MAKONI J: The applicants approached this court on a
certificate of urgency, seeking spoliatory relief on an interim basis and
declaratory and interdictory relief in the final against the respondents.
At the hearing the respondents raised various points in limine
viz:
(i)
Whether the applicants had locus standi to seek protection of the
court;
(ii)
Whether the deponents to the founding affidavits had authority;
(iii)
Whether spoilatory relief was available to the applicants when they allege more
than possession i.e. go into the merits of the possession;
(iv)
Whether the matter is urgent;
(v)
That there are serious disputes of fact; and
(vi)
The second applicant cannot claim to have been despoiled of possession which it
never had.
A brief background to the matter is that the first
applicant operates Inez Mine in Kadoma. On 28 April 20112 the first, second,
third respondents entered into an agreement in terms of which the entire issued
shares in the first applicant were purchased by the second applicant. The
parties agreed to amend the agreement. The effect of the addendum was to vest
control and possession of Inez Mine in the new Board of Directors of the first
applicant. What happened after the addendum is in dispute.
The applicant avers that Messrs Fred Moyo and Paul Diamond
were appointed directors of the first applicant with the old board of directors
resigning. The third respondent remained as operation manager in the first
respondent until he resigned mid-November 2012. This is disputed by the third
respondent.
What is not in dispute is that, the third respondent,
having been away from the mine since November 2012 visited the mine on 1, 2 and
3 February 2013. He ordered the deponent to the founding affidavit not to allow
Messrs Moyo and Diamond to have access to the mine. On 3 February 2013 he
handed a letter from the third respondent's legal practitioners to the deponent
which is annexture H. He informed him (the deponent) that the respondents were
taking back their mine. The third respondent instructed two men to change the
chain and the locks to the main gate into the mining complex. The third
respondent installed his security at the gate with instructions not to allow
Messrs Moyo and Diamond access into the mine. He also handed over a document to
one Mr Mkunguluthi, a miner. The document indicated that the third respondent
and the other former directors had been re-instated as directors of the company
as evidenced by the letter head.
The last para of the letter from the third
respondent's legal practitioners reads:
“(c)
Ex-abudante cautela, we would like to point out that your privilege
and or right to occupy and control Inez Mine is extinguished as a result of the
aforesaid cancellation and that, as a consequence, control of and ownership
rights in Inez Mine reverted to and now vest in our clients with immediate effect.”
I have decided to quote it as it will be relevant later on
in the judgment.
In response to the points in limine, Mr Mlotshwa,
for the applicants raised a point whether the first and second respondents were
properly before me. My view is that it is important to deal with this point
first as its disposal affects the points raised in limine by the
respondents.
Mr Mlotshwa submitted that the third respondent
purports in para 2 of his founding affidavit to depose to the affidavit on
behalf of the other two respondents. Nowhere in his papers does he state or
provide authority to do so. The special power of attorney produced as authority
to represent the first respondent was commissioned outside the country and was
not notarised in terms of the rules. The first respondent is therefore not
properly before the court.
The second respondent is also not properly before the court
as there is no supporting affidavit in the papers filed by him giving the third
respondent authority to represent him. There is no special power of attorney
either.
Mr Uriri conceded that the Special Power of
Attorney produced by the third respondent was executed in Ndola, Zambia and
that it had not been authenticated in terms of the High Court (Authentication
of Documents) Rules, 1971.
As regards the second respondent, Mr Uriri
submitted that para 5 of Annexure B provides authority for the third respondent
to represent the second respondent. He however pointed out that he could not
take it further than that. In my view it was a veiled concession.
Paragraph 5 of Annexure B, which is a Resolution of the
shareholders of the first respondent authorises the third respondent to do and
perform acts to effect cancellation of the share purchase agreement against the
second applicant and recover all assets of the first respondent. There is no
mention of the third respondent representing the second respondent.
From the above, it is clear that the third respondent has
no authority to represent the first and second respondents. The first and
second respondents are therefore not properly before me. This leaves the third
respondent.
Going back to the points in limine raised by the
respondents, my view is that the third respondent cannot take those points in limine.
Those points emanate from the relationship between the applicants and the
first respondent. To the extent that the court has made a finding that the
third respondent cannot represent the first respondent, the third respondent
cannot therefore comment on the issues pertaining to the agreement between the
applicants and the first respondent. I will therefore dismiss the points in limine.
As regards the act complained of, it is common cause that
the third respondent, armed with a letter from his legal practitioners visited
the mine on three successive days. He changed the locks to the main gate,
changed the security personnel and instructed one of the miners to return to
his previous posting before the agreement between the applicants and the first
respondent. He did not have the consent of the directors of the applicants.
These acts were not in terms of any statutory enactment. He in fact was acting
on the strength of Annexure H written by his legal practitioners and addressed
to the applicants, in particular the last paragraph. He was advised that he
could take control and ownership with immediate effect. The legal basis for
such advise is not clear from the letter.
In spoliation proceedings an applicant must establish
the necessary factual basis for a finding that the respondents threatened or
disturbed their occupation of their property. See Minister of Agriculture
& Development v Segopolo 1992 (3) SA 967 at 973 G.
What the applicant must establish was clearly spelt out in vant'Hoff
v vant'Hoff & Ors (1) 1988 (1) ZLR 294 (HC) at 296 B-C
thus:
“It is well established that in spoliation proceedings, all
that the applicant needs to prove is that:
(i)
he was in peaceful and undisturbed possession; and
(ii)
that he had been unlawfully deprived of such possession.
In casu, I am satisfied that the applicants are
entitled to the relief they seek. The third respondent had no legal basis
whatsoever to act in the manner he did.
In the result I will grant the provisional order.
G N Mlotshwa & Company, applicants' legal practitioners
Farai Nyamayaro Law Chambers, 1st,
2nd and 3rd respondents' legal practitioners
