Husavihwevhu Mining Syndicate v Slashwood Mining (Private) Limited

### Preamble
1
HH 82-2013
HC 1378-2013
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HUSAVIHWEVHU MINING

SYNDICATE

versus

SLASHWOOD MINING (PRIVATE)

LIMITED

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 28 February and 18 March 2013

T Tanyanyiwa, for the applicant

Mrs J Wood, for the respondent

ZHOU J:  This is an application for leave to execute a judgment of this court given in Case Number HC 1002/13 pending determination of an appeal noted to the Supreme Court against it by the respondent. The application was brought as an urgent chamber application and was filed on 20 February 2013.  The background to the application is as follows:

Both parties are in the business of mining. On 12 February 2013 the applicant was granted a provisional order against the respondent in Case Number HC1002/13. The order was given pursuant to an urgent chamber application for a mandament van spolie. The full terms of the provisional order are as follows:

“TERMS OF FINAL ORDER SOUGHT

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

The respondent, or any of its agents and/or employees, or anyone acting on its behalf is restrained from re-entering, occupying and/or utilising and/or occupying any improvements or materials belonging to the applicant on Claim 29682 named North Impaluli 72 without a final order granted by this honourable court allowing such entry and such utilisation and/or occupation, and in the event of doing so shall be ejected by the Deputy Sheriff.

The respondent, or any of its agents and/or employees, or anyone acting on its behalf are hereby restrained from placing all mining equipment, materials and/or weapons of any kind thereon without a final order granted by this honourable court allowing such placement, and in the event of doing so the equipment, material and/or weapons shall be removed by the Deputy Sheriff.

The respondent is hereby restrained from stationing thereon any military and/or armed personnel without a final order granted by this honourable court allowing such stationing, and in the event of doing so the military and/or armed personnel shall be evicted by the Deputy Sheriff.

The respondent is hereby restrained from interfering in any way with the applicant’s mining activities thereon without a final order granted by this honourable court allowing such interference, and in the event of doing so the military and/or armed personnel shall be evicted by the Deputy Sheriff.

The respondent shall pay the costs of suit on a higher scale of attorney-client scale.

INTERIM RELIEF GRANTED

Pending the return day, it is hereby ordered that:

The respondent or any of its agents and/or employees, or anyone acting on its behalf is ordered to vacate Claim 29682 named North Impaluli 72 immediately upon service of this order, failing which the Deputy Sheriff be and is hereby directed forthwith to eject the respondent or any of its agents and/or employees, or anyone acting on its behalf, from occupation thereon.

The respondent or any of its agents and/or employees, or anyone acting on its behalf is temporarily restrained from re-entering Claim 29682 named North Impaluli 72 pending the conclusion of this application and the granting of a final order and in the event of doing so shall be ejected by the Deputy Sheriff.

The respondent or any of its agents and/or employees, or anyone acting on their behalf is hereby ordered to remove all mining equipment, materials and/or weapons of any kind thereon upon service of this order, failing which the Deputy Sheriff be and is hereby directed to forthwith remove the mining equipment, material and/or weapons from thereon.

The respondent is ordered to remove all of its agents on Claim 29682 named North Impaluli 72 immediately upon service of this order, failing which the Deputy Sheriff be and is hereby directed forthwith to eject any such agents stationed thereon.

SERVICE OF PROVISIONAL ORDER

This order may be served by the applicant’s legal practitioners by delivery of a copy of this order to the respondent or its legal practitioners.”

On 15 February 2013 the respondent filed a notice of appeal against the above provisional order in the Supreme Court under Case Number SC 31/2013. The appeal was noted without the leave of this court. The instant application was filed in response to the notice of appeal. The application for leave to execute pending appeal is opposed by the respondent. The respondent took the point in limine that the application is not urgent. On the merits the respondent contends that the provisional order granted was a final order and therefore appealable without the leave of this court and that its appeal has prospects of success.

A matter qualifies for determination on an urgent basis if it “cannot wait to be resolved through a court application”.  In the case of Dilwin Investments (Pvt) Ltd t/a Formscaff v Jopa Engineering Co (Pvt) Ltd HH 116-98 p 1, GILLESPIE J stated:

“A party who brings proceedings urgently gains a considerable advantage over persons whose disputes are being dealt with in the normal course of events.  This preferential treatment is only extended where good cause can be shown for treating one litigant differently from most litigants.  For instance where, if it is not afforded, the eventual relief will be hollow because of the delay in obtaining it.”

See also Pickering v Zimbabwe Newspapers (1980) Ltd 1991 (1) ZLR 71(H) at 93E;  Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188(H) at 193F.

The order which the applicant seeks to enforce was granted on an urgent basis. By their very nature proceedings for a mandament van spolie are urgent. The purpose of the order would be defeated if this court was to find that this application for leave to execute that order must be brought as an ordinary court application. An ordinary court application might well be heard after the appeal noted by the respondent has been determined. I am therefore satisfied that the matter should be determined on an urgent basis. The matters raised by the respondent to challenge the urgency of the matter relate to the merits of the appeal rather than the irreparable prejudice which would be suffered by the applicant if the relief being sought in this application is not granted on an urgent basis.

As regards the merits of the application, this court has a discretion whether or not to grant leave to execute a judgment in respect of which an appeal has been noted. The applicable principles are set out in the case of Econet v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149(H) at 154F-G, as follows:

“In determining an application for leave to execute pending an appeal, the court must have regard to the ‘preponderance of equities’, the prospects of success on the part of the appellant and whether the appeal has been noted without ‘the bona fide intention of seeking to reverse the judgment but for some indirect purpose e.g. to gain time or to harass the other party’.  See Fox & Carney (Pvt) Ltd v Carthew-Gabriel (2) 1977 (4) SA 970(R) and ZDECO (Pvt) Ltd v Commercial Careers College (1980) (Pvt) Ltd 1991 (2) ZLR 61(H).”

In Case Number HC 1002/13 this court found that the applicant was despoiled, hence it granted the provisional order.  The principle which underpins the mandament van spolie is expressed in the Latin maxim spoliatus ante omnia restituendus est, meaning that the despoiled party must be restored to the status quo ante before any enquiry is undertaken into the respective titles of the parties.  The principle means that once the court is satisfied that the requirements for a spoliation order are established it will not enquire into whether the applicant had title to the property in dispute. In the instant case if the provisional order is not enforced as a result of the appeal noted against it then the applicant’s entitlement to regain possession will stand suspended until the appeal has been determined.  On the other hand, since the court found the respondent to be the despoiler, it suffers less inconvenience by being ordered to relinquish the mining claim which is in dispute. If it succeeds in its appeal it will still be entitled to take occupation of the claim.  I have considered the above factor together with the prospects of success and the purpose for which the appeal was noted.  The respondent contends that the spoliation order is a final order not an interlocutory one.  Reliance is placed on the following cases; Nienaber v Stuckey 1946 AD 1049 at 1053; Burnham v Neumeyer 1917 TPD 630 at 633.  It is not necessary for me to determine the appealability or otherwise of the judgment by MWAYERA J in the instant case. What is clear, though, is that the order for restoration is temporary. The provisional order is still subject to confirmation or discharge.  In other words, whatever relief has been granted was granted pending determination of the matter on the return date.  The provisional order can be discharged on the return date if the Court is satisfied that it should not be confirmed. Further, the provisional order gives the respondent a right to make a chamber application for directions as to when the matter may be heard for its confirmation or discharge if “there is great urgency”. Such a chamber application can even be filed as an urgent matter if there is great urgency.  The respondent elected to appeal against the provisional order instead of anticipating its return date because the appeal achieves suspension of the operation of the order.  That, in my view, is the “indirect purpose” for which the appeal was noted rather than to seek a genuine reversal of the provisional order.  By noting an appeal the respondent was able to remain and continue to work on the disputed claim.  Given the conclusion which I have reached, it is not necessary for me to enquire into the validity or otherwise of the notice of appeal.  That is a matter for the court in which the appeal will be heard to determine.

The interim relief sought in the draft provisional order is the same as the terms of the final order sought. That is undesirable.  Kuvarega v Registrar-General & Anor (supra) at 192F-193D.  The provisional order will therefore be granted with some amendments.

In the result, I grant the following provisional order:

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:

That the provisional order given by this court in Case Number HC 1002/13 shall remain in operation notwithstanding the appeal noted against it in Case Number SC 31/13.

The respondent shall pay the costs of this application.

INTERIM RELIEF GRANTED

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

The applicant is given leave to execute the provisional order given in HC 1002/13 pending determination of the appeal noted against it.

The Deputy Sheriff be and is hereby directed to assist the applicant in giving effect to this order.

SERVICE OF PROVISIONAL ORDER

This order may be served by the applicant’s legal practitioners by delivery of a copy thereof upon the respondent’s legal practitioners.

Manase & Manase, applicant’s legal practitioners

Dhlakama B. Attorneys, respondent’s legal practitioners