Urgent
Chamber Application
KABASA
J: This
is an Urgent Chamber Application wherein the applicant seeks the
following relief:
“1.
The 2nd
respondent and all persons claiming occupation through it shall
remove or cause the removal of themselves and all such persons
occupying the mining claim being Valentine 56 held under registration
number GA 2786.
2.
Failing such removal, the Sheriff of this Honourable Court be and is
hereby authorised and directed to evict the 2nd
respondent and all persons claiming through and under them from the
mining claim being Valentine 56 held under registration number GA
2786.
3.
The 3rd
respondent be and is hereby directed to provide an escort and any
other physical assistance necessary for the Sheriff, during the
service and execution of this order.
4.
The 2nd
respondent and all persons claiming through and under him are
interdicted and barred from continuing to carry out mining activities
on the mining claim being Valentine 56 held under registration number
GA 2786.
5.
The 2nd
respondent shall pay the costs of this application on the legal
practitioner and client scale.”
It
is important to give a brief background of how this matter, being an
Urgent Chamber Application took almost a month and a half to be
heard. The background is this:
The
matter was placed before me on Tuesday 29th
June 2021. I then instructed that the applicant serve same on the
respondents together with a notice of set down for 5th
July 2021. The matter could not be heard on that date as I had to
attend a meeting in Harare. It was then postponed to 12th
July 2021.
On
that date the parties agreed on an order by consent which was to the
following effect:
“(a)
All parties cease mining operations on Valentine 56 Mine claim and
Valentine Q Mine claim forthwith.
(b)
4th
respondent be and is hereby ordered to carry out a ground
verification on the disputed ground and submit a report to this
Honourable Court on the 16th
of July 2021 and serve the parties.
(c)
The court will set the matter down for finalisation.”
The
parties arrived at this consent order so as to determine the real
dispute between them with some measure of finality.
It
being an order by consent the court was of the view that this was
premised on the parties desire to have an order dispositive of the
matter.
That
report was duly availed and the matter was set down for 29th
July 2021. Mr Nkomo was however ill-disposed necessitating a
postponement to 26th
August 2021.
On
26th
August 2021 counsel for the 1st
and 2nd
respondents insisted on arguing the matter as originally filed, which
was an application for spoliation.
This
position was at variance with the consent order.
That
being so because had counsel not consented to the 12th
July 2021 order the matter would have been argued on that date and
given the requirements of a spoliation order, the referral of the
matter to the 4th
respondent would not have been necessary.
I
must express my displeasure at the manner in which counsel appeared
to be bent on stalling the resolution of the matter.
That
said, I propose now to consider the matter on the basis of the
spoliation application.
The
applicant approached the court on the basis that it had been in
peaceful and undisturbed possession of a mining claim known as
Valentine 56 GA 2786. It had been conducting exploration in the form
of diamond drilling from 2020 until May 2021. The exploration results
were to assist the applicant in determining how it was to proceed
with its operations at this mine.
The
drilling was temporarily ceased and it was at that time that the 2nd
respondent forcefully took occupation of the mine.
The
applicant engaged the 4th
respondent who issued an injunction ordering cessation of operations
at the mining location.
Attempts
to resolve the issue at that level hit a snag as 2nd
respondent refused to submit itself to the process. Efforts to enlist
the assistance of the police also hit a snag culminating in the
applicant approaching the court for a spoliation order.
The
1st
and 2nd
respondents opposed the application.
One
Thomson Moyo deposed to the opposing affidavit wherein he stated that
he was representing the 1st
and 2nd
respondents.
The
1st
respondent authorised Thomson to so act through a Special Power of
Attorney, which Special Power of Attorney however referred to
Valentine Q GA 5328 and not Valentine 56.
No
issue was taken on this and I do not intend to dwell on it.
In
opposing the application the respondents took points in
limine.
These are:
1.
The application purports to be one for spoliation but it is actually
an application for eviction and as such cannot be sought on an urgent
basis.
2.
The 2nd
respondent is an artificial person and so is incapable of despoiling
the applicant. The application is therefore fatally defective.
3.
There are material disputes of fact as 1st
respondent is the registered owner of Valentine Q mine and there is
no clarity as to which mine the injunction issued by 4th
respondent relates to.
4.
The form used and the certificate of urgency are defective. The form
is alien to the rules and the certificate of urgency does not show
when the need to act arose, rendering it fatally defective.
As
regards the merits the respondents opposition referred to HC731/21
claiming that there was no forceful occupation of applicant's claim
and the 1st
respondent is the registered owner of the claim, an issue which
HC731/21 is meant to address. The 1st
and 2nd
respondents have therefore not forcefully occupied applicant's
mining claim.
I
propose to deal with the points in
limine
first (Heywood
Investments (Pvt) Ltd t/a GDC Hauliers v Zakeo
SC32-13).
These
points in
limine
will not be dealt with necessarily in the order they were raised.
1.
Is the application fatally defective due to use of inappropriate
form?
The
form used by the applicant stated what the application was for and
the relief sought. This form does not have the procedural rights a
respondent is alerted to which an application which is to be served
on other parties ought to have.
I
take the view that as this is an Urgent Chamber Application,
supported by a certificate of urgency, Rule 242(1)(d) applies.
Granted
the applicant did not attest to the fact that the matter was so
urgent that it allowed for no time to serve the application on the
respondents but the respondents were duly served with the application
and the notice of set down allowed them to file whatever papers they
deemed necessary.
An
Urgent Chamber Application filed in terms of Rule 242(1)(d) is in my
view Judge driven and this is what happened in
casu.
I
ordered that the application be served on the respondents together
with a notice of set down. The applicant complied and the respondents
were able to file their opposing papers.
Is
this point in
limine
therefore
not just meant to emphasize form over substance? I think it is.
Mr
Tshuma
referred to MATHONSI J's (as he then was) judgment in Telecel
Zimbabwe (Pvt) Ltd v POTRAZ and Others
HH446-15, where the learned Judge had this to say:
“I
take the view that rules of court are there to assist the court in
the discharge of its day to day function of dispensing justice to
litigants. They certainly are not designed to impede the attainment
of justice. Where there has been a substantial compliance with the
rules and no prejudice is likely to be sustained by any party to the
proceedings, the court should condone any minor infraction of the
rules…”
In
Zimbabwe
Open University v Dr O Madzombwe
HH43-2009 the learned Judge adjudged that the use of the
inappropriate form impacted on the other party as the plethora of
procedural rights found in Form 29 were missing. The argument on the
use of the appropriate form was therefore not found to be a sterile
argument which served no useful purpose.
I
would therefore agree with counsel for the applicant's argument as
contained in his heads of argument, that in
casu
this application is an Urgent Chamber Application and the fact that
such is to be placed before a Judge without delay makes it a
contradiction in terms to then include procedural rights which
include the dies
induciae
when the Judge before whom such application is placed can give
directions on how the matter is to proceed.
HLATSHWAYO
J's (as he then was) observation in the Madzombwe
case
that the format used by the applicant did not contain “… the
plethora of procedural rights that the respondent is alerted to in
Form 29 nor the summary of the grounds of the application required in
Form 29B…” does not apply in
casu.
I
therefore hold that the argument on the use of the form is a sterile
argument which seeks to put emphasis on form rather than substance.
The respondents have suffered no prejudice as they were able to file
their opposing papers allowing for the matter to be argued.
The
certificate of urgency was also said to be fatally defective in that
it did not state when the need to act arose.
This
could not be further from the truth.
In
paragraph (b) thereof the certificate of urgency gave this narration:
“In
May 2021, the respondents took unlawful occupation of the mining
claim and began mining activities on the mining claim. The
respondents have prevented the applicant from accessing the mining
claim or making use of the mining claim.”
Is
it suggested therefore that because the words 'The need to act
arose in May 2021” were not used it means such was not stated?
Such
a contention is a sad indictment on the respondents counsel and one
is tempted to say, as MATHONSI J
did
in the Telecel
case (supra):
“Legal
practitioners should be reminded that it is an exercise in futility
to raise points in
limine
simply as a matter of fashion. A preliminary point should only be
taken where firstly it is meritable and secondly it is likely to
dispose of the matter…”
This
point in
limine
was an exercise in futility. It has no merit and it is accordingly
dismissed.
2.
Is the application fatally defective due to the fact that 2nd
respondent is an artificial person and therefore incapable of
despoiling?
A
company is a juristic person capable of suing and being sued. Fisani
Moyo and Thomson Moyo are the people who claim to be owners of
Valentine Mine.
In
HC731/21 where Thomson Moyo is challenging the injunction issued by
4th
respondent, he described himself as the representative of Valentine
Mine, a duly incorporated company under the laws of Zimbabwe with
capacity to sue and be sued.
The
applicant's complaint is that this company through the agency of
its representatives have despoiled it of its possession of Valentine
56. Fisani and Thomson Moyo were cited as the natural persons who own
the juristic person known as Valentine Mine.
There
was an attempt by Mr
Nkomo
to argue that Valentine Mine is a non-existent entity. This argument
does not make much sense, given that Valentine Mine is the name of
the applicant in HC731/21, a court application which is yet to be
heard.
So
is it being suggested that Valentine Mine is a juristic person for
purposes of its own litigation but ceases to be one when it is the
one being sued?
I
must say I get the distinct impression that the respondents were
determined to throw as many spanners into the works as possible and
avoid dealing with the matter on the merits.
Valentine
Mine through the agency of its owners are said to have despoiled the
applicant.
The
applicant is a company and its being a juristic person does not mean
it cannot be despoiled.
By
the same token the respondents being the “operators” of Valentine
Mine are capable of despoiling.
Any
company being a juristic person can only act through the agency of
its directors or representatives. These representatives were equally
cited.
I
therefore do not see any merit in this point in
limine.
Counsel's
efforts to tweak the argument by introducing a new issue altogether
regarding the existence of this company is telling.
Counsel
sought to argue that Valentine Mine is just a trade name and not the
name of the company.
Questions
of law can be raised at any time but they should be valid questions
of law.
In
Muskwe
v Nyajina and Others
SC17-12 the court had this to say:
“Undoubtedly
a point of law can be raised at any time even though not pleaded.
However, this is subject to certain considerations, one of which is
that the court has to consider whether raising a point of law at this
juncture would cause prejudice to the party against whom it is
raised.… The theme that runs through the principles is that a
question of law can be raised at any stage of the proceedings
provided it does not occasion prejudice to the other party.”
Counsel
sought to argue that because the relief sought is against Valentine
Mine, which is a non-existent entity, it therefore means no relief
can be obtained from “nothing.”
Were
I to hold that such argument is valid, it would certainly prejudice
the applicant. However, in
casu,
it is not enough to merely state that this cited party is
non-existent, without more. It is not even stated what the company
name is if it is not Valentine Mine.
Furthermore,
that same entity has instituted action claiming to be a legal entity.
I
was also not referred to any authority for the proposition that a
juristic person cannot despoil.
In
Chrome
Media Investments (Pvt) Ltd v Hopscik Investments (Pvt) Ltd
HH336-20 the applicant sought spoliatory relief in respect of an
immovable property where it operated business from which property was
owned by the respondent. The applicant's application failed but not
for the reason that the respondent, being a company could not
despoil.
So
too in
casu,
the applicant is a company and its cause of action arises from
allegations that it was unlawfully deprived of its possession by
another mining company through the agency of the 1st
respondent and Thomson who represent that company.
I
am therefore not persuaded by the contention that a juristic person
cannot despoil.
This
point in
limine
falls on both scores, that it is not a legal entity and also that as
a juristic person it cannot despoil.
Like
the one before it, this point in
limine
equally lacks merit.
3.
Material Disputes of Facts
The
parties had initially agreed on a consent order directing the 4th
respondent to conduct a verification process to establish to whom the
mining claim belonged.
It
appears the respondents had a change of heart on the reason behind
such a consent order. That order would not have been necessary in an
application for spoliation as the requirements for a spoliation order
are not concerned with ownership.
The
4th
respondent's report is therefore not relevant for purposes of the
spoliation application. This is so because the facts which are
relevant in a spoliatory matter are facts relating to the spoliation
itself and not about ownership. Ownership is not a relevant
consideration in such proceedings.
Counsel
for the respondents cited the case of Supa
Plant Investments (Pvt) Ltd v Chidavaenzi
HH92-09
where MAKARAU J (as she then was) had this to say:
“A
material dispute of fact arises when such material facts put 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.”
In
casu
the issue revolves around the fact that the applicant was in peaceful
undisturbed possession of the mining claim and had been drilling
thereat before it was despoiled.
Whether
it is the rightful owner or not is not what a spoliation action looks
at.
The
fact that the respondents lay claim to the mining claim is not an
issue a spoliation application considers. This is precisely why in JC
Conolly and Sons (Private) Limited v RC Ndhlukula and Anor
SC22-18 GARWE JA said:
“The
law is settled that an order of spoliation is final in nature and
that it determines the immediate right of possession of a particular
res.
It
is frequently followed by further proceedings between the parties
concerning their rights to the property in question.”
(my emphasis).
In
casu
it is that immediate right of possession of the mining claim that
this application is about. The issue of who owns it and who has the
rights to it is a matter for another day, which day could have been
sooner had counsel for respondents allowed the parties consent order
to determine their dispute.
I
am therefore not persuaded to hold that there are material disputes
of facts which are unresolvable on the papers.
This
point in
limine
equally fails as it has no merit.
4.
Is the application one of eviction and so incapable of being sought
on an urgent basis?
Spoliation
by its very nature speaks to the unlawful deprivation of possession
of a res.
The relief is a restoration of that res
into the possession of the one despoiled. If the res
is a movable property then such movable property is restored to the
applicant. If, as in
casu
the res
is an immovable property and spoliation is proved, such restoration
inevitably means the eviction of the one who despoiled.
The
court looks to the cause of action, which cause of action must speak
to spoliation to determine whether the applicant's application is
one of eviction or not.
The
applicant in
casu's
papers stated that “application is hereby made for a spoliation
order directing the ejectment of the 1st
respondent and all those claiming occupation through him in terms of
the draft order annexed to this application and
the restoration of peaceful and undisturbed occupation of the
applicant…”
The
certificate of urgency and the founding affidavit make reference to
the fact that the applicant was in peaceful and undisturbed
possession of the property and seeks to be restored to such
possession.
The
fact that such restoration entails removing the respondent does not
make the application any less a spoliatory one.
This
point in
limine
equally lacks merit and is also dismissed.
I
move now to the merits.
In
Banga
and Another v Zawe and Others
SC74-12 GWAUNZA JA (as she then was) cited Kama
Construction (Private) Limited v Cold Comfort Farm Co-operative and
Others
1999 (2) ZLR 19 (SC) which sets out the requirements for a spoliation
order. These are:
(1)
That the applicant was in peaceful and undisturbed possession of the
thing.
(2)
He was unlawfully deprived of such possession.
The
circumstances of such possession are not an issue in spoliation
proceedings. I can do no more than respectfully agree with the
learned JA where in Banga
and Another (supra)
she cites Botha
and Another v Barrett
1996 (2) ZLR 73 (S) for the proposition that an applicant only has to
show that he was deprived of possession forcibly and wrongfully
against his consent.
The
learned JA went further to say:
“It
is trite that in spoliation proceedings the lawfulness or otherwise
of the possession challenged is not an issue. Spoliation simply
requires the restoration of the status quo
ante,
pending the determination of the dispute between the parties. This
principle is clearly stated thus by the learned authors Silberberg
and Schoeman, supra
at pages 135-136;
'… the
applicant in spoliation proceedings need not even allege that he has
a ius
possidendi: spoliatus ante omnia restituendus est…
All that the applicant must prove is that he was in peaceful and
undisturbed possession at the time of the alleged spoliation and that
he was illicitly ousted from such possession…'”
In
casu
the applicant's Human Resources Manager who deposed to the founding
affidavit, stated that the applicant had been diamond drilling at
this mine from 2020 until May 2021 and had temporarily ceased such
drilling awaiting results of the drilling valuation. Such results
were to assist applicant in planning its mining activities.
Mr
Nkomo
in argument contended that such circumstances show that there was no
despoiling.
Is
one to interpret the temporary cessation as tantamount to
relinquishing of the property such that no despoiling could therefore
have been said to have occurred? Was the applicant in possession of
the property?
In
Banga
and Another v Zawe and Others (supra)
the learned JA stated thus:
“According
to the learned authors Silberberg and Schoeman's The
Law of Property, Second Edition
at page 114:
'Possession'
has been described as a compound of a physical situation and of a
mental state involving the physical control or detention of a thing
by a person and a person's mental attitude towards the thing.…
whether or not a person has physical control of a thing, and what his
mental attitude is towards the thing, are both questions of fact.'”
Unfortunately
the respondents did not raise this defence in their notice of
opposition and so the applicant was not able to meet this issue of
what was on the ground and whether as was the case in the Banga
case (supra)
there was no forceful dispossession.
Sight
must not be lost however that unlike the Banga
case where there was a change of locks and keys to the gate and
premises and the respondent (applicant then) appeared not to have
been present to make a case for spoliation, in
casu
this is a mining claim and the applicant's case is that it was
drilling thereat.
The
respondents do not meet this case by stating what their defence is.
Their
assertion that it is actually their mine is not what the issue is but
whether they despoiled the applicant where it was conducting its
drilling.
I
do not intend to delve into the facts of the Banga case (supra),
suffice to say the fact that there had been an order for the
respondent in that case to leave the portion of the farm he was
utilising and remove his property therefrom and the lack of evidence
of his presence thereat either in terms of his employees or property
was suggestive of the fact that he had left in compliance with the
order meant that there was therefore no spoliation.
In
casu
the
respondents do not address the fact that applicant was drilling on
that claim and cessation of drilling was only so as to get results of
the same.
There
was no evidence that applicant had relinquished possession either
physically or mentally.
The
respondents pre-occupation with the issue of ownership showed a
failure to appreciate that ownership is not what the matter is about
but possession.
It
is my respectful view that counsel for the respondents ought to have
clearly stated what their defence was to the application for a
spoliation order and not dwell on who owns the mining claim which
applicant avers it was despoiled of.
The
defence to a spoliation application should be clear from the opposing
papers.
In
casu,
the
defence zeroed on ownership.
In
arguing the matter counsel sought to suggest that the 2nd
respondent is a non-existent entity and further that the applicant
had temporarily ceased drilling.
This
begs the question as to whether the respondents have a defence at all
to the spoliation.
Valid
defences to a spoliation application are:
1.
That applicant was not in peaceful and undisturbed possession of the
thing in question at the time of dispossession.
2.
The dispossession was not unlawful and therefore did not constitute
spoliation.
The
applicant's attempts to seek the 4th
respondent's intervention followed the events of May 2021 when it
claimed the respondents had unlawfully dispossessed them of the claim
where they had been working.
The
applicant sought police intervention when the 4th
respondent's attempts to deal with the matter were spurned by the
respondents.
The
respondents do not articulate what their defence is except to mention
that they are mining within a claim they regard as theirs.
Mr
Tshuma
for the applicant correctly, in my view captured the nature of the
respondent's defence as articulated in the opposing papers as being
based on the fact that they are the holders of the mining claim.
I
therefore come to the conclusion that the applicant's averments
that it was in peaceful and undisturbed possession of the mining
claim until May 2021 when it was unlawfully dispossessed of the same
has not been controverted.
The
remedy therefore is to order a return to what was obtaining before
the spoliation. It is my considered view that this is the appropriate
remedy.
As
for the interdict which the applicant alludes to in its draft order,
such was not ventilated and I therefore will not grant an order that
speaks to issues not properly articulated in the applicant's
papers.
In
any event once granted a spoliation order serves to restore the
status quo ante. Should the respondent violate such order that could
give rise to contempt proceedings.
As
regards costs, the matter exercised my mind in a manner that makes it
difficult to hold that the respondents opposed the application out of
sheer vindictiveness and calculated to put the applicant out of
pocket.
For
this reason the costs will be at the ordinary scale.
There
is however no reason to depart from the norm, costs follow the cause.
In
the result, I make the following order:
The
applicant's application succeeds in terms of the amended draft
order.
Messrs.
Webb, Low & Barry Inc. Ben Baron & Partners,
applicant's legal practitioners
Messrs.
Mathonsi Ncube Law Chambers, 1st
and 2nd respondents
legal practitioners
