Urgent
Chamber Application
MAWADZ
E J:
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.”
Before
I proceed to deal with this matter I wish to comment on the undue
haste with which the applicant handled this urgent application.
The
urgent chamber application was filed with this court on 9 December
2011 and I was allocated the matter on 12 December 2011. This is so
on account of the fact that 9 December 2011 was a Friday.
I
perused the record on the same day and noted a number of anomalies
which are as follows;
(i)
the urgent chamber application was not complete as Annexure B
referred to in the applicant's founding affidavit was not attached;
(ii)
annexure A referred to in the applicant's founding affidavit was
not marked as such; and
(iii)
The application was not paginated and properly indexed.
I
was of the view that that the matter could have been urgent hence I
instructed the applicant to correct the anomalies before I could set
the matter down.
This
was done on 13 December 2011 and I proceeded to set the matter down
for hearing on 15 December 2011.
The
point is made that urgent applications by their nature demand that
legal practitioners apply their minds not only to the facts of the
matter but in the drafting and preparation of the papers filed.
Valuable time of the court is lost perusing papers which are not in
order and are referred back to the applicant before a proper
determination is made.
There
was no plausible explanation for this negligent approach on such
mundane issues by the applicant's counsel. Such conduct is
inexcusable and in a proper case the court may refuse to hear the
applicant on an urgent basis.
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 [Cap
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 respondent is on-going
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; 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) at p 10.
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 is 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 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.
Mr
Garikayi
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 respondent 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 if 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
HH145-2005 at pp2–3 NDOU J made reference to remarks by PARADZA J
in the case of Dexprint
Investments
(Pvt)
Ltd
v Ace
Property & Investment Company
HH120-2002 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 the Gifford
v
Muzire
& Ors
2007 (2) ZLR 131 (H) at 134H–135A 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 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 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 at 555D 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.
Mr
Hungwe
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 respondent she referred the
dispute to the Mining Commissioner, Gweru, Midlands possibly in terms
of the Mines and Mineral Act [Cap
21:05]
(hereafter the Act). The Act provides various remedies in ss 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 Commissioner, powers of the Mining Commissioner to deal with
disputes relating to encroachment and the power to grant injunctions
in appropriate cases. The 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 respondent 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
Mineral 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
respondent 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.
Mr
Garikayi
for the applicant sought an order for costs on a higher scale and Mr
Hungwe
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.
Chinyama
& Partners,
applicant's legal practitioners
Garikayi
& Company,
1st
and 2nd
respondents' legal practitioners
