This
is an urgent application in which the applicant sought the following
order:
“Terms
of the final order sought
That
you show cause to this honourable court, if any, why a final order
should not be made in the following terms:
1.
The 1st
respondent and anyone in her employ be and are hereby interdicted
from carrying on any form of mining activities on the following of
applicant's claims:
(i)
Legion C under claim number 10244BM.
(ii)
Legion D under claim number 10225BM.
(iii)
Legion F under claim number 10226BM.
(iv)
Legion 13 under claim number 33216PM.
(v)
Legion 14 under claim number 33217PM.
2.
That the costs be on attorney and client scale.
Interim
relief granted
Pending
the confirmation of the provisional order, the applicant be and is
hereby granted the following relief:
3.
That pending determination of the parties matters under case number
HC2697/17 all forms of mining activities by the 1st
respondent and anyone in her employ be and are hereby suspended.”
The
background facts are that the applicant is the registered holder of
mining claims commonly known as Legion Mine in Gwanda. These claims
were transferred to the applicant from Falcon Gold Zimbabwe Ltd in
2012. At the time of acquisition of the claims, the first respondent
had a Tribute Agreement with Falcon Gold. The applicant, as
“Grantor”, entered into a Tribute Agreement with the first
respondent on 20 December 2012 which was to run for a three (3) year
period commencing on 1 January 2013 to 31 December 2015. In terms of
the agreement, the “Tributor” took five claims as listed above.
Also, in terms of the Tribute Agreement, clause 15, the Tributor i.e.
the first respondent paid royalties to the applicant.
As
regards renewal of the Tribute Agreement, clause 1(b) of the
agreement provides that:
“(b)
The Tributor shall have the right to extent this period of the
tribute for a further three years after the expiry of the above
period provided he had complied with the terms of this tribute
agreement and providing he gives notice of such intention to the
Grantor as follows:
At
least three months prior to the 31st
December 2015 (determination of the first period) the tributor shall
give written notice to the Grantor stating whether he wishes to
relinquish his tribute at the end of the 1st
period or to exercise his right to extend this tribute agreement for
the further period stated.”
Before
the expiry of the Tribute Agreement on 31 December 2015, the first
respondent did not notify the applicant in writing three (3) months
prior to that date of her election in terms of clause (1)(b) supra.
Despite this default, the first respondent continued to mine on the
claims without an agreement. The applicant offered the first
respondent a new agreement but the latter refused to sign it
prompting the applicant to enlist the assistance of the Zimbabwe
Republic Police - to no avail. Faced with this hurdle, the applicant
issued a written notice to vacate to the first respondent through her
lawyers Majoko & Majoko on 6 October 2016. The first respondent's
lawyers responded to that notice in the following terms:
“….,.
A brief history, we believe, will assist in the understanding of our
client's position. Our client has been mining from Legion since
about 2003, having done so under tribute from Falcon Gold Zimbabwe
Ltd.
Discussions
involving the Ministry of Mines and Mineral Development were held
with Falcon Gold and our client as a result of which it was agreed
that the claim would be registered in our client's names and our
client had and there is evidence of this written understanding, from
so far back as 2007, been awaiting formal transfer and registration
of the claims into her names.
If
there were any changes in this understanding it was not communicated
to our client. She has been in occupation and working the claims on
the bona
fide
understanding that the claims were, to all intents and purposes,
hers, awaiting only formalization of ownership of the claims.
At
no time was our client advised, as she would have been entitled, of
any change in the ownership of the claims from Falcon Gold to
yourselves. You will appreciate, in the circumstances, that our
client cannot, without prejudicing her rights, accede to your demand
that she vacate the claims, until she has received formal
communication from the Ministry of Mines and Falcon, that what was
agreed upon regarding the claims has since been changed. On receiving
such communication, if she will, our client will take advice and only
then will she reply substantively to your demand. Until then she will
remain on the locations.”
This
letter is dated 1 December 2016 and appears on page 35 of the record.
The
parties continued to engage each other through their legal
practitioners on 12 and 13 January 2017.The first respondent appeared
to have accepted to negotiate terms of a new tribute agreement until
20 January 2017 when she refused the offers proffered by the
applicant and insisted on her earlier position that she had a right
to anticipate transfer of registration of the claims into her name.
Frustrated,
the applicant then filed this application on 30 January 2017 praying
for the relief referred to above.
Before
arguing on the merits, counsel for the first respondent took a couple
of points in
limine….,.
The
second point in limine was that the interim relief is the same as the
final relief. Counsel for the first respondent relied on Dodhill
v Chikafu
2009 (1) ZLR 293 in arguing that this is a fatal defect.
I
disagree for the simple reason that what is sought in the interim is
a suspension of mining operations, whereas the final order prays for
a total and complete cessation of mining activities pending the
finalisation of case number HC269/17. I must point out, however, that
the applicant conceded that there is a need to amend their terms to
make them clearer. The amendment sought, however, does not affect the
essence of the relief sought. Therefore, the application cannot be
dismissed solely on this ground because the respondent in
casu
has not been prejudiced by the applicant's failure to put the
relief in the proper form. See Rule 229C of this Court's rules. In
my view, the point was not well taken and it is hereby dismissed.
On
the merits, counsel for the first respondent submitted that the
applicant has not fulfilled the requirements of an interdict in that
the applicant has an alternative remedy of damages which remedy they
are pursuing in the summons. The applicant has not claimed that the
first respondent is impecunious or that her assets are being
dissipated. He cited the case of Bozimo
Trade and Development Co (Pvt) Ltd v First Merchant Bank of Zimbabwe
Ltd & Ors
2000 (1) ZLR (H).
As
regards the availability of a satisfactory remedy, I prefer SACHS
LJ's approach in Evans
Marshal & Co Ltd v Bertola
SA
[1973] IALL ER 992 (CA)…, where the learned judge, who was dealing
pertinently with the enquiry as to whether damages were an adequate
remedy, said:
“The
standard question in relation to the grant of an injunction, are
damages an adequate remedy? Might perhaps, in the light of the
authorities of recent years, be re-written: is it just, in all the
circumstances, that plaintiff should be confined to his remedy in
damages?
The
touchstone in every case is to ensure that justice is done. The test
of the adequacy of damages is however not conclusive in that even
where an injury is capable of compensation the court will generally
grant an interdict if:
(a)
The respondent is a man of straw; or
(b)
The injury is a continuing violation of the applicant's rights; or
(c)
The damages will be difficult of assessment especially damages in
cases of continuing contractual breaches; or
(d)
If the value of a damages award in several years' time would be of
questionable adequacy because of high inflation.”
See
also C B Prest, The
Law & Practice of Interdicts
Juta & Co 1993…,.
I
would also add that the court should guard against assisting
confiscation of private rights by unnecessarily confining the
applicant to damages.
In
casu,
it is common cause that the first respondent is carrying out mining
operations on the applicant's claims without a valid tribute
agreement. Not only that, she is harvesting gold without paying
royalties to the applicant. Quite clearly, her conduct amounts to a
continuing violation of the applicant's rights. Such an injury, by
its very nature, makes an accurate assessment of damages in lost
mineral value extremely difficult.
For
these reasons I find that it is not just that the applicant be
confined to its remedy in damages as this would be unsatisfactory.
It
was also submitted, on the first respondent's behalf, that the
applicant has not shown that it would suffer irreparable injury.
Further, it was submitted that the applicant repudiated the contract
by letter dated 6 October 2016 and should therefore stop complaining
about non-payment of royalties. The first respondent insisted that
she would continue to mine because she got assurance from the
Ministry of Mines that the claims will be registered in her name in
due course. Consequently, it was argued that a case for an interdict
has not been set out in the papers, and, for that reason, it should
be dismissed.
The
requisites for the right to claim an interdict are a well-beaten
path. In Airfield
Investments (Pvt) Ltd v Minister of Lands & Ors
2004 (1) ZLR 511 (S) they were put as follows:
“Briefly,
these requisites are that the applicant for such temporary relief
must show -
(a)
That the right which is the subject matter of the main action and
which he seeks to protect by means of interim relief is clear, or, if
not clear, is prima
facie
established though open to some doubt;
(b)
That if the right is only prima
facie
established, there is a well-grounded apprehension of irreparable
harm to the applicant if the interim relief is not granted and he
ultimately succeeds in establishing his right;
(c)
That the balance of convenience favours the granting of interim
relief; and
(d)
That the applicant has no other satisfactory remedy.”
In
the present case, the facts that cannot be disputed are that the
applicant is the registered owner or holder of the claims in dispute.
The five certificates of registration are on pages 29–33 of the
application. Also, in terms of the Tribute Agreement referred to
earlier the applicant is the “Grantor” while the first respondent
is the “Tributor”. For approximately three and a half years, the
first respondent was working the same claims mining gold and other
minerals therefrom against payment of royalties to the applicant. She
stopped paying in October 2016 following a dispute over the formula
to be used to calculate royalties. The parties then failed to reach
an agreement and the applicant filed this application.
On
the other hand, the first respondent claims to have a right to remain
on the mine, courtesy of a promise from the Ministry of Mines.
On
these facts, there can be no doubt that the applicant has established
the existence of a clear right. The applicant is a holder of real
rights over the mine. This is in terms of the substantive law.
Surely, a real right cannot be superceded by a mere promise. C B
Prest, The
Law & Practice of Interdicts
Juta & Co 1993…, states;
“Interdicts
are based on rights; rights which, in terms of the substantive law,
are sufficient to sustain a cause of action. Such right may arise out
of contract, or a delict; it may be founded in the common law or on
some or other statute; it may be a real right or a personal right.
The applicant for an interlocutory interdict must show a right which
is being infringed or which he apprehends will be infringed, and, if
he does not do so, the application must fail.
An
applicant must establish 'some just right'. It must not be a mere
moral right; it must be a strict legal right.”
In
casu,
the right arises out of contract and I am satisfied that the first
requirement of an interdict has been met on the facts.
In
view of my finding on the existence of a clear right, it would not be
necessary to establish a well-grounded apprehension of irreparable
harm. Assuming that I am wrong, I am convinced that in
casu,
there is a well grounded apprehension of irreparable harm in that it
goes without saying that minerals extracted from the ground are
irreplaceable. Therefore, the financial loss to the applicant is
irreparable. The test for apprehension is an objective one.
Essentially, the applicant must show, objectively, that his
apprehensions are well-grounded. A reasonable man faced with facts in
casu
might entertain a reasonable apprehension of injury. In the
circumstances, I find that the second requirement has been met.
The
third requirement is the balance of convenience. Here, the court is
required to weigh the prejudice the applicant will suffer if the
interim interdict is not granted against the prejudice to the
respondent if it is. Where there is greater possible prejudice to the
respondent, an interim interdict will be refused. If, however, the
prejudice to the respondent is less than that of the applicant, the
interdict will be granted. Put differently, the essence of the
balance of convenience is to assess which of the parties will be
least seriously inconvenienced by being compelled to endure what may
prove to be a temporary injustice until the just answer can be found
at the end of the trial.
As
I indicated above that the applicant's right has been clearly
established, it follows that it has strong prospects of success. It
is trite that the stronger the prospects of success, the less the
need for such a balance to favour the applicant; the weaker the
prospects of success, the greater the need for it to favour him. In
the present case, the continued contractual breaches will cause
greater prejudice to the applicant if the interdict is not granted
than the possible prejudice to the first respondent if it is granted.
From the totality of the circumstances in this case, there is a
higher risk that injustice may result if an interdict is declined.
Accordingly, I find that the balance of convenience favours the
granting of the interdict.
I
have already discussed the fourth requirement.
Finally,
I find that the applicant has established the requisites of an
interdict. Accordingly, I order as follows:
Interim
relief granted
Pending
the confirmation of the provisional order, the applicant be and is
hereby granted the following relief:
1.
That all forms of mining activities by the first respondent and
anyone in her employ on the five disputed claims be and are hereby
suspended.
