ALL Aflame Marketing [Pvt] LTD AND Competitive Marketing [Pvt] LTD Versus JOHN Farley Petersen AND Provincial Mining Director Matabeleland South Province AND Officer IN Charge, Zimbabwe Republic Police, Filabusi

### Preamble
HB 09/25
HC 1799/22
ALL AFLAME MARKETING [PVT] LTD
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ALL AFLAME MARKETING [PVT] LTD

And

COMPETITIVE MARKETING [PVT] LTD

Versus

JOHN FARLEY PETERSEN

And

PROVINCIAL MINING DIRECTOR MATABELELAND SOUTH PROVINCE

And

OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE, FILABUSI

IN THE HIGH COURT OF ZIMBABWE

NDLOVU J

BULAWAYO 08 MAY, 06 JUNE 2024 & 10 FEBRUARY 2025

Interdict Application.

Mr. G. Nyoni, for the applicant.

Mr. S. Nkomo, for the respondent.

No Appearance for the 2nd & 3rd respondent.

NDLOVU J: This is an application for an interdict against the 1st respondent. The basis for this application is that the 1st applicant is the registered holder of mining claims, known as the ROYAL FAMILY GROUP MINING CLAIMS. The 1st respondent allegedly conducts mining activities independently on the 1st applicant’s mining claims. He holds no certificate of registration in respect of those claims but the 1st applicant does. He is not a director, shareholder, or employee of the applicants. The 1st respondent is the only one who has opposed this application.

BACKGROUND FACTS.

In February 2010, the 1st respondent sold and transferred his 50% shareholding in the 1st applicant company to the 1st applicant. He thereafter resigned as a director of the 1st applicant company. This position is a common cause.

On 18 December 2012, the applicants, the 1st respondent, and one other individual entered into a joint venture agreement concerning the Royal Family and Marvel mining claims. The joint venture was to be the instrument with which the parties would operate on these mining claims, and the joint venture agreement would regulate their mining operations. The ownership rights fully remained with the 1st applicant. The 1st respondent would only benefit from the operations' outputs as per the joint venture agreement.

The 1st respondent has since started to independently exploit gold in the claim outside the provisions of the joint venture agreement. That conduct has birthed this application.

RELIEF SOUGHT.

1st Respondent be and is hereby interdicted from conducting any mining or mining-related activities at Plant Site 682 [Registered Number 32866] located at Royal Family claims and at all other mining claims owned by the Applicants in Filabusi pending the finalization of the Summons action instituted by the 1st Respondent under cover of Case No. HC 1086/21.

1st Respondent be and is hereby ordered to cease any mining or mining-related activities that he had commenced at the Royal Family claims in Filabusi and belonging to 1st Applicant including but not limited to plant Site 682 mentioned in paragraph 1 above until such a time as the suit in case number HC 1086/21 will have been finalized.

1st Respondent be and is further interdicted from interfering with Applicants’ mining activities and operations at Plant Site 682 mentioned in paragraph 1 above, and at any of the mining claims registered in the names of the 1st Applicant until the suit in case number HC 1086/21 will have been determined.

If 1st Respondent does not comply with the above orders, 3rd Respondent be and is hereby authorized to do all that in his powers to ensure that 1st Respondent does not conduct any mining or mining-related activities at Plant Site 682 described in paragraph 1 above or at any mining site belong[sic] to the Applicants.

1st Respondent shall pay costs of this application at an attorney and client scale only if he opposes the relief sought herein.

ISSUES FOR DETERMINATION.

The 1st respondent has taken 5 [five] preliminary points causing the issues to be determined to be 6 [six] in total:

Whether or not there are material disputes of facts.

Whether or not the resolutions are fatally defective.

Whether or not the shareholding is a nullity.

Whether or not the founding affidavit is fatally defective.

Whether or not this matter is lis pendens AND

Whether or not the applicants have satisfied the requirements of interdict.

PRELIMINARY POINTS.

Whether or not there are material disputes of facts.

This court has expressed disdain with litigants who take preliminary points out of fashion in numerous authorities. The time is about to visit litigants who persist in this fashion with costs on a punitive scale and, in relevant matters, to visit the legal practitioner with an order for costs de bonis propriis.

The 1st respondent avers that the joint venture agreement excluded the concentrate dump on the MARVEL CLAIMS from being mined and enjoyed by both parties and was left for the exclusive enjoyment of the 1st respondent and his partner.

The evidence before this court is that the mining claims under the joint venture were to be exploited only in terms of and under the joint venture agreement. The 1st respondent has pleaded nothing better than his mere say-so, to the contrary. How that mere say-so is expected to metamorphose into a material dispute of fact challenges logic. Not every difference in the narration of the history or circumstances of the matter is a material dispute of fact. There must be substance in the factual matrix differences between the parties. The dispute must be such that the court is disabled from deciding the difference without the benefit of cross-examination of those who allege differently.

Where a party alleges a material dispute of fact it must set out in detail the basis thereof, in other words, one cannot just allege a material dispute of fact without saying or giving more to highlight to the court and therefore enable the court to decipher the point of departure between the parties. The 1st respondent has failed to do that.

The point in limine taken is unmerited and is duly dismissed.

Whether or not the resolutions are fatally defective.

The resolution filed of record is not defective. It was made by the company's directors as is supposed to be done according to the law, and that settles the matter.

The preliminary point is therefore dismissed.

Whether or not the shareholding is a nullity.

This point is without merit and is not relevant to these proceedings. It is a matter for another day. The point taken is therefore dismissed for want of merit.

Whether or not the founding affidavit is fatally defective.

The applicants are corporate entities. They are companies with limited liability. They can only act through their director. This is trite. It is not the director who speaks; it is the corporate entity that avers through the Director. The matter before this Court is about the rights that the 1st applicant holds in the mining claims in question. As a director of the applicants and their Asset Development Manager, the deponent of the founding affidavit is legally clothed to swear to the facts founding this application.

The point in limine taken by the 1st respondent in this regard is, therefore, without merit and is duly dismissed.

Whether or not this matter is lis pendens

No provision exists in the rules of this court making a tender for costs a peremptory requirement to accompany a withdrawal of a motion matter. There is a gap in the rules of this court. That exercise is out of practice and decency. It means that non-tender of costs upon withdrawing an application cannot legally invalidate a withdrawal. There is no evidence that the 1st respondent demanded the costs in this matter. Rule 66 of this court’s rules makes it trite that no pendens attaches to a matter that has been struck off the roll. The point in limine taken is therefore dismissed.

THE LAW

The requirements of a final interdict are:

[1] a clear right.

[2] irreparable harm committed or reasonably apprehended, and

[3] absence of an alternative remedy.

This is trite. A clear right must be established through evidence on a balance of probabilities. Mineral rights are acquired or lost in terms of a statute in this jurisdiction. Unless lost in terms of the Mines and Minerals Act [Chapter 21:05], they remain held by the one whose name appears registered with the Ministry of Mines and Mining Development that superintends mineral rights in this country. A certificate of registration is the evidence a litigant has to adduce to prove that he or she has a clear right in a matter like this. It equates to a title deed.

APPLICATION.

The 1st applicant has adduced evidence of title to the claims in question. The 1st respondent has not challenged it. The 1st applicant, therefore, has an exclusive right to mine the claims.

The 1st respondent has not denied that he is mining the claims in question. He has explained his conduct. However, he has not provided any proof to back his explanation that he has a right to mine the claims under discussion. His conduct is unlawful and harmful. He is extracting gold from the 1st applicant’s claim. The harm is real and irreparable.

Short of resorting to self-help, the applicants have no alternative remedy at their disposal to protect their rights. The only remedy available to the applicants is the interference by this court. The applicants have successfully proven the requirements of a final interdict.

DISPOSITION

The applicants have proven the requirements of a final interdict and are entitled to the relief sought save for paragraph 4 [four] of the draft order. It is not the function of the Police Service to execute High Court orders on behalf of a successful litigant in a civil claim. That is the preserve of the Sheriff of the High Court and his or her lawful Deputies. The Police mainly must maintain law and order in a non-partisan way. That is their Constitutional obligation. They do not need a Court order to do that.

COSTS

The contesting parties have respectively prayed for costs against the unsuccessful party on a punitive scale. The 1st respondent appears to have appreciated from the word go that he did not have a case to resist the applicants’ application. He has abused the Court process. He knew that he had no case but persisted on regardless. It is the responsibility of this Court to guard against abuse of its processes. The 1st respondent’s conduct attracts censure through punitive costs.

ORDER

1st Respondent be and is hereby interdicted from conducting any mining or mining-related activities at Plant Site 682 [Registered Number 32866] located at Royal Family claims and at all other mining claims owned by the Applicants in Filabusi pending the finalization of the Summons action instituted by the 1st Respondent under cover of Case No. HC 1086/21.

1st Respondent be and is hereby ordered to cease any mining or mining-related activities that he had commenced at the Royal Family claims in Filabusi and belonging to 1st Applicant including but not limited to plant Site 682 mentioned in paragraph 1 above until such a time as the suit in case number HC 1086/21 will have been finalized.

1st Respondent be and is further interdicted from interfering with Applicants’ mining activities and operations at Plant Site 682 mentioned in paragraph 1 above, and at any of the mining claims registered in the names of the 1st Applicant until the suit in case number HC 1086/21 will have been determined.

1st Respondent shall pay the costs of this application at an attorney and client scale.

NDLOVU J.

Messrs, Moyo and Nyoni Legal Practitioners, Applicants’ Legal Practitioners.

Nkomo & Sibanda Legal Practitioners, 1st Respondent’s Legal Practitioners.