Ilasha Mining (Pvt) Ltd v Yatakala Trading (Pvt) Ltd

### Preamble
1
HB 103/20
HC 407/20
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ILASHA MINING (PVT) LTD

Versus

YATAKALA TRADING (PVT) LTD

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 6 MARCH & 4 JUNE 2020

Urgent Chamber Application

Advocate S. Siziba for the applicant

M. Mangena for the respondent

MOYO J:	In this matter, the applicant seeks the following interim relief:

“It is hereby ordered that:

Applicant be and is hereby granted leave to execute the judgment of this court in HC 2680/19 notwithstanding the appeal filed by the respondent to the Supreme Court.

The respondent to pay the applicant’s costs of suit on a legal practitioner and client scale.”

The facts of the matter are that applicant was on 23 January 2020 granted interim relief under HC 2680/19 in the form of a mandatory interdict compelling the respondent forthwith to release certain mining equipment and consumables to applicant against payment of storage charges.. Respondent then noted an appeal against that judgment on 24 January 2020 under SC-07-20 and the effect of the appeal is to suspend the operation of the judgment of this honourable court.

At the hearing of the matter, the respondent raised a number of points in limine the first one being that the matter is not urgent as applicant had obligations to fulfill contractually to Fidelity Printers and had always known that it was in breach dating back to July 2019.  Respondent’s counsel argued that the consequences of breach could not formulate the basis for urgency.

The 2nd point was that the certificate of urgency itself was copied and pasted from another application previously filed by the applicant in HC 201/20 and that specifically paragraphs 1, (c), (d), (h) and paragraph 2 were a duplicate from that application.

The 3rd point in limine was that of material non-disclosure as the relief sought has been previously sought in HC 201/20 wherein this honourable court found that the matter is not urgent.  1st respondent’s counsel argued that the current application and the relief sought as well as the previous application and the relief sought therein are substantially similar.  The 1st respondent also submitted that the matter stands decided in HC 201/20 and is therefore res judicata.  1st respondent’s counsel also prayed for costs at a punitive scale citing that applicant should have been candid and open with the court.  Applicant’s counsel argued that the letter of demand by Fidelity Printers brought the application within the ambit of urgency and that it was a break from the circumstances surrounding the 1st application.  Applicant’s counsel argued that when HC 201/20 was filed applicant was already in breach but it had not been put on terms to remedy its breach  He also argued that on that basis the matter was therefore not res judicata.  He further submitted that the issue of material non-disclosure also falls away on the same basis.  He submitted that the reasons for urgency were now different from the ones in HC 201/20.

I have read HC 201/20 and I hold the view that it is indeed substantially similar to the current application and the relief sought is also similar save for the aspect of the letter from Fidelity Printers.  I hold the view that the 2 applications being substantially similar and seeking the same relief, applicant did have a duty to disclose to this court the facts and circumstances surrounding the filing of HC 201/20 as well as its referral to the non-urgent roll.  To quietly sneak a substantially similar application with one additional fact and term it a different matter altogether is not being candid with the court.  Even if applicant held its own views about the similarities of the 2 applications, it was still duty bound to tell this court the whole background of the matter and even quote the previous application as a cross-reference but explain why it believes this matter can be filed separately and dealt with as a new application.  The applicant has thus not been candid with the court..  In fact, I hold the view that the letter from Fidelity Printers does not formulate any new basis for urgency as even at the time that HC 201/20 was filed applicant was already in arrears.  That applicant was further put on terms cannot be held to be a novel issue on its failure to pay the dues in terms of the contract.  Applicant filed HC 201/20 because it believed that it was in a precarious position that founded urgency and the letter from Fidelity was just the day of reckoning not a new issue.  That day was always hanging on applicant since the time it defaulted

The letter from Fidelity Printers is just a scapegoat applicant is using in my view to file the same application again in a bid to defeat the findings of this court in HC 201/20.  Litigants cannot be allowed to forum shop and to play around with facts so that they are able to file the same cases all over again.

It is for these reasons that I uphold the points in limine raised by the respondent and I accordingly dismiss the application with costs.

Mashayamombe & Co. Attorneys, applicant’s legal practitioners

Coghlan & Welsh, respondent’s legal practitioners