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 ...
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 29 June 2021. I then instructed that the applicant serve same on the respondents together with a notice of set down for 5 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 12 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 29 July 2021. Counsel for the first and second respondents was, however, ill-disposed necessitating a postponement to 26 August 2021.
On 26 August 2021, counsel for the first and second 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 12 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 fourth 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 GA2786. 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 second respondent forcefully took occupation of the mine.
The applicant engaged the fourth 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 the second 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 first and second respondents opposed the application.
One Thomson Moyo deposed to the opposing affidavit wherein he stated that he was representing the first and second respondents.
The first respondent authorised Thomson Moyo to so act through a Special Power of Attorney, which Special Power of Attorney however referred to Valentine Q GA5328 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 second 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 the first respondent is the registered owner of Valentine Q mine and there is no clarity as to which mine the injunction issued by fourth 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 the applicant's claim and the first respondent is the registered owner of the claim, an issue which HC731/21 is meant to address. The first and second respondents have therefore not forcefully occupied the 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....,.
2. Is the application fatally defective due to the fact that the second 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 the fourth 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 counsel for the first and second respondents 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....,.
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 first respondent and Thomson Moyo, 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.
