Urgent
Chamber Application - Spoliation
MAKONESE
J: This
is an application for spoliation.
1st
respondent has opposed the application and raised several preliminary
objections which if sustained would be dispositive of the matter.
The
order sought by the applicant is in the following terms:
“IT
IS ORDERED THAT:
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 claims Tigress
held under registration number 10098BM and as identified by the 2nd
respondent.
2.
Failing such removal, the Sheriff of this Honourable Court (5th
respondent) be and is hereby authorised and directed to evict 1st
respondent and all persons claiming occupation, rights, title and
interest through and under him from the mining claim being Tigress
number 10098BM as identified by the 2nd
respondent.
3.
2nd
respondent shall identify the mining location Tigress number 10098BM
for 5th
respondent to enable him to serve and execute this order on the
correct mining location.
4.
The 3rd
and 4th
respondents be and are hereby directed to provide an escort and any
other physical assistance necessary for the 5th
respondent during the service and execution of this order.
5.
The 1st
respondent and all those claiming with or through them are barred
from carrying out any mining activities on the mining claim Tigress
registration number 10098BM.
6.
The 1st
respondent is ordered to pay the costs of suit on an attorney and
client scale.”
FACTUAL
BACKGROUND
The
applicant and 1st
respondent are engaged in litigation in various cases under case
numbers HC261/21, HC274/21, HC826/21, HC884/21, HC1024/21, HC127/22,
HC127/22, HC131/22, HC190/22, HC373/22, HC325/22.
In
the midst of this flurry of cases filed in this court, applicants
have filed this Urgent Chamber Application for a spoliation order.
1st
respondent has been conducting mining operations on claims situate in
Insiza District, Matebeleland South, on claims known as Lion West 25,
registration number 9133BM and extracting gold ore from these claims
since 2005 when the claim was registered with the Ministry of Mines.
It
is not disputed that applicant is the holder of mining claims known
as Tigress, registration number 10098BM.
The
two mining locations are adjacent to each other.
Sometime
in February 2022 a dispute arose between applicant and 1st
respondent. 1st
respondent insisted that he was carrying out mining operations on his
mining claims, Lion West 25 for the past 17 years without
interruption and that there was no encroachment. On 8th
March 2022, the 2nd
respondent wrote to the parties indicating that they had adjudicated
on the dispute and made a finding that 1st
respondent had encroached onto applicant's mining claims.
1st
respondent has taken the matter to this Honourable Court.
2nd
respondent advised that applicant should seek an interdict from this
court since the matter was pending in this court.
Under
case number HC325/22, applicant has instituted contempt of court
proceedings in respect of an earlier order of this court. The matter
is still pending.
Under
case number HC373/22 1st
respondent instituted a Court Application for a Declaratory Order
seeking an order declaring that its title to Lion West 25 is valid
and lawful. This matter is pending in this court.
Applicant
contends that he was lawfully handed possession of the mining claims
in issue by the Deputy Sheriff on 1st
February 2022. Applicant further contends that on 16th
February 2022 the 1st
respondent recruited a mob of 15 to 20 individuals who forcibly
removed the applicant from its mining claims.
This
version is disputed by the 1st
respondent who contends that under case number HC190/2022 he obtained
an order to evict persons who had violently taken over his mining
claims.
1st
respondent contends that he carried out the removal of invaders on
his claims in accordance with a court order obtained in this court.
1st
respondent denies that he dispossesed applicant's employees of the
(Tigress) mining claims.
In
response to the specific allegations of spoliation, 1st
respondent denies that he despoiled the applicant and contends that
he is still operating from the same mining location he has been
working on since 2005.
In
any event 1st
respondent avers that it is trite law that a holder of Base metal
registration certificates such as the applicant cannot seek to
interfere with exclusive gold mining rights held by the applicant.
In that regard, 1st
respondent points out that he has filed an application for a
declaratur which is currently pending under case number HC373/2022.
Before
dealing with the merits of the application it is necessary to address
the preliminary points raised by the 1st
respondent.
POINTS
IN LIMINE
WHETHER
OR NOT APPLICANT HAS USED THE WRONG PROCEDURE
1st
respondent contends that it is procedurally incorrect for applicant
who has instituted contempt proceedings under case number HC325/22
which are pending before this court to turn around in the same breath
and allege and pursue a spoliation order.
1st
respondent argues that the correct procedure in the circumstances
would have been to file an Urgent Chamber Application to have the
proceedings heard on an urgent basis instead of filing an Urgent
Chamber Application for a Spoliation order.
In
response applicant states that there is nothing precluding it from
proceeding with spoliation proceedings. It is argued that the
proceedings are mutually exclusive.
It
is my view that whilst there may be nothing preventing the applicants
from proceeding with contempt of court proceedings at the same time
pursuing an order for spoliation this seems to me to be inundating
this court with a multiplicity of actions.
The
applicant claims that this matter is urgent.
It
has not escaped my notice that contempt of court proceedings were
initiated in this court on the 23rd
of February 2022. 1st
respondent filed its Notice of Opposition on the 25th
of February 2022. The applicant has not prosecuted that matter to
date.
On
14th
March 2022, more than two weeks later, this urgent application for
spoliation was filed.
No
explanation is given by the applicant why the contempt of court
proceedings were not pursued. This does not render the current
proceedings a nullity. The court does not, however, encourage the
filing of multiple actions concerning the same dispute. I would not
uphold this point in
limine.
WHETHER
OR NOT THERE ARE MATERIAL DISPUTES OF FACT
1st
respondent contends that there are material disputes of fact which
cannot be resolved on the papers.
1st
respondent states that he is in occupation of its own mining claim
namely Lion West 25, which mining location is exclusive from Tigress
Mine registration number 10098BM and Lion West 2 Mine registration
number 9133BM. Further, 1st
respondent contends that he has gold mining rights over the area
which is mutually exclusive to applicant's nickel rights, which are
base mineral rights.
Applicant
denies that there are material disputes of fact.
Applicant
alleges that 1st
respondent makes bare denials regarding the alleged spoliation.
Applicant alleges that the averment that declaratory proceedings have
been sought by the 1st
respondent does not create disputes of fact for the purposes of the
relief sought. Further, applicant avers that the court is not being
asked to look into the substantive rights of the parties but to
restore the status
quo ante
until the matters relating to the substantive rights of the parties
which are pending have been determined.
This
assertion by the applicants is a tacit admission that there are
disputes related to the parties competing claims.
I
am alive to the fact that in matters of spoliation the court is
required to determine whether one party has been despoiled. The
requirements for spoliation are trite. The court must be satisfied
that the applicant was in peaceful possession and that he has been
despoiled.
Therein
lies the problem.
On
the facts of this case which are common cause, the 1st
respondent has been operating on the said mining location for the
past 17 years. 1st
respondent claims that he has not despoiled the applicant. He denies
using force and violence as alleged by the applicant.
What
a dispute of fact entails was well articulated in Supa
Plant Investments (Pvt) Ltd v Chidavaenzi
2009
(2) ZLR 132 H where the court held that:
“A
material dispute of fact arises when material facts alleged by the
applicant are disputed and traversed by the respondent in such a
manner as to leave the court with no ready answer to the dispute
between the parties in the absence of further evidence.”
The
matter was dealt with by MALABA CJ in Riozim
(Pvt) Ltd v Falcon Resources (Pvt) Ltd and Anor
SC28-22, where the learned Judge stated at page 7 of the cyclostyled
judgment that:
“… the
mere allegation of a possible dispute of fact is not conclusive of
its existence. From decided cases, it is evident that a dispute of
fact arises where the court is left in a state of reasonable doubt as
to which course to take in resolving the dispute matter without
further evidence being led.”
It
is my view that there are no disputes of fact in this matter which
are not capable of being resolved on the papers without adducing viva
voce
evidence. This point in
limine
cannot succeed.
INCOMPETENT
ORDER SOUGHT
1st
respondent contends that the order sought by the applicant is
incompetent in view of the fact that it seeks to smuggle in a dispute
through an order couched as one for spoliation by roping in 2nd
respondent to identify the mining location, Tigress registration
number 10098BM for 5th
respondent to enable him to serve and execute his order on the
correct mining location.
1st
respondent notes that the matters filed of record and pending before
this court HC373/22 and HC325/22 are premised on the need for the
proper identification of the correct mining locations of the disputed
mining claims together with the disputed mining rights of the parties
concerned being determined.
1st
respondent avers that the premature pointing out of mining locations
renders the pending matters filed of record brutun
fulmen.
Applicant
denies that the order sought is incompetent.
Further,
applicant alleges that 2nd
respondent has already determined the boundaries of the respective
mining locations.
Applicant
avers that 1st
respondent has already invaded applicant's mining location.
There
can be no doubt that the order sought in paragraph 3 is evidently
incompetent for a number of reasons:
1st
respondent maintains that he is operating from his mining location at
Lion West 25. He has never conceded that he is on Tigress Mine. The
pointing out of the boundaries as proposed by the applicants gives
credence to the fact that the boundaries of the respective mining
locations has not been properly established.
There
is merit in the point in
limine.
The
basis of an order for a mandamante
van spolie
is
to restore the applicant to property that has been despoiled. To
suggest in paragraph 3 of the Draft order that “2nd
respondent shall identify the mining location known as Tigress number
10098BM for 5th
respondent to enable him to serve and execute the order on the
correct mining location.” leads credence to the inference that the
mining claim to be restored to the applicant is not easily
ascertained.
1st
respondent's assertion is that he is working on his correct mining
location.
If
the Draft Order suggests, as it does in paragraph 3 that 2nd
respondent must point out the “correct” mining location, the
competency of the order for spoliation in those circumstances, is put
into issue.
To
that extent the point in
limine
raised by the 1st
respondent does have merit and is upheld. This does not however,
dispose of the matter.
FATALLY
DEFECTIVE DRAFT ORDER
1st
respondent avers that the order sought by applicant is fatally
defective and cannot be enforced in view of the fact that it is
established law that a holder of a Base metal Registration
Certificate such as the applicant who holds mining title in Tigress
Registration number 10098BM cannot seek to interfere with existing
gold mining rights held by 1st
respondent.
1st
respondent alleges that the rights enjoyed by the applicant and 1st
respondent in respect of their registration certificates are mutually
exclusive to the parties.
1st
respondent contends that applicant has no authority or recognisable
legal mining rights to mine and extract gold from 1st
respondent's mining location.
1st
respondent forcefully argues that the order sought is fatally
defective as it seeks the eviction of a gold miner and the elevation
of base metal miners over exclusive gold mining rights.
1st
respondent avers that this is a contentious matter in which the court
is tasked with making a finding under case number HC373/22.
Applicant's
response to this point in
limine
is that in spoliation proceedings the court does not concern itself
with the substantive rights of the parties. Spoliation proceedings
are concerned with the restoration of the parties to the status
quo ante.
See Blue
Rangers Estates (Pvt) Ltd v Muduvuri
SC29-09.
This
point in
limine
was not well taken as it seeks to drag the court into the substantive
issues to be decided by the court at a future date.
MATERIAL
NON-DISCLOSURE OF FACTS
1st
respondent avers that the applicant conveniently neglected to
disclose that there are pending matters before this court which
revolve around the same dispute concerning the nature of the rights
enjoyed by the applicant and 1st
respondent.
Further
1st
respondent points out that the pending matters seek to clarify the
nature of the rights of the parties and the corresponding rights of
the parties.
1st
respondent avers that the non-disclosure is aimed at bungling
together, smuggling and compressing all these pending matters into
this present matter which is prejudicial to 1st
respondent.
In
essence, 1st
respondent alleges that applicant has not disclosed that case numbers
HC373/22 and HC325/22 are matters whose finalization would bring
finality to the dispute between the parties.
In
response to this preliminary objection, applicant states that
applicant makes extensive reference to case number HC373/22 in
paragraph 25.5 of its Founding Affidavit. In any event, the matter
is incorporated by reference on the face of the application. In
paragraph 25.5 and 26 of its Founding Affidavit, reference is made to
case number HC325/22 as referenced on the face of the application.
In
general, the court is always entitled to make reference to its own
records and proceedings and to take note of their contents.
In
this case, I have had the occasion to retrieve and examine the
cross-referenced files to ensure that I am alive to all the disputes
before the court related to this matter. This approach was
recommended in Mhungu
v Mtindi
1986 (2) ZLR 171 (SC).
The
point in
limine
regarding non-disclosure is a non-issue as the applicant has made
reference to the matters currently before this court.
URGENCY
Spoliation
proceedings are by their very nature urgent. An order for a
mandamante
van spolie
seeks the restoration of property that has been despoiled and the
restoration of the status
quo ante.
1st
respondent avers that applicant did not treat this matter with the
urgency that it deserves. It is stated by 1st
respondent that the Certificate of Urgency is defective in that it
does not assist the court as far as formulating an opinion on whether
or not the matter is urgent. The Certificate of Urgency does not
state when the need to act arose which is the point of departure in
ascertaining the urgency of the matter.
It
is alleged that applicant failed to act from the date of the
purported “spoliation” being the 16th
of February 2022. Applicant only approached this court a month
later, on an urgent basis.
Applicant
instead chose to file a Chamber Application for Contempt of Court
under case number HC325/22 on 23rd
February 2022. This matter has not been set down for hearing.
Opposing papers have been filed in that matter but the applicant has
not taken steps to have the matter concluded.
It
would seem that this matter was filed on an urgent basis as an
afterthought.
The
law on urgency has been well established in Kuvarega
v Registrar General & Anor
1998 (1) ZLR 188 (H).
I
am satisfied, that applicant did not sit on its laurels in seeking to
enforce its perceived rights. Applicant treated the matter with
urgency at all times. The urgency envisaged by the rules is met by
the averments in the Certificate of Urgency and the Founding
Affidavit.
This
point in
limine
is dismissed.
The
point in
limine
which I upheld deals with the competency of paragraph 3 of the Draft
Order. It does not affect the application in its entirety. I must
therefore proceed to determine this matter on the merits.
THE
MERITS
WHETHER
THE APPLICANT HAS SATISFIED THE REQUIREMENTS FOR SPOLIATION
The
issue to be decided is whether or not the requirements of a
spoliation have been satisfied. Neinaber
v Stucky
1946 AD 1049 is authority for the principle that the right to the
restoration of possession of the property must be established as a
clear right and not a prima
facie
right before spoliation can be made. The right must not be open to
doubt. At page 1053-4 GREENBERG JA said:
“The
learned Judge in the court below followed what was said by BRISTOWE J
in Burnham v Newneyer (1917 T.P.D 630 at p633) viz:
'where
the applicant asks for a spoliation order he must make out not only a
prima facie case, but he must prove facts necessary to justify the
final order – that is that the things alleged to have been taken
have been spoliated were in the possession and that they were removed
from his possession forcibly or wrongfully against his consent.'
I
agree with what was there said as to the cogency of proof required.
Although a spoliation order does not decide what apart from
possession, the rights of the parties to the property spoliated were
before the act of spoliation and merely orders that the status quo
ante be restored, it is to that extent a final order and the same
amount of proof is required as for the granting of a final interdict
and not a temporary interdict.”
In
this matter what is central to this dispute is the assertion by the
1st
respondent that he holds a certificate of registration for Lion West
25 mine registration number 43214.
1st
respondent avers (and it is not disputed) that he holds a valid
mining certificate to extract gold ore from the mining location. It
is not disputed that 1st
respondent has been operating from that location for the past 17
years.
Section
58 of the Mines & Minerals Act (Chapter 21:05) provides that:
“When
a mining location or a secondary reef in a mining location has been
registered for a period of two years it shall not be competent for
any person to dispute the title in respect of such location or reef
on the ground that the pegging of such location or reef was invalid
or illegal or that provisions of this Act were not complied with
prior to the issue of the certificate of registration.”
1st
respondent denies the alleged spoliation and avers that he is mining
from the area he has always operated from.
1st
respondent contends that he is armed with a court order under case
number HC190/22 which gives him restoration of the mine known as Lion
West 25.
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 mandamante
van spolie.
The alleged spoliation is denied.
In
Diana
Farm (Pvt) Ltd v Madondo N.O. & Anor
1998 (2) ZLR 410 at 413 the court stated as follows:
“The
law relating to the basis on which a mandamante 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 of the property; and that
the respondent deprived him of the possession forcibly or wrongfully
against his consent.'”
The
court went on to say that:
“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 1996 (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.'”
It
is trite that in spoliation proceedings the lawfulness or otherwise
of the possession challenged is not in issue. Spoliation simply
requires the restoration of the status
quo ante,
pending the determination of the dispute between the parties.
CONCLUSION
Applicant
has in my view, failed to satisfy the elements for the relief sought
in that it was not shown by clear proof that it was forcibly deprived
of possession of its alleged mining claim. The point was made that
applicant holds certificates to base minerals and has been extracting
nickel on its own claims. 1st
respondent has been extracting gold ore on its mining location for
close to 20 years. The mining rights of the parties are mutually
exclusive.
The
issue for the determination of those mining rights is not before me.
I do not propose to make any determination as regards those competing
rights.
To
the extent that 1st
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 1st
respondent, Applicant has not established a clear right for an order
for a mandamante
van spolie.
An
order for spoliation has the effect of a final order.
Herbstien
& Van Winsen, The
Civil Practice of the Supreme Court of South Africa 4Ed,
state at page 1064 that:
“A
mandamante
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 application is
whether there has been a spoliation. The order that the property be
restored finally settles the issue between the parties.”
In
the circumstances, for the aforegoing reasons, the following order
is made:
1.
The application be and is hereby dismissed.
2.
The applicant is ordered to pay the costs of suit.
Coghlan
& Welsh, applicant's legal practitioners
Mathonsi
Ncube Law Chambers, 1st
respondent's legal practitioners
