Swimming Pool & Underwater Repair (Pvt) Ltd and Aeromm Resources (Pvt) Ltd and Tolrose Investments (Pvt) Ltd and Patterson Fungai Timba v Jameson Rushwaya and Annie Rushwaya and Messenger of Court-Kadoma N.O and Commissioner Mufandaedza N.O and Commissioner General Chihuri N.O and Dispol Manzinzi N.O and Co-Minister Home Affairs-Kembo Mohadi N.O and Co-Minister Home Affairs-Theresa Makoni N.O

### Preamble
1
HH 239/12
HC 3967/12
SWIMMING POOL & UNDERWATER REPAIR (PVT) LTD
and
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==============================

SWIMMING POOL & UNDERWATER REPAIR (PVT) LTD
and
AEROMM RESOURCES (PVT) LTD
and
TOLROSE INVESTMENTS (PVT) LTD
and
PATTERSON FUNGAI TIMBA
versus
JAMESON RUSHWAYA
and
ANNIE RUSHWAYA
and
MESSENGER OF COURT-KADOMA N.O
and
COMMISSIONER MUFANDAEDZA N.O
and
COMMISSIONER GENERAL CHIHURI N.O
and
DISPOL MANZINZI N.O
and
CO-MINISTER HOME AFFAIRS-KEMBO MOHADI N.O
and
CO-MINISTER HOME AFFAIRS-THERESA MAKONI N.O

HIGH COURT OF ZIMBABWE
CHATUKUTA J
HARARE, 6 June 2012

Urgent Chamber Application

Mr. T. Mpofu for the applicants
Mr. P. Chitsa, for the 1st & 2nd respondents
Mr. A. Chandati, for the 3rd respondent
Mr. Z. Makwanya, for the 4th -8th respondents

CHATUKUTA J: This application involves a long-standing dispute over the control of Glencairn Mine, Kadoma (the Mine). The 4th applicant and the 1st and 2nd respondents are shareholders in the 3rd applicant which owns the Mine at the centre of the dispute.

The 1st and 2nd respondents obtained an order from the Magistrates Court in CRB B044/10 of 11 October 2010 directing the 1st, 3rd and 4th applicants to co-exist with the respondents at the Mine pending resolution of a dispute over the shareholding in the 3rd applicant. The 1st and 2nd respondents were unable to move onto the Mine after they were arrested for contempt of court. They were released on bail and were ordered not to move onto the Mine.

The $1^{st}$ and $2^{nd}$ respondents filed an urgent chamber application in case No. HC. 263/11 seeking access to the Mine and recovery of two vehicles alleged to be in the possession of the $4^{th}$ applicant. They were found not to have the locus standi to represent $3^{rd}$ applicant. The application was dismissed.

On 3 May 2011, the parties entered into an agreement wherein the respondents undertook to divest of their rights and interest in the mine subject to a number of suspensive conditions. One of the terms of that agreement was that the parties would withdraw all pending litigation be it civil or criminal. The agreement was intended to resolve the dispute but appears to have failed to do. This was not to be so. On 13 June 2011, the applicants were back in this court in case No. HC. 6007/11 challenging the decision of the Mining Commissioner of Kadoma District which barred the Mine from continuing with its operations. The applicants successfully applied for the suspension of the decision of the Mining Commissioner and an order interdicting the $1^{st}$ and $2^{nd}$ respondents from commencing any mining activities at the Mine. The respondents appealed against this judgment on 25 July 2011. The appeal was heard and judgment was reserved.

Following the appeal the $1^{st}$ and $2^{nd}$ respondents proceeded to execute the judgment by the Magistrates Court in CRB B044/10 ordering the parties to co-exist. It is this execution that has given rise to the present application.

The applicants alleged that at all relevant times, and more particularly following the judgment in HC 6007/11, they have been in undisturbed and peaceful possession of the Mine. On 5 April 2012, and acting on the instructions of the $1^{st}$ and $2^{nd}$ respondent, the $3^{rd}$ respondent, proceeded to the Mine where he broke the locks to the premises thereon. He was accompanied by a mob of forty to fifty youths. He changed the locks and gave the new keys to the $1^{st}$ and $2^{nd}$ respondents thereby denying the applicants access to and control over the Mine. The applicants were unable to institute proceedings for the restoration of the status quo ante earlier because of the Easter holiday as their legal practitioners were closed for the holiday.

The $1^{st}$ and $2^{nd}$ respondents raised two preliminary issues. The first was that the $4^{th}$ applicant did not have the authority to institute these proceedings on behalf of the $2^{nd}$ and $3^{rd}$ respondents. It was submitted that the $4^{th}$ applicant did not file any company resolution authorizing him to institute these proceedings on behalf of the $2^{nd}$ respondent.
 It was further submitted that 1\textsuperscript{st} and 2\textsuperscript{nd} respondents were directors in 3\textsuperscript{rd} applicant and did not participate in any deliberations in passing a resolution authorizing the 4\textsuperscript{th} respondent to institute the proceedings on behalf of the 3\textsuperscript{rd} respondent.

The applicants submitted that they did not consider it necessary to file any resolutions regarding the 2\textsuperscript{nd} respondent because the authority of the 2\textsuperscript{nd} respondent has never been in issue. It was submitted that the 1\textsuperscript{st} and 3\textsuperscript{rd} applicants are usually the contentious companies and hence the proof of authority attached to the founding affidavit. It was submitted that in light of *Direct Response Marketing (Pvt) Ltd v Shepherd* 1993 (2) ZLR 218 (HC), the failure to attach the resolution was not fatal to the application as the 4\textsuperscript{th} applicant had deposed in the founding affidavit that he had the authority to represent the 2\textsuperscript{nd} and 3\textsuperscript{rd} applicants. The applicants further submitted that even if the 4\textsuperscript{th} applicant was to be found to lack authority *vis a vis* the 2\textsuperscript{nd} and 3\textsuperscript{rd} applicants, the 1\textsuperscript{st} and 2\textsuperscript{nd} respondents did not challenge the 4\textsuperscript{th} applicant’s authority to represent the 1\textsuperscript{st} applicant and to act in his own personal capacity as a shareholder in the 2\textsuperscript{nd} and 3\textsuperscript{rd} applicants.

It is apparent from the papers filed of record that the 4\textsuperscript{th} applicant has authority to represent the 1\textsuperscript{st} applicant. The 1\textsuperscript{st} and 2\textsuperscript{nd} respondents have not challenged the resolution attached to the application neither have they challenged the 4\textsuperscript{th} applicant’s *locus standi* to institute the proceedings in his personal capacity. The application therefore cannot simply be simply wished away because of the submissions by the 1\textsuperscript{st} and 2\textsuperscript{nd} respondents that the 2\textsuperscript{nd} and 3\textsuperscript{rd} applicants are non-suited.

The question of the *locus standi* of the 4\textsuperscript{th} applicant to represent the 2\textsuperscript{nd} and 3\textsuperscript{rd} respondents appears to have been raised time and again when the parties have taken each other to court. The 4\textsuperscript{th} applicant went further than merely averring that he had authority to represent the 2\textsuperscript{nd} and 3\textsuperscript{rd} applicants. He attached the resolutions by the two applicants authorizing him to institute the proceedings on behalf of the applicants. In my view, and in light of the decision in *Direct Response Marketing (Pvt) Ltd (supra)*, the resolutions suffice for the purposes of these proceedings.

The second point *in limine* raised by the 1\textsuperscript{st} and 2\textsuperscript{nd} respondents is that the application is not urgent. The respondents submitted that the applicants were not despoiled on 5 April 2012. They submitted that they moved back onto the Mine on 28 March 2012 as evidenced by the return of service of the 3\textsuperscript{rd} respondent. They denied that the 3\textsuperscript{rd} respondent attended at the Mine on 5 April 2012 and contended that if he did so it was not on their instructions.
 The applicants submitted that the urgency giving rise to the application arose from events that took place on 5 April 2012 when the $3^{\text{rd}}$ respondent changed locks at premises and gave the new keys to the $1^{\text{st}}$ and $2^{\text{nd}}$ respondent. The respondents’ conduct prior to that date had not given the applicants any cause to approach the court.

The respondents’ alleged conduct giving rise to the present application are said to have happened on 5 April 2012 and not on 28 March 2012. The application was filed on 11 April 2012. The delay of only six days, in bringing the application cannot be said to be inordinate. Even assuming that the conduct complained of is the execution of the court order by the $3^{\text{rd}}$ respondent on 28 March 2012, the delay of 15 days cannot equally be said to be inordinate. (See *Botha & Anor v Barrett* 1996 (2) ZLR 73 (SC)). In the result, it is my view that the application is urgent.

Regarding the merits of the application, in order to obtain a finality order the applicants must satisfy the court that:

(a) that the applicant was in peaceful and undisturbed possession of the property; and,

(b) that the respondent deprived him of the possession forcibly or wrongfully against his consent.

It is not in issue that at all relevant time, the applicants were in peace and undisturbed possession of the Mine. It is also not in issue that on 28 March 2012, the $1^{\text{st}}$ and $2^{\text{nd}}$ respondents moved back onto the Mine with the assistance of the $3^{\text{rd}}$ respondent in execution of the order in case No. CRB B044/10. The applicants have not complained of the $3^{\text{rd}}$ respondent’s conduct on that date as evidenced by the fact that the applicants did not refer at all to that visit in their application. What appears to be in issue is whether or not the $3^{\text{rd}}$ respondent visited the Mine again on 5 April 2012 and conducted himself in the manner alleged by the applicants thereby deprived the applicants of the possession.

The applicants submitted that the $1^{\text{st}}$, $2^{\text{nd}}$ and $3^{\text{rd}}$ respondents did not deny in the opposing affidavits that the $3^{\text{rd}}$ respondent replaced the keys at the Mine and gave the new keys to the $1^{\text{st}}$ and $2^{\text{nd}}$ respondents. The $1^{\text{st}}$ and $2^{\text{nd}}$ respondents deny that the $3^{\text{rd}}$ respondent ever visited the Mine on 5 April 2012 and alleged that if he did so, it was not on their instructions. The $3^{\text{rd}}$ respondent denied ever visiting the Mine on 5 April, 2012. The submissions by the parties clearly raise a dispute of fact whether or not the $3^{\text{rd}}$ respondent visited the Mine on 5 April and conducted himself as alleged by the applicants. I am however of the view that I can adopt a robust approach and resolve the dispute on the papers filed of record. I am inclined to adopt the robust approach in view of the fact that an application stands or falls on the papers filed of record. The applicants were well represented and an advocate was briefed to represent them. Therefore it can be assumed that they were satisfied with the adequacy of their pleadings.

It is trite that the onus to prove dispossession rests with the applicants. The onus is different from other urgent chamber applications where an applicant must establish a prima facie case. In the case of applications for spoliatory relief, the onus is on a balance of probabilities given that the relief is final in effect. It is therefore not enough for an applicant to make bare allegations.

The applicants in the present matter appear to me to have made bare allegations of wrongful or unlawful dispossession. It is alleged that 3rd respondent “invaded” the Mine in the company of a mob of forty to fifty youths. The mob must therefore have been rowdy and caused mayhem. There also must have been representatives of the applicants on the Mine who witnessed the invasion, the 5th of April being a week day. The 4th applicant, who deposed to the founding affidavit, does not state that he was at the Mine when the 3rd respondent is alleged to have locked out the applicants. It would have been helpful if not imperative for the applicants to file supporting affidavits of those who witnessed the alleged invasion and therefore dispossession. However, the applicants did not consider it necessary to do so.

Mr. Mpofu submitted that the 1st, 2nd and 3rd respondents did not dispute that locks were broken and this amounts to acceptance of the applicants allegations. The applicants however overlook that the 3rd respondent insisted that he only visited the Mine on 13 and 28 March 2012. He filed the returns of service dated 13 and 28 March 2012 as proof of his visits to Mine on those days. The conclusion that can be arrived at is that if the 3rd respondent states that he never visited the Mine on 5 April 2012, he cannot be said to be accepting that he removed and replaced locks on the Mine on 5 April 2012.

The 1st and 2nd respondents maintained that if the 3rd respondent went to the Mine on 5 April 2012, it was not on their instructions. The 1st respondent observed on page 10 to 11 of his opposing affidavit that:
 According to the returns of service in our possession, the 3rd Respondent served the co-existence order on 13th March, 2012 and the said Return of Service indicates that the Applicants were given 7 days to comply with the court order. The 3rd respondent only went back 15 days later on 28 March, 2012 and he remarked:

“Placed Mr. Jameson Rushwaya and Mrs Annie Rushwaya at Tolrose Mine to co-exist with Mr. Paterson F. Timba…”

He never mentioned that he evicted Applicants and indeed he did not do that.”

The respondents further denied in paragraph 21 of the 1st respondent’s opposing affidavit a mob invaded the Mine. They in fact accused the applicants of bringing youths from Harare to cause commotion at the Mine and refer to the police reference of the complainant that they made to the police. It is therefore clear that 1st and 2nd respondents have denied that the 3rd respondent ever visited the Mine on 5 April 2012.

The messenger of court’s return of service is considered to be prima facie proof of the contents therein. (See Gundeni v Kanyemba 1988 (1) 226.) As stated in that case at 230E-F, it can only be rebutted by clear and satisfactory evidence. (Also see Fox & Carney v Sibindi 1989 (2) ZLR 173 (SC) at 175E-F Kanyada v Mazhawidza 1992 (1) ZLR 229 at 232C-D.) As indicated earlier no other evidence has been placed before me to support the events of 5 April 2012 and therefore rebut the 3rd respondent’s returns of service. The applicants cannot be said to have established that they were dispossessed in the absence of such evidence.

In the result, the application is dismissed with costs.

Atherstone & Cook, applicants’ legal practitioners.
Mkushi, Foroma & Mpame, 1st & 2nd respondents’ legal practitioners.
Sande & Associates, 3rd respondent’s legal practitioners
Civil Division, Attorney General’s Office, 4th -8th respondents’ legal practitioners
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