MATHONSI J: The parties are involved in an ownership
dispute of certain mines situated in Kadoma. Sometime in July 2009 they entered
into a written agreement in terms of which they swapped certain mining claims
with the applicant taking over mining blocks known as Gazemba 105 to 108
belonging to the respondent. In terms of that agreement, the respondent was to
take over certain gold mining claims belonging to the applicant.
It would appear that the respondent later purported to
cancel the agreement and reclaimed his own mining blocks which were then being
mined by the applicant. He approached the magistrates' court in Gokwe seeking
relief against the applicant in respect of those claims.
On 24 January 2013 the magistrates' court, sitting at Gokwe
issued a final order in the following:
“WHEREUPON after reading evidence filed of record and
evidence submitted in court the rule nisi is confirmed as the final
order. It is ordered as follows:
(1) An order to interdict the first respondent
from doing mining and managing applicant's mines be and is hereby granted
(Gazemba 105 -108).
(2) The first respondent be and is hereby
barred from removing ores from the applicant's mines named above.
(3) The second respondent release ores in his
custody which ores came from the applicant's mine, to the applicant
forthwith.”
It is common cause that the applicant noted an appeal
against that order of the magistrates' court which appeal is now pending in
this court. That notwithstanding, the applicant has filed an urgent application
seeking, in essence, a stay of execution of the order of the magistrates court.
The relief that the applicant seeks is as follows:
“Terms of the final
order sought
1. That the applicant be
granted leave to continue doing mining business in respect of Gazemba 105 to
108 mines as per the agreement between the parties pending the hearing of the
appeal filed of record.
2. The respondent to pay
costs of suit on legal practitioner- client scale.
Interim Order granted
That pending the return date, the respondent be ordered to
stay executing the order granted by the court a quo sitting at Gokwe
magistrates' court on the 24th day of January 2013.”
It is trite that an appeal to the High Court in terms of s
40 of the Magistrates' Court Act [Cap 7:10] has the effect of
suspending the order appealed against. The applicant has not suggested that the
respondent is guilty of any conduct as would entitle him to the relief that he
seeks. Quite to the contrary, Mr Musoni appearing for the applicant
submitted that from the time the order of the magistrate was made on 24 January
2013 both parties did not do anything at the mine.
This means that at the time the applicant made this
application, there was no basis whatsoever for seeking relief. Indeed, the
founding affidavit does not even begin to suggest any perverse conduct on the
part of the respondent as would entitle the applicant to approach the court as
he has done.
Clearly therefore there was no reason for the applicant to
make this application. The submissions of Mr Musoni, which in my view
are very vague, that the applicant approached the court because after receiving
the notice of appeal, the respondent then started going to the mine, should be
looked at in the context that, its the same counsel who conceded that applicant
only came to court seeking relief, “out of abundance of caution”. It is
unlikely that the respondent is guilty of such action.
This court cannot baby sit over cautious litigants who
approach it when clearly there is no need to do so. The applicant already
enjoys the benefit of the status quo. Having appealed against the
decision, the applicant is entitled to continue with his activities as the
order has been suspended.
It should have been clear to the applicant, especially with
the benefit of legal counsel, that it was unnecessary to come to court. He has
however found it necessary to come to court and in so doing, he has put the
respondent out of pocket. I am of the view that this is a case where an order
for costs on a higher scale should be made.
Having come to the conclusion that the applicant
unnecessarily came to court and therefore is not entitled to the relief sought,
I find it unnecessary to determine the rest of the points in limine
made by M r Murambasvina for the respondent.
In the result the application is dismissed with costs on
the scale of legal practitioner and client.
C Mutsahuni Chikore & Partners, applicant's
legal practitioners
J Murambasvina Legal Practitoners,
respondent's legal practitioners
