Quicklink Investments (Private) Limited v Cligel Mining Syndicate

### Preamble
1
HH 233-21
HC 3625/20
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QUICKLINK INVESTMENTS (PRVATE) LIMITED

versus

CLIGEL MINING SYNDICATE

HIGH COURT OF ZIMBABWE

CHAREWA J

HARARE, 18 & 19 March, 12 May 2021

Opposed Application – Interdict

Mr GM Nyangwa, for the applicant

Mr N Mugiya, for respondent

CHAREWA J: This is an application for the confirmation of a provisional order granted on an urgent basis on 27 July 2020 wherein the respondent and anyone in its employ was interdicted from extracting mineral resources at applicant’s mining claim registered as 40826BM. The final order sought herein is that respondent and anyone in its employ should allow applicant access to its mining site, hand over the same to applicant and not interfere with applicant’s claim and activities on the said claim.

Background

Applicant holds title to mining claim 40826BM located on Sussexdale Farm and known as Rhodo F which it obtained on 12 July 2013. On 23 March 2020, applicant and respondent entered into a tribute agreement which granted respondent limited mining rights in exchange for payment of royalties every month. On 4 June 2020, applicant served respondent with a notice of termination of the tribute agreement on grounds of breach. The notice was served at the domicilium in terms of the tribute agreement. On 8 June 2020, applicant’s legal practitioners reiterated the contents of the notice and notified respondent to vacate the claim by 4 July 2020. On 6 and 9 July 2020, applicant discovered that respondent was still in occupation of the claim and exploiting the same and filed the urgent chamber application aforesaid.

Parties’ submissions

The applicant submits that it has established the requirements for interdictory relief. It is undisputed that it is the registered holder of the mining claim and thus has rights to exploit it. It gave the respondent the seven days’ notice to rectify the breach arising out of non-payment of royalties as required by the tribute agreement between the parties. The respondent failed to rectify the breach and applicant, having given the requisite one month’s notice, properly cancelled the tribute agreement. Therefore the respondent has no right to extract minerals on the claim. Continued extraction of minerals by respondent and denial of access to plaintiff creates actual irreparable injury to applicant’s rights. There is no other remedy for the applicant except to interdict respondent from exploiting the claim and to bar it from preventing applicant to do the same.

Respondent has advanced no valid cause why the provisional order should not be granted.

On its part, respondent argues that the notices to rectify the breach and of cancellation were not properly served. Besides, the cancellation of the tribute agreement is improper as there is no court order to that effect. Further, applicant has no prima facie right entitling it to an interdict. In any case, respondent is not exploiting the claim or preventing applicant from doing so and no evidence exists that it is carrying on mining activities. Hence, no irreparable harm can be inferred.

Respondent also claims that the legality of the person of the applicant and its capacity to sue is questionable, its Chinese directors having left the country. Besides which the claim is situated at its deponent’s homestead and on her farmland such that allowing applicant to exploit it is tantamount to evicting her. Finally, respondent submits that, in any event, applicant has the alternative remedy to report to the police or obtain a report from the Minister in terms of s 43 of the Mines and Minerals Act [Chapter 21:05].

The law

The requirements for confirmation of a provisional order for an interdict are trite: applicant must establish a clear right; that an actual injury has been committed or is reasonably apprehended and there is no similar or adequate protection by any other remedy. Further, it is trite that where an applicant has established a clear right, it is not necessary for the court to concern itself with whether or not irreparable harm would ensue if the interdict was not granted.

It is also trite that service of any notices with respect to contractual agreements must be effected at the addresses chosen by the parties and in accordance with their agreement. Such service is good even if the document served is not in fact received by the party concerned. Further and in any event, rule 39 (2) provides for service on “a responsible person”. That phrase is generally understood that this must be an adult person of sound mind and is responsible to the respondent. The service is not nullified because the person has refused to give his name or responsibility with respect to the respondent.

“It is the practice that where such a person declines to give their names, the server endorses on 	the return of service a statement to the effect that the person refused to give his or her name.”

Termination or cancellation of an agreement in terms of contractual terms is effective as at the date of expiration of the notice. There is thus, in those circumstances, no necessity to seek a court order confirming such termination/cancellation as the parties are bound by the provisions and procedures they have agreed to as if they had been imposed upon them by law.

The legal existence of a company is governed in terms of the Companies’ Act, [Chapter 24:03]. Once a company is registered, whether or not it files annual returns is irrelevant to its locus standi. It exists unless the statute provides otherwise. And a company exists separate from its directors.

Analysis

It is not disputed that applicant is the registered holder of the mining claim in dispute. Neither is it disputed that the respondent breached the tribute agreement between the parties and notice of termination was given. In fact, respondent cannot possibly deny or dispute the existence of applicant’s clear right to the mining claim as that would put paid to its own claims with respect to the tribute agreement. Such agreement would be untenable if applicant had no clear right on which to ground the tribute agreement! Respondent’s issue is that applicant has no recourse to an interdict as the notices were improperly served, and in any event, the cancellation of the tribute agreement was not confirmed by the court.

The tribute agreement requires that service of all notices be done at the domicilium. Respondent alleges that service ought to have been done on their legal practitioners which is clearly a misconception. Further, it claim that the person who received service is unknown to it and is not a responsible person to respondent, which is also a misconception. Firstly, the agreement merely requires service at the domicilium. The notice could even have been left affixed to the gate, and that would have been adequate service. Besides the rules merely require that service be effected on a responsible person at the place of business or domicilium, and such service is still valid if that person refuses to disclose his status.

It is true that the cancellation of the tribute agreement was not confirmed by the court, but that does not make it any less effectual. The attention of the respondent, and its legal practitioners, having been drawn, on 4 and 8 June 2020, to the fact that 30 days’ notice of cancellation of the tribute agreement was being given, they could, if they were of the view that respondent’s rights were being trampled upon, sought an order of court staying or setting aside the purported cancellation, but they did not do so. They waited until they were served with the urgent application for an interdict to raise the issue. Even to this date, they have not sought to declare the cancellation wrongful or unlawful. The tribute agreement was cancelled in accordance with its own terms and conditions.

What is thus left before the court is a holder of a claim, to which a tribute agreement has been cancelled, who seeks to protect his rights to that claim. It seems to me therefore that applicant has demonstrated a clear right for which it is entitled to an interdict. In the circumstances, in line with the decision in Charuma Blasting (supra), I do not find it necessary to traverse whether the applicant stands to suffer irreparable injury if the interdict is not granted. The balance of convenience favours that a party with clear rights must have them protected as it stands to be prejudiced should it not access its claim or should respondent be allowed to exploit it. On the contrary, respondent suffers no prejudice at all if this interdict is granted as it avows that firstly, it is not exploiting the claim, and secondly, that it is not preventing applicant from doing so.

I find the averments of respondent to constructive eviction spurious. Applicant is not seeking the eviction of respondent’s deponent in these confirmatory proceedings. Besides the law is clear as to the boundaries for exploitation of claims with respect to contiguous homesteads or fields. Nothing stops respondent from seeking a bar against applicant should it exceed the bounds set by the law with respect to mining activities in and around dwellings or fields.

Neither is there any reasonable basis for respondent to raise issues of the locus standi of applicant. Applicant is a company which acts on the strength of board resolutions which are to hand. The issue of annual returns or whether some board members have gone back to China is irrelevant and is, in any case, not a requirement for a company to access the courts.

Nor is the reference to police reports or the report by the Minister suitable alternative remedy in the circumstances, the latter issue which is not even pleaded in the opposing papers. This is a civil matter arising out of contract, which does not require police intervention. Further there is no legal requirement to obtain a report by the Minister to prevent depletion of minerals.

From the foregoing, I am of the view that there is no valid opposition to the confirmation of the provisional order. More particularly, I note that respondent does not attempt to refute material allegations made by respondent in paragraphs 13-16 of the founding affidavit relating to respondent’s activities in extracting minerals from the claim after the termination of the tribute agreement.

I also note that no submissions were made by both parties in the heads of argument or orally with regard to the claim of costs on legal practitioner and client scale.

Disposition

In the premises, it be and is hereby ordered that

The provisional order is confirmed

The respondent and anyone in its employ be and is hereby ordered to allow 	applicant access to the mining site, hand over the same to applicant and not to 	interfere with applicant’s activities on Mining Claim known as Rhodo F held 	under Certificate of Registration number 40826BM located on Sussexdale 	Farm.

The respondent shall pay costs of suit

Messrs Mawere Sibanda Commercial Lawyers, applicant’s legal practitioners

Mugiya & Muvhami Law Chambers, respondent’s legal practitioners