Lucky Heather (Pvt) Ltd t/a Nyongolo Mining v Ian Nyathi N.O. & 3 Ors

### Preamble
1
HB 208/20
HC 1593/20
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LUCKY HEATHER (PVT) LTD t/a NYONGOLO MINING

Versus

IAN NYATHI N.O.

And

ERIC MURINGI N.O.

And

ADOLF MOYO

(OFFICER COMMANDING ZRP, MATEBELELAND SOUTH PROVINCE)

And

COMMISSIONER GENERAL, ZRP N.O.

HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO, 22 SEPTEMBER & 1 OCTOBER 2020

Urgent chamber application

D. Dube, for the applicant

B.T. Nyoni, for the respondents

DUBE-BANDA J:This is an urgent chamber application. According to the certificate of urgency, the applicant is the registered owner of gold mining claims known as Stella A and Stella B, which are adjacent to 1st and 2nd respondents’ gold claim known as Stella C. It is alleged that if 1st and 2nd respondents’ are allowed to carry out mining operations at the disputed mining locations the mineral resource will inevitably be depleted causing irredeemable prejudice to the applicant. It is contended that none of the parties will suffer any irreparable prejudice if the relief prayed for is granted.

In the founding affidavit, it is contended that applicant is already suffering irreparable harm and prejudice as a result of what is termed 1st respondent’s egregious conduct which should be interdicted. It is said the machinery which includes horses, generators, water pumps, hammer mills is exposed to all vagaries of nature and also theft as it has been left idle. In addition, it is alleged that there is a daily loss of revenue of about 500 grams of gold worth USD 2 500.00. It is contended that applicant has statutory obligations inclusive of salaries and creditors which have to be paid.

According to applicant, it is the registered owner of mining claims known as Stella A and Stella B. It does gold mining and milling. Respondents are all police officers. It is alleged that first respondent, who is the Superintendent in charge of Police Support Unit Battalion stationed at Fairbridge, at 1000 hours stormed the mines and ordered that the mining operations be stop. It is contended that he said he was investigating “Army-Deserters” who might be at the mine.  The date of this occurrence has not been given. The application is opposed by all the respondents.

In this urgent chamber application, the applicant seeks a provisional orderdrawn in the terms:-

TERMS OF THE FINAL ORDER SOUGHT

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

The Respondents be and are hereby permanently barred from unlawfully interfering in any way with Applicant’s possession and use of its mining claims

The Respondents pay costs of suit with pone paying and the other to be absolved on an attorney client scale

INTERIM RELIEF GRANTED

Pending the confirmation or discharge of the Provisional Order, the Applicant is granted the following relief:

The Respondents be and are hereby ordered and directed to immediately (that is to say no later than 24 hours of granting of this order) allow the Applicant unhindered access to the mine claims known as Stella City B with the following registration numbers 10336BM and 10337BM and carry out thereupon all their normal mining activities.

In the event of failure to comply with paragraph (1) above, the Respondents be deemed to be in contempt of court and committed to prison at their own expense.

SERVICE OF PROVISIONAL ORDER

That this Provisional Order and the Urgent Chamber Application shall be served upon the Respondents by the Deputy Sheriff of Zimbabwe or his lawful assistants.

Paragraph (2) of the interim relief sought caught my attention. It says in the event of failure to comply with paragraph (1) above, the respondents be deemed to be in contempt of court and committed to prison at their own expense. I asked Mr Dube, counsel for the applicant, whether it is competent for court to grant such an order? I raised this issue because, I take the view that such an order would be unlawful. It would amount to anticipatory conviction and sentence, i.e. to convict a person and sentence him for contempt of court, well before any contempt has been committed. Again, without affording him a hearing regarding the alleged contempt. No civilised judicial system can countenance such an injustice.  Again, rule 388 of the High Court Rules, 1971 provides that the institution by a party of proceedings for contempt of court shall be made by court application. It is a peremptory requirement that contempt of court proceedings shall be made by court application, not hidden in the draft order of an urgent application. Mr Dube conceded that no court can grant such an order, and withdrew paragraph 2 from the interim relief sought.

Again, applicant placed before court two documents for the purposes of proving the ownership of the gold mining claims known as Stella A and Stella B. First, these are copies, and no explanation is given why the originals could not be produced. Second, these are very poor photocopies which are not intelligible at all. One cannot read what is contained in those copies.  I am of the view that sometimes litigants forget the purpose of placing a document before court. In the main, a document is placed before court for the truthfulness of its contents. Section 11 of the Civil Evidence Act provides that:-

Except as otherwise provided in this Act or any other enactment, a copy of a document shall not be admissible to prove the document’s contents, unless—

(a) all the parties to the civil proceedings concerned consent to the production of the copy; or

(b) the court in its discretion permits the production of the copy, being satisfied that the original document—

(i) has been destroyed or is irretrievably lost; or

(ii) is in the possession of another party to the civil proceedings, who refuses to produce the original document; or

(iii) is in the possession of a person who cannot be required by law to produce the original; or

(iv) is outside Zimbabwe; or

(v) for any other good and sufficient cause, cannot reasonably or practicably be produced.

It is important that a litigant who seeks to place a copy of a document before court, for the truthfulness of its contents, must put himself or herself within the parameters of section 11 of the Civil Evidence Act. This tendency of just placing copies of documents before court without complying with this statutory provision is incorrect and irregular. Admissibility of evidence is a question of law and not of judicial discretion. Evidence is admissible either under the rules of the common law or under statute. A copy of a document must be sanctioned by statute, i.e. section 11 of the Civil Evidence Act to be admissible. If it does not, it remains inadmissible as a matter of law and stands to be rejected by the court even if not specifically objected to by the opposing party.It is for these reasons that the two copies of documents, i.e. marked Annexure “B” and “C” placed before court by the applicant are ruled inadmissible.

This is an urgent application, and for this court to have jurisdiction to hear it at this stage, it must be satisfied that it meets the jurisdictional requirements of urgency. This court enjoys a discretion in urgent applications to authorize a departure from the ordinary procedures that are prescribed by the Rules. However the court is usually hesitant to dispense with its ordinary procedures, and when it does, the matter must be so urgent that ordinary procedures would not suffice to meet the justice of the case.

In the ordinary run of things, court cases must be heard strictly on a first come first serve basis. It is only in exceptional circumstances that a party should be allowed to jump the queue on the roll and have its matter heard on an urgent basis. The onus of showing that the matter is indeed urgent rests with the applicant. An urgent application amounts to an extraordinary remedy where a party seeks to gain an advantage over other litigants by jumping the queue, and have its matter given preference over other pending matters. This indulgence can only be granted by a judge after considering all the relevant factors and concluding that the matter is urgent and cannot wait. See Kuvarega v Registrar General and Another 1998 (1) ZLR 188.

In assessing whether an application is urgent, this court may consider a number of factors, being whether the urgency was self-created; the consequence of the relief not being granted and whether the relief would become irrelevant if it is not immediately granted. To pass the urgency test, applicant must show that there is an imminent danger to existing rights and the possibility of irreparable harm. See General Transport & Engineering (Pvt) Ltd & Ors v Zimbank1998 (2) ZLR 301.To pass the test, good cause must be shown for the applicant to dislodge other litigants who are in the queue.

In opposing this application, Ms Nyoni for the respondents made the point that applicant had previously filed with this court two applications, which she said were still pending before this court. I was informed that the two applications referred to by Ms Nyoni, involve the same litigants and substantially the same relief as sought in this application. MrDube did not dispute this averment. I notified the parties that when the court retires to consider the matter it will look at the two matters referred to by Ms Nyoni. In general the court is always entitled to make reference to its own records and proceedings and to take note of their contents. See Mhungu v Mtindi 1986 (2) ZLR 171 (SC) at 173A-B.

After perusal of the two applications referred to by Ms Nyoni, I noted that on the 3rd August 2020, applicant filed with this court an urgent chamber application under case No. HC 1249/20. The respondents in that application are: -Maphisa Mining Syndicate; Christopher Nyika; The provincial Mining Director, Matabeleland South Province N.O. and Zimbabwe Republic Police, Matabeleland South Province N.O. The certificate of urgency, again signed by the same Vezokuhle Eric Ndlovu, who signed the certificate in this application, is identical, word for word, comma for comma and full stop for full stop with the one in this application.

In case No. HC 1249/20 applicant sought and obtained a provisional order in the following terms:-

Terms of the final order sought

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

The 1st and 2nd respondents and all those claiming occupation through them be and are hereby permanently barred from interfering with applicant’s mining activities on Stella A and B, Maphisa, Kezi.

The 1st and 2nd respondents to bear costs of suit on an attorney client scale.

Interim relief granted

Pending the confirmation or discharge of this provisional order, the applicant is granted the following relief:

That the applicants shall be allowed unhindered access to the mine claims known as Stella A and B with the following registration numbers 10336 BM and 10337 BM and carry out thereon all their normal mining activities.

The 1st and 2nd respondents and any other person acting through them be and hereby interdicted with interdict with immediate effect from conducting any mining activities operation, works, surveys, prospecting, and pegging on Stella A and B being worked by the applicants.

The applicant’s agents, assignees and / or employees shall accompany the Sheriff, Messenger of Court, Bulawayo and members of the Zimbabwe Republic Police and Ministry of Mines to identify the mining claims and shafts referred to in paragraph (1) above.

Service of provisional order

That this Provisional Order and the Urgent Chamber Application shall be served upon the Respondents by the applicant’s legal practitioners / Sheriff of Zimbabwe.

This provisional order (case No. HC 1249/20) was confirmed by this court on the 17 September 2020.

Again, on the same day, i.e. 17 September 2020, applicant filed a court application under case No. HC 1592/20 for contempt of court. The respondents in this application are: Ian Nyathi; Eric Muringi; Adolf Moyo and Christopher Nyika. It will be noted that, except for Christopher Nyika, these are the same respondents as in this application. In HC 1592/20, applicants seeks an order couched in the following terms:

The 1st Respondent be and is hereby ordered to be in contempt of court by his wilful defiance of the order of his Honourable Court made under cover of case number HC 1249/20

1ST Respondent be and is hereby ordered to forthwith comply with the order of this Honourable Court in Case Number 1249/20 within 48 hours of service upon him of this order failing which the Sheriff of the High Court of Zimbabwe and/or the Additional Assistant Sheriffs of Bulawayo, Midlands, Harare are hereby ordered and directed to arrest the 1st Respondent and deliver him to Chikurubi Maximum Prison or Hwahwa Prison where he shall be imprisoned for a period not exceeding 90 days or until he abides by the court order of this Court in HC1249/20

The Respondents with one paying the other to be absolved be ordered to pay the sum of damages of US$25 000 daily being the amount lost in gold production as a result of their disturbances from the date of filling this application to the date of compliance with the court order issued under Case Number HC 1249/20 whichever occurs first.

The 1st& 2nd Respondent pays cost of suit on an attorney and client scale

There has been no attempt by the applicant to alert this court of the two applications, i.e. HC 1249/20 and HC 1592/20. This application does not show that these two applications are cross-references.  These two applications and their relevance to these proceedings only came to the attention of the court through the submissions made by Ms Nyoni.  There has been no attempt by the applicant through its founding affidavit to openly disclose that this application is a third similar application, dealing substantially with the same dispute, which is being brought to this court. That deliberate attempt to withhold information does not project the applicant in good light.It is the disclosure of these applications that applicant has suppressed in the present application.

Our courts are not keen to grant favorable orders to litigants who withhold vital information to it. NDOU J made this important observation in the case of Anabus Services (Pvt) Ltd vs Minister of Health and Others HB88-03 when he remarked that the courts should always frown on an order whether ex-parte or not sought on incomplete information. It should discourage non-disclosure, mala fides, or dishonesty. Applicant has in this case withheld very important information which should assist this court in the determination of this matter.

It is very clear that this present application; case No. HC 1249/20 and HC 1592/20, involve the same litigants, the same mining claims and essentially the same dispute. The court application for contempt of court case No. HC 1592/20, should be able to resolve applicant’s problems, if any. A closer look at this present application and HC 1249/20, shows that what happened was just a “copy and paste” matter. The allegations in the Form used, the certificates of urgency, the founding affidavits and the draft orders are substantially identical.  In many instances word for word.

I take the view that once a litigant has obtained a judgment or order of court, he or she must enforce it, this is crucial to a legal system of any jurisdiction. The idea that a court must be able to give an effective judgment is the foundation of our law. Contempt of court proceedings are a special devise to ensure compliance with court orders. In my view, the answer to applicant’s problems, if any, is not to file another application seeking substantially an identical order as the one in HC 1249/20 and HC 1592/20, but to prosecute to finality the contempt of court proceedings pending before this court.

When this issue of finalising the contempt of court proceedings was brought to the attention of Mr Dube, he argued that such proceedings take time to be finalized, while applicant desires an immediate remedy. I disagree. Contempt of court proceedings are provided for in Order 43 of the Rules, it is not for a party to rubbish and relegate them to uselessness. Such proceedings are effective and have teeth to bite, all that is required is counsel to think and re-think the best way to deploy this procedure to counter what it considers to be the defiance of a court order by the respondents.

This application was ill thought out. I don’t accept that applicant’s answer to its woes is to file another application, his remedy lies in enforcing the order he already has in his favour. No matter howmany court orders are obtained, as long as they are not enforced, they will serveno useful purpose. Court orders are not obtained for display in one’s office, they are sought and obtained for the sole purpose of vindicating rights and to be enforced. Applicant cannot again be permitted to seek and obtain another order for the sole purpose of sitting on it. This is a civil matter and applicant is firmly in the driving seat, he must then drive the enforcement proceedings of the order that it already has in its favour.

This application does not exhibit the kind of urgency anticipated by the rules of court. The fact that a party is failing to enforce a court order in its possession does not create the urgency to commence new legal proceedings. To hold otherwise will create a situation where this court is overwhelmed with application after application arising from failure to enforce court orders. The failure to prosecute the court proceedings in case number HC 1592/20 with speed does not create urgency. I take the view that this is a case of self-created urgency, and applicant would not suffer any new prejudice, if any, that it has not suffered since the commencement of proceedings in HC 1249/20. This application does not pass the urgency test. It is for these reasons, that I find that this matter is not urgent.

This is not a case where an order for costs should be made. The respondents did not ask for costs.

Disposition

In the result I order as follows:

This matter is removed from the roll of urgent matters.

Mathonsi Ncube Law Chambers, applicant’s legal practitioners

Civil Division of the Attorney General’s Office, respondent’s legal practitioners