CHEDA AJ: This matter is a result of some misunderstanding and should not have
come to court. The misunderstanding seems to be a result of lack of
clarity in the pleadings of the parties.
The applicant applied for, and obtained a provisional order against the
respondent, to interdict them from entering applicant's diamond processing
plant at Kleinpoort Farm in the Gweru District, including erecting structures,
fences, hedges, wires, walls in and around the plant's boundaries, and to
remove structures, fences, wires, walls, hedges or any encumbrances or
boundaries in the applicant's diamond plant, failure of which the Deputy Sheriff
was directed to remove and or demolish same at respondents' cost.
The application for confirmation of the provisional order was opposed. At
the hearing of the application Mr Cherry, for the applicant conceded that the
application documents were not elegantly drafted and it was not clear if the
applicant sought a spoliation order or not, but the facts seemed to support an
application for that. Applicants submitted that their plant was no longer
accessible. Mr Cherry was of the view that there were disputes of fact in
the matter and it should be referred to trial.
The respondents pointed out that the issue was an attempt to interdict
respondents from interfering with the plant or entering it or getting within
100 meters of it. The 4th respondent conceded that they have
nothing to do with the diamond processing plant and have no objection to an
order being made to stop interfering with the plant, but was objecting to being
ordered to keep 100 meters away from the plant because, the plant is in his
farm, and the plant is actually surrounded by a fence. The 4th
respondent keeps out of the fence and does not enter the fence. He does
not interfere with the plant as there is a gate on the fence of the plant, and
he has no intention to use the plant.
It also emerged that after the provisional order was granted the Deputy Sheriff
went and removed the fence surrounding the plant, a clear misunderstanding of
the provisional order and the interim relief obtained.
The 4th respondent contended that to order him to keep 100 meters
away from the perimeter fence would be too restrictive, for him on his own
property. After hearing both sides and the concessions made I formed the
view that the application was based on a failure by the parties to discuss the
matter in detail before rushing to approach the court.
I also formed the opinion that in view of the concessions made there were no
issues to refer to trial. The rest of the submissions made fall away and
there is no need to deal with them any further.
It also appears to me that had the parties made the matter clear in the papers
right from the start they could have settled without coming to court.
In view of the above, I do not consider it appropriate to award costs to either
party.
I therefore order as follows:
1. The provisional order
sought is discharge.
2. The 1st to 4th
respondents, their agents, principals, servants, proxies and nominees are
hereby permanently interdicted from entering the applicant's diamond processing
plant at Kleinpoort Farm, Gweru, or removing the fence surrounding it, or
interfering with the applicant's access to the plant.
3. Each party is to pay its
own costs.
Moyo & Nyoni, applicant's
legal practitioners
Gundu
& Dube, respondent's legal practitioners
