Cleo Band Investments (Pvt) Ltd v Chigami 2 Syndicate & 2 Ors

### Preamble
1
HB 147.19
HC 2114/19
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CLEO BAND INVESTMENTS (PVT) LTD

Versus

CHIGAMI 2 SYNDICATE

And

HUGO GEORGE DORING

And

SABINE DORING

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO13 SEPTEMBER & 10 OCTOBER 2019

Urgent Chamber Application

S. Chamunorwa, for the applicant

M. Nyahuma for the respondents

MOYO J:	This is an urgent application wherein the applicant seeks the following interim relief:

“Pending the determination of this matter, the applicant is granted the following relief:

That the 1st, 2nd and 3rd respondents and all persons claiming through them be and are hereby interdicted from interfering with the applicant’s occupation and use of the mining claims being:

Antelope 1 Mine held under registration number 19143.

Antelope 2 Mine held under registration number 19050.

Antelope 3 Mine held under registration number 19051.”

The facts of this matter are that the 2 parties herein entered into an option agreement that saw the applicant having occupation of the 1st respondent’s mines.  The applicant alleges that respondents have been coming in and out of the mine without the consent of the applicant and that they conduct activities which disturb the normal flow of business at the mine.  The respondents raised 3 points in limine.  Firstly that the interim relief sought is final in nature.  Secondly, that the interim relief and final relief are similarly worded and thirdly that the founding affidavit contains hearsay evidence.  The applicants have contested the points in limine that have been raised on the basis that the interim relief sought is provisional in nature in so far as it is subject to confirmation or discharge on the return date.  That, in the interim, applicant seeks a temporary interdict whereas in the final order what is sought is a final interdict.  Further, applicant avers that a provisional order that s not confirmed or discharged will lapse by operation of law or can be dismissed in terms of the High Court rules.  The applicant further contends that the information in the founding affidavit is not hearsay as the deponent was privy to the facts of the matter.

I will deal with these points as follows:

On the aspect of the relief sought being final in nature, I note from the applicant’s answering affidavit that applicant does not dispute that the  wording is final in nature but instead applicant avers that the mere fact that the relief is subject to confirmation or discharge on the return date makes it a temporary interdict.  Therefore, on this aspect the court does not have to determine if the relief is indeed final nature but if the effect however worded, is temporary or final.  In other words does it not matter how interim relief is couched?  Is all that matters that it is called interim relief subject to be either confirmed or discharged on the return date?  If one where to accept applicant’s contention then no interim relief would have been found to be incompetent by our courts.  The measure being however, it is worded, it would not matter.  What would matter is what applicant calls it or considers it to be.  If applicant calls it interim then the mere fact that it is yet to be confirmed or discharged would automatically render it interim.  The decided cases, however, do not support applicant’s contention.  The decided cases are to the effect that relief in urgent applications must and should be appropriately couched.  Interim relief should be just that, interim, it should never be couched so that it is final in nature.  Decided cases also discourage interim relief couched in a final nature for the simple reason that the applicant without proving its case against the respondent, earns itself a permanent order when all applicant would have presented is a prima facie case.  Permanent relief shall be obtained on proven rights as opposed to prima facie rights.  Again, if applicant gets interim relief that has a final effect, applicant has nothing to anticipate on the return date.  Again, if applicant gets interim relief that has a final effect, applicant has nothing to anticipate on the return date.  Applicant can simply obtain the interim interdict which has a permanent effect and sit back and do nothing thereafter.  This scenario is undesirable and numerous decided cases have touched on this aspect.  Although applicant contends that, the relief is temporary and therefore subject to confirmation or discharge, nothing compels the applicant to push the matter further from finalisation once such relief is granted.

Even if applicant’s counsel contends that a provisional order lapses by virtue of the common law and that an unprosecuted application can also be dismissed in terms of the High Court Rules, the problem in this argument is that all this happens at the instance of the respondent.  In other words, applicant gets an interim relief that is final in nature, sits back and does not do anything, waits for the respondent to take action to end applicant’s enjoyment of the interim relief.  This scenario casts an unnecessary burden on the respondent who will not have approached the court in the 1st place.  The interim relief sought by applicant must be such that applicant itself anticipates the return date.  Applicant itself must be interested in pushing the matter forward to get final relief.  It would be an undesirable set up where the courts encourage and allow litigants to approach it to get final relief through the back door and leave respondents reeling under the effect of the “final” relief to then untangle the whole web and extricate themselves.  In fact that will be an injustice not only because respondents will have to pursue to finally matters that they did not commence, but also by virtue of the fact that an applicant will enjoy relief that is final in nature without proving its case.  Refer to the cases of Kuvarega vs Registrar General 1998 (1) ZLR 188; Ntuliki vs White HB-46-15 where such views were expressed in depth.

I hold the view that what the applicant wants this court to find in relations to the “final” relief is not supported by decided cases.  The Supreme Court case of Siphiwe Dube vs Turfwell Mining (Pvt) Ltd & Ors SC-10-19, did not deal with the issues as I am handling herein per the cyclostyled judgment.  In that case, a reading of it shows that the Supreme Court dealt with the merits to the extent that it even attacked the dishonesty and bona fides of the appellant therein.  Although the grounds of appeal are not listed in the judgment, the court therein stated that “having failed to pull wool over the court’s eyes, it is hardly surprising that she lost the plot and the court a quo issued a provisional order stopping her from continuing with the illegal conduct pending the final determination of the dispute.(emphasis mine)  Clearly, these parties had a dispute that was pending finalisation and the interim relief was to suspend all mining activities pending the finalisation of the dispute between the parties.  The interim relief itself refers to a suspension of the mining activities meaning therefore that the intention is to suspend the activities pending the finalisation of a dispute that existed between the parties.  Applicant does not speak of any dispute that exists between the parties that need resolution.  Applicant itself in the founding affidavit states that all that is needed is for respondents to seek permission before visiting, not that there is some dispute pending before the parties that this court would later resolve.

The cited Supreme Court case therefore does not apply here as I have shown.  The relief sought here is incompetent and the cited case does not state that such relief is competent.  The other point in limine on the similarities of the interim and final relief succeeds for the same reason as the first point.  The point in limine relating to the application containing hearsay evidence is a point that needs to be dealt with on the merits in my view.  I will therefore not address that part herein.  It is for these reasons that I uphold the 2 points raised in limine by the respondents and consequently the application fails for these reasons.

I accordingly dismiss the application with costs.

Messrs Calderwood, Bryce Hendrie & Partners, applicant’s legal practitioners

Nyahuma’s Law Golden Stars Chambers, respondent’s legal practitioners