GWAUNZA
DCJ:
[1]
After initially reserving its judgment at the end
of
the hearing in this matter, the court later allowed the appeal and
issued the following order;
“1.
The appeal be and is hereby allowed with costs.
2.
The judgment of the court a
quo
be and is hereby set aside and substituted with the following:
(1)
The first respondent and all persons claiming occupation rights,
title and interest through him, shall remove or cause the removal
of themselves and all such persons occupying the mining claim
Tigress held under registration number 10098BM and as identified by
the second respondent.
(2)
Failing such removal, the Sheriff of Zimbabwe be and is hereby
authorised and directed to evict the first respondent and all
those claiming occupation, rights, title and interest through and
under him from mining claim being Tigress number 100098BM as
identified by the second respondent.
(3)
The first respondent and all those claiming with or through him
are barred from carrying out any mining activities on the mining
claim Tigress registration number 10098BM.
(4)
The first respondent is ordered to pay the costs of suit on an
attorney and client scale.”
The
court indicated that full reasons for the judgment would follow in
due course. These are they.
[2] This
appeal is against the entire decision of the High Court handed down
on 31 March 2022, in which the court dismissed the appellant's
application for a spoliation order against the respondents.
[3] FACTUAL
BACKGROUND
The
appellant and the first respondent have engaged in a litany of
disputes in the court a
quo,
all
related to their respective entitlements to the mining claims that
they operate on. The two mining claims are situate in Insiza
District, Matebeleland South and are adjacent to each other. The
appellant is the holder of mining claims known as Tigress, while the
first respondent has been conducting mining operations on claims
known as Lion West 25.
[4] Sometime
in 2021 a boundary dispute arose between the appellant and the first
respondent. The former alleged that the latter had encroached onto
its mining location and proceeded to mine gold ore, thereby depleting
the finite resource on its mine. At the time that the boundary
dispute arose, the first respondent had amassed a substantial amount
of gold ore which was stockpiled on the part of the appellant's
claim that he was accused of encroaching onto. In disputing the
allegations of encroachment onto the appellant's claim, the first
respondent insisted that he had been carrying out mining operations
on his mining claim, that is Lion West 25 for the past 17 years
without interruption and that no encroachment had taken place.
[5] On
8 March 2021, the second respondent wrote to the parties to the
effect that after attending at the disputed claims to ascertain the
coordinates of the parties mining claims, as ordered by the High
Court at the instance of the appellant (HC276/21), his finding was
that the first respondent had indeed encroached onto the appellant's
mining claim. The second respondent went on to direct the first
respondent to vacate the appellant's claim and revert to his own
coordinates. The latter did not comply, prompting the appellant to
later on request the second respondent's intervention. The second
respondent subsequently advised the appellant of his failure to
prevail upon the first respondent to vacate the part of the
appellant's claim that he had encroached onto. He consequently
suggested that the appellant could seek an interdict against the
first respondent from the court a
quo
since the court was already seized with the matter.
It
is pertinent to note that both the appellant and the first respondent
attended at the mining claims together with the second respondent, in
compliance with the order of the court.
[6] An
interdict sought by the appellant was subsequently granted against
the first respondent under case number HC884/21. This was after the
first respondent, who had consented to the provisional order sought
against him, failed to oppose the confirmation of the final order
interdicting him from further encroaching onto the appellant's
claim. Faced with imminent eviction from the appellant's claim,
the first respondent sought to have the interdict rescinded but later
withdrew the application. This circumstance led to the enforcement of
a Warrant of Ejectment by the Deputy Sheriff that saw the first
respondent being evicted from the part of the appellant's claim
onto which the encroachment had taken place. The appellant submits
that this action, conducted
by
the Deputy Sheriff on 1 February 2022, restored it to its peaceful
and undisturbed possession of the disputed part of its claim, as well
as the stockpiles of gold ore that the first respondent had
'unlawfully' extracted therefrom.
[7] The
appellant further averred that on the 16
February
2022 the first respondent recruited a mob of about 20 men who
forcibly removed it and its workers from the same portion of its
mining claim, from which the first respondent had been evicted barely
two weeks earlier. It is not disputed that the first respondent
thereafter, and despite the presence of the police to whom the
appellant had appealed for assistance, loaded and removed around 400
truckloads of gold ore, from the same stockpile that he had left on
the disputed part of the appellant's claim upon his earlier
eviction therefrom. The estimation of the quantity of the gold ore
carried away by the first respondent was given in a sworn statement
deposed to by an eye witness to the event. The appellant claims that
the first respondent thereafter took the gold ore to a stamp mill.
[8] In
evicting the appellant and its workers from the same place that he
had been evicted from two weeks earlier, the first respondent acted
on the strength of a spoliation order granted against persons other
than the appellant, on 16 February 2022 in case no
HC190/2022.
The appellant's workers, who had earlier been served with a copy of
the court order in question, correctly pointed out firstly, that the
order was issued in a matter in which the first respondent had not
cited the appellant, but other parties unknown to it, and therefore
having no connection to the appellant's claim. Secondly, that the
order related to the first respondent's mining claim Lion West 25,
and not Tigress, the appellant's claim from which the first
respondent had earlier been evicted.
The
appellant
submits
further that the invasion of and eviction of its workers from, the
disputed part of Tigress, its claim, had been carried out without the
assistance of the Deputy Sheriff of Zimbabwe, and so was a case of
self-help by the first respondent.
It
then emerged that unbeknown to the appellant, the first respondent,
after being evicted from the appellant's claim, had successfully
filed an urgent application for spoliation against parties other that
than the appellant. It is also evident from the order in question,
that it was granted in default, as those cited as the perpetrators
did not appear in court.
[9] The
appellant wrote urgent letters of protest to the first respondent's
legal practitioners, urging them to stop the first respondent from
invading its claim under the guise of enforcing a spoliation order
that in any case, did not cite the appellant as a respondent. The
appellant received a delayed response denying that the first
respondent had despoiled the appellant of any part of its mining
claim. The first respondent echoed this denial in his defence to the
spoliation proceedings in
casu.
While not expressly disputing that the appellant had not been cited
as a party to the proceedings in HC190/22, he denied that any
violence had been perpetrated against the appellant's workers. His
contention was that all he had done was to obtain an order to evict
persons who had violently taken over his own mining claims.
Further,
that the removal of such invaders from his claims was therefore
properly orchestrated, the order in question having restored Lion
West 25 claims into his possession. The first respondent reiterated
that he was still operating from the same mining location he had been
working on since 2005.
[10] The
first respondent advanced the further defence that in any case, it
was trite law that the holder of base metal registration certificates
such as the appellant could not seek to interfere with the exclusive
gold mining rights that he himself held. That being the case, he
further contended, he had applied for a declaratur
under
case number HC373/2022, which was still pending before the court. He
did not articulate a response as to why he had acted on the basis of
a court order not issued against the appellant, nor concerning its
mining claim, to access its claim, and cart away the very same mining
ore that he had been prevented from taking away upon his eviction
from what was ruled to be a part of the appellant's mining claim.
[11] In
determining the merits of the matter and after properly citing the
law on spoliation, the court a
quo
found that the
appellant
had
failed
to satisfy the essential elements for the relief of the spoliation
order that it sought. This, so the court reasoned, was because the
appellant and the first respondent had competing interests in the
mining location in question and further that the former had not shown
by clear proof that it was forcibly dispossessed of the disputed part
of the alleged mining claim. The court found that the appellant held
certificates to base minerals and had been extracting nickel on its
own claims. On the other hand, the first respondent had
exclusive
gold mining rights and had been extracting gold ore at its mining
location for close to 20 years. The court found further that the
parties mining rights were mutually exclusive.
[12] Having
opined that the matter concerning the determination of those mining
rights was not before it, the court a
quo
noted that the first respondent was in any case armed with an extant
order of the court (HC190/22) in terms of which Lion West 25 mining
location was restored to him. The court did not advert to the order,
also extant and coincidentally issued by the very same judge, in
terms of which the first respondent had earlier been evicted from the
same claim from which he had evicted the appellant and its workers.
Nor did the court comment on the propriety or otherwise of the
situation where an order authorising the eviction of persons other
than the appellant from the first respondent's mining claim, Lion
West 25, was used to evict the appellant from its own claim, Tigress.
Be
that as it may, the court ultimately found against the appellant and
dismissed its application for a spoliation order.
GROUNDS
OF APPEAL
[13] Irked
by the decision of the court a
quo
the appellant noted the present appeal on the following grounds:
“1. The
court a
quo
erred and contradicted itself in holding that the appellant had not
established a clear right for the grant of a mandament
van spolie
on the basis that appellant and first respondent had competing
interests in the mining location in question;
2. The
court a
quo
erred and grossly misdirected itself in finding that appellant had
failed to satisfy the elements for the grant of a mandament
van spolie
on the basis that appellant had not shown clear proof that it had
been forcibly deprived of possession when the evidence presented
showed a contrary position.
3. The
court a
quo
erred grossly in failing to find that the appellant had been
unlawfully or wrongfully deprived of possession when the evidence
from the first respondent clearly confirmed that he had dispossessed
the appellant by taking the law into his own hands.
4. The
court a
quo
erred in law in holding that appellant had failed to show 'clear
proof” that it had been despoiled when the law only requires a
party to show proof on a balance of probabilities.
5. The
court a
quo
erred in holding appellant had not shown a clear right for the relief
sought on the basis that there was an extant order of court under
HC190/22 restoring Lion West 25 mine to 1st
respondent when in fact the spoliation complained of took place at a
different location being Tigress Mine and the cited parties were
distinct from appellant.
6. The
court a
quo
erred and grossly misdirected itself in failing to acknowledge that
there was an extant order of court under HC884/21 which had already
determined the boundaries of appellant's mines and further caused
the vacation of first respondent from the appellant's mine.”
THE
LAW
[14] There
is no dispute between the parties, nor between the parties and the
court a
quo,
as to the essential elements and import of, an order of mandament
van spolie.
This is evidenced by the citation of apposite authorities by both
parties and the court. The point of departure, as is clear from the
evidence, was the application of the principles of
spoliation
established in the cited authorities, to the facts of the matter
before the court. The court a
quo
in its judgment appositely cited the following passage from the case
of Diana
Farm (Pvt) Ltd v Madondo N.O. & Anor 1998 (2) ZLR 410 (H) at 413;
“The
law relating to the basis on which a mandament
van spolie
will be granted is well settled. In Davis
v Davis 1990 (2) ZLR 136 (H) at 141, Adam J
quoted with approval the following statement by Herbstein
J
in
Kramer
v Trustees Christian Coloured Vigilance Council, Grassy Park 1948
(1) SA 748 (C) at 753:
'…..two
allegations must be proved, namely (a) that applicant was in peaceful
and undisturbed possession of the property and (b) that the
respondent deprived him of the possession forcibly or wrongfully
against his consent.'
…..
The onus
is on the applicant to prove two essential elements set out above.
Past the second element is lack of consent. In Botha
& Anor v Barrett 1966 (2) ZLR 73 (S) at 79-80,
it was said by Gubbay
CJ:
'It
is clear law that in order to obtain a spoliation order two
allegations must be made and proved. These are;
(a) that
the applicant was in peaceful and undisturbed possession of the
property;
(b) that
the respondent deprived him of the possession forcibly or wrongfully
against his consent.'”
These
excerpts need no elaboration as they clearly postulate the law on
spoliation.
APPLICATION
OF THE LAW TO THE FACTS OF THE MATTER
[15] The
facts of the matter that are
not
seriously disputed, are salient, or based on cogent documentary
evidence comprising court orders, coordinates, maps and sworn
affidavits, are the following;
Pursuant
to a dispute between the parties concerning the coordinates of their
adjacent mining claims, the court a
quo
at the instance of the appellant ordered the second respondent,
together with the parties, to attend at the disputed claims and
ascertain the parties respective coordinates (HC276/21).
The
second respondent thereafter determined that the first respondent
had indeed encroached onto the appellant's claim, Tigress, but his
direction to the former to vacate the area encroached upon, was
defied. The first respondent continued extracting gold ore from the
appellant's claim;
The
appellant thereafter successfully obtained a final order
interdicting the first respondent from further encroaching onto its
location and mining ore from it (HC884/21).
Execution
of this
order
by the Deputy Sheriff resulted in the first respondent being evicted
from the disputed part of the appellant's mining claim, leaving
behind the stock piles of gold ore that it had mined from it;
The
effect of the first respondent's eviction from Tigress was to
restore the appellant to full possession thereof, including control
of the gold ore previously extracted by the first respondent;
Sixteen
days later, on the basis of a spoliation order in HC190/22,
obtained by the first respondent against persons unknown to the
appellant, and concerning the first respondent's claim, Lion West
25 - not Tigress - a gang of some 20 people forcefully dispossessed
the appellant's workers of the part of the appellant's claim
from which the first respondent had been evicted.
This
included substantial amounts of the gold ore that was stockpiled at
the location, which, on the instruction of the first respondent, was
carted away in truck loads.
Efforts
by the appellant to get the first respondent to desist from
despoiling it thus yielded no results, leading to the unsuccessful
filing by it of the urgent application in
casu
for spoliation against the first respondent.
[16]
From the facts of the matter as outlined, the sole issue arising for
determination in this appeal, in the court's view, is the
following:
Whether,
given the facts of the matter as outlined, the court a
quo
properly determined the application for a mandament
van spolie
that was before it
The
court will now consider this issue.
[17] The
appellant contends in its heads of argument that the court a
quo
erred in three main respects. Firstly, although accepting that in
spoliation proceedings the substantive rights of the parties are not
relevant, since the court is only concerned with the restoration of
the status
quo ante,
it
nevertheless went on to improperly determine that there were
“competing interests” in the mining location in question.
Secondly, that on the basis of those competing interests, the court a
quo
held that the appellant had failed to establish a clear right to an
order for spoliation. Thirdly that the court erred in failing to
acknowledge that there was an extant order of the same court under
HC884/21 which had already determined the boundaries of the
appellant's mining location and further, led to the eviction of the
first respondent therefrom.
[18] This
court finds that there is merit in the appellant's contentions, as
the following excerpts
from the court's judgment make abundantly clear;
“Applicant
alleges that the order was served on certain individuals not
connected to it. I am mindful of the fact that the facts disclose
competing claims over the mining locations of the respective parties.
In
spoliation proceedings the court does not concern itself and must not
delve into the substantive rights of the parties.
The simple point made is that there are competing interests. The
applicant does not have a clear right to an order for a mandament
van spolie.
The alleged spoliation is denied.” (my
emphasis)
Later
in the same judgment, specifically the Disposition, the court stated
as follows;
“The
point was made that applicant holds certificates to base minerals and
has been extracting nickel on its own. First respondent has been
extracting gold ore on its mining location for close to 20 years. The
mining rights of the parties are mutually exclusive………………………………………..
To
the extent that first respondent is armed with an extant order of
this Court which has not been set aside under case number HC190/22
wherein Lion West 25 mining location was restored to first
respondent, Applicant has not established a clear right for an order
for a mandament
van spolie……..”
[19] The
excerpts
cited above, which in effect constitute the ratio
decidendi
of the judgment of the court a
quo
in dismissing the appellant's application for a spoliation order,
serve to illuminate the court's misdirection in its determination
of the matter before it. On the basis of the court's own correct
interpretation of the requisite law on spoliation, an applicant must
prove;
(i) that
the he or she applicant was in peaceful and undisturbed possession of
the property; and
(ii) that
the respondent deprived him or her of the possession forcibly or
wrongfully against their/his consent.
Instead
of applying the law to the proven facts of the case, the court did
exactly as it had noted should not be done, that is, concern itself
with the substantive rights of the parties. Competing interests, in
the court's view, go to the root of the dispute concerning the
parties rights or lack thereof, in the subject of the dispute. Their
existence may in fact properly found an application for a
determination on the substantive rights of the parties to or in the
subject matter of the dispute. In other words, the type of
application for a declaratur,
that the first respondent submits it has already filed with the court
in HC 373/22.
The law as cited above is clear that spoliation is concerned only
with restoring the status
quo ante
pending
a determination on the merits of the main dispute between the
parties. The existence or otherwise of competing interests in the
subject matter of the dispute was therefore, in
casu
not relevant to a decision on whether or not spoliation had taken
place. In the same vein the court delved into matters concerning the
parties substantive rights by declaring that such rights were
'mutually exclusive.' Based on the same reasoning, the court
also held that, as the first respondent had regained possession of
his mining location pursuant to HC190/22, the appellant had not
established a clear right to the spoliation order that it sought.
[20] It
is thus evident that in order to reach its determination in
casu,
the court a
quo
went beyond the parameters constituting just cause for a mandament
van spolie.
Its pronouncements in this respect had the effect of pre-judging the
application said to be pending before the same court, for a
declaratur
in HC373/22, concerning the parties substantive rights in the
disputed mining claim. Alternatively, the court may have improperly
traversed and ruled on issues already determined in the proceedings
leading to the final interdict issued against the second respondent
in HC884/21. Not having been rescinded or appealed against, this
order has final effect. The court a
quo
did this in circumstances where the applicant had not, and properly
so, founded its claim for spoliation on any other ground except that
it had been wrongfully and forcibly despoiled of its peaceful and
undisturbed possession of mining claim in question.
[21] In
this respect, the Court finds no merit in the contention by the first
respondent that the court a
quo
dismissed the appellant's application, not because of the existence
of the competing interests, or the mutual exclusivity of their mining
rights that it referred to, but on the basis that the appellant had
not established a clear right to the spoliation order that it sought.
This submission in the Court's view misses the point that it is not
necessary in spoliation proceedings for one to establish a clear
right. Further, that in spoliation proceedings, the court is not
called upon to consider or make a pronouncement on the existence or
otherwise of the parties competing or mutually exclusive interests in
the object of the dispute, much less base its decision on such a
pronunciation. That pronouncement should properly be left to any
subsequent proceedings in terms of which the parties substantive
rights would be determined. This position is clearly articulated as
follows in Herbstein
& Van Winsen “The Civil Practice of the Supreme Court of South
Africa
4th
Ed at page 1064:
“A
mandamente
van spolie
is a final order although
it is frequently followed by further proceedings between the parties
concerning their rights to the property in question.
The
only issue in spoliation applicant whether there has been a
spoliation. The order that the property be restored finally settles
the issue between the parties.” (my
emphasis).
[22]
Accordingly, the finding by the court a
quo
that
the appellant had not established a clear right to a mandament
van spolie
due to;
(i)
the existence of competing interests; and
(ii) the
fact that the parties rights in the disputed mining claim were
mutually exclusive; was
both wrong at law, and a misdirection which cannot be allowed to
stand. More damning is the court a
quo's
improper reliance on an order in favour of the first respondent,
which concerned neither the appellant nor its mining location, to
reach the finding that the appellant had failed to prove a case for
the mandament
van spolie
that it sought against the first respondent. The reliance on that
order in HC190/22 was non
sequitur
and thus, improper.
[23] As
a fact relevant to the proper determination of the spoliation
proceedings before the court a
quo,
the appellant submits in any case, that the issue of any competing
interests in the disputed location had already been put to rest. This
was supported by the court order which resulted in the eviction of
the first respondent and also by ample documentary evidence on record
showing that the coordinates and boundaries of the parties mining
locations had been determined by the second respondent in the
presence of both the first respondent and the appellant's
representatives. Further, that on the basis of these reports, whose
existence the first respondent did not dispute, and which remained
extant since they had not been set aside, all doubt was removed as to
the reality of the first respondent's encroachment onto the
appellant's Tigress mine. That being the case, the first respondent
who was thereafter directed to revert to his own Lion West 25 claim,
should not have openly defied that directive and continued to mine
and stockpile gold ore on the appellant's claim.
[24] The
Court thus finds, on this basis, that the first respondent's
defiance of the directive to vacate the appellant's location was
done with full knowledge that he was forcefully working on the
appellants claim, not his. The first respondent's defiance was
further compounded by the fact that he continued mining on the
appellant's claim even after the latter obtained a final order
under HC884/21
interdicting
him from further encroaching onto and mining from, the appellant's
location. The continued defiance of even this order led to him
finally being evicted by the Deputy Sheriff from the appellant's
mining location. It is pertinent to note that the order was extant at
the time the court a
quo
heard and determined the application in
casu
and
remains
extant to this day. Significantly, the order was extant at the time
of the alleged spoliation.
[25] The
facts outlined in para 15 above are what the court a
quo
should properly have taken into account in determining the first of
the two issues that the applicant before it was enjoined to prove ie:
that it was in peaceful and undisturbed possession of the property
when it was despoiled. Had the court done so, it would perforce have
had to accept as proved, (since the documentary and actual evidence
to that effect was not challenged or disproved), that indeed, the
appellant was in peaceful and undisturbed possession of its claim,
Tigress, until the events leading to the alleged spoliation took
place. It was, in the court's view, somewhat of a puzzle that
despite full evidence establishing these facts having been tendered
before it, the court in its judgment totally disregarded it. The
evidence crucially included the learned judge's own earlier
judgment in HC884/22,
interdicting
the respondent from further encroaching onto the appellant's claim.
Instead, the court placed reliance for its determination in
casu,
on a judgment (HC190/22) in favour of the first respondent that
neither cited the appellant nor was concerned with its claim,
Tigress.
[26] The
second factor that the appellant had to prove in its application for
a spoliation order against the first respondent was that it was
wrongfully or forcefully, and against its consent, deprived of its
possession of the mining claim in question. The court a
quo
did
not directly address the evidence adduced by the appellant in this
respect. Had it done so, it would have found that the appellant had
indeed proved its case in so far as that issue was concerned. It is
not in dispute that in its application for a
mandament
van spolie
(HC190/22), the first respondent cited persons unrelated to the
appellant and having no connection with Tigress. The proceedings in
question culminated in an order granted in default of appearance by
the alleged despoilers of the first respondent (HC190/22). It has
already been noted that the warrant of ejectment thereafter obtained
by the first respondent in terms of this order, was firstly and with
no explanation, served on the appellant's workers at Tigress, and
then unlawfully used by the first respondent - and not the Sheriff -
with the aid of some 20 or so persons, to evict the appellant's
workers from its claim.
[27] It
is pertinent to note that the first respondent, who in reality could
not dispute obtaining the inapplicable order in question, or its
service on the applicant's workers, offered a bare denial to the
assertion that violence had been employed and threatened against the
appellant's workers by the 'mob'of 20 or so persons. This in
effect was an admission that such a mob did illegally invade the
appellant's claim. The respondent's repeated defence to the
spoliation proceedings against him, which the court accepted, was
that:
(i) he
had been mining on his claim, Lion West 25 for over 17 years without
disturbance and the appellant, who was the holder of certificates to
base minerals and has been extracting nickel on its own claims, did
not have the right to interfere with his operations;
(ii) that
he was properly armed with an extant court order (HC190/22) which he
had used to secure the restoration of his mining claim, Lion West 25
which he had been despoiled of; and
(iii) in
relation to the admitted self-help in re-possessing the appellant's
claim after evicting them therefrom, that his alleged despoilers had
voluntarily left his mining claim, a circumstance that rendered
nugatory, the services of the Deputy Sheriff.
[28] What
is immediately evident from the defence proffered by the first
respondent is that he does not dispute the essential elements of a
mandament
van spolie,
that the appellant relied on for its claim, that is;
(i) that
it was in peaceful and undisturbed possession of its claim, Tigress,
courtesy of the court order in HC884/21 and his consequent eviction
therefrom by the Deputy Sheriff on 1 February, 2022; and
(ii) that
on the strength of a court order and warrant of ejectment in
HC190/22,
which
neither
cited the appellant nor was related to its claim, Tigress, the first
respondent with the aid of a gang of some 20 people, forcibly evicted
the appellant's workers from Tigress; and
(iii)
that having done so, the first respondent promptly commenced an
operation that lasted many hours, to load and drive away around 400
truckloads of gold ore from the stockpile that he had been forced to
leave behind upon his eviction from Tigress by the Deputy Sheriff.
[29] The
'defence' that the first respondent put up was thus in the
court's view, and given the evidence before it, nothing short of a
red herring. Firstly, it ignored the fact that while he may indeed
have been mining for 17 years on what he believed to be his mining
claim, Lion West 25, a delineation of the boundaries of the parties
claims had revealed that he had been encroaching onto the appellant's
claim all that time. Secondly, the fact that he had wrongfully mined
gold ore on the appellant's claim for a long time did not
legitimise his encroachment onto the appellant's location. The same
defence repeatedly referred to an order obtained in a matter between
the respondent and persons other than the appellant, as the basis for
despoiling the latter of its lawful possession of the disputed mine
location. As for the self-help resorted to in this respect, the first
respondent does not explain why, following the supposed voluntary
departure of his alleged despoilers from his mining claim, he then
turned his attention to a different mining claim, the appellant's,
and different 'despoilers.' Having enlisted the services of 20 or
so persons, violence or the threat of violence, was then used by them
to drive the appellant's workers off their mining location. How the
first respondent and for its part, the court a
quo
could have conflated matters in this manner, beggars belief.
[30] Realistically
therefore, given these circumstances, the appellant's cause of
action in the proceedings a
quo
as well as the evidence supporting it, were not challenged or
disproved. The court a
quo
should have accepted that
for
all intents and purposes the appellant did prove its case against the
first respondent, that is, that he deprived it of its possession of
the claim, Tigress, forcibly or wrongfully against its consent. What
can reasonably be deduced from the first respondent's conduct is
that he wished to continue mining gold ore on the appellant's
mining location at any cost and against all possible odds. He thus
defied orders to vacate the disputed part of the appellant's claim
despite the coordinates and boundaries having been properly and in
his presence too, delineated. He went on to defy a provisional court
order that he had himself consented to, and continued to do so even
after the interdict against him was confirmed. Realising that he had
irretrievably lost the chance to have the order in HC884/21 set
aside, the first respondent it seems, decided to change tactics.
There is little doubt that this was driven by his continued desire to
mine gold ore from the appellant's mining claim, Tigress.
[31] As
has been established by the evidence before the court, the first
respondent's changed tactics entailed the successful filing, some
two weeks after his eviction from Tigress, of the urgent spoliation
proceedings against persons totally unrelated to the appellant, and
its claim, Tigress. Armed with the court order granted in this case,
HC190/22, the first respondent, in an act of self-help and aided by a
group of some 20 or so persons, executed the order on a location
(Tigress) and against persons totally different from those cited in
the case in point. Given this conduct, the court's view is that it
is not unreasonable of the appellant to conclude that the proceedings
under HC190/22 were 'nicodimusly' instituted for the sole purpose
of circumventing the order in HC884/21, and its effect, in order to
give the first respondent's re-invasion of the appellant's claim
some semblance of legitimacy.
[32]
The first respondent, and the court a
quo
in
upholding the first respondent's defence,
seem
to have missed the point that an earlier, extant order of the court,
and its import, could only be circumvented on the basis of the law
and procedures specially laid down for that purpose and properly
applied. Crucially, it was important for the first respondent to
appreciate that it is not legally permissible for one to take the law
into their own hands in order to regain possession of a location from
which one was legally evicted. The fact that all this was done under
the guise of enforcing an order of the court, when such order was
totally unrelated to the location in question, and its legal
occupier, only served to compound the impropriety of the first
respondent's conduct. The whole exercise taken as whole, smacks of
a deliberate scheme to subvert and abuse court processes in order to
achieve an end that was palpably unlawful and prejudicial to an
opponent who was only trying to protect its own property. The court
frowns upon such conduct. Additionally the Law Society of Zimbabwe
may rightly be concerned that the first respondent was legally
represented in all processes filed on his behalf in securing the
order in HC190/22, and in having it executed against a person neither
cited in the case nor occupying the property cited therein.
[33] Against
this background, it is in the Court's view quite ingenious of the
first respondent to steadfastly cling to the mantra that all it had
done was to ensure the eviction from his own mining claim, Lion West
25, of those who had invaded and wrongfully despoiled him. The first
respondent made this assertion without explaining how it was that the
only eviction that had taken place was of the appellant's workers
who were peacefully in occupation of the appellant's claim. It is
also quite confounding that the court a
quo
accepted the totality of the first respondent's defence, and
premised its determination of the matter before it, thereon. This was
after the court turned a blind eye to the reality that the spoliation
in question had occurred not at the mining location cited in
HC190/22, but on the appellant's mining claim. The upshot of all
this is that the court, for all intents and purposes treated the
matter before it as if it was the first respondent, rather than the
appellant, who had presented his case for spoliation against the
appellant.
The
court a
quo's
misdirection in this respect cannot be gainsaid.
DISPOSITION
[34] In
view of the foregoing, the Court found that the appeal had merit and
consequently, that the entire order sought by the appellant a
quo
should have been granted. As the evidence before the court has
demonstrated, the court a
quo
failed to properly determine the application for a mandament
van spolie
that was before it.
Accordingly,
the Court granted the order cited at the beginning of this judgment.
BHUNU
JA: I
agree
MUSAKWA
JA: I agree
Coghlan
and Welsh, appellant's legal practitioners
Messrs,
Mathonsi Ncube Law Chambers, first respondent's legal practitioners
