This
matter must be determined on the preliminary points raised because
the issues raised are, in my view, decisive.
The
peremptory provisions of Order 43 Rule 388 of High Court Rules, 1971
are very clear on the form a contempt application must take. It can
never be by way of an urgent chamber application unless it falls
within the exceptions laid down in Order 32 Rule 226(2) of the same
Rules. No effort was made, in this application, to justify a
departure from the Rules.
Secondly,
and more importantly, it is trite that once an appeal is filed, the
decision of the court a quo is suspended unless the successful party
in the court a quo is granted special leave to execute pending
appeal. This has not been done in this case. If there is any
criticism to be said about the appeal, that must be said at an
appropriate forum. No leave to execute having been applied this
application for contempt was hastily done without giving it much
thought.
In
coming to this conclusion, I remain conscious of the issues which
were raised in the main urgent application which I determined in case
number HC718/16 and the respective positions taken by the parties in
that matter. The now applicant claimed to have been despoilt and the
1first respondent, represented by Smelly Dube, pleaded innocence and
claimed that her company was a victim of the forced closure of the
applicant company because she was a co-shareholder of that company.
The third and fourth respondents equally pleaded innocence in that
matter. I expect all the parties in this matter to respect their
respective positions in case number HC718/16 and respect the closure
of the mine and the non-exploitation of the resources therein until
the appeal is heard and determined or until the applicant in this
matter and the first respondent conduct a round table conference to
resolve their differences which seem to have been fuelled by outside
forces much to the two parties' detriment. Once the parties are
able to find common ground they can then start exploiting the
resources in terms of their partnership or shareholders' agreement.
I
must emphasize that the dismissal of this application for contempt is
not a ticket for either of the parties to go back on sight and
continue to exploit the mineral resources unlawfully. That temptation
remains potentially contemptuous of the order made by the court. The
appeal, as I understand it, is challenging the giving back of the
mine to the applicant but not supporting that the gold resources be
exploited in violation of the law.
I
have agonised on the issue of costs. Because I am aware of the
background of this case and fully appreciate, from the filed papers,
why the applicant has lodged this application for contempt - though
it has unprocedurally done so. I am not persuaded that the costs
should be punitive but rather that they be on the ordinary scale.
Consequently,
the application for contempt of court is dismissed with costs.
