Urgent
Chamber Application
TSANGA
J:
In March 2016 the applicant Grandwell Holdings (Grandwell) which owns
a 50% shareholding in Mbada Diamonds [Private] Limited (Mbada), a
joint venture initiative for diamond mining in Chiadzwa obtained an
interim order under HC1977/16 (HH193-16).
The
other 50% shareholding in Mbada is owned by Marange Resources
[Private] Limited (Marange), a government owned company.
According
to the applicant, the elements of the order which was granted
entitled its security personnel and its entire chain to return to
Chiadzwa in order to safeguard its assets. Among these are said to be
diamond ore and unprocessed diamonds that are kept in a vault. The
diamond ore which has been crushed awaits removal of diamonds.
What
is not in dispute is that from March last year the applicant's
security personnel went on site as per the order by the court in
HC1977/16.
What
has brought the applicants back to court on the an urgent basis is
its allegation that their security personnel at the diamond site have
now been removed and that massive looting of their diamond ore has
taken place at the instance of the first respondent, Zimbabwe
Consolidated Diamond Company Limited (ZCDC), and continues to take
place aided and abetted by the Zimbabwe Republic Police (the police),
as the second respondents.
The
ore is said to being loaded without any recording or chain of command
making it impossible to ascertain what is being taken.
With
the core mingling of the diamond ore with that being mined by ZCDC,
the fear is that it would be impossible to tell which diamonds come
from which ore and that therein lies the irreparable harm.
Mbada's
security personnel have been sterilised by these actions of ZCDC.
To
compound the problem ZCDC is said to have brought onto the mining
site security personnel previously hired by Mbada who know how to
open the vault locks. As such a real fear is that of the diamonds
being stolen.
Further
if the ore and the diamonds are taken an equally real fear is that
the pending appeal before the Supreme Court would be rendered
nugatory.
Having
invested US$100m in Mbada, Grandwell says it has a real and
substantial interest in protecting the interests of Mbada and its own
investment.
An
attempt is said to have been made to file the application on behalf
of Mbada but it had failed to secure the signatures of
representatives on the board of Mbada who represent Marange.
Grandwell
being a 50% shareholder in Mbada had therefore brought a derivative
action to enforce the rights of Mbada and to seek a possessory remedy
to restore possession.
The
basis upon which Grandwell says that Mbada has been despoilt is para
7 of the order that was granted in HC1977/16. The paragraph was
couched as follows:
“Paragraph
7
For
the purposes of safeguarding assets, all of the fifth respondent's
security personnel, with all their chain of command, shall be
entitled, authorised and empowered to remain at the fifth
respondent's mining site at Chiadzwa Diamond Concession, as
directed in paragraph 2 of the order of this court on 29 February
2016, until the resolution of this matter”.
The
police as second respondents were said not the have appealed against
the order, whilst the ZCDC which had indeed appealed, had only done
so against the finding that it had committed acts of spoliation.
The
appeal was therefore said to be in part leaving para 7 in essence
extant.
In
addition the fact that there was no appeal against the presence of
security personnel as per the court order which is said to be extant
was said to be supported by the fact that for almost a year Mbada's
security personnel remained firmly on site even as the appeal was
pending.
However
ZCDC's position is that any removal that has taken place has been
as per the court order and arises from the fact that the mining
grants which were acknowledged to have expired in the said order of
the court have not been renewed.
Spoliation
per se is denied.
The
police say they are there in terms of their constitutional mandate in
section 219 to maintain peace and order and safeguard property. They
have asserted that they cannot be interdicted from carrying out a
lawful mandate. Furthermore, their standpoint is that no police
report was made regarding any theft to diamonds.
They
too essentially deny despoiling Mbada.
Points
in limine
Several
technical points in limine were raised on behalf of the ZCDC and the
Commissioner of Police.
Mr
Mucheche had initially raised an objection on behalf of ZCDC that the
word “limited” had been omitted from first respondent's name.
An
application to amend was made which was granted.
The
urgency of the matter was also queried on account that Grandwell had
written in January to another set of practitioners with the same
complaint. As such it was said that urgency had arisen then and not
at this point.
With
the removal of ore and the denial of security personnel at the site
having been said to be ongoing, I cannot see how the matter ceases to
be urgent.
As
highlighted in the case of Telecel Zimbabwe (Pvt) Ltd v Portraz &
Ors HH446-15, the essence of an urgent application is that if the
court fails to act, the position would be irreversible to the
prejudice of the applicant.
As
was also pointed out in that case by MATHONSI J, the issue of the
urgency vis a vis the time taken to bring an application has tended
to be blown out of proportion.
In
that case 22 days was said not to be inordinate.
In
casu where the violation is said to be ongoing I cannot see how the
matter loses its urgency simply because a letter was written some 18
days prior.
Mr
Magadure queried the certificate of urgency on account of it being
dated 9 February when the actual founding affidavit in the matter was
only signed on the 10th. He therefore asserted that there was no
proper application before me on account of the certificate of urgency
predating the founding affidavit.
The
case of Condurago Investments (Pvt) Ltd v Mutual Finance (Pvt)
Limited HH630-15 was cited.
The
explanation given in casu by Mr S Moyo for the eventuality that had
occurred was that the legal practitioner in question had read the
application and completed the certificate of urgency whilst the
application itself had had to be mailed to Cape Town as a matter of
urgency as that is where the Directors of Grandwell are based.
Furthermore
a supplementary certificate of urgency was filed at the hearing
bearing a date that was post the return of the affidavit. The content
of the affidavit as regards urgency had not in any way changed.
In
my view the explanation given that the legal practitioner would have
had sight of the affidavit before it was dispatched is plausible and
would explain why its content and that of the affidavit indeed speak
to the same exigencies.
Another
objection taken to the application is the non-use of the relevant
form in the application as required by Rule 241(1) of the High Court
Rules 1971.
As
stated in the case of Marick Trading (Pvt) Ltd v Old Mutual Life
Assurance Company Zimbabwe Ltd and Anor 2015 (2) ZLR at 343 whilst it
is critical for legal practitioners to follow rules, ultimately it
may be in the interests of justice to use Rule 4C which allows a
condonation of departure from the rules where the facts permit.
In
casu where at the heart of the application is spoliation, involving
undisclosed though evidently considerable sums of money since
diamonds are involved, it would in my view be inane to insist on the
technicality of a form when this is clearly an instance that calls
for the justified use of Rule 4C.
The
issue of the certificate of urgency and the non-use of the relevant
form for urgent applications as modified is therefore condoned in
this instance in terms of Rule 4C(a).
Mr
S Moyo also raised an objection on the failure by the counsel of the
Commissioner of Police to serve his affidavit on time despite it
having been attested to on 15 February well before the hearing which
was on the 20th. This was said to reinforce malafides on the part of
the respondent and was said to justify a special order as to costs.
The
explanation given by Mr Magadure for the delay in my view raised
sufficient doubt as to whether the delay was intentional or even
malafide. He had been out of town at the time that it had been filed.
I
turn now to the merits.
The
merits against the backdrop of facts I have already outlined, the
bulk of Mr Mucheche's submission were on the competing rights to
the ore stemming from the non-renewal of the mining grants.
This
indeed was of no relevance to an application for spoliation since its
purpose is: “not the protection and vindication of rights in
general, but rather the restoration of the status quo ante where the
spoliatus has been unlawfully deprived of a thing, a movable or
immovable, that he had been in possession or quasi-possession of.”
See Zulu v Minister of Works, KwaZulu and Others 1992 (1) SA 181 (T).
Key
to remedy is the need to stop and reverse self-help in the resolution
of disputes between parties.
Furthermore
as explained in Yeko v Qana 1973 (4) SA 735 (A) at p739 drawing in
Voet 41.2.16:
“…..
the injustice of the possession of the person despoiled is irrelevant
as he is entitled to a spoliation order even if he is a thief or a
robber. The fundamental principle of the remedy is that on one is
allowed to take the law into his own hands. All that the spoliatus
has to prove is possession of the kind which warrants protection of
the remedy and that he was unlawfully ousted.”
An
applicant in spoliation proceedings has to establish that they were
in peaceful and undisturbed possession of the thing in question at
the time they were deprived of possession.
As
stated in the case of Gondo NO v Gondo 2001 (1) ZLR 376 at p378E-F:
“In
order to obtain a spoliation order an applicant needs to prove no
more than that -
(a)
he was at the time of the act of spoliation in peaceful and
undisturbed possession of the property; and
(b)
he was forcibly or wrongfully and against his consent deprived of
possession.”
Therefore
what is of relevance here is whether an act of spoliation has taken
place entitling the return of possessory right to the Mbada.
Fundamentally
also as observed in the case of Chikodzi & Anor v Mashonaland
Tobacco (Pvt) Limited & Anor HH392/15, self-help itself
materially runs against the grain of rule of law as articulated in
section 3(1)(a) and (b) of the Constitution of Zimbabwe Amendment Act
(No.20) Act 2013 which states in section 3 in its founding values and
principles that:
“Zimbabwe
is founded on respect of the following values and principles –
(a)
Supremacy of the Constitution.
(b)
The rule of law.”
Self-help
is inimical to a society in which the rule of law prevails as
observed in the case of Chief Lesapo v Northwest Agricultural Bank
2000 (1) SA 409.
Notably
this dispute pits a joint venture entity with its foreign investor
against a state created entity.
It
is as such important to bear in mind the broader picture.
Among
the multitude of factors that have a bearing on investment anywhere
in the world is observance of the rule in the settlement of disputes.
It matters not that one of the parties feels contractually
short-changed or thereby entitled to its actions. The rule of law
ought to be the guiding principle and it is the duty of the courts to
fearlessly foster dispute resolution through the proper channels at
all times. Disregard for the rule of law ultimately does nothing
towards fostering a climate of trust for productive investment.
Much
of the focus by Mr Mucheche addressed the question of rights.
The
dispute in so far as this aspect is concerned is under appeal.
The
applicants were emphatic that the gravamen of their complaint is the
removal of the security personnel who remain at Chiadzwa but have
been confined to the residential areas.
In
view of the order that was granted in HC1977/16 of which para 7 has
indeed from an examination the notice of appeal not been appealed
against by ZCDC the first respondents, then Mbada is entitled to an
interim relief in the spirit of part of that remains extant.
It
has been argued that Mbada has alleged spoliation and yet it seeks an
interdict.
It
is clearly in terms of the rights accorded in para 7 of that order
that it bases its application for an interdict. As such the argument
that they have not satisfied the requirements of an interdict
therefore cannot hold. It has merely sought a remedy that is
appropriate to the facts. The interdict seeks among things to stop
the removal of its ore.
No
evidence was placed before the court for this hearing to challenge
applicant's assertion that Mbada's security personnel had in fact
been on the site undisturbed from the time of the granting of the
order up until the recent developments of dispossession.
However,
having examined closely the interim relief sought against the final
relief claimed, I am undoubtedly of the view that para 1 of the final
relief is in fact what should constitute the interim relief whilst
para 1 of the interim relief is undoubtedly a part of the final order
sought. It is far broader and delves into the issue of actual mining.
This
was not the subject matter of para 7 of the order granted in
HC1977/16.
Accordingly
the provisional order is granted as follows:
INTERIM
RELIEF GRANTED
Pending
the confirmation of the final order, it is ordered that:
1.
The 1st and 2nd Respondents and those acting on their behalf be and
are hereby interdicted from collecting, from Third Respondent's
concession area, diamond ore mined by the Third Respondent, accessing
areas secured by security personnel of the Third Respondent or
otherwise interfering in any manner with such security arrangements
in relation to the said concession area. 2. Costs will be in the
cause.
Scanlen
and Holderness, applicant's legal practitioners
Matsikidze
& Mucheche Commercial & Labour Law Chambers, 1st respondent's
legal practitioners
Civil
Division of the Attorney General's Office, 2nd defendant's legal
practitioners
