring the first and second respondents from selling, or transferring, property. The relief sought is couched as follows:- “TERMS OF FINAL ORDER SOUGHT That First, Second, and Fourth Respondents show cause to this Honourable Court why a final order should not be made in the following terms:- (1) That the First Respondent ...

HB27-09 : ZIMBABWE NATIONAL STUDENTS UNION and NUST STUDENTS' REPRESENTATIVE COUNCIL vs NATIONAL UNIVERSITY OF SCIENCE AND TECHNOLOGY and MINISTER OF HIGHER EDUCATION
Ruled By: NDOU J

The applicants seek a provisional order in the following terms:- “Terms of the Final Order Sought (a) That the fees for the first semester of the National University of Science and Technology being charged by the first respondent, without the approval of the second respondent, be and are hereby declared to illegal and unlawful. (b) The refusal by the ...

HB31-09 : ZIMBABWE NATIONAL ARMY vs RANGARIRAYI GUNDA
Ruled By: NDOU J

The applicant sought a provisional order in the following terms:- “Terms of the Final Order Sought 1. That the respondent be restrained from attempting to, or repossessing, the Peugeot registration number AAO 0197 or 01 BF 04. 2. That the respondent be ordered to bear the costs of this application. Interim Relief Granted 1. That the respondent be and is hereby ...

HB57-09 : TRYSON INVESTMENTS vs MAPLE LEAF MINING (represented by Cecil Madondo N. O.) and MINING COMMISSIONER
Ruled By: NDOU J

On 25 March 2009 Mr. Madondo wrote a letter to the applicant in which the first respondent was purporting to cancel the..., Tribute Agreement. The applicant challenged the cancellation, and its legal practitioners wrote to the first respondent conveying this. The applicant's legal practitioners also wrote two letters to the second respondent expressing the applicant's legal understanding ...

HB110-09 : EDGARS STORE LIMITED vs RAMSON (PVT) LTD and BHIMJI INVESTMENTS (PVT)LTD and THE MESSENGER OF COURT, HARARE
Ruled By: NDOU J

The effect of the order sought by the applicant is to reverse the order by the Harare Magistrate, even before the appeal is heard – thus rendering the hearing of the appeal academic.

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

The first respondent tried once again to evict the applicant from the property using the Order in the main matter. The applicant, in turn, approached this court under a certificate of urgency, and her bid to stay the eviction was unsuccessful. The applicant then wrote to the Deputy Sheriff pointing out that the writ of execution was not ...

HH04-10 : MYDALE INTERNATIONAL MARKETING (PVT) LTD vs DR ROB KELLY and HAMMER AND TONGUES (PVT) LTD
Ruled By: GOWORA J

The first respondent herein had, under Case No. HC1049/09, instituted proceedings against the applicant and second respondent herein. On 30 March 2009, OMERJEE J issued an order as follows:“IT IS ORDERED THAT:1. Mydale International Marketing (Pvt) Ltd is entitled to receive from the second respondent and have in its custody ...

The first respondent herein had, under Case No. HC1049/09, instituted proceedings against the applicant and second respondent herein. On 30 March 2009, OMERJEE J issued an order as follows:

“IT IS ORDERED THAT:

1. Mydale International Marketing (Pvt) Ltd is entitled to receive from the second respondent and have in its custody and under its control vehicles registration number no. AAU 8190, ABC 3354 and AAP 1952.

2. Mydale International (Pvt) Ltd shall record the mileage on each vehicle from the time of receipt from the second respondent.

3. Mydale International (Pvt) Ltd shall be entitled to ordinary use of the motor vehicles and shall not sell or otherwise alienate the said motor vehicles without an order of court.

4. Messrs Byron Venturas & Partners shall within 24 hours of the order surrender to the Registrar of the High Court, Harare the US$28,500 the proceeds for the sale of the six motor vehicles owned by Mydale International (Pvt) Ltd for retention by the Registrar pending the determination of any dispute over ownership of Mydale International Marketing (Pvt) Ltd.”

On 4 April 2009, the first respondent noted an appeal against the order, and, as a result, he did not surrender the money to the Registrar as had been ordered.

On 21 April 2009, the applicant launched these proceedings under a certificate of urgency for the grant of a Provisional Order. The respondent, having filed a notice of opposition and opposing affidavits, the matter was not heard on an urgent basis.

Instead, the learned judge before whom the matter was placed gave directions to the parties to file pleadings and thus the matter was converted into an opposed court application.

The second respondent has not filed any papers in this matter, and I will, as a result, refer to the first respondent as the respondent.

The matter was not heard on an urgent basis and the interim relief being sought was not granted.

The applicant has not however filed an amended draft order, and, from the submissions by counsel, it is clear that what is sought is an order in terms of the final relief on the provisional order. That part of the order depended on the court having granted interim relief.

A word of caution should be sent to legal practitioners to ensure that a draft order must be filed where an urgent application has been ruled not to be urgent and the matter proceeds on the basis of the provisional order initially filed with the application. A party must ensure that it moves for the order that it wishes for.

Where a provisional order is left without interim relief having been granted it should not be left to the judge to decide what order should be granted to the prejudice to parties in the dispute.

HH16-10 : AMBASSADOR CHIMONYO vs ROUTE TOUTE BV and PENINSULAR PLANTATIONS PL and MATANUSKA PL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and THE MINISTER OF FOREIGN AFFAIRS
Ruled By: MUSAKWA J

In his submissions, counsel for the applicant pointed out that no opposing papers were filed in answer to the non-service of the application and notice of set down on the applicant. While it is not a requirement, in urgent matters, to file opposing papers, it was his submission that the inescapable conclusion is ...

HH16-10 : AMBASSADOR CHIMONYO vs ROUTE TOUTE BV and PENINSULAR PLANTATIONS PL and MATANUSKA PL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and THE MINISTER OF FOREIGN AFFAIRS
Ruled By: MUSAKWA J

Counsel for the first, second, third and fourth respondents also submitted that the applicant had not filed any opposing papers to the provisional order that was granted on the 5th of January 2010. Finally, it was also submitted that the applicant had an alternative remedy as he could have filed opposing papers and anticipated the return ...

HH57-10 : AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT and SECRETARY FOR MINES AND MINING DEVELOPMENT and CHIEF MINING COMMISSIONER
Ruled By: UCHENA J

The first applicant is a public company listed on the London Stock Exchange. The second to fifth applicants (Dashaloo Investments (Pvt) Ltd, Possession Investments (Pvt) Ltd, Heavy Stuff Investments (Pvt) Ltd, Olebile Investments (Pvt) Ltd) are Zimbabwean companies duly incorporated in terms of the laws of Zimbabwe. They are wholly owned subsidiaries of the first applicant.

The second to fifth applicants are holders of registered mining claims in the Chiadzwa diamond mining area of Manicaland. Their claims have been subjected to cancellations and litigation over such cancellations. The claims were declared valid by HUNGWE J in HC6411/07.

The respondents appealed against that decision to the Supreme Court, where the appeal is still pending.

The first respondent is the Minister of Mines and Mining Development. The second respondent is the Permanent Secretary in the Ministry of Mines and Mining Development. The third respondent is the Chief Mining Commissioner in the Ministry of Mines and Mining Development.

The second respondent gave notice to the second to fifth applicants of his intention to cancel their claims with effect from 10 March 2010. The notice is dated 28 January 2010. The cancellations are premised on the applicants' claims having been registered over a reserved area in contravention of the Mines and Minerals Act [Chapter 21:05] the (“Mines Act”). He advised the applicants that the area was reserved against pegging and prospecting by Reservation 1558, dated 19 February 2004.

The applicants filed an urgent application on 5 March 2010, seeking a provisional order interdicting the respondent's from canceling their claims on 10 March 2010.

The respondents opposed the application and raised the following preliminary issues:

1. That the application was not urgent.

2. That the applicants had not exhausted domestic remedies, and had not complied with Order 33 of the High Court rules.

3. That the second to fifth applicants, who are the holders of the claims, did not exist at the time the claims were registered.

Urgency

Counsel for the respondents submitted that the applicants' application is not urgent because the applicants', who where notified of the cancellations on 28 January 2010, waited until the eleventh hour before filing their application.

He further submitted that the applicants have not exhausted domestic remedies provided in section 50(2) of the Mines and Minerals Act [Chapter 21:05].

He further submitted, that, the applicants appealed to the Minister, on 9 March 2010, therefore that process must be completed before this court can intervene.

Counsel for the applicants submitted that the delay was caused by the applicants' attempt to persuade the second respondent to withdraw the cancellation. The applicants had previously succeeded in getting the respondents to withdraw the 8 December 2009 cancellations. They believed communication with the second respondent would achieve similar results.

She further submitted that the applicants had applied to this court against the 8 December 2009 cancellations, and appealed to the Minister. Those proceedings were rendered academic by the second respondents' withdrawal of the 8 December cancellations.

The applicants had incurred heavy litigation expenses and wanted to avoid the same in respect of the 28 January cancellations.

The second to fifth applicants received the 8 December 2009 notices to cancel from the Acting Mining Commissioner Manicaland. They challenged the cancellations, by pointing out that there was no Mining Commissioner for Manicaland. That led to the withdrawal of that cancellation by the second respondent in this case.

In his letter of 28 January 2010, the second respondent advised the applicants that he had, in terms of section 341 of the Mines and Minerals Act, taken over the functions of the Mining Commissioners, Harare, Masvingo and Manicaland, and was withdrawing the 8 December 2009 cancellations to avoid unnecessary litigation.

The second respondent then gave the 28 January 2010 notices of the cancellation of the second to fifth applicants' claims. He again advised them that he had, in terms of section 341 of the Mines and Minerals Act, assumed the functions of the aforesaid Commissioners.

The second respondent's conduct was clearly aimed at correcting the error pointed out by the applicants, and to personally repeat the same act with resolve. The fact that the withdrawal, and the subsequent cancellations, took place on the same day must have been of significance to the applicants.

The applicants attached to their application the letters they wrote to and received from the second respondent before they filed this application. They attached the second respondents' letters dated, 28 January 2010, 12, 19 and 23 February 2010, and their letters to the second respondent dated 1, 11, 16, 23 and 24 February 2010.

The correspondence reveals the applicants' attempt to settle the dispute without litigation and the second respondent's insistence that the cancellations were not going to be reversed.

It is clear that the applicants genuinely wanted to avoid litigation, and hoped the second respondent could be persuaded to withdraw the cancellation. It is also equally clear, from the second respondent's letters, that the applicants' attempts were not going to be acceded to. This must have warned the applicants that their delay in applying to the courts or appealing to the Minister, may, in the circumstances, be to their own disadvantage.

I am therefore satisfied that the applicants' explanation for the delay is not satisfactory.

Counsel for the respondents made forceful submissions on the effect of the applicants' coming to this court before exhausting domestic remedies.

He submitted that section 50(2) of the Mines and Minerals Act provides for an appeal to the Minister.

The second respondent, in his notices of cancellation, drew the applicants' attention to their right to appeal. He submitted that the applicants had not appealed to the Minister when they filed this application. He further submitted that this was a deliberate abstention from exhausting domestic remedies. He further submitted that the applicants have now appealed to the Minister. They did so on 9 March 2010, a day before the date of cancellation, and four days after they filed this application.

Counsel for the applicants submitted that the applicants had no hope of a fair hearing before the Minister. She referred to HUNGWE J's comments in HC6411/07 where the applicants' chance for a fair hearing by the Minister was compared to that of “an ice block against hell fire.”

She pointed out the applicants' allegations of the Minister's alleged involvement with companies which have been granted rights to mine diamonds from the disputed claims.

If these were the true facts they would have been a fair response to counsel for the respondents submissions.

An analysis of the applicants' appeal to the Minister is revealing.

It seeks the Minister of Mines and Mining Development's recusal from considering the applicant's appeal. This means, if that request is acceded to, the Minister, who is alleged to be biased will not decide the applicant's appeal. If he considers the appeal against them without good grounds for refusing to recuse himself the applicants can take his decision on review.

The applicants, therefore, have a fair chance of their appeal being properly considered on the merits.

The appeal was submitted a day before the date of cancellation, and four days after this application was filed.

The filling of the appeal places this court in competition with the Minister on the determination of the dispute between the parties. When such a situation arises, the court must defer to the determination of the issues through domestic remedies.

That is consistent with the courts' clear position on the need for a party to first exhaust domestic remedies before seeking a remedy before this court.

In the case of Girjac Services (Private) Limited v Mudzingwa 1999 (1) ZLR 243 (SC)…, GUBBAY CJ, commenting on the need to exhaust domestic remedies said:

“In its opposing affidavit, the appellant specifically raised the complaint that the respondent had adopted the wrong procedure in applying to the High Court for relief rather than following the domestic procedure outlined in the Code of Conduct. In his answering affidavit, the respondent significantly proffered no explanation for taking the route he did. He appears to have been of the view that both options were open; the choice being un-inhibited.

The learned judge a quo did not deal with this issue although it was argued and the relevant authorities referred to him. He ought to have done so.

In Tutani v Minister of Labour & Ors 1987 (2) ZLR 88 (H) at 95D, MTAMBANENGWE J observed that where domestic remedies are capable of providing effective redress in respect of the complaint, and, secondly, where the unlawfulness alleged has not been undermined by the domestic remedies themselves, a litigant should exhaust his domestic remedies before approaching the courts unless there are good reasons for not doing so.

The same approach was applied by SMITH J in Musandu v Chairperson Cresta Lodge Disciplinary and Grievance Committee HH115-94 (not reported); and was referred to with approval by MALABA J in Moyo v Forestry Commission 1996 (1) ZLR 173 (H) at 191 D-192B.

I respectfully endorse it.”

In this case, the applicants did not only come to court before exhausting domestic remedies; they are asking this court to determine the legality of the respondents' handling of the cancellations when an appeal is pending before the first respondent or another Minister who will decide the case if the first respondent accedes to the applicants' request for his recusal.

The later should, in terms of the case law referred to above, and section 7 of the Administrative Justice Act [Chapter 10:28] (hereinafter referred to as the AJ Act), be sought first.

The simultaneous filing of an application before this court, and an appeal before the first respondent, or his substitute, as already said, places this court in competition with the determiner of the domestic remedy.

When that happens, this court must defer to domestic proceedings and allow them to be exhausted before it can hear the dispute between the parties.

The pendency of the domestic remedy would, in my view, take away urgency from an application to this court.

Section 7 of the Administrative Justice Act [Chapter 10:28] provides as follows:

“Without limitation to its discretion, the High Court may decline to entertain an application made under section four, if the applicant is entitled to seek relief under any other law, whether by way of appeal or review or otherwise, and the High Court considers that any such remedy should first be exhausted.”

My understanding of section 7 of the of the Administrative Justice Act is that this court can decline to hear an application, based on an alleged failure to comply with the provisions of the Administrative Justice Act, if it is of the view that the applicant has other legal remedies through which he can obtain the remedy sought before it and it considers that such remedy should first be exhausted.

The court can exercise its discretion, but, it should not do so in a manner that terminates pending domestic remedies unless there are compelling reasons for it to do so.

The intention of the legislature, in providing domestic remedies, must be respected by the courts, and the officials charged with the authority, to determine domestic appeals or reviews must be allowed to do their work before this court intervenes.

In my view, this court should only intervene in cases where it is obvious that domestic remedies will not do justice in the case before it.

This approach is consistent with the principle of judicial deference, commented on, in the South African cases of Bato Star Fishing (Pty) Limited v Minister of Environmental Affairs 2004 (4) SA 490…, and Ekuphuleni Metropolitan Municipality v Dada NO & Ors 2009 (4) SA 463 (SCA)…, where HURT AJA commented on judicial deference as follows:

“In Logbro Properties CC v Bedderson NO & Ors 2003 (2) SA 460 (SCA) (2003) 1 All SA 424, para 21, CAMERON JA referred, in the context of a necessity for 'judicial deference', with approval to the following passage from an article by CORA HOEXTER entitled The Future of Judicial Review in South African Administrative Law (2000) 117 SALJ 484, at 501-2, which is to the following effect:

'…, the sort of deference we should be aspiring to consists of a judicial willingness to appreciate the legitimate and constitutionally-ordained province of administrative agencies; to admit the expertise of these agencies in policy-laden or polycentric issues; to accord their interpretation of fact and law due respect; and to be sensitive in general to the interests legitimately pursued by administrative bodies and the practical and financial constraints under which they operate. This type of deference is perfectly consistent with a concern for individual rights and a refusal to tolerate maladministration.'

This passage was also referred to with approval and the theme taken up by SCHUTZ JA in Minister of Environmental Affairs and Tourism & Ors v Phambili Fisheries (Pty) Limited; Minister of Environmental Affairs and Tourism & Ors v Bato Star Fishing (Pty) Limited 2003 (6) SA 407 (SCA) ([2003] 2 All SA 616), paras 52 and 53, where, after quoting the passage set out above, the learned judge said:

I agree with what is said by HOEXTER (op cit at 185):

'The important thing is that judges should not use the opportunity of scrutiny to prefer their own views as to the correctness of the decision, and thus obliterate the distinction between review and appeal'.

(53) Judicial deference is particularly appropriate where the subject-matter of an administrative action is very technical or of a kind in which a court has no particular proficiency. We cannot even pretend to have the skills and access to knowledge that is available to the Chief Director. It is not our task to better his allocations, unless we conclude that his decision cannot be sustained on rational grounds.”

In the present case, the urgency of the application is diluted by the applicants' conduct.

They appealed to the Minister a day before the date of cancellation when this application was already pending before this court.

They knew, from 28 January 2010, that they had a right to appeal to the Minister. They avoided that option preferring to communicate with the Minister's subordinate, whose letters show that he was not prepared to budge. They then applied to this court, before appealing to the Minister, well knowing that they would also appeal to the Minister. They appeared before this court on 9 January 2010 when the case was postponed, to 12 March 2010, with the respondents' counsel undertaking to ensure that the applicants' claims would not be cancelled before the determination of this application.

They therefore resorted to applying to this court simultaneously with an appeal to the Minister.

This tends to show that the applicants deliberately delayed appealing to the Minister so that they could apply to this court on the pretext that they did not expect justice from the Minister, when they knew that they would appeal to the Minister and ask him to recuse himself so that their appeal would be heard by an impartial acting Minister.

No explanation was given as to why the applicants did not appeal to the Minister in the manner they did before 9 March 2010.

The delay in approaching this court, or appealing to the Minister, was, therefore, a result of a deliberate abstention from acting when the urgency arose on 28 January 2010.

In the case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188…, CHATIKOBO J said:

“What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency, which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules.”

In the circumstances, it cannot be said that the application is urgent as I have to defer to the appeal under domestic remedies. I therefore hold that the applicants' application is not urgent.

Other points in limine

The respondents had also sought the dismissal of this application on the grounds that the application does not comply with Order 33 of the High Court Rules, and that the applicants had not yet been incorporated when they registered the claims in dispute.

Counsel for the respondents submitted that the fact that they were not in existence when the claims were registered means the registration is invalid in terms of the Mines and Minerals Act [Chapter 21:05].

In view of my finding that the application is not urgent, I need not determine the other preliminary issues.

Once a case is judged to be not urgent, no further consideration should be given to any other aspect of it. This is because urgency is the key entitling a case to this court's attention on an urgent basis and ahead of other cases awaiting the court's attention.

The appropriate Order

Counsel for the respondents urged this court to dismiss the application if the court found in favour of any of the respondents' preliminary issues.

As I cannot deal with other issues in view of my finding that the application is not urgent, the order sought by the respondents is not appropriate.

A finding that a case is not urgent does not mean that the applicant's case has no merits. It means the case does not qualify for hearing on an urgent basis in terms of Rule 244 of the High Court Rules. It should therefore be set down and heard like any other case. It should simply take its place among cases awaiting to be set-down for hearing in terms of the Rules applicable to none urgent applications: see the comments of CAMERON JA in the case of Commissioner, South African Revenue Services v Hawker Air Services (Pty) Ltd; Commissioner, South African Revenue Service v Hawker Aviation Partnership & Ors 2006 (4) SA 292 (SCA)…,.

A case judged to be not urgent should simply be struck off the roll for it to be proceeded with like any other case.

In the result, the applicant's application is struck off the roll.

HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MAVANGIRA J

The applicant seeks before this court relief in the following terms - “A. TERMS OF FINAL ORDER SOUGHT That you show cause to this Honourable Court why a final order should not be made in the following terms: 1. Pending determination of the Supreme Court application made by the applicant for the reinstatement of its appeal in Case ...

HH118-10 : JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED vs WILLIAM WACHENUKA and MINISISTRY OF LANDS, AGRICULTURE AND RESETTLEMENT
Ruled By: GOWORA J

The applicant applied to this court for a provisional order under a certificate of urgency, and on 4 May 2009, this Honourable Court issued a provisional order in their favour in the following terms –“PROVISIONAL ORDERTERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the ...

“PROVISIONAL ORDER

TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. That first respondent and all those claiming occupation through him be and are hereby ordered to forthwith restore to applicants and their employees full possession, use, and access to the tobacco barns, grading sheds, storage sheds, workshop, office, and irrigation pump station on Plot 7 and all farming implements owned by the applicants and located thereon.

2. The first respondent and all those claiming occupation through him permit the applicants and their employees to grade their tobacco and remove it for sale thereafter.

3. The first respondent desists from threatening any of the applicants' workers or managers in carrying out their normal duties.

4. Should the first respondent breach 1 and 2 or 3, that the Zimbabwe Republic Police Guruve be authorised to arrest the first respondent.

5. The first respondent shall pay the costs of this application on the legal practitioner and client scale.

INTERIM RELIEF GRANTED

Pending the determination of the above Final Order, the applicant is granted the following relief:

1. The first respondent and all those claiming occupation through him be and are hereby ordered to forthwith restore to applicants and their employees full possession, use, and access to the tobacco barns, grading sheds, storage sheds, workshop, office, and irrigation pump station on Plot 7 and all farming implements owned by the applicants and located thereon so as to restore the status quo prevailing on Plot 7 as at 15 April 2009.

2. The first respondent, and all those claiming occupation through him, permit the applicants and their employees to grade their tobacco and remove it for sale thereafter.

3. The first respondent desists from threatening any of the applicants' workers or management in carrying out their normal duties.

4. The first respondent shall be entitled to the full use and occupation of Plot 7, other than the structures, equipment referred to in paragraph 1, and the applicants' shall refrain from interfering with the first respondent's farming activities, equipment, and employees on Plot 7.

5. Should the applicants' or the first respondent breach any provisions of this Order the Zimbabwe Republic Police Guruve is hereby authorized to enforce the terms of this Order.

INTERIM ORDER – RETURN DAY

1. The respondents shall file and serve their opposing papers in this matter by 7 May 2009.

2. The applicants shall file and serve their Answering Affidavit by 11 May 2009.

3. The applicants shall file and serve their Heads of Argument by 15 May 2009.

4. The respondents shall file and serve their Heads of Argument by 18 May 2009.

5. The respondents shall index and paginate the papers filed herein by 20 May 2009.

6. The Registrar is hereby directed to set this matter down for hearing in the opposed roll forthwith upon compliance with the foregoing paragraphs.

SERVICE OF PROVISIONAL ORDER

Service of this Order may be effected by the applicants' legal practitioners on the respondents or their legal practitioners.”

The two applicants are companies that are duly registered as such in accordance with the laws of this country. The first applicant is the former owner of Disi Farm which is situate in Mvurwi. The second applicant leased Disi Farm from the first applicant and was, in terms of the Agreement of Lease, carrying out farming activities on the said farm.

Disi Farm has been acquired by the Government under the land reform program.

In a founding affidavit sworn to by one Robert Strong, it is averred that the second applicant produces approximately 500,000kgs of tobacco every year, 30 hectares of horticulture which is all targeted at export markets, 50 hectares of commercial maize, 30 hectares of sugar beans. The second applicant also has fifteen pedigree cows with followers. The second applicant also operates a wheat meal and a bakery, and supplies the surrounding areas with bread. It is averred that both the first and second applicants have been actively involved with the local community since the early 1990's and support a number of local projects. The first applicant is alleged to have paid a substantial sum towards the extension of Chifumbo School in Mudindo, Guruve, and both have fully supported rural electrification of all schools in the area. Both applicants are said to finance local school stationery requirements.

There has been no interference with their farming activities on Disi Farm since the inception of the land reform program. However, since May 2008, the first respondent has stated to the applicants that he had an offer..., for a section of Disi Farm. Through the existence of the alleged offer letter the first respondent then moved onto Plot 7 on the said farm. Due to the alleged illegal occupation of this portion of the farm by the first respondent the applicants sought, and obtained, an Order for spoliation against him under case number HC4110/2008 which was granted on 18 August 2008. Possession of that portion of the farm was restored in pursuance of the Order granted. This enabled the second applicant to reap its tobacco.

On 17 April, the first respondent returned to the area known as Plot 7 armed with a pistol, and pointed it at a clerk, and forced him to hand over the keys to the storerooms, offices, workshop, and tobacco grading sheds. He then placed locks on all the access gates. On 18 April 2009 the District Administrator instructed that the locks that the first respondent placed be removed, but, after this was done, he, first respondent, came and threatened the workers and chased them off Plot 7. He was armed with a pistol. On 19 April, the first respondent instructed his workers to switch off all pumps and lock all the sheds. Again, on 21 April, the applicants' workers attempted to access the tobacco grading sheds. The first respondent came and switched off the pumps supplying water to the granadillas. There was a standoff between the respondent's workers and those of the applicants. The situation was only alleviated by the arrival of the police. The first respondent had indicated to the applicants' workers that he would only restore possession of the tobacco barns after he and the applicants would have negotiated a Partnership Agreement. Based on these allegations the court had issued a provisional order.

HH150-10 : STRAUSS LOGISTICS LIMITED (UK) vs BP & SHELL MARKETING SERVICES (PRIVATE) LIMITED and SHELL ZIMBABWE (PRIVATE) LIMITED and BP ZIMBABWE (PRIVATE) LIMITED
Ruled By: PATEL J

As for the balance of convenience, the prohibition of the intended sale might cause the potential purchasers to withdraw and thereby occasion irreversible prejudice to BP Africa Limited and Shell Petroleum Company Limited. In short, the applicant has failed to establish any prima facie right or prospect of irreparable harm entitling it to the interdict ...

HH191-10 : SHEPHERD MURAHWI and DEBORAH MURAHWI and PETER SIGAUKE and OTHERS vs MS MAGWENZI and ARROSUM CONSTRUCTION (PVT) LTD and DIVINE HOMES (PVT) LTD and NICANOR ENTERPRISES (PVT) LTD
Ruled By: BERE J

The thrust of counsel for the third to fifth respondents' point in limine was that the applicants were not on firm ground in bringing the interim interdict sought, particularly against the third and fifth respondents, because they did not have a real right to justify their action. He passionately argued it was an elementary principle ...

Counsel for the first and second respondents associated himself with the position adopted by counsel for the third to fifth respondents'. He elaborated on the position by suggesting that the applicants, being holders of personal rights, could not bring the urgent application they had sought before the court for determination.

Counsel for the applicants' position was that the applicants' rights were under siege and were therefore entitled to bring this action. He reasoned it was for the benefit of all the parties involved that this matter be resolved. It was also his contention that the applicants did not need to establish the existence of a real right against the respondents in order to justify the granting of an interim interdict.

The legal position governing the granting of interim relief in the form of an interim interdict is not a subject of speculation. It is settled law and the elementary position is not as espoused by counsel for the third to fifth respondents' and blindly supported by counsel for the first and second respondents. The requirements which an applicant for interim relief must satisfy before he can be granted such relief, and which have been restated on countless occasions, are as follows -

The applicants, in this case, must satisfy the following:

“(a) That the right which has prompted this urgent application, and which they seek to protect, is clear, or, if not clear, is prima facie established though open to some doubt;

(b) That if that right is only prima facie established there is a well-grounded apprehension of irreparable harm to the applicants if the interim interdict is not granted and the applicants ultimately succeed establishing their right.

(d) That the applicants have no other satisfactory remedy.”

See Airfield Investments (Private) Limited v The Minister of Lands and 3 Ors Jdt No. SC36-04...,; L.F. Boshoff Investments (Pty) Ltd v Cape Town Municipality 1969 (2) SA 256…,.

If these are the legal requirements, then, it follows that the whole basis of raising the points in limine by both counsels for the respondents' was both mischievous and a deliberate attempt to poison the court's mind. It was calculated to mislead the court.

The points in limine raised by both counsels are accordingly dismissed as they do not have any legal foundation.

The practice of law is not a question of guess work. It is an exercise that is rooted in well-established legal principles - most of which have withstood the test of time.

The case must be considered on the merits.

HH203-10 : SHEPHERD MURAHWI and DEBORAH MURAHWI and PETER SIGAUKE and OTHERS vs MS MAGWENZI and ARROSUM CONSTRUCTION (PVT) LTD and DIVINE HOMES (PVT) LTD and NICANOR ENTERPRISES (PVT) LTD
Ruled By: BERE J

I have had the privilege of hearing counsel in this matter both on the question of law and the facts relating to this case. I propose to adopt a holistic approach. The question of law It is the settled legal position that in order to be granted interim interdict the applicant must satisfy the following requirements - (a) That ...

HB198-11 : N & R AGENCIES (PVT) LTD and MARK ANDROLIAKOS vs THABANI NDLOVU and MACLEAN BHALA
Ruled By: MATHONSI J

In this urgent application filed on 5 December 2011, the two (2) applicants seek the following relief;“Terms of final order soughtThat you show cause to this honourable court why a final order should not be made in terms of the following terms (sic);It and is hereby ordered that:1. The eviction and removal of the applicants from subdivision ...

In this urgent application filed on 5 December 2011, the two (2) applicants seek the following relief;

“Terms of final order sought

That you show cause to this honourable court why a final order should not be made in terms of the following terms (sic);

It and is hereby ordered that:

1. The eviction and removal of the applicants from subdivision 1 and subdivision 2 of Marcedale Farm due to be effected on 6 December 2011 be and is hereby set aside.

2. The judgment of the court in HC1539/11 is hereby set aside.

3. The respondent shall pay the costs only in the event that he opposes this prayer.

In the alternative

1. The execution of the judgment entered in favour of the respondent against the applicant on the 6^th October 2011 in case number HC1539/11 be and is hereby stayed pending the outcome of the applicant's application for rescission of that judgment.

2. The first and second respondents shall pay the costs of this application.

Interim relief granted

Pending the return date, the applicant be and is hereby granted the following relief:

A. The eviction and removal of the first and second applicants be and is hereby suspended pending the return day of this provisional order.

B. The Deputy Sheriff of this court is instructed not to assist the respondent to remove the applicants and their goods and possessions from subdivision 1 and subdivision 2 of Marcedale farm.

C. The property will not be interfered with pending the return day and should not be sold or otherwise disposed of, or encumbered by the applicants or the respondent.”...,.

In his founding affidavit, the second applicant states that on 30 November 2011 the Deputy Sheriff served the applicants with a Notice of Ejectment from the farm, Subdivision 1 and 2 of Marcedale Farm in Bulilima District of Matabeleland South and a Writ of Ejectment from the said farm. This was in pursuance of an order of this court granted on 6 October 2011.

The order in question interdicts the applicants and those claiming through them from continuing with the illegal occupation of the two (2) pieces of land. It also directs the Deputy Sheriff to evict the applicants and those claiming through them from the land. That order was issued following the applicant's failure to file heads of argument in a summary judgment application made by the respondents in case number HC1539/11 resulting in them being automatically barred. Following a chamber application made by the respondents, in case number HC2203/11, an order was made, on 19 September 2011, granting them leave to set down case number HC1539/11 on the unopposed roll resulting in the order of 6 October 2011 I have already referred to.

Although the applicants were aware of the pending eviction on 6 December 2011 from 30 November 2011; it was not until the 11th hour, that is, 5 December 2011 that they filed this urgent application. The matter was placed before NDOU J who directed that it be set down for hearing on 13 December 2011 and that the application, together with a notice of set down, be served upon the respondents.

It has since come to my attention, through submissions made by counsel for the respondents, that the application and the notice of set down aforesaid were only served upon him barely 2 hours before the scheduled time of hearing. In fact, the notice of set down was only filed on the date of hearing - 13 December 2011.

It has also been brought to my attention that eviction was carried out on 6 December 2011, as scheduled, and the Deputy Sheriff's return of service to that effect has been submitted. In spite of that development, the applicants have not seen it fit to revise their application to reflect the latest developments. More importantly, they have not disclosed those facts at all. Throughout his submissions, counsel for the applicant made no reference, whatsoever, to the eviction of the applicants, contenting himself with leading evidence from the bar, as it were, on the number of families and cattle on the farm and the inconvenience they will suffer as a result of eviction - an eviction which has already taken place.

There has been serious material non-disclosures in this application and if service upon the respondents had not been ordered, I would have determined the matter without knowing that the applicants have already been evicted….,.

The applicants seek interim relief for a stay of execution which has already taken place. No attempt has been made to amend the claim in recognition of the fact that it is no longer possible to stay execution.

As it stands, the relief sought is clearly incompetent.

HB32-10 : CHIGOZIE KINGSLEY OBI vs THE STATE and THE CHIEF IMMIGRATION OFFICER (BULAWAYO)
Ruled By: NDOU J

From the foregoing, the applicant has failed to establish one of the requirements of the interdict i.e. a clear right and show an infringement of such right or at least a well-grounded apprehension of such infringement – Mabhodo Irrigation Group v Kadye Ors HB08-03; Setlogelo v Setlogelo 1914 AD 221…, and Zimbabwe Music ...

HB33-10 : PANSIKWE MINERALS CO-OPERATIVE vs FOREMAN HLABANGANA and CONSOLIDATED PRE-CO-OPERATIVE
Ruled By: NDOU J

The applicant has established as least a prima facie right which requires legal protection in respect of Norma V 2-4 mining claims.

HB54-10 : VISION SITHOLE vs LESLIE KHUMALO and DEPUTY SHERIFF
Ruled By: KAMOCHA J

There can be no doubt that the applicant timeously filed his two applications.The sticking point, however, is whether or not he has met the requirements for the interdict that he seeks. Has he got a prima facie or a clear right over the property that is at the centre of this dispute? His story was that sometime in ...

HB100-10 : STEPHEN NDLOVU vs THE OFFICER COMMANDING ZRP, BULAWAYO PROVINCE and THE COMMISSIONER GENERAL and CO-MINISTER OF HOME AFFAIRS
Ruled By: CHEDA J

In the determination of an interdict, one of the considerations a court will bear in mind is the harm which may flow from its failure to stop or allow a certain occurrence. In casu, the applicant has a seven (7)-day sentence hanging on him. If the respondent is allowed to execute and he succeeds ...

HB110-10 : HIGHLANDERS FC vs DYNAMOS FC and PREMIER SOCCER LEAGUE and BANC ABC (PRVIATE) LIMITED and CUTHBERT CHITIMA and DON MOYO, Chairman, Ad Hoc Arbitrators Committee and KENNEDY NDEBELE, PSL, C.E.O
Ruled By: NDOU J

The applicant seeks a provisional order suspending the playing of the BANC ABC Super 8 Cup Final game between the first respondent and CAPS United pending the application for review filed in this court under HC1800/10. The salient facts of the case are the following. Highlanders and Dynamos are football teams playing in the Premier Soccer League. ...

The salient facts of the case are the following.

Highlanders and Dynamos are football teams playing in the Premier Soccer League. Highlanders and Dynamos engaged each other in a semi-final fixture. The game was characterized by anarchy leading to its eventual abandonment when the referee deemed it too dark to continue. In short, Highlanders is unhappy with the determination of the Ad Hoc Arbitration Committee chaired by the fifth respondent.

Highlanders filed the above-mentioned application for review and they now seek to stay the final game of the competition pending the outcome of the review application.

The application is opposed by all respondents save for the third respondent. The sixth respondent raised preliminary points which I propose to consider in turn before dealing with the application on the merits…..,.

On the merits, it is clear that this is an application for an interdict. For the applicant to succeed it must satisfy the following requirements –

(a) A clear or prima facie right;

(b) A well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted;

(d) That the applicant has no other satisfactory remedy.

Phillips Electrical (Pvt) Ltd v Gwanzura 1988 (2) ZLR 117 (HC); Nienaber v Stuckey 1946 AD 1049….,.; Flame Lily Investments (Pty) Ltd v Zimbabwe Salvage (Pvt) Ltd & Anor 1980 ZLR 388; and Rowland Electro Engineering (Pvt) Ltd v ZIMBANK 2003 (1) ZLR 223 (H).

It is beyond dispute that as a participant in the competition, Highlanders have a clear right to protest flaws in the competition. The basis of the protest is detailed in the applicant's papers. The applicant has a well- grounded apprehension that should the final game to be played before the application under HC1800/10 is determined, the latter outcome will be of academic nature.

The balance of convenience favours the granting of the interim relief. If the application under HC1800/10 is ruled in favour of the applicant after the final game it would mean that the game between the applicant and first respondent will be replayed. If the other team, CAPS FC, has won the final game, the may not accept the turn of events resulting in further legal contestation. This is not good for all the parties involved - including the first and second respondents. This will, in any event, defeat the objective of clause 13.1 of the competition as the cup tournament will be characterized by unnecessary litigation. It does not make sense that a cup final game is played when there are pending issues which may affect the outcome outside the football pitch. The balance of convenience favours the determination of all outstanding protests before the final game.

Finally, the applicant has no other satisfactory remedy as alluded to above in view of the provisions of clause 13.2 of the competition rules..,.

Accordingly, I grant the provisional order in terms of the amended draft order against the first and second respondents only….,.

HH25-11 : THIRDLINE TRADING (PRIVATE) LIMITED t/a ZITAC and ONCLASS INVESTMENTS (PRIVATE LIMITED) vs BOKA INVESTMENTS (PRIVATE) LIMITED
Ruled By: MAVANGIRA J

The applicants' contention that the respondent intends to evict them from the leased premises without their consent or the authority of a court order is based, or premised, on suspicion and from certain media reports. It is not based on any direct communication to them from the respondent. It is the applicants' suspicion that as ...

It is not based on any direct communication to them from the respondent.

It is the applicants' suspicion that as the respondent has been, or is to be, awarded a tobacco auctioning license and in view of the nature of repairs or demolitions and alterations that the respondent is carrying out, it follows that when the tobacco auctioning season starts, in three and half weeks' time, the respondent will conduct the business of tobacco auctioning from the leased premises thereby effecting a constructive eviction of the applicants. This appears to be the reason why the applicants have now barred the respondent from entry into the premises.

The applicants do not state their authority for barring the respondent as alleged.

It appears to me that the applicants' suspicion, as detailed above, cannot be justification for the relief sought in paragraph (a) of the interim relief sought viz, that the respondent be interdicted from unlawfully ejecting the applicants and from interfering with their business without the authority of an order of a competent court. In any event, besides it being mere suspicion on the part of the applicants, it is the applicants' word against the respondent's word. The respondent has categorically denied harbouring the intention ascribed to it by the applicants. If anything, despite the clear provisions of the consent order of 24 December 2010, the respondent finds itself barred from obtaining access into the premises for the purposes stated in the order.

In addition…, the applicants, by their own admission, have decided to withhold payment of rentals for the premises for the month of January 2011. They justify this decision on the basis that they are not certain whether or not they will be ejected. Thus, in one breath the applicants advise the court that they have decided not to and they have not paid rent as required in terms of their lease agreement and in the next breath they ask the same court to ensure that the other party is held to the terms of the same lease agreement which they are breaching themselves.

It is common cause that the dispute relating to the rights of the parties in terms of the lease agreement is pending before the court. The proceedings in which the eviction of the applicants from the leased premises is sought is also pending before the court. In all, the parties have four matters pending in the High Court. The applicants seek the relief stated in paragraphs (a), (b) and (d) pending the determination of the said pending matters yet they have decided to withhold payment of rentals to the respondent before the same matters have been determined. If the applicants' clear or prima facie right is based on their rights in terms of the lease agreement, as they contend, it makes a mockery of justice for them to ask the court to grant the relief that they seek when they have decided to conduct themselves as if they are not bound by the lease agreement.

Clause 14 of the lease agreement which was referred to in the order of 24 December 2010 provides as follows:

“14. LESSOR'S RIGHT OF ENTRY

14.1 The lessor's representatives, agents, servants and contractors may, at all reasonable times, enter the property, or any part of the property, in order to inspect it, to carry out any necessary repairs, replacement or other works of a structural nature, or to perform any other lawful function in the bona fide interests of the lessor. The lessor shall ensure that this right is exercised with due regard for, and a minimum of interference with, a beneficial enjoyment of the property by those in occupation thereof.

14.2 The lessee shall not, however, cause or allow any major building works to be carried out anywhere upon the property without the lessor's prior written consent. The lessor shall ensure that, even after the lessee's consent is so obtained, the building works are completed within a reasonable time.”

As for the order sought in paragraph (c) of the interim relief wherein the respondent is to restore the applicants' signage, the applicants' justification is that the respondent has exceeded the limits of the order of 24 December 2010.

If the respondent has exceeded the limits of the order, as alleged, the applicants' remedy would appear to be, as submitted on behalf of the respondent, to bring contempt of court proceedings against the respondent. The applicants have chosen not to do that. Rather, after denying the respondent access granted to it in terms of the order of 24 December, 2010, they then instituted these proceedings in which the relief which they seek, if granted, has the overall effect, in the main, of circumventing the said consent order.

In the result, I am not satisfied that the applicants have established a right; that they have established a reasonable apprehension of irreparable harm; and that there is no other alternative remedy. The applicants have not laid a basis justifying the court exercising its discretion in their favour and granting them the relief that they seek in the provisional order attached to their application. The applicants' own admitted conduct further tips the balance against them. Costs will follow the cause.

I therefore dismiss the application with costs.

HH25-13 : YEMANE BERHE WELDESLASSIE vs MORDORIC MARKETING (PVT) LTD and MOLLIE MUCHABAIWA and SHAMSTER INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

On the merits of the application, the papers before me show that the parties entered into an agreement, the spirit of which was that the applicant would inject money and stock into a joint venture. The second respondent would market the goods brought into the country on behalf of the applicant for a commission and was also paid an allowance. It would appear that at some stage the applicant wanted to suspend the joint venture agreement as a result of which the parties then signed a written agreement on 2 March 2012 the terms of which are clear, namely, that the goods or stock being marketed by the second respondent as representative of the first respondent were to be moved to another warehouse to reduce overheads at their then warehouse Number 1 Waynne Street Harare. In terms of clause 2.6, all the trading stock was to be placed under the control of one Tigist while the second respondent continued to market it. The arrangement was to subsist until 30 April 2012.

That agreement was extended, by an addendum signed on 17 May 2012, to 31 July 2012 at which time the applicant was to take over the responsibility of selling the outstanding stock. No further extension was made.

Subsequent to that, a dispute arose between the parties over ownership of those goods. This prompted the applicant to institute summons action, aforesaid, seeking an order determining the rights of the parties. The first and the second respondents are still to oppose that action, which was filed on 11 December 2012. What they have done though is to ignore the process and resort to removal of goods as if no litigation is pending.

I agree with counsel for the applicant that if the first and the second respondents' actions are allowed to perpetuate there would be nothing left for the court to determine in HC14184/12. Justice therefore demands that until such time that the respective rights of the parties are determined, the goods in dispute should remain secured.

I am therefore satisfied that a case has been made for interim relief barring the removal or disposal of the goods which are the subject of the agreement signed on 2 March 2012 and its addendum signed on 17 May 2012 until the dispute is resolved by the court.

Accordingly, I grant the provisional order in terms of the draft order as amended.

HH52-13 : SOUTHMARK TRADING (PRIVATE) LIMITED and OTHERS vs KAROI PROPERTIES (PRIVATE) LIMITED and GEDION HWEMENDE and NATIONAL INDIGENISATION AND ECONOMIC EMPOWERMENT BOARD and OTHERS
Ruled By: ZHOU J

The requisites for…, temporary relief are settled. They are: (a) That the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt; (b) That, if the right is only prima facie ...

The requisites for…, temporary relief are settled. They are:

(a) That the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt;

(b) That, if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;

(d) That the applicant has no other satisfactory remedy.

See Nyika Investments (Pvt) Ltd v Zimasco Holdings (Pvt) Ltd & Ors 2001 (1) ZLR 212 (H)…,.; Watson v Gilson Enterprises & Ors 1997 (2) ZLR 318 (H)….,.; and Econet (Pvt) Ltd v Minister of Information, Post and Telecommunication 1997 (1) ZLR 342 (H)….,.

Where a clear right is proved, the applicant for a temporary interdict need not show that he or she will suffer irreparable harm if the interdict is not granted. The applicant merely has to show that an injury has been committed or that there is a reasonable apprehension that an injury will be committed. Nyika Investments (Pvt) Ltd v Zimasco Holdings (Pvt) Ltd & Ors 2001 (1) ZLR 212 (H).

In the instant case, the applicants have a clear right to occupy the premises which they lease from the first respondent. That right entails the right to peaceful use and enjoyment of the leased property without any disturbance from different agents or law firms purporting to act for the same landlord. Injury has already been committed in the form of the disturbances of, or interference with, the applicants' business operations and the making of a claim for their eviction in the Magistrates' Court. I have no difficulty in finding that the balance of convenience favours the granting of the relief. The prejudice which the applicants would continue to suffer if the interdict is not granted outweighs any inconvenience which may be experienced by the first respondent if the interim relief is granted. I accept, too, that the applicants have no alternative remedy which would afford them satisfactory relief against the infraction of their rights by the first to fourth respondents and their appointed agents. I am, therefore, satisfied that the applicants are entitled to the relief being sought.

In the result, it is ordered as follows:

TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The first, second, third and fourth respondents are interdicted from demanding rent from the applicants other than in accordance with a valid resolution of the duly appointed Directors of the first respondent which resolution shall be furnished to the applicants.

2. The first, third and fourth respondents shall pay the costs of this application on an attorney-client scale jointly and severally the one paying the others to be absolved.

INTERIM RELIEF GRANTED

Pending determination of this matter, the applicants are granted the following relief:

1. The applicants shall pay the monthly rentals due to the first respondent to the Registrar of the High Court or to a reputable estate agent appointed by the Registrar and the amounts paid shall be held in trust for the first respondent until the issues of its shareholding and directorship have been resolved.

2. The proceedings instituted by the first respondent against the applicants in the Magistrates' Court in case number MC14405/12 be and are hereby stayed.

3. The third respondent and all persons claiming occupation through him shall forthwith vacate the premises he occupies on Stand 184 Mutare Road, Msasa, Harare, failing which the Deputy Sheriff shall take all steps necessary to eject him from the premises.

4. The fourth respondent shall pay the fifth respondent's costs on an attorney-client scale.

SERVICE OF PROVISIONAL ORDER

The applicants' legal practitioners are given leave to serve a copy of this provisional order upon the first, second, third and fourth respondents.

HH69-11 : WALTER CHIGWADA and PATRICIA CHIGWADA vs THE OFFICER COMMANDING C.I.D. SERIOUS FRAUDS and THE COMMISSIONER GENERAL, ZRP and OTHERS
Ruled By: KARWI J

It is also my view that the applicants have failed to comply with the requirements for an interdict of this nature on an urgent basis. It seems to me that the applicants have failed to prove that they would suffer some irreparable harm if their prayer is not granted. When the motor vehicle was recovered by ...

HH101-11 : HERENTALS COLLEGE (PRIVATE) LIMITED vs RELEASE POWER INVESTMENTS (PRIVATE) LIMITED and ONIYAS GUMBO and MR CHINYAMUCHIKO (In his capacity as the Headmaster of Cold Comfort Primary School)
Ruled By: BERE J

ALLEGED OWNERSHIP OF THE PROPERTY It would appear to me that the respondents' position was that in the absence of evidence that the applicant had acquired ownership of the property in question then it could not sue for an interdict to be granted in its favour. I am afraid I did not find this argument to be ...

ALLEGED OWNERSHIP OF THE PROPERTY

It would appear to me that the respondents' position was that in the absence of evidence that the applicant had acquired ownership of the property in question then it could not sue for an interdict to be granted in its favour.

I am afraid I did not find this argument to be appealing at all for ownership of the violated property is certainly not one of the requirements that must be established to assert one's entitlement to a temporary interdict. It is doubtful if at all the respondents' counsel believed in the submissions he made on this point….,.

THE REQUIEMENTS OF AN INTERDICT

The applicant sought to have the respondents restrained and interdicted from interfering with the applicant's smooth operations of the children's learning pending the resolution of the raging dispute over ownership of the learning institution in question. The requisites of a prohibitory interdict, as sought by the applicant in this matter, are not in issue and I am relieved both counsel are in agreement. These requirements can be traced back to the much celebrated case of Setlogelo v Setlogelo 1914 AD 221…, and these requirements are:-

1. The existence of a clear or definite right on the part of the applicant.

2. That there is an injury actually committed against applicant or reasonably apprehended against same.

3. The absence of a similar protection by any other ordinary remedy.

As stated, it is a trite principle of our law that before an interim interdict can be granted the applicant must establish that he has, at the very least, a prima facie right screaming for protection.

The evidence placed before the Court is that the applicant purchased the property upon which the school is located. Annexures A-C confirm the transaction in question. The applicant, which is an educational institution, avers in paragraph 7 of its founding papers as follows:-

“In essence, when Applicant College purchased the said property it effectively became the owner of the school, which was the main reason why it bought the property, anyway, since it is in the education services.”

Counsel for the respondent has strongly argued that by purchasing land the applicant did not necessarily purchase the school.

Quite a persuasive argument it was.

The tragedy is that none of the respondents gave evidence to this effect despite having been afforded numerous opportunities to do so. The result was that their counsel literally ended up giving evidence on this issue.

The respondents' notice of opposition was not helpful in this regard. The thrust in the notice of opposition was to highlight the possibility of fraud in the bringing to life of the Sale Agreement 'Annexure A' to applicant's papers. There was no pointed submission by the respondents that the applicant did not purchase the school in order to counter the averments by the applicant.

In my well-considered view, it would have been inconceivable for the applicant, given its accepted role in the education system, to have purchased the property in question minus the school.

As rightly pointed out by the applicant's counsel, Annexures G and H reaffirm the school itself has always been regarded as inseparable from Unitime Investments (Pvt) Ltd. In the Court's view, the applicants must be believed when they allege that the acquisition of the property was inclusive of the acquisition of the school in question. This does not amount to re-writing the parties' contract.

Annexure 'D', which is the letter of 6-5/11, further reaffirmed the applicant's position. Further, the signature and the name of A.J Mapanzure on Annexures 'G' and 'H' do not portray the fourth respondent in good light in this whole saga. This probably explains why he has failed to put in an affidavit or any other form of evidence in this matter in supporting the position taken by the first respondent or in support of that position.

The urgent application itself, the certificate of urgency and the founding affidavit (para 9 thereof) highlight the injury or reasonable apprehension caused to the school by the respondents. The interference in the smooth running of the school is canvassed and the specific roles of the respondents in that regard is equally highlighted. The harassment of pupils and the running of a parallel structure for the school are both mentioned and, if true, these are a serious threat to the school itself….,.

There is another dimension to this case.

If one were to accept the position stated by Edmore Mutare, in paragraph 1.1 of his affidavit, one is left to ponder on the seriousness of the allegations stated therein. If true, these allegations would have attracted relief of a mandament van spolie. Neither the first respondent nor the other respondents sought to obtain this relief. The first respondent has not counter claimed in this application. Looked at in conjunction with the newspaper cuttings referred to in its notice of opposition the conclusion would be in escapable that its hitherto peaceful and undisturbed occupation of the school had been seriously violated. It is the inaction on the part of the first respondent and the rest of the other respondents which casts serious doubt on the bona fides or veracity of such allegations. Even the newspaper articles must be looked at within this context. In any event, the newspaper articles which appear to be loaded with hearsay information cannot be granted greater weight than the evidence on oath tendered by the applicant. There is no doubt in my mind that whichever way one looks at this case, the education of the children is being extremely compromised by the conduct of the respondents as alleged by the applicant. I am unable to imagine any other remedy that could be put in place to protect them until the dispute between the parties is resolved other than granting the provisional order sought.

Consequently, I order as follows:

Pending the determination of this matter, the applicant is granted the following relief:

1. The first, second, third and fourth respondents be and are hereby restrained and interdicted from interfering with or otherwise disrupting applicant's business operations including the running of a school at Stand Number 7953 Tynwald Township of Stand 7739 Tynwald Township.

2. The first, second, third and fourth respondents be and are hereby restrained and interdicted from registering and otherwise receiving levies and school fees from children registered by the applicant and from attempting to run parallel school administration structures other than those currently being run and operated by the applicant at Stand Number 7953 Tynwald Township of Stand 7739 Tynwald Township.

Service of Provisional Order

This provisional Order shall be served on the respondents by the applicant's legal practitioners.

HH328-13 : NORTHERN FARMING [PVT] LTD vs VEGRA MERCHANTS [PVT] LTD t/a VEGRA COMMODITIES and CHENA MILLERS (PVT) LTD
Ruled By: MAFUSIRE J

What the applicant sought in the present matter was simply a prohibitory interdict in the interim. The requisites for such an interdict are: 1. A prima facie right; 2. A well-grounded apprehension of irreparable harm if the relief is not granted; 3. That the balance of convenience favours the granting of an interim interdict; 4. That there is ...

Appealed
HH158-11 : TRUSTCO MOBILE (PTY) LIMITED and TRUSTCO GROUP INTERNATIONAL (PTY) LIMITED vs ECONET WIRELESS (PRIVATE) LIMITED and FIRST MUTUAL LIFE ASSURANCE COMPANY (PRIVATE) LIMITED
Ruled By: MUTEMA J

THAT REQUIREMENTS FOR AN INTERDICT HAVE NOT BEEN MET The requirements for a temporary interdict are trite and there exists a plethora of case law authorities on this subject. They are these: 1. A prima facie right, even though open to some doubt; 2. A well-grounded apprehension of injury; 3. The absence of some other adequate and ...

THAT REQUIREMENTS FOR AN INTERDICT HAVE NOT BEEN MET

The requirements for a temporary interdict are trite and there exists a plethora of case law authorities on this subject. They are these:

1. A prima facie right, even though open to some doubt;

2. A well-grounded apprehension of injury;

3. The absence of some other adequate and ordinary remedy; and

4. The balance of convenience.

It is common ground that the parties entered into an agreement whose terms are spelt out in the agreement document. The first applicant's mobile concept was to be used for the purpose of providing life cover insurance to the first respondent's mobile cellular phone subscribers. That agreement was to endure for 18 months with the first applicant receiving royalties. Only 9 months have gone. This clearly constitutes a prima facie right accruing to the first applicant. It is not even open to some doubt. The first applicant, via being connected to the first respondent's IT platform, used to monitor the number of subscribers to Ecolife so as to be able to determine the amount of royalties it was entitled to. The first respondent, due to some dispute between the parties, which dispute should go for arbitration, has switched off the first applicant's access to the platform. Over and above that the first respondent contends that the agreement has since been terminated/cancelled at the instance of the first applicant but the first applicant contends that the agreement still subsists. The first applicant apprehends the injury that it can no longer monitor the amount of subscription to Ecolife and it has also been weaned off its dues in the form of royalties before the agreement has run its full life or has been lawfully terminated. It also fears that by moving to an alternative system five days after “terminating” the agreement, the first respondent has infringed on its concept. I find this to constitute a well-grounded apprehension of injury. It is idle for the first respondent to argue that it is not infringing on the applicants' mobile concept which it alleges has defects and that it is not subject to intellectual property rights because the application to patent it was refused. While the applicants attached documentation of the application to ARIPO (African Regional Intellectual Property Organisation), including acknowledgment of receipt thereof, the first respondent simply averred, in its opposing affidavit, that such application was not successful - without any attachment from ARIPO (African Regional Intellectual Property Organisation) to that effect. If the applicants' system was defective why take 9 months to terminate? Why agree to use the system in the first place if the first respondent had its own mobile concept and why the capability now to move to an alternative system five days following “cancellation?”

Where, such as in this case, a clear right is established which is not open to doubt, it is not necessary for an applicant to prove irreparable injury: Charuma Blasting & Earthmoving Services (Pvt) Ltd v Njainjai & Ors 2000 (1) ZLR 85 (SC).

Regarding the absence of other adequate remedy available, none other is available to the applicants to achieve the preservation of the status quo pending determination of the dispute by way of arbitration.

The balance of convenience clearly favours the applicants as the prejudice to them would be very much greater than to the first respondent. Damages will be difficult to prove on the part of the applicants.

HB35-11 : CARSLONE ENTERPRISES P/L vs WILSON SVOVA
Ruled By: MATHONSI J

The requirements for an interlocutory interdict were set out in Bozimo Trade Development Co (Pvt) Ltd v First Merchant Bank of Zimbabwe Ltd Others 2000 (1) ZLR 1 (H) where CHATIKOBO J stated…,: ''One must then recall the traditional requirements for an interlocutory interdict. They were originally set out in Setlogelo ...

The requirements for an interlocutory interdict were set out in Bozimo Trade & Development Co (Pvt) Ltd v First Merchant Bank of Zimbabwe Ltd & Others 2000 (1) ZLR 1 (H) where CHATIKOBO J stated…,:

''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 counsel 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….,.

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.

HH68-14 : FAIRDROP TRADING (PRIVATE) LIMITED vs THE ZIMBABWE REVENUE AUTHORITY
Ruled By: MAFUSIRE J

On the merits, for one to succeed for an interim interdict one must show at least four elements. These are: 1. That one has a prima facie right that one wishes to protect even though the right be open to some doubt. 2. That one has a well-grounded apprehension of an irreparable harm such as would not ...

HH87-14 : MUTUMWA MAWERE and SMM HOLDINGS LTD and THZ HOLDINGS LTD and AFRICA RESOURCES LTD vs MINISTER OF MINES AND MINING DEVELOPMENT and ZIMBABWE MINING DEVELOPMENT CORP and AFARAS GWARADZIMBA
Ruled By: MANGOTA J

The respondents' third matter in limine was that the applicants will not suffer irreparable harm. The applicants, on the other hand, insisted that irreparable harm would visit them if the main application is not heard on an urgent basis. They stated that, where the main and the rescission, applications succeed when execution has been made ...

HB130-11 : THOMAS MUTAMBIRWA and 70 OTHERS vs ARJUN INVESTMENTS (PVT) LTD
Ruled By: NDOU J

If I am wrong…, still the application should fail because the applicant has alternative remedy. The applicants have asserted that they were given a right of first refusal by the previous owner of the property who sold it to the respondent. They have remedies in the nature of whatever damages they can prove against the previous owner….,. ...

HH303-14 : BRIGHTON NZARA vs CALISTO TSANYAU & OTHERS
Ruled By: MATHONSI J

On the merits of the matter, counsel for the first respondent did not advance any basis for denying the applicant his absolute right of appeal, content to say that the trial magistrate was correct in arriving at that decision because the other members of the co-operative had been prejudiced. Considering that an interim order for a ...

HH311-14 : MAXWELL MATSVIMBO SIBANDA vs GYWNNE ANN STEVENSON and THE REGISTRAR OF DEEDS
Ruled By: DUBE J

Having found that there has not been shown the existence of a prima facie right, the issue of irreparable harm does not arise. However, even assuming I am wrong in this view, the applicant's fears are without foundation. The applicant fears that if the respondent sells the property and takes the funds out of the jurisdiction ...

Having found that there has not been shown the existence of a prima facie right, the issue of irreparable harm does not arise. However, even assuming I am wrong in this view, the applicant's fears are without foundation.

The applicant fears that if the respondent sells the property and takes the funds out of the jurisdiction of the court, it will be difficult for him to recover the money he expended in effecting the improvements. He has not shown that the applicant intends to dispose of the property for purposes defeating satisfaction of his claim for improvements. The respondent has an order for holding over damages of $55,000=. These have been calculated up to November 2012 and currently stand at $101,000=. The applicant has been in the premises since then and continues to accrue further holding over damages. What also ought to be considered is that part of the applicant's claim has prescribed and it is unlikely that the applicant's remaining claim for improvements will exceed that of holding over damages. The respondent is prepared to set off this amount against what he may be owing the applicant. In the event that the applicant wins the application for improvements, he can still enforce the judgement wherever the respondent may be.

He is unlikely to suffer any irreparable harm or prejudice.

The applicant seeks a temporary interdict which he equates to a caveat. The two remedies are different. This property is not res litigosa after the applicant failed in his claim for transfer of the property. The applicant could have opted for an ordinary caveat because the applicant no longer has any right over the property. An order that the money be held in trust until the finalisation of the application would have the same effects as an interdict. The remedy sought is too drastic in the circumstances of this case.

There exists other remedies which can adequately protect him in the same way as an interdict.

The balance of convenience favours both parties.

The respondent stands to be prejudiced if the relief sought is granted and the application for unjust enrichment is dismissed. The respondent will not be able to sell the property should she choose to do so. The applicant, on the other hand, will be inconvenienced if the relief sought is refused and he ultimately wins the claim for improvements. He will be required to pursue the respondent who is based outside Zimbabwe. This will be costly for him.

Having considered these factors together, I am not satisfied that the applicant has shown a good basis for an interdict.

In the result, it is ordered as follows:-

1. The application is dismissed.

2. The applicant shall pay the costs of this application.

HH322-14 : J.L ROBINSON AGENCIES (PVT) LTD t/a AMALGAMATED MOTOR CORPORATION vs DANFORD CHAMWARURA and THE SHERIFF OF ZIMBABWE
Ruled By: MUREMBA J

I granted the final order, as prayed for, for two reasons. Firstly, the first respondent had consented to it. Secondly, it is the order which made sense since the application for rescission of judgment had been granted. The interim order initially applied for would not have made any sense considering that there had been ...

HB02-16 : AMOS JIHAZI vs THE REGISTRAR OF HIGH COURT N.O. and THE ADMINISTRATOR N.O. and SMM HOLDINGS (PVT) LTD and MESSENGER OF COURT, ZVISHAVANE N.O.
Ruled By: TAKUVA J

The rules regarding the granting of an interdict are well settled in our law. CORBETT J…, formulated the requirements of an interlocutory interdict as follows: “Briefly, these requisites are that the applicant for such temporary relief must show – (a) That the right which is the subject matter of the main action and which he seeks ...

HB03-16 : SANPOULUS MAPLANKA vs OLIVER MASOMERA and THE DEPUTY MASTER
Ruled By: TAKUVA J

An application for an interdict can only be granted if all the requisites of a prohibitory interdict are established. The locus classicus of the cases which set out these criteria is Setlogelo v Setlogelo 1914 AD 221…,. In Tribal (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52, these criteria were stated as: “1. ...

“1. A clear or definite right – this is a matter of substantive law;

2. An injury actually committed or reasonably apprehended – an infringement of the right established and resultant prejudice.

3. The absence of a similar protection by any other ordinary remedy. The alternative remedy must;

(a) Be adequate in the circumstances;

(b) Be ordinary and reasonable;

(c ) Be a legal remedy; and

(d) Grant similar protection.”

See also PTC Pension Fund v Standard Chartered Merchant Bank Zimbabwe Ltd and Anor 1993 (1) ZLR 55 (H)…,.

In Econet (Pvt) Ltd v Min of Information, Posts & Telecommunications 1997 (1) ZLR 342 (H), it was held, per ADAM J, that for the grant of a temporary or interim interdict, the requisites are that –

“(1) The right sought to be protected is clear; or

(2)(a) If it is not clear, it is prima facie established, even though open to doubt; and

(b) There is a well grounded apprehension of irreparable harm if the relief is not granted and the applicant ultimately succeeds in establishing his right;

(3) The balance of convenience favours the grant of the relief; and

(4) There be no other satisfactory remedy.”

See also Nyambi & Ors v Minister of Local Government & Anor 2012 (1) ZLR 569 (H).

C. B. PREST, The Law & Practice of Interdicts…., states;

“The court has to decide, in its discretion, whether or not to grant a temporary interdict. In the exercise of this discretion, it must be satisfied that the applicant has proved an actual or well grounded apprehension of irreparable loss if no interdict is granted and it must have regard to the balance of convenience. The balance of convenience, however, becomes relevant only when a prima facie ground for an interdict has been established.

This is the threshold that must be crossed and a failure so to do means that an applicant cannot succeed in his claim.”

Put differently, where an applicant for an interdict proves a clear right, then, he need not show that he will suffer irreparable harm if the interdict is not granted. He merely has to show that an injury has been committed or that there is a reasonable apprehension that an injury will be committed.

HB04-16 : PATIENCE MAFU vs FREEMAN BIBA NCUBE and THE BULAWAYO CITY COUNCIL
Ruled By: MATHONSI J

The applicant seeks a temporary interdict and must therefore establish the traditional requirements for such an interdict, namely; (i) A prima facie right; (ii) An injury actually committed or reasonably apprehended; (iii) The absence of similar protection afforded by any other ordinary remedy; and (iv) A balance of convenience favouring the grant of the interdict. ...

HH11-15 : RM MINING AND INDUSTRIAL ZIMBABWE (PRIVATE) LIMITED vs STANBIC BANK ZIMBABWE LIMITED
Ruled By: MAFUSIRE J

Following certain concerns that I had raised on the form and content of the urgent chamber application herein, the applicant decided to withdraw it. However, it insisted that each party should bear their own costs. On the other hand, the respondent insisted not only on its costs, but also that they be paid on ...

After full argument on costs I awarded them at the higher scale. Below are my reasons, most of which I had given ex tempore.

The urgent chamber application had been for an order that the respondent (“the Bank”) should uplift or remove the embargo that it had unilaterally placed on the applicant's account with it.

The applicant's deponent, one Richard Mayiya (hereafter referred to as “Richard”), was a Director of the applicant. He claimed that two other Directors, a husband and wife team based in South Africa, had resigned. He said that such a development had been communicated to the Bank with instructions to alter the signing mandate originally given to it. The mandate had included those Directors. The Bank had initially complied. Richard Mayiya said he had made some four withdrawals single handedly. However, the one ex-Director, the husband, one Reuben Munsamy (hereafter referred to as “Reuben”), had subsequently written to the Bank on the applicant's forged letter-head, denying that he had resigned from the applicant and that he was still a signatory to the account. The letter had warned the Bank of grave consequences if it should honour requests for withdrawals on the basis of Richard's single signature.

The Bank had filed a notice of opposition objecting to the urgent chamber application on both technical and substantive grounds. But since the application was withdrawn it became unnecessary to argue it on the merits, except in so far as they had a bearing on the question of costs.

At the hearing, the applicant had wanted a postponement. It transpired that as they had been waiting to be called into chambers the parties had had an opportunity to discuss the matter. It seems the issue had finally crystallised into whether or not Reuben Munsamy had indeed resigned as a Director of the applicant and was no longer concerned with the manner the applicant's account with the Bank would be run. The applicant wanted a postponement to present its second resolution that allegedly would prove that Reuben had indeed resigned. The first resolution was the one on which the application had largely been predicated upon. It had been challenged.

The Bank was opposed to a postponement. Among other things, it said the applicant had had ample opportunity to produce proof of Reuben Munsamy's resignation and that the purpose for which the applicant wanted the postponement, namely, to produce another resolution, would not change the complexion of the case. It seemed the Bank wanted Reuben himself to provide the proof of his resignation and to confirm the alteration of the signing arrangements.

There was a stalemate.

Counsel for the applicant formally moved the application for a postponement. Counsel for the Bank responded. It was before counsel for the applicant could reply that I raised my concerns in order that he could take them into account in his reply.

It had seemed to me, even before I had read the notice of opposition, that the urgent chamber application was defective in a number of ways. So I felt if the application was to be postponed I had to be satisfied that it was regular in the first place. It was at that point that the applicant decided to withdraw it. I felt it was a decision well-taken and I commended counsel for the applicant for it.

The applicant's grounds for insisting that each party should bear their own costs was that the Bank's action in “freezing” its account had been taken unilaterally; that it had not afforded the applicant a chance to make representation and that there had been no justification for such action given that proof of Reuben Munsamy's resignation, in the form of a Form CR14, had been furnished to the Bank. Furthermore, the Bank must have initially accepted the applicant's position because Richard Mayiya had made four withdrawals soon thereafter before the embargo had been placed.

In spite of the applicant's submissions, I not only awarded the costs against the applicant but also on the higher scale. My reasons were these.

The urgent chamber application was defective from the outset. It had not been in Form 29 of the Rules of this court as required by the proviso to Rule 241(2): see Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H); Minister of Higher & Tertiary Education v BMA Fasteners (Private) Limited & Ors HB42-14 and Base Minerals Zimbabwe (Private) Limited & Anor v Chirosva Minerals (Private) Limited HH559-14. Among other things, the grounds for the application had not been set out on the face of the application.

The certificate of urgency was also defective.

It did not comply with Rule 244. Among other things, it omitted the most basic of information on which the legal practitioner who had certified the matter to be one of urgency had based her conclusions on. Incidentally, she happened to be the same legal practitioner of record for the applicant – an aspect that I did not take issue with despite the respondent's protestation. Virtually all the averments in the purported certificate of urgency had been arguments on the merits of the case, essentially why the Bank had to be ordered to uplift the embargo.

In General Transport & Engineering (Pvt) Ltd & Ors v Zimbabwe Banking Corporation Ltd 1998 (2) ZLR 301 (HC), it was held that the reason behind the certificate of urgency is that the court is only prepared to act urgently in a matter where a legal practitioner is involved and has given his or her assurance that such treatment is warranted. The legal practitioner must apply his or her mind and judgment to the circumstances of the case and reach a personal view that the matter is urgent. He or she must support his or her judgment with reasons.

Apart from the form, the urgent chamber application was also defective in substance.

Among other things, Richard Mayiya's main proof that Reuben Munsamy had stepped down was some resolution allegedly reached on 24 October 2014.

However, this document clearly referred to Reuben's removal from a different entity altogether, an entity that was based in a different country altogether - South Africa. Richard Mayiya had alleged that the applicant, known as RM Mining and Industrial Zimbabwe (Private) Limited, and that the other entity, known as RM Mining and Industrial South Africa CC, had a “common shareholding”, whatever that meant. However, the two, being completely different entities despite their names sharing the same root, it was not explained why Reuben Munsamy's alleged resignation from the South African entity would automatically be a resignation from the applicant.

Counsel for the applicant argued that the applicant had subsequently updated its Form CR14 to align with the new development and that it was such proof as had been submitted to the Bank. However, Reuben, in a communication to the Bank, which was part of the applicant's papers, had denied that he had resigned. Under such circumstances it should have been obvious to the applicant that the only sensible thing for the Bank to have done would be to embargo the account.

Another document submitted by the applicant as proof that Reuben Munsamy had resigned and that the Bank had seemed to accept that fact, was an extract of a bank statement of the applicant's account. It showed some debit and credit entries between 13 November 2014 and 16 December 2014. The applicant alleged that communication to the Bank, of Reuben Munsamy's alleged resignation, had been on 10 November 2014. However, nowhere on the bank statement did it show that the transactions had been on Richard Mayiya's single signature. Furthermore, given that Reuben's warning to the Bank had been on 16 December 2014, it made sense that the Bank immediately placed the embargo. The applicant could not rationally expect the Bank to continue honouring Richard's unilateral withdrawal instructions in the face of Reuben's warning. For the applicant to have mounted an urgent application under such circumstances was rather irresponsible.

That was not all.

It was manifestly untrue for the applicant to allege, in its application, that the Bank had embargoed its account without warning. Its legal practitioners had written to the Bank on 18 December 2014 demanding the removal of the embargo. The Bank had responded on 23 December 2014. It advised of Reuben's communication and of the fact that it had informed Richard about it. It had asked Richard to provide resolutions and other documents to confirm Reuben's alleged resignation. The Bank had also expressly advised Richard that the two entities had been separate and that the document that it had initially been furnished with had been in respect of the South African entity and that it was irrelevant. Instead of dealing with the Banks' concerns, the applicant had rushed headlong with its urgent chamber application.

The draft provisional order sought the same relief in both the interim and final orders.

In both instances, it was, in essence, a final order being sought.

As I asked counsel for the applicant was it not obvious that the blocking of the account by the Bank was but a symptom of the underlying festering dispute between the parties? There had been no indication anywhere in the application that the applicant had brought, or was planning to bring, substantive proceedings to end the dispute so as to pave way for the opening of the account. Instead, the applicant had precipitously filed the urgent chamber application which avoided the main dispute. It should have been obvious to the applicant that there had been a serious misjoinder of parties and that the enormous dispute of fact, namely, whether or not Reuben had stepped down, could not possibly be resolved on the papers, let alone in summary fashion as is inevitable in an urgent chamber application.

Finally, when I had got seized of the matter, on New Year's eve, literally some few hours before the demise of 2014, I had agonised over whether or not to set it down on account of the numerous defects apparent on the face of the application. Eventually, I decided I would give the applicant its day in court. But seeing that the application was against the Bank only, and that this was a party that would not help bring out the full story, I expressly directed that the application and notice of set down be served, not only on the Bank, but also on the other Directors, and that proof of such service should be filed or produced at the hearing. Furthermore, realising that the other Directors may well have been out of the country and in their home country, South Africa, I further directed that if proper service was not going to be possible, given the short time available, at least the applicant had to inform the other Directors of the application and of the date and time of the hearing.

Surprisingly, at the hearing, no proof of service of the application and or of the notice of set down was available.

Counsel for the applicant advised that in response to my directive, another meeting of the applicant had been convened at which Reuben Munsamy had resigned - again. He said he had a copy of the resolution to that effect and would produce it if it was necessary.

That was hardly satisfactory. We were going round in circles.

In the end, I considered that there was no reason why the Bank had to be put out of pocket in respect of such a vexatious application. I felt costs on the higher scale were justified.

prev 1 2 3 next

Back Main menu

Law Portal Zimbabwe

Interim Interdict Pendente Confirmation or Discharge Proceedings re: Approach, Return Date and the Prima Facie Concept

HH54-09 : ROGERS DHLIWAYO vs SHAUN MANDAA KUDINGA AND TWO OTHERS Ruled By: MAKONI J

SC32-12 : SWIMMING POOL & UNDERWATER REPAIR PL and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL and PATTERSON TIMBA vs JAMESON RUSHWAYA and ANNIE RUSHWAYA Ruled By: CHIDYAUSIKU CJ

SC13-09 : CALISTO CHIRENJE vs VENDFIN INVESTMENTS (PRIVATE) LIMITED AND TWO OTHERS Ruled By: CHIDYAUSIKU CJ, SANDURA JA and MALABA JA

HH192-12 : NATIONAL AIRWAYS WORKERS' UNION AND AIR TRANSPORT UNION vs AIR ZIMBABWE HOLDINGS (PVT) LTD AND NATIONAL HANDLING SERVICES (PVT) LTD AND THREE OTHERS Ruled By: MUTEMA J

HH36-09 : T NYIKADZINO vs JOHN ASHER and MUSUNGA & ASSOCIATES and THE DEPUTY SHERIFF and THE MINISTER OF STATE FOR LANDS AND RURAL RESETTLEMENT Ruled By: MAKARAU JP

HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU Ruled By: MAWADZE J

HH32-09 : MAFOSHORO FARM (PVT) LTD vs HURBERT NYANHONGO and TENDAI MBEREKO Ruled By: CHITAKUNYE J

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION Ruled By: UCHENA J

HH01-08 : SIMON FRANCIS MANN vs THE REPUBLIC OF EQUATORIAL GUINEA Ruled By: MAKARAU JP and PATEL J

HH113-09 : DIDYMUS MUTASA vs NGONI NDUNA N.O. and ATTORNEY-GENERAL and COMMISSIONER-GENERAL OF POLICE and ROBERT MCKERSIE Ruled By: PATEL J

HB02-09 : NDUMISO DUBE vs LEONARD DUBE Ruled By: KAMOCHA J

HB25-09 : MEKIYA NYATHI vs JOYCE MUVEZWA and B. TADERERA and SENDRA MUVEZWA and THE REGISTRAR OF DEEDS (BULAWAYO) Ruled By: CHEDA J

HB27-09 : ZIMBABWE NATIONAL STUDENTS UNION and NUST STUDENTS' REPRESENTATIVE COUNCIL vs NATIONAL UNIVERSITY OF SCIENCE AND TECHNOLOGY and MINISTER OF HIGHER EDUCATION Ruled By: NDOU J

HB31-09 : ZIMBABWE NATIONAL ARMY vs RANGARIRAYI GUNDA Ruled By: NDOU J

HB57-09 : TRYSON INVESTMENTS vs MAPLE LEAF MINING (represented by Cecil Madondo N. O.) and MINING COMMISSIONER Ruled By: NDOU J

HB110-09 : EDGARS STORE LIMITED vs RAMSON (PVT) LTD and BHIMJI INVESTMENTS (PVT)LTD and THE MESSENGER OF COURT, HARARE Ruled By: NDOU J

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER Ruled By: MAKARAU JP

HH04-10 : MYDALE INTERNATIONAL MARKETING (PVT) LTD vs DR ROB KELLY and HAMMER AND TONGUES (PVT) LTD Ruled By: GOWORA J

HH16-10 : AMBASSADOR CHIMONYO vs ROUTE TOUTE BV and PENINSULAR PLANTATIONS PL and MATANUSKA PL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and THE MINISTER OF FOREIGN AFFAIRS Ruled By: MUSAKWA J

HH16-10 : AMBASSADOR CHIMONYO vs ROUTE TOUTE BV and PENINSULAR PLANTATIONS PL and MATANUSKA PL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and THE MINISTER OF FOREIGN AFFAIRS Ruled By: MUSAKWA J

HH57-10 : AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT and SECRETARY FOR MINES AND MINING DEVELOPMENT and CHIEF MINING COMMISSIONER Ruled By: UCHENA J

HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE Ruled By: MAVANGIRA J

HH118-10 : JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED vs WILLIAM WACHENUKA and MINISISTRY OF LANDS, AGRICULTURE AND RESETTLEMENT Ruled By: GOWORA J

HH150-10 : STRAUSS LOGISTICS LIMITED (UK) vs BP & SHELL MARKETING SERVICES (PRIVATE) LIMITED and SHELL ZIMBABWE (PRIVATE) LIMITED and BP ZIMBABWE (PRIVATE) LIMITED Ruled By: PATEL J

HH191-10 : SHEPHERD MURAHWI and DEBORAH MURAHWI and PETER SIGAUKE and OTHERS vs MS MAGWENZI and ARROSUM CONSTRUCTION (PVT) LTD and DIVINE HOMES (PVT) LTD and NICANOR ENTERPRISES (PVT) LTD Ruled By: BERE J

HH203-10 : SHEPHERD MURAHWI and DEBORAH MURAHWI and PETER SIGAUKE and OTHERS vs MS MAGWENZI and ARROSUM CONSTRUCTION (PVT) LTD and DIVINE HOMES (PVT) LTD and NICANOR ENTERPRISES (PVT) LTD Ruled By: BERE J

HB198-11 : N & R AGENCIES (PVT) LTD and MARK ANDROLIAKOS vs THABANI NDLOVU and MACLEAN BHALA Ruled By: MATHONSI J

HB32-10 : CHIGOZIE KINGSLEY OBI vs THE STATE and THE CHIEF IMMIGRATION OFFICER (BULAWAYO) Ruled By: NDOU J

HB33-10 : PANSIKWE MINERALS CO-OPERATIVE vs FOREMAN HLABANGANA and CONSOLIDATED PRE-CO-OPERATIVE Ruled By: NDOU J

HB54-10 : VISION SITHOLE vs LESLIE KHUMALO and DEPUTY SHERIFF Ruled By: KAMOCHA J

HB100-10 : STEPHEN NDLOVU vs THE OFFICER COMMANDING ZRP, BULAWAYO PROVINCE and THE COMMISSIONER GENERAL and CO-MINISTER OF HOME AFFAIRS Ruled By: CHEDA J

HB110-10 : HIGHLANDERS FC vs DYNAMOS FC and PREMIER SOCCER LEAGUE and BANC ABC (PRVIATE) LIMITED and CUTHBERT CHITIMA and DON MOYO, Chairman, Ad Hoc Arbitrators Committee and KENNEDY NDEBELE, PSL, C.E.O Ruled By: NDOU J

HH25-11 : THIRDLINE TRADING (PRIVATE) LIMITED t/a ZITAC and ONCLASS INVESTMENTS (PRIVATE LIMITED) vs BOKA INVESTMENTS (PRIVATE) LIMITED Ruled By: MAVANGIRA J

HH25-13 : YEMANE BERHE WELDESLASSIE vs MORDORIC MARKETING (PVT) LTD and MOLLIE MUCHABAIWA and SHAMSTER INVESTMENTS (PVT) LTD Ruled By: MATHONSI J

HH52-13 : SOUTHMARK TRADING (PRIVATE) LIMITED and OTHERS vs KAROI PROPERTIES (PRIVATE) LIMITED and GEDION HWEMENDE and NATIONAL INDIGENISATION AND ECONOMIC EMPOWERMENT BOARD and OTHERS Ruled By: ZHOU J

HH69-11 : WALTER CHIGWADA and PATRICIA CHIGWADA vs THE OFFICER COMMANDING C.I.D. SERIOUS FRAUDS and THE COMMISSIONER GENERAL, ZRP and OTHERS Ruled By: KARWI J

HH101-11 : HERENTALS COLLEGE (PRIVATE) LIMITED vs RELEASE POWER INVESTMENTS (PRIVATE) LIMITED and ONIYAS GUMBO and MR CHINYAMUCHIKO (In his capacity as the Headmaster of Cold Comfort Primary School) Ruled By: BERE J

HH328-13 : NORTHERN FARMING [PVT] LTD vs VEGRA MERCHANTS [PVT] LTD t/a VEGRA COMMODITIES and CHENA MILLERS (PVT) LTD Ruled By: MAFUSIRE J

Appealed HH158-11 : TRUSTCO MOBILE (PTY) LIMITED and TRUSTCO GROUP INTERNATIONAL (PTY) LIMITED vs ECONET WIRELESS (PRIVATE) LIMITED and FIRST MUTUAL LIFE ASSURANCE COMPANY (PRIVATE) LIMITED Ruled By: MUTEMA J

HB35-11 : CARSLONE ENTERPRISES P/L vs WILSON SVOVA Ruled By: MATHONSI J

HH68-14 : FAIRDROP TRADING (PRIVATE) LIMITED vs THE ZIMBABWE REVENUE AUTHORITY Ruled By: MAFUSIRE J

HH87-14 : MUTUMWA MAWERE and SMM HOLDINGS LTD and THZ HOLDINGS LTD and AFRICA RESOURCES LTD vs MINISTER OF MINES AND MINING DEVELOPMENT and ZIMBABWE MINING DEVELOPMENT CORP and AFARAS GWARADZIMBA Ruled By: MANGOTA J

HB130-11 : THOMAS MUTAMBIRWA and 70 OTHERS vs ARJUN INVESTMENTS (PVT) LTD Ruled By: NDOU J

HH303-14 : BRIGHTON NZARA vs CALISTO TSANYAU & OTHERS Ruled By: MATHONSI J

HH311-14 : MAXWELL MATSVIMBO SIBANDA vs GYWNNE ANN STEVENSON and THE REGISTRAR OF DEEDS Ruled By: DUBE J

HH322-14 : J.L ROBINSON AGENCIES (PVT) LTD t/a AMALGAMATED MOTOR CORPORATION vs DANFORD CHAMWARURA and THE SHERIFF OF ZIMBABWE Ruled By: MUREMBA J

HB02-16 : AMOS JIHAZI vs THE REGISTRAR OF HIGH COURT N.O. and THE ADMINISTRATOR N.O. and SMM HOLDINGS (PVT) LTD and MESSENGER OF COURT, ZVISHAVANE N.O. Ruled By: TAKUVA J

HB03-16 : SANPOULUS MAPLANKA vs OLIVER MASOMERA and THE DEPUTY MASTER Ruled By: TAKUVA J

HB04-16 : PATIENCE MAFU vs FREEMAN BIBA NCUBE and THE BULAWAYO CITY COUNCIL Ruled By: MATHONSI J

HH11-15 : RM MINING AND INDUSTRIAL ZIMBABWE (PRIVATE) LIMITED vs STANBIC BANK ZIMBABWE LIMITED Ruled By: MAFUSIRE J

Categories

Your Donation.

Law Portal
Zimbabwe

HH54-09 : ROGERS DHLIWAYO vs SHAUN MANDAA KUDINGA AND TWO OTHERS
Ruled By: MAKONI J

SC32-12 : SWIMMING POOL & UNDERWATER REPAIR PL and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL and PATTERSON TIMBA vs JAMESON RUSHWAYA and ANNIE RUSHWAYA
Ruled By: CHIDYAUSIKU CJ

SC13-09 : CALISTO CHIRENJE vs VENDFIN INVESTMENTS (PRIVATE) LIMITED AND TWO OTHERS
Ruled By: CHIDYAUSIKU CJ, SANDURA JA and MALABA JA

HH192-12 : NATIONAL AIRWAYS WORKERS' UNION AND AIR TRANSPORT UNION vs AIR ZIMBABWE HOLDINGS (PVT) LTD AND NATIONAL HANDLING SERVICES (PVT) LTD AND THREE OTHERS
Ruled By: MUTEMA J

HH36-09 : T NYIKADZINO vs JOHN ASHER and MUSUNGA & ASSOCIATES and THE DEPUTY SHERIFF and THE MINISTER OF STATE FOR LANDS AND RURAL RESETTLEMENT
Ruled By: MAKARAU JP

HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU
Ruled By: MAWADZE J

HH32-09 : MAFOSHORO FARM (PVT) LTD vs HURBERT NYANHONGO and TENDAI MBEREKO
Ruled By: CHITAKUNYE J

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

HH01-08 : SIMON FRANCIS MANN vs THE REPUBLIC OF EQUATORIAL GUINEA
Ruled By: MAKARAU JP and PATEL J

HH113-09 : DIDYMUS MUTASA vs NGONI NDUNA N.O. and ATTORNEY-GENERAL and COMMISSIONER-GENERAL OF POLICE and ROBERT MCKERSIE
Ruled By: PATEL J

HB02-09 : NDUMISO DUBE vs LEONARD DUBE
Ruled By: KAMOCHA J

HB25-09 : MEKIYA NYATHI vs JOYCE MUVEZWA and B. TADERERA and SENDRA MUVEZWA and THE REGISTRAR OF DEEDS (BULAWAYO)
Ruled By: CHEDA J

HB27-09 : ZIMBABWE NATIONAL STUDENTS UNION and NUST STUDENTS' REPRESENTATIVE COUNCIL vs NATIONAL UNIVERSITY OF SCIENCE AND TECHNOLOGY and MINISTER OF HIGHER EDUCATION
Ruled By: NDOU J

HB31-09 : ZIMBABWE NATIONAL ARMY vs RANGARIRAYI GUNDA
Ruled By: NDOU J

HB57-09 : TRYSON INVESTMENTS vs MAPLE LEAF MINING (represented by Cecil Madondo N. O.) and MINING COMMISSIONER
Ruled By: NDOU J

HB110-09 : EDGARS STORE LIMITED vs RAMSON (PVT) LTD and BHIMJI INVESTMENTS (PVT)LTD and THE MESSENGER OF COURT, HARARE
Ruled By: NDOU J

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

HH04-10 : MYDALE INTERNATIONAL MARKETING (PVT) LTD vs DR ROB KELLY and HAMMER AND TONGUES (PVT) LTD
Ruled By: GOWORA J

HH16-10 : AMBASSADOR CHIMONYO vs ROUTE TOUTE BV and PENINSULAR PLANTATIONS PL and MATANUSKA PL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and THE MINISTER OF FOREIGN AFFAIRS
Ruled By: MUSAKWA J

HH16-10 : AMBASSADOR CHIMONYO vs ROUTE TOUTE BV and PENINSULAR PLANTATIONS PL and MATANUSKA PL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and THE MINISTER OF FOREIGN AFFAIRS
Ruled By: MUSAKWA J

HH57-10 : AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT and SECRETARY FOR MINES AND MINING DEVELOPMENT and CHIEF MINING COMMISSIONER
Ruled By: UCHENA J

HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MAVANGIRA J

HH118-10 : JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED vs WILLIAM WACHENUKA and MINISISTRY OF LANDS, AGRICULTURE AND RESETTLEMENT
Ruled By: GOWORA J

HH150-10 : STRAUSS LOGISTICS LIMITED (UK) vs BP & SHELL MARKETING SERVICES (PRIVATE) LIMITED and SHELL ZIMBABWE (PRIVATE) LIMITED and BP ZIMBABWE (PRIVATE) LIMITED
Ruled By: PATEL J

HH191-10 : SHEPHERD MURAHWI and DEBORAH MURAHWI and PETER SIGAUKE and OTHERS vs MS MAGWENZI and ARROSUM CONSTRUCTION (PVT) LTD and DIVINE HOMES (PVT) LTD and NICANOR ENTERPRISES (PVT) LTD
Ruled By: BERE J

HH203-10 : SHEPHERD MURAHWI and DEBORAH MURAHWI and PETER SIGAUKE and OTHERS vs MS MAGWENZI and ARROSUM CONSTRUCTION (PVT) LTD and DIVINE HOMES (PVT) LTD and NICANOR ENTERPRISES (PVT) LTD
Ruled By: BERE J

HB198-11 : N & R AGENCIES (PVT) LTD and MARK ANDROLIAKOS vs THABANI NDLOVU and MACLEAN BHALA
Ruled By: MATHONSI J

HB32-10 : CHIGOZIE KINGSLEY OBI vs THE STATE and THE CHIEF IMMIGRATION OFFICER (BULAWAYO)
Ruled By: NDOU J

HB33-10 : PANSIKWE MINERALS CO-OPERATIVE vs FOREMAN HLABANGANA and CONSOLIDATED PRE-CO-OPERATIVE
Ruled By: NDOU J

HB54-10 : VISION SITHOLE vs LESLIE KHUMALO and DEPUTY SHERIFF
Ruled By: KAMOCHA J

HB100-10 : STEPHEN NDLOVU vs THE OFFICER COMMANDING ZRP, BULAWAYO PROVINCE and THE COMMISSIONER GENERAL and CO-MINISTER OF HOME AFFAIRS
Ruled By: CHEDA J

HB110-10 : HIGHLANDERS FC vs DYNAMOS FC and PREMIER SOCCER LEAGUE and BANC ABC (PRVIATE) LIMITED and CUTHBERT CHITIMA and DON MOYO, Chairman, Ad Hoc Arbitrators Committee and KENNEDY NDEBELE, PSL, C.E.O
Ruled By: NDOU J

HH25-11 : THIRDLINE TRADING (PRIVATE) LIMITED t/a ZITAC and ONCLASS INVESTMENTS (PRIVATE LIMITED) vs BOKA INVESTMENTS (PRIVATE) LIMITED
Ruled By: MAVANGIRA J

HH25-13 : YEMANE BERHE WELDESLASSIE vs MORDORIC MARKETING (PVT) LTD and MOLLIE MUCHABAIWA and SHAMSTER INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

HH52-13 : SOUTHMARK TRADING (PRIVATE) LIMITED and OTHERS vs KAROI PROPERTIES (PRIVATE) LIMITED and GEDION HWEMENDE and NATIONAL INDIGENISATION AND ECONOMIC EMPOWERMENT BOARD and OTHERS
Ruled By: ZHOU J

HH69-11 : WALTER CHIGWADA and PATRICIA CHIGWADA vs THE OFFICER COMMANDING C.I.D. SERIOUS FRAUDS and THE COMMISSIONER GENERAL, ZRP and OTHERS
Ruled By: KARWI J

HH101-11 : HERENTALS COLLEGE (PRIVATE) LIMITED vs RELEASE POWER INVESTMENTS (PRIVATE) LIMITED and ONIYAS GUMBO and MR CHINYAMUCHIKO (In his capacity as the Headmaster of Cold Comfort Primary School)
Ruled By: BERE J

HH328-13 : NORTHERN FARMING [PVT] LTD vs VEGRA MERCHANTS [PVT] LTD t/a VEGRA COMMODITIES and CHENA MILLERS (PVT) LTD
Ruled By: MAFUSIRE J

Appealed
HH158-11 : TRUSTCO MOBILE (PTY) LIMITED and TRUSTCO GROUP INTERNATIONAL (PTY) LIMITED vs ECONET WIRELESS (PRIVATE) LIMITED and FIRST MUTUAL LIFE ASSURANCE COMPANY (PRIVATE) LIMITED
Ruled By: MUTEMA J

HB35-11 : CARSLONE ENTERPRISES P/L vs WILSON SVOVA
Ruled By: MATHONSI J

HH68-14 : FAIRDROP TRADING (PRIVATE) LIMITED vs THE ZIMBABWE REVENUE AUTHORITY
Ruled By: MAFUSIRE J

HH87-14 : MUTUMWA MAWERE and SMM HOLDINGS LTD and THZ HOLDINGS LTD and AFRICA RESOURCES LTD vs MINISTER OF MINES AND MINING DEVELOPMENT and ZIMBABWE MINING DEVELOPMENT CORP and AFARAS GWARADZIMBA
Ruled By: MANGOTA J

HB130-11 : THOMAS MUTAMBIRWA and 70 OTHERS vs ARJUN INVESTMENTS (PVT) LTD
Ruled By: NDOU J

HH303-14 : BRIGHTON NZARA vs CALISTO TSANYAU & OTHERS
Ruled By: MATHONSI J

HH311-14 : MAXWELL MATSVIMBO SIBANDA vs GYWNNE ANN STEVENSON and THE REGISTRAR OF DEEDS
Ruled By: DUBE J

HH322-14 : J.L ROBINSON AGENCIES (PVT) LTD t/a AMALGAMATED MOTOR CORPORATION vs DANFORD CHAMWARURA and THE SHERIFF OF ZIMBABWE
Ruled By: MUREMBA J

HB02-16 : AMOS JIHAZI vs THE REGISTRAR OF HIGH COURT N.O. and THE ADMINISTRATOR N.O. and SMM HOLDINGS (PVT) LTD and MESSENGER OF COURT, ZVISHAVANE N.O.
Ruled By: TAKUVA J

HB03-16 : SANPOULUS MAPLANKA vs OLIVER MASOMERA and THE DEPUTY MASTER
Ruled By: TAKUVA J

HB04-16 : PATIENCE MAFU vs FREEMAN BIBA NCUBE and THE BULAWAYO CITY COUNCIL
Ruled By: MATHONSI J

HH11-15 : RM MINING AND INDUSTRIAL ZIMBABWE (PRIVATE) LIMITED vs STANBIC BANK ZIMBABWE LIMITED
Ruled By: MAFUSIRE J