NDOU J: The applicant
seeks a relief in the following terms:
“Terms of the final order sought
1. That
pending the resolution of the dispute concerning mining claims listed in the
Tribute Agreement, in terms of the law, this first respondent be interdicted
from disposing the concerned mining claims in any way.
2.
That pending the resolution of the dispute between
applicant and first respondent, second respondent be interdicted from
facilitating any transaction in respect of the mining claims concerned between
first respondent and any third party.
Interim relief
1.
The 1st respondent be and is hereby
interdicted from disposing in any way the mining claims listed in the Tribute
Agreement between it and applicant until the dispute is resolved in terms of
the law.
2.
The second respondent be and is hereby interdicted
from facilitating any transactions involving the mining claims between first
and any third party.
3.
First respondent be and is hereby ordered to allow
applicant to put security personnel at the disputed mining claims until the
dispute is resolved.”
The salient facts
of this matter are the following. The 1st
respondent is a company in liquidation represented by Mr Cecil Madondo in his
official capacity as the company's liquidator.
On 12 March 2009 applicant entered into an agreement known as a Tribute
Agreement in the mining world. The
liquidator represented the 1st respondent in this agreement. The Tribute Agreement gave the applicant
mining rights over mining claims listed in the agreement for a period of 3
years. The main mineral covered is
gold. On 25 March 2009 Mr Madondo wrote
a letter to the applicant in which the 1st respondent was purporting
to cancel the abovementioned Tribute Agreement.
The applicant challenged the cancellation and its legal practitioners
wrote to the 1st respondent conveying this. The applicant's legal practitioners also
wrote two letters to the 2nd respondent expressing the applicant's
legal understanding of the matter. In
these papers, however, the applicant has not specifically challenged the
cancellation of the Tribute Agreement.
Nothing in the relief sought shows that the cancellation is being
challenged. Even in the terms of the
final order, the applicant does not seek this court's intervention as regards
the legal competency of the tribute agreement's cancellation. The 1st respondent has sold the
rights in the disputed mining claims to another person. It is the 1st respondent's case
that it was made clear to the applicant from the on set that for the tribute agreement
to be consummated, it was required of it to pay the requisite inspection fees
to the 2nd respondent. The
applicant misrepresented to the 1st respondent that it had paid the
fees when in fact that was not so. On
that basis, the 1st respondent decided not to submit the tribute
agreement to the Mining Commissioner for examination and approval as required
in terms of section 284 of the Mines and Minerals Act [Chapter 21:05]. It is alleged by the 1st
respondent that the said Tribute Agreement is nullity at law and is not
enforceable for non-compliance with section 284. The respondent raised points in limine which I propose to deal with
these in turn.
Urgency - The
certificate of urgency is scant. The
founding affidavit is not helpful either.
All the applicant states is:
“applicant fears that should
operations continue at the disputed claims it will suffer irreparable
harm. Applicant has already invested
into the mining claims by undertaking expensive preparatory works.”
To some extent
this is the basis of urgency in the certificate of urgency. The applicant does not set forth explicitly
the circumstance which it avers render the matter urgent and the reasons why it
claims that it could not be afforded substantial redress at a hearing in due
course. It is trite that specific
averments of urgency must be made and the facts upon which those averments are
based must be set out in the founding affidavit and the certificate of urgency
– Eniram (Pty) Ltd v New Woodholme Hotel (Pty) Ltd 1967(2) SA
491(E); Salt & Anor v Smith 1991(2) SA 186 (Nm); Sikwe v SA Mutual Fire and General Insurance Co Ltd 1977(3) SA 438(W) and Pickering v Zimbabwe Newspapers (1980) Ltd 1991 ZLR 71 (H). The applicant has failed in this regard. On this ground alone this application should
fail. In the event that I am mistaken on
this ground I will consider the second point.
Failure to exhaust domestic remedies
Clause
5(d) of the tribute agreement provides:
“Should any dispute arise as
regards the interpretation of this agreement or the enforceability of its
clauses the mining commissioner shall have jurisdiction, and failure him,
the High Court of Zimbabwe.”
(Emphasis added)
On 8 April 2009
the applicant's legal practitioners wrote requesting for a meeting of the two
parties before the Mining Commissioner.
Before the matter was set down or the Mining Commissioner responded the
applicant jumped the gun. The applicant
did not give a reasonable explanation for its failure to exhaust domestic
remedies and as such the application should fail on that score.
From
the foregoing the application cannot be granted because of these procedural
deficiencies i.e. it is not urgent and in any event, the applicant has not
exhausted domestic remedies contained in clause 5(d), supra.
Accordingly,
the application is dismissed with costs.
Gundu & Mawire c/o
Dazinger & Partners, applicant's legal practitioners
Muringi Kamdefwere, 1st respondent's legal practitioners
