Songxiang Industry Investments v Rose N. Heuer & Three Others

### Preamble
Judgment No. SC 40/21
1
Civil Appeal No. SCB 209/20
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Civil Appeal – Ex tempore

SONGXIANG     INDUSTRY     INVESTMENTS

v

ROSE      N.     HEUER     &     THREE     OTHERS

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, MATHONSI JA AND KUDYA AJA

BULAWAYO: MARCH 24, 2021

T. Cherry, for the Appellant

L.Nkomo with J. Tshuma, for the first Respondent

MATHONSI JA:	This is an appeal against the confirmation of a provisional order issued by the court a quo on 21 May 2020.

The terms of the final order appear at p 398 of the record and essentially interdicted the second respondent herein from removing any equipment from Empress Mine which is at the centre of the dispute. In the same order the appellant was allowed to remove its own equipment from the same mining claim.

Further, the final order also interdicted the appellant, the second respondent, and the fourth respondent from interfering with the first respondent’s mining activities at the mine. The order also authorised the first respondent to carry out mining activities at the mine. Finally, the appellant, the second, and the fourth respondents were ejected from the mine.

The court observed that the final order in its paragraphs 2, 3, and 4 was improperly made to be subject to the finalisation of case number HC 5673/18 which is between the first and second respondents.  Mr Nkomo for the first respondent conceded the irregularity of the order and prayed for the removal of any reference to case number HC 5673/18.

Mr Cherry for the appellant reluctantly conceded that the appellant had no basis for approaching this court on appeal considering that the real dispute was between the first and second respondents based on a contract which the appellant was not privy to. More importantly, the second respondent had the provisional order confirmed against it in default and no rescission of that confirmation was sought. In that regard, the appellant, whose defense in the court a quo was dependent on its agreement with the second respondent had no leg to stand on. Against this background, the reluctant concession by Mr Cherry was properly made.

The first respondent prayed for costs against the appellant on the higher scale. It was the view of the first respondent that such costs were warranted because of the appellant’s conduct in pursuing a meritless appeal while unduly holding on to possession of the mining claim. The appellant persisted with the appeal despite an earlier judgment of the court a quo which was not appealed against to the effect inter alia that the appellant had no locus standi to claim possession of the mine.

In addition, following the spoliation proceedings, which it lost, the appellant up to this day has not explained how it gained possession of the mine. The appellant’s persistence with the appeal has unnecessarily put the first respondent out of pocket. Against this, the court finds no merit in Mr Cherry’s submission that costs should be awarded on an ordinary scale.

In our view case No HC 5673/18 in which the first respondent is seeking confirmation of her cancellation of the agreement of sale between herself and the second respondent, has no bearing on the present matter.  The order made in this matter should not affect the progression of case number HC 5673/18.

DISPOSITION

In the result; it be and is hereby ordered as follows:

The appeal is hereby dismissed with costs on the scale of legal practitioner and client.

In the exercise of this court’s discretion in terms of s 25 of the Supreme Court Act [Chapter 7:13], the order of the court a quo is amended to read as follows

“1. The provisional order be and is hereby confirmed.

2. The 1st respondent be and is hereby interdicted from removing any equipment from Empress Mine.

3. The 2nd respondent be and is hereby allowed to remove its equipment from Empress Mine.

4. The 1st, 2nd, and 3rd respondents be and is hereby interdicted from interfering with the applicant’s mining activities at Empress Mine.

5. The applicant be and is hereby authorised to carry out mining activities at Empress Mine.

6. The 1st, 2nd, and 3rd respondents and all those claiming occupation through them be ejected from Empress Mine.

7. The 1st, 2nd, and 3rd respondents shall pay the costs of this application jointly and severally the one paying the other to be absolved.”

GWAUNZA DCJ			I agree

KUDYA, AJA			I agree

Hussein, Ranchhod & Co, appellant’s legal practitioners

Webb, Low & Barry Inc Ben Baron & Partners, 1st respondent’s legal practitioners

Makonese, Chambati & Mataka, 2nd respondent’s legal practitioners