Amaplat Mauritius Ltd and Amari Nickel Holdings Zimbabwe Ltd v Zimbabwe Mining Development Corporation and The Chief Mining Commissioner and Zimari Platinum (Pvt) Ltd and Zimari Nickel (Pvt) Ltd

HH 52-2011
                                                                                  HC 506/2011

AMAPLAT MAURITIUS LTD
and
AMARI NICKEL HOLDINGS ZIMBABWE LTD
versus
ZIMBABWE MINING DEVELOPMENT CORPORATION
and
THE CHIEF MINING COMMISSIONER
and
ZIMARI PLATINUM (PVT) LTD
and
ZIMARI NICKEL (PVT) LTD


HIGH COURT OF ZIMBABWE
MUTEMA J
HARARE, 14 February, 2011


Advocate A.P. de Bourbon, for applicants
F. Mutamangira, for 1st respondent
No Appearance for the second, third and fourth respondents

Urgent Chamber Application

       MUTEMA J: This matter was set to be heard by my brother BHUNU J on 24 January,
2011 at 09.00 hours but could not because the first respondent had filed its opposing papers
shortly before 09.00 hours. BHUNU J then postponed it sine die to enable the applicants to file
a replying affidavit by 31 January, 2011 and thereafter, parties were to file supplementary
heads of argument by 3 February, 2011. Subsequently, the matter was set down for hearing on
4 February, 2011 but was then postponed to 14 February, 2011 when it found its way to me for
the simple reason that BHUNU J. is dealing with a criminal trial in which one of the accused
persons Dominic Mubayiwa is a former Chief Executive Officer of first respondent and was
involved in concluding the Memoranda of Understanding between the parties which are the
subject of the dispute between them.
       The applicants seek interim relief on an urgent basis in the following terms:
       “1.    The first respondent be and is hereby interdicted from alienating or otherwise
              disposing of or dealing with the rights of the third and fourth respondents
              arising out of the Memoranda of Understanding concluded between the
              applicants and the first respondent at Harare on 25 July 2008 and 13 October
              2006, pending the outcome of an arbitration to be instituted by the applicants in
              Paris in accordance with the aforementioned Memoranda of Understanding;

       2.     The first, third and fourth respondents be interdicted from amending, altering or
              changing the shareholding in and the share registers of the third and fourth
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               respondents pending the outcome of the arbitration referred to in prayer 1
               above;

       3.      The applicants be and are hereby ordered to institute the aforementioned
               arbitration proceedings within 60 days from the date of this order;

       4.      Leave be and is hereby granted to the applicant’s legal practitioners of record to
               serve the provisional order on all respondents”.

       By the time I heard the matter the third term in the interim relief sought cited above
had fallen away, the applicants having already instituted the arbitration proceedings on 31
January, 2011 at the International Court of Arbitration in Paris, France.
       The present application is opposed both on the question of urgency and on the merits.
On the hearing day I restricted the parties’ arguments to the issue of urgency.
       The bare bones of the dispute are these: Following the conclusion of the Memoranda of
Understanding (MOUS) alluded to in relief 1 supra, the first respondent advised the applicants
by letter dated 10 November, 2010 of the termination of the MOUS for both platinum and
nickel. What can be gleaned from the papers that were filed by first respondent, as the main
grounds for terminating the MOUS are that they had lapsed, that they were entered into
without the approval of the responsible Minister, hence invalid and that they were tainted with
corruption in that the applicants or one of their directors had a corrupt relationship/dealing
with Dominic Mubayiwa the erstwhile Chief Executive Officer of the first respondent. On 21
December, 2010 the first respondent reiterated its position regarding the termination of the
MOUS in these words, “… The mutual negotiations and meetings do not in any way affect or
change our position regarding the cancellation of the MOU. We further reiterate that the
chairman never assured you of the reinstatement of MOU as you seem to suggest in your
letter. We hope this will put the record straight as has always been our emphasis in our
meetings and you will be guided accordingly”.
       The applicants’ need to act on an urgent basis arose on 10 November, 2010 when the
MOUS were cancelled by first respondent. They did not. Instead on 22 November, 2010 they
demanded that first respondent makes an undertaking “not to attempt to disturb the presently
existing legal relationship as established by the MOUS and the rights preceding that
relationship and flowing there-from in any way whatsoever, for examples (sic) by alienating
any rights to any third party or affecting the Amari Group’s rights in any way whatsoever.
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       If no such undertaking is given pending the negotiations to be undertaken and pending
the outcome of the arbitration before the International Court of Arbitration, … it would
become necessary for an urgent interim interdict to be brought in the appropriate Zimbabwean
Court to preserve the Amari Group’s rights”.
       Not only was this demand ignored by the first respondent but first respondent put the
issue beyond any doubt by its letter of 21 December, 2010 alluded to supra that no such
undertaking would ever be given. Another need to act on an urgent basis went begging. It was
only on 18 January, 2011 that this urgent application was filed. No explanation has been
proferred for the delay to act, at least, if one were to be benevolent to applicants, from 21
December, 2010.
       In Kuvarega v Registrar-General & Anor 1998(1) ZLR 188 (HC), it was held that what
constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent,
if at the time the need to act arises, the matter cannot wait. Urgency which stems from a
deliberate or careless abstention from action until the deadline draws near is not the type of
urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the
supporting affidavit must always contain an explanation of the non-timeous action if there has
been a delay. In casu such an explanation is absent except for some allusion to or narration of
a careless abstention from action.
       The preferential treatment of allowing a matter to be dealt with urgently is only
extended if good cause is shown for treating the litigant in question differently from most
litigants – See General Transport and Engineering (Pvt) Ltd and Ors v Zimbabwe Banking
Corporation 1998(2) ZLR 301 (HC). In casu no such good cause has been shown. Even the
perceived need to act, viz alleged fear of first respondent being in the process of transferring
applicants’ interest in third and fourth respondents to an unnamed 3 rd party is mere speculation
or conjecture. Applicants allege that their representatives “in Zimbabwe have been informed
that first respondent is in the process of negotiating the disposal of the rights to a 3 rd party”.
The so called 3rd party is not named and the representatives have filed no affidavit to support
the averment. The allegation remains a rumour and the Court does not rely/act on rumours.
       In the event, on the totality of the foregoing, the present application has failed to scale
the insurmountable hurdle besetting it for it to qualify for the urgency contemplated by the
rules. It is accordingly dismissed on that basis with costs.
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Dube, Manikai & Hwacha, applicants’ legal practitioners
Mutamangira & Associates, 1st respondent’s legal practitioners