Jameson Rushwaya and Annie Rushwaya vs Patterson Timba and Swimming Pool & Under Water Repairs (Pvt) Ltd and Tolrose Investments (Private) Limited and Messenger of Court, Kadoma

HH 19-2011
                                                                                    HC 263/11

JAMESON RUSHWAYA
and
ANNIE RUSHWAYA
versus
PATTERSON TIMBA
and
SWIMMING POOL & UNDER WATER REPAIRS (PVT) LTD
and
TOLROSE INVESTMENTS (PRIVATE) LIMITED
and
MESSENGER OF COURT, KADOMA


HIGH COURT OF ZIMBABWE
MAVANGIRA J
HARARE, 14 and 20 January 2011


Urgent Chamber Application

A. Debwe, for the applicants
I Chagonda, for the first, second and third respondents

       MAVANGIRA J: This is an urgent chamber application in which the applicants seek a
Provisional Order in the following terms:
       “TERMS OF FINAL ORDER SOUGHT
       That you show cause to this Honourable Court why a final order should not be made in
       the following terms:-

       1.      That first, second and fourth respondents and/or their agents shall not interfere
               in any manner whatsoever with applicants’ possession of Glencairn Mine or the
               assets thereat

       INTERIM RELIEF GRANTED

       Pending the determination of this matter, the applicants are granted the following
       relief:-

       2.      That first, second and fourth respondents be and are hereby ordered to remove
               all the locks on the 3 gold concentrators, carbon room, 4 fuel pumps, workshop
               and gates leading to the mining areas at Glencairn Mine.

       3.      That the first, second and fourth respondents restore possession of the Nissan
               NP 300 (registration NO. ABP 0456) and Nissan Hardbody 2.5 (registration no.
               ABG 4956) to the applicants”.
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       At the onset of proceedings Mr Chagonda raised four preliminary points for
determination by the court before the matter could be heard on the merits. The first point
raised is that as Mr Debwe, the legal practitioner who had prepared the application and was
also appearing for the applicant in this matter, was the same legal practitioner who had
prepared and signed the certificate of urgency, the said certificate of urgency was therefore
clearly defective. There is thus no certificate of urgency before the court and the urgent
chamber application must therefore fail on that basis. He cited in support of his submission
Chafanza v Edgars Stores Ltd & Anor 2005(1) ZLR 299 at 300G.
       The second point raised is that the matter is res judicata as there have been no less than
four urgent chamber applications involving more or less similar parties as the fourth
respondent herein has not been a party to all matters. Mr Chagonda submitted that in one of
the four urgent chamber applications the order that was sought is very similar to the order
sought herein. The application in that particular matter was however dismissed by the court.
       The third point raised is that the applicants herein have no locus standi in judicio to
institute these proceedings. Mr Chagonda submitted that the mine and assets are owned by the
third respondent. The applicants are shareholders, the first applicant being also a director of
the third respondent. The company has not mandated them to bring these proceedings which
they have brought in their personal capacities.
       The fourth point raised in limine is that the matter is lis pendens as the applicants have
filed both an appeal and an application for review in relation to an order granted by the
magistrates’ court in which the parties have been ordered to co-exist. The proceedings in both
the appeal and the review are pending before this court yet the present application seeks to
reverse the magistrates’ court’s order of co-existence. It was submitted that the hearing of this
application would be tantamount to hearing and determining the appeal which is now pending
before the court.
       It appears to me that the preliminary point that must first be determined is whether or
not the applicants have the locus standi in judicio to bring this application before the court.
       The essence of the applicants’ claim is that they were despoiled of their possession and
control of Glencairn Mine, and the assets thereat. In his founding affidavit the first applicant
has stated that the second applicant and he, in their capacities “as the legal directors and
shareholders of the third respondent have been in peaceful and undisturbed possession of the
mine … and all the assets thereat”. Clearly the applicants’ said possession was not exercised or
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enjoyed in their personal capacities. It is common cause that the third respondent owns and
runs the mine. Any disturbance of peaceful and undisturbed possession therefore could only be
complained of by the third respondent. Had the third respondent passed a resolution
authorising the institution of these proceedings, they would have been instituted in the name of
the third respondent and the applicants as authorised agents would have been on solid ground.
       The applicants have rather opted to cite the third respondent as a respondent to their
claim. The third respondent cannot be a respondent in the applicant’s claim. If any spoliation
has occurred the third respondent herein, would be the applicant. Its board of directors would
then pass a resolution authorising the institution of the necessary proceedings and indicating
the person or persons who would do the necessary acts on its behalf. It is not the applicants’
stance that they were acting independently of the third respondent. Rather in para 6 of the first
applicant’s founding affidavit he states that he only cited the third respondent as a respondent
because in proceedings instituted by the first respondent against the applicants, which
application resulted in the granting of the order that has prompted these proceedings, the third
respondent herein was joined as third applicant.
       It appears to me that the applicants’ stance and explanation is self contradictory. The
institution of proceedings against them by the third respondent under whose auspices they
were engaged in all the pertinent activities, negates their very locus standi in this matter
having regard to the nature of their claim.
       For the above reasons the said point in limine is upheld.
       It appears to me that it is not necessary in view of my finding on the discussed point in
limine, to deal with the rest of them. The nature of the point in limine that has been upheld is
such as to make it unnecessary to do so. No purpose would be served thereby.
       In the result, it is found that the applicants have no locus standi in judicio to institute
this urgent chamber application.




Debwe and Partners, applicants’ legal practitioners
Atherstone and Cook, first, second and third respondents’ legal practitioners