Rio Zimbabwe Limited v Irvine Dzingirai and Walter Mzembi and O. Mazombwe

### Preamble
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HH 85/2013
HC 770/2013
RIO ZIMBABWE LIMITED
versus
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RIO ZIMBABWE LIMITED
versus
IRVINE DZINGIRAI
and
WALTER MZEMBI
and
O. MAZOMBWE

HIGH COURT OF ZIMBABWE
MWAYERA J
HARARE, 11 FEBRUARY 2013

Advocate T. Mpofu, for the applicant
J. Samukange, for the respondent

Urgent Chamber Application

MWAYERA J: The applicant approached the court through the urgent book on 01 February 2013. The Judge court directed that the matter be set down for hearing on 04 February 2013, on which date the respondent’s legal practitioner Mr Samukange successfully applied for postponement of the matter to 06 February 2013 to enable him to take full instructions from his clients one of who was said to be out of the country. On 06 February 2013 the respondents filed opposition to the application. The applicant in that application sought an interim relief that,-

1) The applicant be and is hereby allowed to land on the airship at Renco Mine and collects its gold bullion, without any hinderance from the respondents
2) The respondents be and are hereby directed to allow the applicant to restore its security personnel at the gates of Renco Mine.
3) The first respondent and all those claiming occupation through him, be and are hereby directed to vacate the guest house as well as other premises that he/they had occupied at Renco Mine, within twenty four hours of this order.

The terms of the final order are laid out as follows;-


1) The respondents be and are hereby directed to restore the applicant to the status quo ante prior to the unlawful dispossession of Renco Mine by the respondents.

2) The respondents, together with any and all persons unlawfully occupying Renco Mine through them, be and are hereby ordered to vacate the said mine within twenty four hours of being served with this Court Order, failing which the Sheriff of this Honourable Court or his lawful Deputy, with the assistance of the Zimbabwe Republic Police as may be necessary, be and are hereby authorized and directed to evict the respondents and all such persons from the mine.

3) The respondents be and are hereby prohibited from unlawfully taking possession of Renco Mine from the applicant.

4) The respondents and the one paying the other to be absolved, be and are hereby ordered to pay the applicant’s costs of suit on a legal practitioner and client scale.

The facts forming the background to this application may be briefly summarized or outlined as follows; The applicant is the controller / owner of Renco Mine situated in Masvingo Province. The applicant and its employees encountered disputes in matters of employment. The respondent at some stage and specifically on 18 January 2013 intervened under the realm of resolving the labour dispute. This intervention is clearly spelt out in the applicant and respondent papers.

Things came to a head when the respondents by implication and directly took over control of the mine. The applicants presented argument that as owners of the mine notwithstanding the disturbances that were being caused by its employees that is, about labour disputes they were in peaceful undisturbed possession of the mine and operations were running as usual. The peaceful and undisturbed possession and operations were however, disrupted when the respondents unlawfully took over the mine dispossessing the applicant of its mine and hindering operations. On 28 January 2013 the first respondent denied the applicant access to the mine to collect its gold bullion thus showing wrongful and unlawful take over control of the mine.

At the hearing of the matter, the question of whether or not the matter is urgent was sticking. The applicant’s main thrust of argument was that they had been despoiled of their peaceful possession of the mine and that business was ground to (a) halt by the unlawful take over occasioned by the respondents. Lingering out was the argument that spoliation by its nature is urgent.


The respondents on the other hand argued the matter was not urgent since the labour dispute started a long time ago before the respondents’s involvement ironically respondents admit involvement at the mine, Arguing further that the applicants were simply avoiding to deal with the labour dispute at the mine and couching an application for spoliation.

The legal position on what constitutes urgency is fairly settled in plethora of cases by this court and supreme court. A matter is viewed as urgent if it is such that it cannot wait for the long winding que of set down of ordinary process, if the delay would render the relief hollow or useless, or if it is not heard urgently the applicant will suffer irreparable harm and that there is no other remedy available and that when the need to act arose the applicant acted to redress the harm suffered or threatened. In other words the urgency contemplated by the rules is to cure the slow moving wheels of justice and thus permit matters which cannot wait to be brought before the court urgently.

A perusal of the applicant’s papers filed of record in particular the certificate of urgency which conscientiously supported urgency and the founding affidavit by Ashton Ndlovu the Chief Executive of the applicant and address by Advocate Mpofu, clearly dipicts a situation which desires immediate intervention and arrest so as to restore the status a quo or peaceful possession to the lawful owner and possessor.

The respondent’s affidavit in particular that if the first respondent Mr Dzingirai which was deposed to on behalf of the second respondent Mr Muzembi and the third respondent Mr Mazombwe does not dispute involvement on the on goings of the mine. In fact when wholistically viewed opposition document shows involvement and desire to continue involvement on the basis of being parliamentary representatives that is for first & second respondents, and third respondent complying with his principal that is the second respondent’s directives. Even the address by Mr Samukange did not change the complexion of the matter. There is clearly an illegal move which has been taken by the respondents of taking over the applicant’s company and thus disrupting activities there on. Such a chaotic unlawful takeover of necessity requires urgent intervention so as to arrest the undesirable irreparable harm and lawlessness emanating from despoiling the lawful possession hence the requirements of urgency have been satisfied and the matter is properly before the court by way of urgent application. In short the court upholds the application that the matter is urgent. The circumstances of this case fall squarely within the ambit of the urgency contemplated by the rules and one needs not refer to all other countless cases in which what constitutes urgency is defined. The locus clascicus the often quoted Kuvarega v Registrar general and another 1998 (1) ZLR 188 is instructive on the definition of what constitutes urgency. Having ruled that the matter is urgent I now turn to the merits of the case. The facts of this case clearly show unlawful invasion and dispossession of a legally owned incorporated entity under the guise of resolving a labour dispute as if there are no labour laws in this country or under the guise of being parliamentary representatives of the constituency in what is clear self help and disregard of the law that the respondents as law makers are part and parcel of making.

The problem is not the labour dispute but taking advantage of the labour dispute to unlawfully became in control of the mine. As clearly shown by Annexures attached to the application the second respondent instructed, ensconsconced and announced the first respondent as the General Manager and the third respondent issued out the minute to effect such takeover. There is no way one can separate the three from having acted with common purpose and inconcert. There is nothing wrong in urging workers to go back to work but there is something wrong with assuming management of an entity under the pretext of urging workers to go back to work for a person unlawfully giving himself control as General Manager, unlawfully. Minutes dated 21 January 2013 presented during the hearing clearly portrayed Honourable I. DZINGIRAI had assumed the position of General Manager and that links with the head office by the applicant were to be suspended. Such actions are obviously not in compliance with the standing noble indigenisation Laws and Regulation of the country which have a parent ministry. It was quite apparent that the opposition was just raised to create unnecessary dust in the face of a clear urgent relief sought by the applicant so as to stop the unlawful dispossession occasioned by the respondents.

Accordingly the interim relief as prayed for is granted.


Dube, Manikai & Hwacha, legal practitioners for the applicant
Venturas and Samukange, legal practitioners for the respondents
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