At the end of the hearing in this matter, we dismissed the
appeal and indicated that full reasons for the decision would
follow. These are the reasons.
At the centre of this drawn out, highly contested and
multifaceted dispute are certain mining claims cumulatively styled “Dodge”
Mine.
The rights of various parties to the mining claims, or part
thereof, have either been determined or are still pending in the High
Court. It is pertinent to note that the claims brought before the High
Court over the years, and dealing with different facets of the main dispute
have not all been between the same parties as those in casu.
Details of these claims are not relevant to a determination of this matter and
will not further be considered.
What is relevant to this dispute is set out in the judgment
of the High Court and is reproduced here for convenience.
Against the background of a dispute of rights in the same
mine, between the second appellant, as a 50 per cent shareholder in Chiroswa Minerals (Private) Limited and a certain John Richard Grooves ('Grooves') as shareholder of the
other 50 per cent, the latter purported to sell the entire shareholding of
Dodge Mine (Chiroswa Syndicate) to the respondent
in casu.
This was on 31
July 2012. The disputed mining claims had by this time assumed the name Chiroswa Syndicate. The second appellant took the view
that he had been defrauded of his 50 per cent
shareholding, and challenged the sale in HC4112/13. The case was still
pending before that court at the time the proceedings a quo were concluded. The learned judge in casu, correctly, did not delve into the merits or
demerits of this dispute of ownership.
In addition to this dispute, John Richard
Grooves was
embroiled in earlier disputes with two other entities with whom he had
previously entered into tribute agreements in relation to the same mining
claims. He was, at that time, the sole shareholder in Chiroswa Minerals (Private) Limited. The latter
dispute ended with an order of the High Court in HH261-11 to the effect, among other things, that
the Tribute Agreement between John Richard Grooves and the second appellant be
registered with the Mining Commissioner. The registration was eventually
effected on 13 February 2014. This was after a number of other
claims, counter claims, and an aborted appeal to this court, had been filed
and/or determined.
It is evident from the above that the sale to the
respondent in casu of the 100 per cent
shareholding in Chiroswa Syndicate by John Richard Grooves
took place before the registration, by the Mining Commissioner, of
the Tribute Agreement relating to the same mines. The respondent, who had taken
occupation of the disputed claims pursuant to the purchase of the 100 per cent
shareholding from John Richard Grooves was conducting operations
thereon all the time that the second appellant, John Richard
Grooves and
the Mining Commissioner were pursuing and defending the various suits referred
to above. The respondent has also been carrying on operations at the
disputed mine while case HC4112/13, which is challenging the sale of the same
claims to it by John Richard Grooves, is still pending in the court.
This then was the status quo at the time the
appellants finally secured registration of the Tribute Agreement between John Richard Grooves
and the second appellant, Peter Valentine. The court a quo took
up the narration of events from there and stated as follows:
“Now armed with the above registered order, the respondents
(appellants in casu) entered Dodge Mines where the applicant
was operating from. They entered without a writ of execution nor were they
accompanied by a Deputy Sheriff…,. The respondents were not on the mine
premises. There was also a peace order that interdicted second respondent,
Peter Valentine,
from entering or interfering with mining operations at Dodge Mines issued at Bindura Magistrates Court on 6 July
2012 which lapsed on 6 July 2013. It is further not in dispute that on 18
February 2014, 3rd respondent, Muyengwa Motsi
entered Dodge Mine premises as a visitor and ended up taking some
photographs. Then, on 20 February 2014, the first respondent, Base Minerals (Private) Limited and the second respondent, Peter Valentine, entered the mine premises in question with
a gang of armed men. On that day, applicant rushed to this Honourable
Court and issued summons under case HC1414/14 challenging the validity of the
registration of the Tribute Agreement in question. On 21 February 2014,
the respondents then wrote a letter to applicants giving notice of their intention
to take occupation of Dodge Mines with
immediate effect and to commence operations under the registered Tribute Agreement. The
letter was written when the respondents had already effected entry into the
mine premises.”
Upon receipt of the letter of demand, the respondent in casu immediately filed with the High Court, an application
for spoliation and interdict.
The respondent claimed, on the basis of what the law lays
down as the essential requisites for a spoliation order (see Botha and Another v Barrett 1996 (2) ZLR 73 (S)
where…, the requirements of a spoliation order are stated) that;
(i) They were in peaceful and undisturbed occupation of the
premises in question; and
(ii) The appellants despoiled them without its
(respondent's) consent and without following court procedures or first
obtaining an order of ejection served through the Sheriff or his lawful deputy.
The respondent contended, further, that the appellant's
forced entry onto the disputed premises was unlawful as clearly admitted by the
third appellant in his opposing affidavit.
The respondent also sought an order ejecting the appellants
and interdicting them from entering the disputed premises and interfering with
their mining operations until the ownership dispute pending under case HH1414/14 has been resolved.
The court a quo granted the
spoliation order and interdict, as prayed by the respondent, leading to this
appeal by the disgruntled appellants.
The appeal essentially raises one issue for determination,
which, in my view, is dispositive of the whole matter; whether the court a quo was correct in finding that the appellant's entry
onto the mining claims warranted the granting of mandamus van
spolie as well as the interdict.
The following facts are largely not disputed. Firstly,
the appellants did effect entry onto the disputed premises without the backing
of a court order or “due process.” The deponent to the appellants'
opposing affidavit, Muyengwa Motsi, who is the third
appellant in casu, admitted the same in his opposing
affidavit a quo, when he stated;
“Indeed, I entered the mine premises. I did not need
permission from anyone to do so. Applicant has been mining thereat illegally
for the past 2 years. I did not use any false pretence. Indeed, our
intention has and continues to be to take over the mines and occupy same as can
be envisaged (sic) by the numerous court orders
granted in our favour which applicant blatantly refuses to recognise (see case
no. HC26/11, HC3208/13 and HC1194/13).”
Secondly, the appellants, in addition to this, admitted to
the deployment of armed guards by the entrance to the disputed
premises. The third appellant stated as follows in his opposing affidavit;
“Ad
para
3
…, however, the second respondent is within his rights to
place guards at the mine to ensure that all the ore that was mined illegally
does not leave the premises…,.”
Given these admissions, which seem to give credence to the
respondent's claim that the appellants forcefully entered the disputed mine
premises, the Judge a quo, I find, was correct in
his observation to the following effect:
“In a nutshell, this is an admission that the respondents
have effectively entered the mine. They did so without any permission from
anyone…,. In casu, the applicant was dispossessed
against his will and without the authority, or order of, this court. In acting
as they did, whether as principals or agents, all respondents took the law into
their own hands. They are guilty of what is called self-help. This
court must insist on observance of the principle that a person in possession of
property, however unlawful his possession may be and however exposed he may be
to ejectment proceedings, cannot be interfered with in his possession except by
due process of law. If he is interfered with unlawfully, the court will
not condone such interference. It will redress the situation pending the
taking of lawful action for ejectment. See Ntshwacela v Chairman,
Western Cape Regional Services Council 1988 (3) SA 218 (C).”
I respectfully associate myself with and endorse these
sentiments.
Having confirmed the court a quo's
finding as to the unauthorized, forceful, entry by the appellants onto the
disputed premises, what has to be considered next is whether the appellants
established a defence acceptable at law, to such conduct.
The respondent addresses this question in its heads of
argument, as follows:
“4.14 The only recognised defences to an action of
spoliation are;
(i) Denial of the facta propanda;
(ii) Impossibility of restoration;
(iii) Counter-spoliation; and
(iv) Failure to act within a reasonable time.
See Gondo NO vs Gondo & Ors 2001 (1) ZLR 376 & Silberberg and Schoeman (supra) at 288 generally.
4.15 Appellants have not raised these defences, whether in
the court a quo or on appeal and thus the appeal
must fail.”
There is merit in this contention.
The appellants, as is evident from the papers before the
court, did not justify their conduct on the basis of the defences
mentioned. Indeed, the appellants' case is to defiantly assert that they
did not need anyone's consent to enter the premises and reclaim what they
perceived to be their entitlement. The appellants elaborate their stance
in this respect by stating, in their heads of argument, that they were
“perfectly within their right” to recover the six (6) claims 'summarily without
the need for fresh court proceedings.'
It is argued for them as follows;
“It would be manifestly absurd to suggest that the
appellants needed to institute fresh proceedings and obtain a writ to implement
the right already conferred on them in terms of the Tribute Agreement…,.”
The appellants also express the view that the respondent
was not in peaceful and undisturbed possession of the premises because the
respondent “was aware of the registration of the Tribute Agreement in terms of
the judgment in HH261-11.”
Lastly, it is contended for the appellants that the
deprivation of possession in the implementation of the 'provisions of a
statute' does not amount to spoliation.
Apart from these contentions coming nowhere near
establishing any of the defences recognized by law in spoliation proceedings, I
find that the appellants are effectively advocating for an environment where
the “take the law into your own hands” adage becomes the norm. It hardly
needs mention that this approach offends against the very raison d'etre of the law generally and a mandamus van spolie in particular, that is, the
preservation, promotion and enforcement of law and order in and amongst members
of the society.
The appellants have not pointed the court to any statutory
provision that specifically provides for summary possession of disputed
properties in circumstances such as these. Rather, counsel for the appellants
cited the following dictum which re-affirms the
purpose of the law on spoliation but decidedly contradicts, rather than
supports, their case; (see HH261-11);
“The reason being that the purpose of mandamus van spolie is to preserve law and order and to
discourage persons from taking the law into their hands. To give effect to
these objectives, it is necessary for the status quo ante to be restored
until such time as a competent court of law assesses the relative merits of
the claims of each party…,.”…,.
The appellants clearly misinterpret the import of this
statement, in particular, the highlighted part thereof. The appellants'
understanding of these words seems to be that as long as a competent court of
law has pronounced on the rights of opponents, all that is required by the
winning party is to arm themselves with the order in question and then proceed
to personally execute it against the losing party. Any lawyer should know, and
surely does not need to be told, that beyond the giving of orders by the court,
there is a whole process that follows (in the absence of voluntary compliance
thereof) in order for the orders in question to be executed. Hence the need,
beyond securing one's legal rights, to petition the court for an appropriate
order to facilitate enforcement through the Sheriff, his deputy or any other
authorized officer of the court. The appellants in casu
clearly sought to short circuit this process and take upon themselves a task
that properly falls within the domain of others, that is, authorized law
enforcement agents. Such actions not being supportable at law, I find that
there is nothing to fault in the reasoning of the court a quo, and its finding, that the appellants had failed to
prove a defence to the respondent's application for a mandamus van spolie.
This brings me to a consideration of whether or not an
interdict was justified under the circumstances of this case. The learned judge
a quo correctly set out the requirements thereof as
follows:
(i) Clear or prima facie right
though open to some doubt;
(ii) Well-grounded fear of harm if relief is not granted
and if applicant can prove such right;
(iii) Balance of convenience must favour granting of
relief, and
(iv) No other relief available to the applicant.
See Enhanced
Communication Network (Pvt) Ltd v Minister of Information, Posts and
Telecommunications 1997 (1) ZLR 342.
Though disputed and still the subject of litigation in the
High Court, I am satisfied that the respondent established a clear or prima facie right to possession of the premises in
question. Its expressed fear that harm to it may ensue if the relief
sought was not granted is, in my view, well grounded. The appellants
placed armed guards at the entrance to the premises. The possibility of an
explosive, if not fatal, situation could thus not be ruled out. The appellants
had been operating on the premises for a not insignificant period of time, and
still faced legal challenges in the High Court, to its entitlement to the
premises. It is evident that the balance of convenience tilted in favour
of its being granted the order in question.
The learned judge was therefore correct in stating as
follows;
“If the armed men or guards posted by respondents are
allowed to remain on the mine or the gates there is well grounded fear that
harm might occur if an interdict is not granted. The applicant is entitled
to the reliefs he is seeking. The application will be granted.”
In all respects, therefore, we found the appeal
to be devoid of merit, hence our dismissal of it with costs.
