Urgent Chamber Application
MAVANGIRA J: This
is an urgent chamber application in which the applicants seek a
Provisional Order in the following terms:
“TERMS
OF FINAL ORDER SOUGHT
That you show cause to this Honourable Court why a final order should
not be made in the following terms:-
1. That first,
second and fourth respondents and/or their agents shall not interfere
in any manner whatsoever with applicants' possession of Glencairn
Mine or the assets thereat.
INTERIM
RELIEF GRANTED
Pending the determination of this matter, the applicants are granted
the following relief:-
2. That first,
second and fourth respondents be and are hereby ordered to remove all
the locks on the 3 gold concentrators, carbon room, 4 fuel pumps,
workshop and gates leading to the mining areas at Glencairn Mine.
3. That the
first, second and fourth respondents restore possession of the Nissan
NP 300 (registration no. ABP 0456) and Nissan Hardbody 2.5
(registration no. ABG 4956) to the applicants”.
At the onset
of proceedings Mr Chagonda
raised
four preliminary points for determination by the court before the
matter could be heard on the merits.
(i) The first
point raised is that as Mr Debwe,
the legal practitioner who had prepared the application and was also
appearing for the applicant in this matter, was the same legal
practitioner who had prepared and signed the certificate of urgency,
the said certificate of urgency was therefore clearly defective.
There is thus no certificate of urgency before the court and the
urgent chamber application must therefore fail on that basis. He
cited in support of his submission Chafanza
v Edgars Stores Ltd & Anor
2005 (1) ZLR 299 at 300G.
(ii) The
second point raised is that the matter is res
judicata
as there have been no less than four urgent chamber applications
involving more or less similar parties as the fourth respondent
herein has not been a party to all matters. Mr Chagonda
submitted that in one of the four urgent chamber applications the
order that was sought is very similar to the order sought herein. The
application in that particular matter was however dismissed by the
court.
(iii) The
third point raised is that the applicants herein have no locus
standi in judicio
to institute these proceedings. Mr Chagonda
submitted that the mine and assets are owned by the third respondent.
The applicants are shareholders, the first applicant being also a
director of the third respondent. The company has not mandated them
to bring these proceedings which they have brought in their personal
capacities.
(iv) The
fourth point raised in
limine is
that the matter is lis
pendens
as the applicants have filed both an appeal and an application for
review in relation to an order granted by the Magistrates' Court in
which the parties have been ordered to co-exist. The proceedings in
both the appeal and the review are pending before this court yet the
present application seeks to reverse the Magistrates' Court's
order of co-existence. It was submitted that the hearing of this
application would be tantamount to hearing and determining the appeal
which is now pending before the court.
It appears to
me that the preliminary point that must first be determined is
whether or not the applicants have the locus
standi in judicio
to bring this application before the court.
The essence of the applicants' claim is that they were despoiled of
their possession and control of Glencairn Mine, and the assets
thereat.
In his founding affidavit the first applicant has stated that the
second applicant and he, in their capacities “as the legal
directors and shareholders of the third respondent have been in
peaceful and undisturbed possession of the mine… and all the assets
thereat”.
Clearly the applicants' said possession was not exercised or
enjoyed in their personal capacities.
It is common cause that the third respondent owns and runs the mine.
Any disturbance of peaceful and undisturbed possession therefore
could only be complained of by the third respondent.
Had the third respondent passed a resolution authorising the
institution of these proceedings, they would have been instituted in
the name of the third respondent and the applicants as authorised
agents would have been on solid ground.
The applicants have rather opted to cite the third respondent as a
respondent to their claim. The third respondent cannot be a
respondent in the applicant's claim. If any spoliation has occurred
the third respondent herein, would be the applicant. Its board of
directors would then pass a resolution authorising the institution of
the necessary proceedings and indicating the person or persons who
would do the necessary acts on its behalf.
It is not the applicants' stance that they were acting
independently of the third respondent. Rather in para 6 of the first
applicant's founding affidavit he states that he only cited the
third respondent as a respondent because in proceedings instituted by
the first respondent against the applicants, which application
resulted in the granting of the order that has prompted these
proceedings, the third respondent herein was joined as third
applicant.
It appears to me that the applicants' stance and explanation is
self contradictory.
The
institution of proceedings against them by the third respondent under
whose auspices they were engaged in all the pertinent activities,
negates their very locus
standi
in this matter having regard to the nature of their claim.
For the above
reasons the said point in
limine
is upheld.
It appears to
me that it is not necessary in view of my finding on the discussed
point in
limine,
to deal with the rest of them. The nature of the point in
limine
that has been upheld is such as to make it unnecessary to do so. No
purpose would be served thereby.
In the result,
it is found that the applicants have no locus
standi
in
judicio
to institute this urgent chamber application.
Debwe and Partners,
applicants' legal practitioners
Atherstone and Cook,
first, second and third respondents' legal practitioners
