Before: CHIDYAUSIKU CJ, In Chambers, in terms of
r 58 of the Supreme Court Rules as read with r 244 of the High Court
Rules
This is a Chamber
application, in which the applicants seek the relief set out in the draft order,
which reads as follows in relevant part:
"IT IS ORDERED THAT
1. The
appeal filed by the appellants against the judgment of the High Court in case
No. HC 3967/12 shall be heard on an urgent basis.
2. The
applicants shall file their Heads of Argument in the appeal matter within
fifteen (15) days from (the) date of this order and the respondents shall file
their Heads of Argument within ten (10) days of being served with the
applicants' Heads of Argument.
3. The
Registrar of this Honourable Court is hereby directed to set the appeal down
for hearing on an urgent basis and to expedite the hearing of an appeal on the
earliest available date.
4. Pending
the determination of the appeal,
4.1 The
respondents, their assignees, proxies as well as their company Xelod
Investments (Pvt) Ltd be and are hereby interdicted from commencing and
conducting any mining operation and/or interfering with any administrative
operations whatsoever at Glencairn Mine.
4.2 The
respondents and all their assignees be and are hereby ordered to vacate and
return possession of Glencairn Mine to the applicants immediately upon
service of this order, failing which the Sheriff or his lawful deputies
assisted by any member of the law enforcement agencies, as the case may be, are
authorized to ensure and restore possession of Glencairn Mine to the
applicants.
5. Costs
of this application will be (costs) in the cause."
In brief, the applicants want the appeal against the judgment of
CHATUKUTA J heard on an urgent basis and that, pending the hearing of that
appeal, I issue the interim interdict set out in paras 4.1 and 4.2 of the
draft order quoted above. The
application is opposed.
Generally speaking,
an application for a spoliation order in the court of first instance is heard
on an urgent basis. This is so because
the need to urgently stop unlawful conduct and self-help and restore the status quo ante until the law has taken
its course is self evident and needs no elaboration. Where, however, the applicant for a spoliation
order has been unsuccessful in the court of first instance and wishes to appeal
against that decision the appeal will not necessarily be heard on an urgent
basis. Different considerations apply,
in that a court of competent jurisdiction will have determined whether or not
there was spoliation. Whether or not
the appeal should be heard on an urgent basis should depend on the prospects of
success of the appeal. Where the appeal
has good prospects of success on appeal, the appeal should be heard on an
urgent basis so as to bring to an end unlawful conduct. However, where the appeal has no prospects
of success, I do not see why the appeal should jump the queue. It follows, therefore, that for me to grant
the first relief I need to be satisfied that the appeal has prospects of
success.
As regard the
second relief, the interim interdict, for the applicants to succeed they must establish
the essential elements for entitlement to such relief. I will consider the relief sought seriatim, but before doing that let me
set out the background facts of this case.
THE FACTS
The facts of this
case are succinctly set out by the learned Judge in the court a quo. I will summarise them as follows.
The parties to this
matter are involved in a longstanding dispute over the control and ownership of
Glencairn Mine in Kadoma ("the mine"). The fourth applicant ("Timba"),
through the first applicant, and the first and second respondents ("the
Rushwayas") are shareholders in the third applicant, which owns the mine
at the centre of the dispute.
On 11 October
2010 the magistrate's court at Kadoma, in case no. CRB B044/10, directed the
first, third and fourth applicants to co-exist with the Rushwayas at the mine
pending resolution of a dispute over the shareholding in the third
applicant. The Rushwayas moved onto the
mine in terms of the magistrate's court's ruling. It would appear that that ruling is extant
and has never been set aside.
On 3 May 2011,
following a series of law suits, the Rushwayas entered into an Agreement of
Sale ("the Agreement") with Timba in terms of which they sold to the
latter their rights and interest in Tolrose Investments (Pvt) Ltd and Aepromm
Resources (Pvt) Ltd, in contemplation of a clean break between the
parties. That Agreement was meant to
end all law suits between the parties.
However, following the signature by the parties of that Agreement,
disputes between the parties persisted.
In particular, the Rushwayas, on or about 6 June 2011, wrote to the
Mining Engineer concerning the appointment of Mr E Mudimu as the mine
manager and complaining that, as a claim holder, they were not consulted on
this appointment. The Mining Engineer,
by letter dated 20 June 2011 addressed to "The Operator (whoever that
is), Glencairn Mine", cancelled the appointment of Mr Mudimu as
the mine manager and suspended all operations at the mine pending a proper
manager's appointment. This prompted
the application, which appears to me to all intents and purposes to be an
application for the review of the Mining Engineer's decision. The applicants were successful. The Rushwayas appealed to the Supreme Court against
that judgment. The appeal was heard and
judgment handed down on 16 July 2012.
I was handed a copy of this judgment during submissions in this
matter. The Rushwayas' appeal was
dismissed, on the ground that the Rushwayas had appealed against that part of
the judgment which affected the Mining Engineer and not them. It was for the Mining Engineer to appeal against
that part of the judgment. It was held
that the Rushwayas could only appeal against the interim interdict.
However, this judgment, in my view, has no bearing on what
transpired at the mine on 5 April 2012, which events form the basis of the
applicants' application for a spoliation order.
The events of 28 March 2012 are established by the evidence on
a balance of probabilities. The learned
Judge's finding in this regard cannot be faulted.
The Messenger of
Court's Return of Service, which is on record, shows that on 28 March 2012,
in pursuance of the order of the magistrate's court in case No.
CRB B044/10, the Messenger of Court reinstated the Rushwayas at the
mine. The Return of Service reads in
relevant part as follows:
"Placed Mr Jameson Rushwaya and Mrs Annie Rushwaya at Tolrose
Mine to co-exist with Mr Patterson F Timba and others with assistance of
Constables Kasero and Chikwature accompanied by Madzivanyika and Simoni -
Support Unit ZRP."
Thus, it is quite clear that the Rushwayas' return onto the mine on
28 March 2012 was in pursuance of the lawful magistrate's court order and
cannot constitute spoliation. Indeed,
it would appear that the applicants did not argue that the events of 28 March
2012 constituted spoliation.
It is, however, the
events of 5 April 2012 that form the basis of the application for
spoliation. Timba, in para 13 of
the founding affidavit in the court a quo,
makes the following averments upon which the application for spoliation is
founded:
"13. Regrettably,
in a calculated move, the first and second respondents through the assistance
of the third and fourth respondents (the Messenger of Court and
Commissioner Mufandaedza) and in the company of a mob of about forty (40)
to fifty (50) youths invaded Glencairn Mine on the 5th of April
2012. The third respondent confirmed
that he was armed with instructions of the fourth respondent to stop at nothing
in ensuring the first and second respondents' access to the mine, changed all
locks at the premises, inserted a new set of locks and subsequently handed the
keys over to the first respondent. I
struggle to comprehend how this matter may involve a Commissioner of Police
unless the Commissioner is involved in a hazy and clearly unlawful
crusade. I have never understood the
position of the law to be that a Commissioner of the Zimbabwe Republic Police
can have the lawful entitlement to issue orders to a Messenger of Court.
."
The Rushwayas deny
that a Messenger of Court ever visited the mine on 5 April 2012. They only admit a visit by the Messenger of
Court to the mine on 28 March 2012.
Thus there is a
dispute of fact as to what occurred at the mine on 5 April 2012. The learned Judge in the court a quo decided to adopt a robust
approach and resolved the dispute of fact in favour of the Rushwayas. This is what she had to say in this regard
at pp 5-6 of the cyclostyled judgment HH 239/12:
"The
applicants submitted that the first, second and third respondents did not deny
in the opposing affidavits that the third respondent replaced the keys at the
mine and gave the new keys to the first and second respondents. The first and second respondents deny that
the third respondent ever visited the mine on 5 April 2012 and alleged
that, if he did so, it was not on their instructions. The third respondent denied ever visiting
the mine on 5 April 2012. The
submissions by the parties clearly raise a dispute of fact whether or not the
third respondent visited the mine on 5 April (2012) and conducted himself
as alleged by the applicants. I am,
however, of the view that I can adopt a robust approach and resolve the dispute
on the papers filed of record. I am
inclined to adopt the robust approach in view of the fact that an application
stands or falls on the papers filed of record.
The applicants were well represented and an advocate was briefed to
represent them. Therefore it can be
assumed that they were satisfied with the adequacy of their pleadings.
It is trite that
the onus to prove dispossession rests
with the applicants. The onus is different from other urgent
chamber applications where an applicant must establish a prima facie case. In
the case of applications for spoliatory relief, the onus is on a balance of probabilities given that the relief is
final in effect. It is therefore not
enough for an applicant to make bare allegations.
The applicants in
the present matter appear to me to have made bare allegations of wrongful or
unlawful dispossession. It is alleged
that the third respondent 'invaded' the mine in the company of a mob of forty
to fifty youths. The mob must therefore
have been rowdy and caused mayhem.
There also must have been representatives of the applicants on the mine
who witnessed the invasion, the 5th of April being a week day. The fourth applicant, who deposed to the
founding affidavit, does not state that he was at the mine when the third
respondent is alleged to have locked out the applicants. It would have been helpful if not imperative
for the applicants to file supporting affidavits of those who witnessed the
alleged invasion and therefore dispossession.
However, the applicants did not consider it necessary to do so.
Mr Mpofu submitted that the first, second
and third respondents did not dispute that locks were broken and (that) this
amounts to acceptance of the applicants' allegations. The applicants, however, overlook that the
third respondent insisted that he only visited the mine on 13 and 28 March
2012. He filed the returns of service
dated 13 and 28 March 2012 as proof of his visits to (the) mine on those
days. The conclusion that can be
arrived at is that if the third respondent states that he never visited the
mine on 5 April 2012, he cannot be said to be accepting that he removed
and replaced locks on the mine on 5 April 2012.
The first and
second respondents maintained that if the third respondent went to the mine on
5 April 2012, it was not on their instructions. The first respondent observed on
page(s) 10 to 11 of his opposing affidavit that:
'According to the returns of service in our possession, the third
respondent served the co-existence order on 13th March 2012 and
the said Return of Service indicates that the applicants were given seven days
to comply with the court order. The
third respondent only went back fifteen days later on 28 March 2012 and he
remarked:
"Placed Mr Jameson Rushwaya and Mrs Annie Rushwaya at Tolrose
Mine to co-exist with Mr Patterson F Timba .".
He never mentioned that he evicted the applicants and indeed he did
not do that.'
The respondents further denied in paragraph 21 of the first
respondent's opposing affidavit (that) a mob invaded the mine. They in fact accused the applicants of
bringing youths from Harare
to cause commotion at the mine and refer to the police reference of the
complainant (the complaint?) that they made to the police. It is therefore clear that the first and
second respondents have denied that the third respondent ever visited the mine
on 5 April 2012."
In resolving the
dispute of fact in favour of the Rushwayas, the learned Judge a quo relied on the well
established principle that the Messenger of Court's Return of Service is prima facie proof of the contents
therein, and that the prima facie
case can only be rebutted by clear and satisfactory evidence. For the above proposition the learned Judge a quo relied on Gundeni v Kanyemba 1988(1) ZLR 226; Fox & Carney v Sibindi 1989 (2) ZLR
173 (SC) at 175E-F; and Kanyada v
Mazhawidza 1992 (1) ZLR 229 at 232C-D.
In my view, that
the reasoning and conclusion of the learned Judge a quo in this respect cannot be faulted. The probability of an appeal court coming to
a different conclusion from that of the court a quo is very remote.
It is apparent from
evidence elsewhere in the record that Timba did appoint a manager who was resident
at the mine and also had an agent who was resident at the mine. These are people whom one would have
expected to depose to affidavits with firsthand information in support of
Timba's version of what transpired at the mine on 5 April 2012. However, Timba chose not to make available
firsthand evidence of what transpired at the mine on 5 April 2012. The affidavit of W. Magweregwede, as
the complainant in a criminal investigation, is totally inadequate, in that it
does not corroborate the hearsay averments of Timba. The affidavit simply avers that he was
assaulted. Timba, who was not present
at the mine, chose not to explain how he came to be knowledgeable of the events
which he alleges in para 13 of the founding affidavit. He was content to make bold and bare
allegations when he could easily have obtained firsthand evidence on what
transpired at the mine on 5 April 2012.
Similarly, the statement by Samuel Gwavava, which is a statement to
the police, is not even an affidavit and its admissibility is doubtful. Timba did not explain to the court why it was
difficult for him to provide firsthand evidence of an occurrence that must have
been witnessed, if indeed it did occur, by a lot of people.
In the result, I
hold the view that the probabilities of an appeal court coming to a different
conclusion from that of the court a quo
on the issue of spoliation of the applicants are very remote.
For the foregoing
reasons, the prospects of success against the court a quo's refusal to grant spoliation are minimal. For that reason I dismiss the application to
have the appeal heard on an urgent basis.
I now turn to deal
with the application for interim relief, to stop the Rushwayas from conducting
mining operations and their eviction from the mine pending the hearing of the
appeal. This relief is at the core of
the ownership wrangle between the parties, who are shareholders and directors of
the company that owns the mine.
A similar
application was made to MUSAKWA J in case no. HC 6007/11. The learned Judge has this to say at
pp 5-6 of the cyclostyled judgment:
"It is not in
dispute that when the first respondent made the decision that is being
challenged, he did not hear the applicants.
Based on the complaint he received from the third respondent, he made
the drastic decision of closing mining operations without hearing the other
side. That is not in conformity with
principles of natural justice.
There is also the
additional factor that the first respondent's decision amounts to a determination
of a contractual dispute between the feuding parties. There does not appear to have been a basis
for the first respondent to entertain a contractual dispute between the
parties.
The requirements
for an interdict as set out in Setlogelo
v Setlogelo 1914 AD 221 are -
(a) A prima facie right even if it is
open to doubt.
(b) An
infringement of such right by the respondent or a well grounded apprehension of
such an infringement.
(c) A well
grounded apprehension of irreparable harm to the applicant.
(d) The
absence of any other satisfactory remedy.
(e) That
the balance of convenience favours the granting of the interlocutory interdict.
All the above requirements are met in the present application. As evidenced by the memorandum of agreement
of sale that was entered into between the parties it is noted in
clause 2.2 thereof that the assets constituting the subject matter of the
sale including the gold mining claims were to be immediately transferred to the
third applicant before payment.
Therefore it cannot be the case that the fourth applicant who has
interests in the third applicant has no rights to protect. The parties to this agreement must seek
proper ways of enforcing the contractual obligations arising from that
agreement without needlessly involving the first respondent.
In the result, the
application is granted in terms of the amended draft order."
I agree with the
learned Judge's statement of the law.
In particular, I agree with the essential elements for the entitlement
of an interim interdict set out in Setlogelo's
case supra.
I, however,
respectfully disagree with the conclusion of the learned Judge that the
applicants are entitled to an interim interdict. I have not had access to the record of
proceedings in case no. HH 6007/11 as I am sitting as a Judge in
Chambers and not as an appeal court. It
may well be that the facts before the learned Judge justified such a
conclusion. It would appear, however,
that the judgment of MUSAKWA J is seriously flawed, in that there is no
link between the interim relief granted and the final relief to be granted on
the return day. The final order sought
by the applicants on the return day is that the order of the Mining Engineer
suspended in the interim should be confirmed.
There is nothing in the judgment itself to indicate that the issue of
the contractual rights of the respective parties will be determined on the
return day. The issue of the
contractual rights of the respective parties appears to me determinable only after
a proper trial dealing with the issue of the contractual rights of the
parties. This raises the question of whether
the interim interdict evicting the Rushwayas and excluding them from the
management of the company is an interim interdict pending what and when.
I am unable to grant the interim interdict sought in paras 4.1
and 4.2 of the draft order for the following reasons -
(a) There
is no averment that the company that owns the mine (the issue of who owns the
mine appears to be in dispute) has resolved, proof of which is usually in the
form of a company's resolution, that the respondents be stopped from being
involved in the mining and administration of the mine and be evicted from the
mine. The averments and arguments seem
to centre on locus standi.
(b) At
the hearing of the appeal the Supreme Court will be seized with the issue of
spoliation and not the litigants' respective rights of ownership of the mine
and the right to administer and operate the mine.
(c) An
Agreement of Sale,
purporting to define the respective rights of the parties, was produced during
submissions by the applicants' counsel.
The applicants' case stands or falls on the founding affidavit. The applicants' case in the founding
affidavit was predicated on the averments that they were despoiled and not on a
breach of the Agreement of Sale. In
fact there was no reference to the breach of the Agreement of Sale in the cause
of action. Even if I were to accept
that the applicants' rights in terms of the Agreement of Sale were pleaded by
implication and therefore provide a basis of the prima facie right entitling the applicants to the interim interdict,
I am not satisfied that the Agreement of Sale is valid and enforceable for the
following reasons -
(i) For
an Agreement of Sale to be valid and enforceable, the parties have to be ad idem on the merx, the price and method of payment. In the Agreement of Sale in casu, the parties are ad idem on the merx, the shares that are being sold. There is no agreed price. The parties agree to agree on the price;
(ii) The
method of payment is equally uncertain;
(iii) Apart
from the above, there is no averment that the conditions precedent have been
fulfilled to activate the Agreement of Sale;
(iv) There
is no averment that the parties seeking to enforce the Agreement of Sale have
performed their part of the bargain.
In my view, the Agreement of Sale produced by counsel
does not provide a prima facie right
for any of the parties.
Having concluded that the applicants have no prima facie case and that the Supreme Court will not be seized
with the issue of ownership and administration of the mine on appeal, I have
come to the conclusion that the applicants are not entitled to the interim interdict
sought in the draft order.
For a majority shareholder
to succeed in an action to evict a minority shareholder, it is necessary to
allege and prove that the company resolved to evict the minority shareholder
and that the majority shareholder has locus standi
to initiate legal proceedings to enforce the company's resolution. It is not enough for the majority
shareholder to simply say that as the majority shareholder it wants to evict and
exclude from the administration of the company the minority shareholder without
a company resolution to that effect.
I would have been
inclined to order a cessation of all mining operations pending the resolution
of the dispute over the control and ownership of the mine. That course has not been ventilated in this
application and could have serious consequences for both parties as the mine
would, according to the applicants, simply flood with water and a considerable
number of workers would lose their jobs.
This mine appears to be a going concern with a production history that
can be used to assess damages to whichever party may prove the damages in
future. I accordingly do not think that
the issue of irreparable harm arises.
In the result, the
application is dismissed with costs.
Atherstone & Cook, applicants' legal practitioners
Mkushi, Foroma & Maupa, respondents' legal practitioners
