Rose Natalie Heuer v Lugania Investments (Pvt) Ltd & 3 Ors

### Preamble
1
HB 84/20
HC 2520/18
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ROSE NATALIE HEUER

Versus

LUGANIA INVESTMENTS (PVT) LTD

And

SONGXIANG INDUSTRY INVESTMENTS

And

LIUFU QING

And

THE MINISTER OF MINES & MINING DEVELOPMENT N.O.

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 20 JANUARY & 21 MAY 2020

Opposed Application

Advocate L. Nkomo for the applicant

Advocate E, Mubaiwa for the 2nd respondent

No appearance for 1st 3rd and 4th respondents

MABHIKWA J:	Applicant filed an urgent chamber applicaion which was opposed.  On 20 December 2018, my brother TAKUVA J heard the matter and granted the interim relief sought therein.  The matter now comes to me for confirmation of the provisional order.  The applicant seeks confirmation for a final order in the following terms, that;

The provisional order be and is hereby confirmed.

Pending the finalisation of case number HC 5673/18, the 1st, 2nd and 3rd respondents be and are hereby interdicted from removing any equipment from Empress Mine.

Pending the finalisation of case number HC 7673/18, the 1st, 2nd and 3rd respondents be and are hereby interdicted from interfering with applicant’s mining activities at Empress Mine.

Applicant be and is hereby authorized to carry out mining activities at the mine and 1st, 2nd and 3rd respondents be ejected pending finalisation of case number 5673/18.

Needless to say, the confirmation of the provisional order is vigorously opposed.

Let me state that at the commencement of the hearing, Mr F. R. T. Chakabuda of Chakabuda Foroma Law Chambers rose to address the court on an alleged joinder in the proceedings of a party called “Two Flags Trading (Pvt) Ltd.  He tried to argue that Two Flags Trading (Pvt) Ltd which he termed the applicant is the holder of the real rights, title and interest in the mining claims subject of the dispute at Empress Mine.

Advocate L. Nkomo quickly rose and objected to Mr Chakabudas’s address in the first place.  His simple point was that the matter set down for hearing and properly before the court was case number HC 2520/18 wherein the parties are Rose Natalia Heuer as the applicant versus Lugania Investments (Pvt) Ltd & 3 Ors.  Advocate Nkomo indicated that this was the second time Messrs Chakabuda and Foroma Law Chambers had attempted to “sneak in a purported joinder application” in the proceedings of this matter ignoring all advice that such was improper.  After a brief exchange between counsel, this court noted that on 20 September 2018 Rose Natalia Heuer, filed an application under case number HC 2520/18

It appears that whilst that urgent chamber application was pending, Two Flags prepared their own application titled “Chamber application for joinder of party made in terms of Order 13 Rule 85 of the High Court Rules, 1971.  In drafting that application Two Flags inserted case number HC 2520/18 and filed it as if it was part of that case.  Having filed that application in that manner, Two Flags have more than once appeared each time case number HC 2520/18 has been set down and attempted to argue for joinder.  This is clearly improper.

Order 32 Rule 241 is clear on Chamber Applications, that;

“(1)	A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed and except as is provided in subrule (2) shall be supported by one or more affidavits setting out the facts upon which the application relies.”  (emphasis is mine)

I agree with Advocate Nkomo that Two Flags were improperly before the court and had no right of audience.  This was in fact a matter wherein the court was not inclined to exercise its discretion in terms of Order 1 Rule 4C of the High Court rules especially considering that for more than once, they had been advised to do the right thing.  Ultimately, it was agreed that the application by Two Flags was improperly before the court as it was as good as non-existent.  It was agreed that it be removed from the roll and Two Flags directed to comply with the court rules.

The court then set out to hear the confirmation hearing between Rose Natalia Heuer and 3 Others as the matter properly set down.

Again from the onset, Advocate Nkomo moved that the provisional order be confirmed as against 1st, 3rd and 4th respondents for failure to file opposing papers within the stipulated time and in accordance with the court rules.  There was no appearance for 1st, 3rd and 4th respondents.  There was no dispute that they were already barred in terms of the rules.  Default judgment was therefore granted and the provisional order was granted unopposed and as prayed for by the applicant as against the 1st, 3rd and 4th respondents.

Second respondent (Lugania Investments (Pvt) Ltd) thus remained the only party opposing confirmation of the provisional order.

Mr Mubaiwa for the 2nd respondent then raised two preliminary points.  On the first point in limine, 2nd respondent submitted that the provisional order should not be confirmed because there is no application before the court and therefore nothing to confirm.  2nd respondent’s argument was that the form adopted in the application was improper in an urgent chamber application.  He argued that the form was alien to our rules in that it was neither a form number 29 nor form number 29B.  Mr Mubaiwa then went on to state the requirements of the court rules on the two forms.  He also cited quite a number of cases on the same point particularly cases where the court held that the forms adopted were totally defective.

I find that the point in limine was misplaced.  Mr Mubaiwa’s argument was way off the mark as it came “long after the horses had bolted” so to speak.  The following will briefly illustrate that finding.

It is common cause that the matter came as an urgent chamber application heard and argued before my brother TAKUVA J.  Whether or not that point was raised before him is immaterial now.  I note however that my brother TAKUVA J wrote a full 10 paged judgment on the matter and granted the applicant the interim relief she sought therein.  It appears from the judgment that this point was either never raised before TAKUVA J or was inconsequential.  Advocate Nkomo argues that it was in fact not brought up.

The matter now comes before me merely for confirmation or non-confirmation, not for arguments that should have been made before my brother TAKUVA J.  What 2nd respondent is now seeking in effect is to implore me to revisit my brother judge’s work and review his judgment.  That is not permissible.

I am thus in agreement with Advocate Nkomo that this preliminary point cannot be available to the 2nd respondent where the urgent chamber application was fully argued and a provisional order was issued, backed by a judge’s full written judgment.  In any event, there is merit in Advocate Nkomo’s submission that the form number 29 referred to in the proviso to Rule 241 is left to the applicant to modify.  There is no list, let alone an exhaustive list of modifications.  There is nothing to show in the rules, what constitutes proper or improper modification.  The format in the urgent chamber application therefore, must be deemed to have been taken as a competent modification of form number 29 at the time of the hearing.  2nd respondent cannot competently seek to re-open argument that may have been turnable before TAKUVA J.  His judgment remains extant.

The second preliminary point by 2nd respondent was “non-joinder”,  2nd respondent argued that Two Flags Trading (Pvt) Ltd had on three (3) different occasions approached the High Court to assert its ownership interest in the subject matter of the current proceedings as well as the subject matter of the parent litigation itself in case number HC 3673/18.  In short, Two Flags allegedly claims to be the legitimate holder of title, right and interest in the mining claims subject of this matter.  Regrettably, 2nd respondent was wrong on that point.  This matter is already at confirmation stage.  The subject matter is repossession of mining claims pending litigation.  The subject matter is not ownership of the Empress Mine.  To that extent, Two Flags has no direct interest on the subject matter at hand.  If Two Flags believes it owns those mines and wishes to assert ownership rights, then it should institute its own proceedings against whoever it chooses to sue.

In any event, Order 31 Rule 87(1) of the High Court rules is clear that;

“No cause or matter shall be deferred by reason of the mis-joinder or non-joinder of any party and the court, in any cause or matter may determine the issues or questions in dispute so for as they affect the rights and interests of the persons who are parties to the cause or matter.”

I must say that in my view, the two (2) points in limine raised by the 2nd respondent are a classic example of “clutching” at legal niceties and technicalities.  After all, 2nd respondent was aware, and it had been stated earlier on in these proceedings, that Two Flags was improperly before the court for lack of a right of audience, leading to its purported application being removed from the roll.  For counsel for the 2nd respondent to raise the issue soon thereafter as a point in limine was mischievous.  It was once again to ask the court to revisit and nullify a decision the court had just reached moments earlier in the same proceedings.

Accordingly the two preliminary points were dismissed.

The two (2) preliminary points having been dismissed, the 2nd respondent’s case literally remains limping.

In short, the terms of the final relief sought is applicant’s re-possession of their mining claims known as Empress Mine pending finalisation of litigation in case number HC 5673/18.  The repossession is from 1st respondent who, pursuant to a sale agreement between it and the applicant had taken possession of the mining claims.  Applicant argues that in the said agreement, there is a “cancellation” clause as well as a “repossession” clause.  The issue of whether the cancellation claim is valid is a matter for determination in case number HC 5673/18.  This court is dealing only with re-possession by applicant of the said mines pending that determination.  In my view therefore, 2nd and 3rd respondents’ claims and possession of the mines in this case are tantamount to parties “who occupy through a principal” respondent, in this case the 1st respondent.  Since the provisional order has been confirmed against 1st respondent, I would be inclined to agree with Advocate Nkomo that the 2nd respondent would have no legal basis to oppose the granting of the same against it on its own.

In his opposing affidavit, Mr Xian Zhentian submits that there is a dispute regarding the contract of sale of the mining claims in question and that the dispute is not yet determined.  He also argues that 4th respondent, (Minister of Mines and Mining Development) is taking a simplicita approach without adjudicating the dispute between applicant and 1st respondent.  In fact quite often particularly in its heads of argument, 2nd respondent attempts to argue in advance the 1st respondent’s case in case number HC 5673/18.  For instance 2nd respondent argues at page 170, paragraph 10 and page 171 paragraphs 15 and 16 issues that should be argued by 1st respondent at the hearing of case number HC 5673/18.

What runs through the 2nd respondent’s opposition in my view, is that 2nd respondent’s case leans and is dependent on 1st respondent’s success.  However, in these confirmation proceedings, an order has already been granted against the 1st respondent.  In my view also, 2nd respondent’s attempt to argue in these confirmation proceedings, issues that should be argued later in HC 5673/18 is motivated by its continued complaint in its papers that it and 2nd respondent are not party to the proceedings in HC 5673/18.  Regrettably, it cannot be permissible then for 2nd respondent to “smuggle” those arguments in the current confirmation proceedings.

Second respondent also opposes the confirmation proceedings on the facts that it acquired shares from the 1st respondent and that it has its mining equipment on site and therefore cannot be evicted therefrom.  My sister MUZOFA J determined 2nd respondent’s fate on the same arguments on Songxiang Industry Investment (Pvt) Ltd vs Simon Chirere and 4 others HH-484-18 (HC 6533/18) were the applicant in casu (Rose Natalia Heuer) was the 3rd respondent in that case, together consolidated with Lugania Investments (Pvt) Ltd vs Rose Natalia Helkiu & 2 Ors HC 644/18.

At page 9 of that judgment, the learned Judge’s findings were that;

“The submissions made for the Minister were not controvertd.  Songxiang neither produced a valid tribute agreement nor a certificate of registration from the Mining Commission in terms of s275 of the Act to demonstrate Songxiang’s right to mine at Empress Mine.  In any event Songxiang by itself has no rights in Empress Mine.  Whatever dealings for the mining that took place were between Lugania and Rose and …………. a separate legal persona.  Where there is no prima facie right …  Songxinang is not Lugania.  These are two separate legal personalities where one is a shareholder in the other.  By mining at Empress Mine without a tribute agreement or a certificate of registration Songxiang would be acting outside the law.  It is trite that litigants who act outside the law cannot approach the courts ….  The court cannot be seen to aid and abet an illegality.”

In determining the urgent chamber application subject of these confirmation proceedings in Rose Natalia Heuer vs Lugania Investments (Pvt) Ltd & 3 Ors HB-320/18 (HC 2526/18), my brother TAKUVA J also made the following findings on the applicant’s rights in this matter that;

“In my view, the applicant as the registered owner o the claims has established not only a prima facie right but a clear right.  By denying her access to the mine, respondence have and continue to infringe on such right.  Both respondents have not denied that they barred applicant’s agent from inspecting the mine.”

In imploring this honourable court to discharge the provisional order on its account and opposition, 2nd respondent is in effect asking me to revisit and contradict my fellow judges’ findings on the same point.  This cannot be permissible.  See Ritenote Printers (Pvt) Ltd vs Adam & Co. & Anor 2010 (2) ZLR 544 (H).

Finally, Mr Mubaiwa argues that in terms of the interim relief, his Lordship TAKUVA J bars all parties including the applicant from mining.  He further argues that applicant is asking this honourable court to confirm that order and once this court so confirms that order, it cannot at the same time grant the applicant the right to mine.

This submission is erroneous because allowing it to stand would imply that the final order and the interim sought in the urgent chamber application had one and the same effect.  That is not true as this court is being asked to confirm terms of the final order not merely the interim relief that Honourable Justice TAKUVA granted.  These two (2) are different.

Accordingly, I make an order in the following terms that;

The provisional order be and is hereby confirmed.

Pending the finalisation of case number HC 5673/18, the 1st respondent be and is hereby interdicted from removing any equipment from Empress Mine.  2nd respondent be and is hereby allowed to remove its personal equipment from Empress Mine.

Pending the finalisation of case number HC 5673/18 the 1st, 2nd and 3rd respondents be and are hereby interdicted from interfering with applicant’s mining activities at Empress Mine.

Applicant be and is hereby authorized to carry out mining activities, whilst the  1st, 2nd and 3rd respondents be ejected pending finalisation of case number HC 5673/18.

1st, 2nd and 3rd respondents pay the costs of this application jointly and severally.

Webb, Low & Barry incorporating Ben Baron & Partners, applicant’s legal practitioners

Hussein, Ranchhod  & Co. 2nd respondent’s legal practitioners