Asmdev Incorporated (Pvt) LTD V JOH AND Lewis Investment (Pvt) LTD & 3 ORS

### Preamble
1
HH 473-25
HCH 2159/25
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G H.

ASMDEV INCORPORATED (PVT) LTD

versus

JOH AND LEWIS INVESTMENT (PVT) LTD

and

JOHANNE CHARASA

and

KNOWLEDGE MAZIVANHANGA

and

PETER MARENGU

THE HIGH COURT OF ZIMBABWE

TAKUVA J

Harare 28 May 2025 and 13 August 2025

Urgent Chamber Application

B Maruva, for the Applicant

A Chihombori, for the 1st Respondent

No appearance for 2nd, 3rd and 4th Respondents

TAKUVA J:  Applicant filed this application as an urgent chamber application seeking the following relief;

“Final order sought

That you show cause to this Honourable Court why a final order should not be made in the following terms,

Pending the determination of the matter under case numbers HCH 4269/24 HCH 5692/24 an anti-dissipation interdict is hereby issued barring the first to the fourth respondents, their workers, subordinates, nominees and agents from carrying out any form of mining activities and extracting gold ore from Lonrho mining site.

Pending the determination of the matters under case numbers HCH 4269/24, HCH 4118/24 and HCH 5692/24 the first to fourth respondents, their workers, subordinates, nominees and agents be and are hereby interdicted from transporting and or removing gold ore from Lonrho mining site.

The first to fourth Respondents be and are hereby ordered to jointly and severally one paying the other to be absolved pay costs of suit on a higher scale of attorney and clients.

INTERIM RELIEF GRANTED

Pending determination of this matter, the Applicant is granted the following relief;

The first, second, third and fourth Respondents, their workers, subordinates, nominees and agents be and are hereby interdicted from carrying out any mining activities at the disputed Lonrho Mining Site.

The officer in charge at Concession Police Station be and hereby ordered to assist in the execution of this order should the need arise.

SERVICE OF THE ORDER

WITHOUT DEROGATION from the normal powers of the sheriff to serve Court process, the Applicant or their Legal Practitioners or any attested member of the ZRP is hereby authorized to serve this order on the Respondents.”

The application is opposed by the first to fourth Respondents

BACKGROUND FACTS

Sometime in September 2022 the Applicant and Mazoe Mining Company under Corporate rescue entered into a memorandum of Agreement to mine, to provide mining and processing equipment for the whole gold mining value chain.  The contract was to run from 1 August 2021 to 31 July 2024.  The agreement was subject to renewal and extension for a period of a further three years.  Applicant took occupation of shafts on 1 August 2021 until 16 September 2024 when it was despoiled by the Respondents. As a result, Applicant approached this court for an order of spoliation under HCH 4269/24 and the matter is still pending at Pre-trial stage after Deme j converted the matter to a trial.

Whilst the litigation under HCH 4269/24, HCH 4118/24 and HCH 5692/24 are pending, Applicant discovered that Respondents had unlocked the mining shaft and were pumping water using Applicant’s machinery on the shaft.  Applicant’s legal practitioners wrote to the Respondent on 30 April 2025 but the dispute was not resolved.  This dispute is over mining rights at Lonrho Mining Site.  Applicant alleges in the main matter HCH 4269/24 that it was unlawfully despoiled from Lonrho Mining Site.  Under HCH 4118/24 the first Respondent alleges that it has the mining right and is seeking a declaratory order as to who should be the rightful party to mine at the disputed mining site whilst HCH 5692/24 seeks the joinder of the applicant to the action under HCH 4118/24.  These matters are still pending before this court.

In light of the fact that Respondents continue to unlawfully mine at Lonrho shaft before the pending cases are finalized, Applicant is seeking an anti-dissipation order to preserve the finite mineral resource pending the determination of the spoliation proceedings and the declaratory order proceedings to determine which party has mining rights to mine at Lonrho Mining Site.

APPLICANT’S SUBMISSIONS

According to the Applicant, the wrongful acts were discovered on 28 April and 5 May 2025, i.e. 4 days. The Applicant has acted with haste and diligence to bring the matter to court timeously.  In terms of time Applicant submitted that there is no inordinate delay.  The fence was erected on 5 May and the Applicant rushed to court to seek the court’s hand to stop the Respondents from mining on a disputed site using the Applicant’s own machinery to mine a finite resource which diminishes to the prejudice of the Applicant.  Further Applicant submitted that it has managed to prove the existence of the requirements of an anti-dissipation interdict.

RESPONDENTS’ SUBMISSIONS

Respondents first raised the following point in limine;

Urgency

It was submitted that this matter has lost urgency due to the fact that the Applicant did not act timeously when the need to act arose.  Respondents averred that the need to act arose in September 2024 and not on 28 April 2025 or 5 May 2025.  That this is the case is shown by the fact that Applicant’s founding affidavit in HCH 4269/24 makes it evident that the Applicant had knowledge that it had been despoiled of the mining shaft.  This is therefore no new development which has been placed before this court to warrant urgent attention.  In the event that this submission does not find favour with the court, Respondents submitted that the need to act arose on 23 March 2025 when Applicant’s proxy one Kudzi Dzingirai caused the arrest of the second, third and fourth Respondents on allegations of malicious damage to property.

Respondents also submitted that the urgency is therefore not only based on material falsehoods but it is also self-created since it is meant to provide a smokescreen over first Respondent’s case of criminal trespassing which was alleged against its representative.

NON JONDER

The point made is that failure to join Mazoe Mining Company which has a direct and substantial interest in the outcome of this matter is fatal to Applicant’s case.  Respondents contended that Applicant cannot establish a prima facie right over the mining site in respect of which it seeks an interdict in the absence of Mazoe Mining Company (Pvt) Ltd, considering that Applicant’s lease expired due to effluxion of time and no evidence of its renewal has been tendered. The only lessee recognised by Mazoe Mining Company is the first Respondent.

MATERIAL DISPUTES OF FACTS

Case no HCH 4269/24 was referred to trial on the basis that these are material disputes of fact.  In particular, basis upon which Applicant claimed to have been in occupation of the mine is disputed in that the agreement had been novated by another agreement which expired in August 2023 and not on 31 July 2024.  The issue of whether the agreement produced by Applicant had been novated by another agreement of shorter duration was therefore a material dispute of fact.  Finally, it was submitted that these material disputes of fact cannot be resolved on the basis of current evidence as presented by the parties without supplementary evidence.

RES JUDICATA

It was submitted that the Applicant’s case has already been adjudicated by deme J under case No HCH 4269/24.  Applicant is simply relitigating issues that are res judicata abusing court process and harassing Respondents in the process.

LIS PENDENS

Respondents argued that the present dispute is lis pendens as it is currently pending in this court under case number HCH 4118/24 and HCH 4269/24.

NO PRIMA FACIE RIGHT

It was contended that Applicant has no prima facie right to the mining site in that its agreement with Mazoe Mining Company expired and was never renewed.  It is actually first Respondent who has produced a valid lease in respect of the mining site.

NO RISK OF IRREPARABLE HARM

Respondents have contended that Applicant is not the owner of the gold ore that it seeks to protect and no evidence of any legal interest has been tendered before the court.  Therefore, Applicant has not demonstrated any prejudice which it personally stands to suffer if the application is not granted.

LOCUS STANDI

It was averred that Applicant has no locus standi to institute proceedings for anti-dissipation interdict since it is not the owner of the property it intends to protect.

MERITS

It was argued that the Applicant has not established a legal basis for bringing an application for an interdict in that it has not established a prima facie right to the mine in question.  Further, the issue of who owns what machinery on the mining site is best answered by Mazoe Mining company.  In any event no description even a basic identification of the said machinery has been presented to the court.  Respondents denied allegations of damage to Applicant’s motor-vehicle or other property and that they are mining without Mazoe Mining Company’s consent and approval.

Finally, it was argued that the Applicant has failed to establish the requirements for an anti-dissipation interdict and that its application be dismissed with costs on an attorney and client scale.

THE LAW AND ANALYSIS

URGENCY

It is a well settled principle of our law that an Applicant who files a matter under a certificate of urgency must demonstrate that when the need to act arose, the matter could not wait and that Applicant took immediate action to protect its interests.  The test for urgency is objective.

See Rule 60 (6)

Kuvarega v Registrar- General & Anor 1998 (1) ZLR 188(HC)

In Gwarada v Johnson & Ors HH 91/09, it was stated:

“Urgency arises when an event occurs which requires contemporaneous resolution the absence of which would cause extreme prejudice to the applicant.  The existence of circumstances which may in their very nature be prejudicial to the applicant is not the only factor that a court has to take into account, time being of the essence in the sense that the applicant must exhibit urgency in the manner in which he has reacted to the event or the threats whatever it may be.”

See also

The National Prosecuting Authority v Busangabanye & Anor HH 427/15

Document Support Centre (Pvt) Ltd v Mapuvire 2006 (1) ZLR 232 (H) 243 G; 244-C Silver Trucks (Pvt) Ltd & Anor v Director of Customs & Excise 1999 (1) ZLR 490 (H)

In Econet Wireless (Pvt) Ltd v Trusts Co. Mobile (Proprietary) Ltd SC 41/13, The court stated;

“It is clear that in terms of rules 244 and 246 of the High Court rules the decision whether to hear an Applicant on the basis of urgency is that of the judge.  The decision is one therefore that involves the exercise of discretion.”

In casu, I find that the Applicant took action upon realising that the Respondents were mining on 28 April 2025 and that Respondents were fencing off the mining shaft.  In my view by taking action on 5 May 2025, the Applicant acted swiftly by approaching this court to stop the Respondents from mining.  It cannot be constructed as a deliberate or careless abstention from action until the deadline draws near.

In any event applications for an anti-dissipation interdict are by their very nature urgent- see Sacrifice Clement v Chiduku & 4 Ors HMA 22/24 where Zisengwe J enumerated the point as follows;

“Applications for anti-dissipation interdict are by their very nature urgent.  Treating them otherwise would amount to unwittingly aiding and abetting the disposal of the assets subject to the dispute.  It would afford the alleged offending party a window of opportunity to swiftly spirit away or otherwise dispose of those asserts before the substantive issues.  Surrounding them are determined.”

Equally so in casu, this matter ought to be decided on an urgent basis.  The apprehension of such elevation is heightened by the fact that the Respondents have admitted that they are rehabilitating the shaft with machinery whose owner they are not sure of and that they will continue to extract the finite resource which diminishes by every extraction.

It should be noted that in appropriate cases, purely commercial interest can be protected urgently. See Silver Trucks case supra.  The issue of urgency is not tested subjectively but objectively where the court has to be satisfied that the relief sought is such that it can not wait without irreparably prejudicing the legal interest concerned.  In casu, I take the view that if the matter is not dealt with urgently, Applicant will lose the right to its machinery and assets on the mine as that right will be irretrievably lost.  In light of the evidence and the totality of the circumstances, I find that Respondents contention that Applicant does not own property on the mining site to be without merit.  This point in limine is hereby dismissed.  This case is urgent and must be dealt with as such.

Non-Joinder

I find no merit in this point for a number of reasons.  Firstly, Rule 32(11) of the High Court Rules provides as follows;

“No cause or matter shall be defeated by reason of the misjoinder or nonjoinder or of any party and the court may in any cause or matter determine the issues or questions in disputes so far as they affect the rights and interests of the persons who are parties to the cause or matter.”

Sobuza Gula-Ndebele v Chinembiri Bhunu N.O.SC 29/11.

Secondly, the party that was not joined in casu is currently under corporate rescue proceedings by virtue of section 12(1)(b)(ii) of the Insolvency Act [Chapter 6:04]. A moratorium exists on litigation on a financially distressed company see Metallon Gold Zimbabwe Ltd & 3 Ors v Shatirwa Investments (Pvt) Ltd And 3 Ors 107/21. Where Malaba CJ had this to say;

“The effect of corporate rescue is to impose a general moratorium on commencing or continuing with legal proceedings.  Including enforcement of actions against the company or in relation to any property owned by the company or lawfully in its possession, in any forum for the duration of the corporate rescue proceedings ........  The moratorium in terms of section 126 (1) of the insolvency Act, automatically comes into effect on commencement of corporate rescue.”

It is also noteworthy that Mazoe Mining Company has filed a special plea under HCH84/24 alleging that they cannot be sued whilst under corporate rescue.  In my view, attempting to cite Mazoe Mining Company is an exercise in futility.  Therefore, the point is dismissed for lack of merit.

RESJUDICATA

I disagree with the contention that the matter is res judicata because the issues were deliberated on by Deme J in HCH 4269/24.  The cause of action in casu occurred on 28 April 2025 and 5 May 2025 well after HCH 4269/24 had already been filed.  In any event the cause of action is different and the reliefs sought are different in that in casu what is being sought is a stay of mining activities pending finalisation of those matters.  Also, that matter was not decided on the merits. The requirements of res judicata were set out in the case of Wolfenden v Jackson 1985 (2) ZLR 313 (SIC), Toiveals v Chitapa 1996(2) ZLR 261 (H); Farai Chitsinde and Nyasha Chitsinde v Stanely Musa & Ors HH 274/10 as follows;

“1.	Same parties

Same cause of action

Same relief sought.”

Evidently the plea of res judicata is not available in this case.  This point in limine lacks merit and it is hereby dismissed.

LIS PENDEN

In this jurisdiction, the law on his pendens is settled.  See Diocesan Trustees For the Diocese of Harare v Church of The Province of Central Africa 2009 (2) ZLR 57 (H) it was held that for a plea of lis pendens to succeed it must be demonstrated that the matters are between the same parties or their successors in title concerning the same subject matter and founded upon the same cause of action.

The present application is for an anti-dissipation interdict, while the action proceedings are for spoliation and declaratur in a matter in which none of the parties are involved.

Lis pendens does not apply even tangentially.  In any event lis pendens is not absolute it is discretionary, see Herbstein and Van Winsen in the Civil Practice of Superior Courts in South Africa 3rd edition at pp 269-270 state “Lis pendens is a special plea open to a defendant who contends that a suit between the same parties concerning a like thing and founded upon the same cause of action is pending in some other court.”

On the facts of this case, my view is that the preliminary point of lis pendens does not apply.  Accordingly, the preliminary point is hereby dismissed.

MATERIAL DISPUTES OF FACTS

The law is clear- see Douglas Muzanenhamo v O.I.C. C.I.D Law and Order CCZ 3/13 where the court stated the approach as follows;

“As a general rule in motion proceedings the Courts are enjoined to take a robust and common-sense approach to disputes of fact and to resolve the issues at hand despite the apparent conflict.  The prime consideration is the possibility of deciding the matter on the papers without causing injustice to either party.”

The question whether or not disputes of fact exist.  Makarau JP (as she then was) in Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H) AT 136 F-G stated;

“A material dispute of facts arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”

In casu, I am not persuaded that there are material disputes of facts.  It has not been disputed that there are pending cases.  Respondents also do not deny that there is machinery in the shaft.  Also, there is no dispute as to who erected the fence encircling the shaft in question.  The pumping of water is again common cause.  A mere allegation of a possible dispute of fact is not conclusive of its existence.

This point in limine has no merit.  It is therefore dismissed.

On the merits, the Respondents raised issues relating to prima facie right irreparable harm and urgency.

An anti-dissipation interdict is defined in Herbstein and Van WINSEN in The Civil Practice of the High Courts of South Africa 5th EDITION VOLUME 2 at page 1488 as

“a special type of interdict that may be granted when a respondent is believed to be deliberately arranging his affairs in such a way as to ensure that by the time the applicant is in a position to execute judgment he will be without assets or sufficient assets on which the applicant expects to execute.”

The requirements that must be satisfied to obtain an anti-dissipation interdict are the same as for any other type of interdict meaning that the applicant must establish

a prima facie right

a well-grounded apprehension of irreparable harm

absence of any other remedy

and that the balance of convenience favours the applicant.

As regards the existence of a prima facie right I am of the view that the Applicant has a legal right to be on the mine as its mining equipment is inside the disputed shaft.  Further, Applicant was never evicted from the mine by Mazoe Mining Company.  The fact that there is pending litigation over the owner of the shaft bolsters the Applicant’s right.  The admission that Respondents are pumping water from the disputed shaft calls on the Applicant to protect its machinery.

Applicant has a well-grounded fear of irreparable harm if its property is used to mine gold in that it will be exposed to ordinary wear and tear.  Also, gold being a finite resource will be dissipated.  The balance of convenience favours the Applicant as it stands to suffer irreparable prejudice in the event that it eventually wins in the main matter.  Clearly Applicant has no alternative remedy as damages are not a satisfactory remedy in the circumstances.

All in all, I take the view that the Applicant has satisfied all the elements of a provisional anti-dissipation interdict.

In the result it is ordered as follows;

FINAL ORDER SOUGHT

Pending the determination of matters under case Nos HCH 4269/24, HCH 4118/24 and HCH 5692/24, an anti-dissipation interdict be and is hereby issued barring the first to the fourth Respondents their workers, subordinates, nominees and agents from carrying out any form of mining activities and extracting gold ore from Lonrho mining site.

Pending the determination of the matters under case numbers HCH 4269/24, HCH 4118/24 and HCH 5692/24, the first to fourth respondents, their workers, subordinates, nominees and agents be and are hereby interdicted from transporting and or removing gold ore from Lonrho mining site.

The first to fourth Respondents be and are hereby ordered to pay costs of suit on a scale of attorney and client jointly and severally one paying, the others to be absolved.

INTERIM RELIEF GRANTED

Pending determination of this mater the Applicant is granted the following relief;

The first, second, third and fourth respondents, their workers, subordinates, nominees and agents be and are hereby interdicted from carrying out mining activities at the disputed Lonrho Mining site.

The officer in charge at Concession Police Station, his subordinates, nominees and agents be and are hereby ordered to assist the Applicant should the need arise.

SERVICE OF THIS ORDER

Without DEROGATION from the normal powers of the sheriff to serve court process, the Applicant or their legal Practitioners or any attested members of the ZRP is hereby authorised to serve this order on the Respondents.

Takuva J:......................................................................

Zuze Law Chambers, applicant’s legal practitioners

Sibanda and Partners, first respondent’s legal practitioners