Cossy Rules Mining (Pvt) Ltd v Adme Print Marketing (Pvt) Limited & 2 Ors

### Preamble
1
HH 418-21
HC 1331/20
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COSSY RULES MINING (PVT) LTD

versus

ADME PRINT MARKETING (PVT) LTD

and

SHERIFF OF THE HIGH COURT

and

COSMAS DAKA

HIGH COURT OF ZIMBABWE

MANZUNZU J

HARARE, 28 July & 20 August 2021

Urgent Chamber Application

B A Bell, for the applicant

Z Lunga, for the 1st respondent

MANZUNZU J: This is an opposed urgent application seeking an order for an interdict in the following terms:

“TERMS OF THE FINAL ORDER SOUGHT:

That you must show cause to this Honourable court why a final order should not be made in the following terms;

The 1st respondent its privies, agents and/or employees be and hereby interdicted from interfering with or dealing with the 3000 tonnes of gold dump, 1800 tonnes of gold sand, the mill shed, fence and borehole pump located at the mining site known as Whatcheeer INVAR C 14322 pending resolution of the summons matter under case number HC 1275/20.

The applicant is allowed to place its own security personnel to secure the property subject of the dispute under HC 1275/20 located at  the mining site known as Whatcheeer INVAR C 14322 pending the determination of the summons matter under HC 1275/20.

1st respondent pays cost on a legal practitioner and client scale.

TERMS OF THE INTERIM RELIEF GRANTED

Pending the determination of this matter, the applicant is granted the following relief;

The 1st respondent its privies, agents and/or employees is hereby interdicted from interfering with or dealing with the 3000 tonnes of gold dump, 1800 tonnes of gold sand, the mill shed, fence and borehole pump located at the mining site known as Whatcheeer INVAR C 14322.

The applicant is allowed to place its own security personnel to safeguard the

3000 tonnes of gold dump, 1800 tonnes of gold sand, the mill shed, fence and borehole pump located at the mining site known as Whatcheeer INVAR C 14322.”

The background to this matter is that on 1 July 2019 in Case No. HC 1792/19 the 1st respondent obtained judgment for the eviction of 3rd respondent from a mining claim known as Whatcheeer INVAR C 14322. (Whatcheeer). The 3rd respondent is a shareholder and executive director of the applicant. While the applicant alleges the 3rd respondent occupied Whatcheeer on the basis of a permit issued by the Ministry of Mines and Minerals Development, the 1st respondent disputes that. The undisputed fact is that applicant undertook the business of custom milling at Whatcheeer. As a result of the milling processes, some gold dumps and sand were created which are still on site at Whatcheeer. The quantities are disputed by the 1st respondent who does not say what the quantities are. There is therefore no basis to doubt the quantities as alleged by the applicant.

The applicant was not a party in HC 1792/19 but was affected by the eviction order it having occupied Whatcheeer through the 3rd respondent. In an effort to protect its interests the applicant initiated corporate rescue proceedings under the Insolvency Act, Chapter 6:07. As a result Mr Claudious Nhemwa was appointed the applicant’s corporate rescue practitioner. Subsequent efforts through correspondence and court process did not spare the applicant’s eviction from Whatcheeer.

In HC 9801/19 the applicant sought to interdict the 1st respondent from executing the order for eviction of 3rd respondent but failed. The applicant has now brought the present application seeking an interdict pendete lite.

The requirements of an interdict are settled. With respect to an interim interdict in Zesa Staff Pension Fund v Mushambadzi SC 57/02 the court had this to say;

“With regard to a temporary interdict, the following must be established:

a right which, though prima facie established, is open to some doubt;

a well-grounded apprehension of irreparable injury;

the absence of any other remedy;

the balance of convenience favours the applicant

See Eriksen Motors (Welkom) Ltd v Protea Motors & Anor 1973 (3) SA 685(A) at 691; Flame Lily Investment Company (Private) Limited v Zimbabwe Salvage (Private) Limited & Anor, supra; Durma (Pvt) Ltd v Siziba 1996 (2) ZLR 636 (S) at 641.”

Ms Bell who appeared for the applicant submitted that the applicant has met all the requirements of an interdict and urged the court to grant the interim order. It is not disputed that the applicant was responsible for the milling which produced the gold dump and sand which is now the subject of dispute. To that end, a prima facie right is created. Mr Lunga for the 1st respondent said there was a dispute of fact on the quantities of the gold dump and sand. That cannot defeat the existence of a prima facie right. Section 169 (d) of the Mines and Minerals Act [Chapter 21:05] relied upon  by Mr Lunga on the rights of a  holder of a registered block of precious metal reef to possess dump containing precious metals found within the vertical limits of his block  does not take away the applicant’s prima facie right which may even be open to doubt. The issue of ownership is the one yet to be decided in HC 1275/20.

The applicant argued that if the gold dump and sand is not preserved it will likely suffer from irreparable harm. This is because 1st respondent has claimed the gold dump and sand belongs to it and may deal with the same in a manner it finds fit. There was no counter argument to contest that position.

On the absence of similar remedy, the applicant argued that there was no remedy in the absence of an interdict. Mr Lunga was quick to refer to the summons in HC 1275/20 which has claimed damages in the alternative. On that basis he said there is an alternative remedy. Ms Bell further argued that such alternative was not adequate remedy which explains why the damages were not even quantified in the summons. I agree with that position more so because the quantity of the gold dump and sand is also in dispute. This makes it difficult to place a value to it.

The balance of convenience in this matter favours the applicant. This is so because there will be more hardship for the applicant if the gold dump and sand is removed. The 1st respondent suffers no prejudice by preserving the gold dump and sand which is the subject of the dispute between the parties. If anything, it is in the best interest of the applicant and 1st respondent that an interim interdict be granted. Whoever succeeds in the trial matter, will then take the gold dump and sand.

It must however be noted that the following items which have been included in the draft order are no longer part of the dispute, the mill shed, fence and borehole pump. The parties are in agreement that the applicant will collect the same from the 1st respondent.

Disposition:

Pending the determination of this matter on the return day, the applicant is granted the following interim relief;

The 1st respondent, its privies, agents and/or employees is hereby interdicted from interfering with or dealing with the 3000 tonnes of gold dump and 1800 tonnes of gold sand located at the mining site known as Whatcheeer INVAR C 14322.

The applicant is allowed to place its own security personnel to safeguard the

3000 tonnes of gold dump and 1800 tonnes of gold sand located at the mining site known as Whatcheeer INVAR C 14322.

C Nhemwa and Associates, applicant’s legal practitioners

Lunga Attorneys, 1st respondent’s legal practitioners