This is an appeal against the whole judgment of the High Court granting a spoliation order in terms of which the appellants were ordered to restore possession of Danga 16442, Oceana 5545, Reedbuck 25535BM, Reedbuck 15535BM and Lucky 8260BM mining claims (hereinafter referred to as “the mining claims”) to the first respondent and finding the first appellant guilty of contempt of court.
FACTUAL BACKGROUND
The facts on which the court a quo granted the spoliation and contempt of court orders are as follows:
The first appellant (Peter Valentine) and Tapiwa Gurupira, a director and owner of the entire shareholding in the first respondent, have been having disputes concerning the ownership and possession of the above-mentioned mining claims. They litigated in the High Court over the ownership and/or control of the (five) 5 mining claims by the first respondent.
On 24 March 2022, with the authority of the first appellant, the second appellant (Allen Sibanda) invaded the first respondent's five (5) mining claims.
The first appellant claimed, that, he was authorised to do so by the order of the High Court under HC3419/20.
The first respondent filed an urgent application before the court a quo seeking an order for a mandament van spolie against the appellants. It sought the restoration of its access to, possession, and occupation of the (five) 5 mining claims located in Shurugwi District in the Midlands Province.
In its founding affidavit, deposed to by Tapiwa Gurupira, the first respondent submitted, that, it is the registered owner of the (five) 5 mining claims which the appellants invaded on 24 March 2022. It stated, that, the second appellant sent his people to forcefully take over the (five) 5 mining claims from it and ordered its workers to leave the claims.
He alleged, that, they came with all sorts of fighting tools and took possession of the five (5) mining claims. The first respondent's employees attempt to resist the taking over of the mines was subdued by threats of violence and the death of a resident of the area who was found hanging on a tree in what appeared to them to be a murder disguised as suicide.
The first appellant's challenge to Tapiwa Gurupira's ownership of the first respondent was resolved in HC119/18 in which the High Court ordered as follows:
“1. A final interdict is granted barring first, second, and third respondents, their employees, assigns, associates, affiliates, and any other persons acting under their authority from entering all mining locations owned by first applicant which are, namely: Impaluli 4 Mine Shurugwi; Danga 3 Mine Shurugwi; Sheba 2 Mine Shurugwi; Jasper 4 Mine Shurugwi; Paradox Mine Shurugwi; Matebele Mine Shurugwi; Lucerne Mine Shurugwi; Johanna's Luck Mine Shurugwi; Lucrative Mine Shurugwi; Ocean Mine Shurugwi; Reedbuck 1 Mine Shurugwi; Reedbuck 2 Mine Shurugwi; Lucky Mine Shurugwi; Cav Mine Shurugwi.
2. First respondent's appointment as an accredited agent of the first applicant be and is hereby declared null and void of all force and effect and is hereby set aside.
3. Fourth respondent be and is hereby ordered to restore second applicant as an accredited agent in respect of the mines named in para 1 of this order.
4. First, second, and third respondents shall pay costs of this application on the higher scale of legal practitioner and client.”
The first appellant was the first respondent in HC119/18 against whom the final interdict was granted and whose accredited agency over the first respondent was set aside. Tapiwa Gurupira was the second applicant whose accredited agency over the mines named in paragraph 1 was restored by paragraph 3 of HC119/18.
After the granting of the orders in HC119/18, the first appellant did not enter the mining claims mentioned in paragraph 1 of HC119/18 nor cause anyone to do so.
In HC308/20, the first respondent, and a company called Reytalon, at the instance of the first appellant, applied for the nullification of Tapiwa Gurupira's acquisition of 100 per cent of the first respondent's shares.
The application was dismissed by the High Court in HH01–21.
The first respondent submitted, that, pursuant to the order granted by the High Court in HC119/18, it had been in peaceful and undisturbed possession of its mining claims until 24 March 2022 when the second appellant, under the first appellant's authority, invaded the mining claims and chased away its employees. The appellants demanded that the first respondent's workers vacate the mines and proceeded to take them over.
Tapiwa Gurupira reported the invasions to the police which referred him to the Provincial Mining Director.
The Provincial Mining Director, on 4 April 2022, wrote a letter instructing the police to help the first respondent to regain possession of the mining claims. However, on 6 April 2022, the Provincial Mining Director withdrew the letter of support. This prompted the first respondent to immediately apply for a spoliation order against the appellants and a contempt of court order against the first appellant.
The first respondent contended, that, the court orders in HC119/18 and HC308/20 are still extant, and, as such, the first appellant, by defying the order in HC119/18 is in contempt of court. The first respondent sought an order for the restoration of the status quo ante. It also sought an order for contempt of court against the first appellant.
On the other hand, the appellants opposed the application and raised preliminary points to the effect, that, the matter was not urgent since the first respondent had not approached the court immediately after 24 March 2022 when the alleged invasions occurred. The appellants also challenged Tapiwa Gurupira's authority to act on behalf of the first respondent, and argued that he was misrepresenting himself before the court since there was no valid resolution before the court. They also contended, that, Tapiwa Gurupira had dirty hands because he had not complied with an extant order of the High Court in HC4092/20 directing him to serve the first respondent's shareholders and directors in Israel.
On the merits, the appellants argued, that, the mining claims in question had been forfeited for non-payment of inspection fees, and, the first appellant, as one of the directors of the first respondent, proceeded to pay the inspection fees. He therefore contended, that, he did not commit acts of spoliation as he was in lawful occupation of the mining claims. The first appellant submitted, that, he is the rightful owner of the mining claims since he paid the inspection fees, and, as such, his possession of the mining claims could not be faulted.
The appellants also argued, that, they had not invaded the mining claims as there had been a voluntary surrender by the first respondents employees. They, therefore, sought the dismissal of the first respondent's application.
The court a quo held, that, the matter was urgent since the first respondent had acted when the need to act arose, on 6 April 2022, when the Provincial Mining Director withdrew his letter of support to the police, leaving the first respondent with no other option besides having to apply for a spoliation order against the appellants and contempt of court order against the first appellant. It found, that, the first respondent treated the matter with the urgency it deserved and filed the application after exhausting alternative remedies.
The court further held, that, Tapiwa Gurupira had the requisite authority to represent the first respondent as evidenced by the resolution filed on record and the previous court orders between the same parties which conferred him with the necessary authority.
On the issue of dirty hands, the court a quo found, that, an application for a spoliation order cannot be challenged on the basis of the dirty hands doctrine.
On the merits, the court a quo held, that, the application for a spoliation order had been proved as the appellants had not denied invading and taking over the first respondent's mining claims. It held, that, the appellant's taking-over of the mining claims, and demand that the first respondent's workers leave the claims, constituted spoliation. It also held, that, the fact that the appellants were armed vitiated consent and was a clear act of spoliation.
In respect of the appellants reliance on the High Court's order in HC3419/20 the court a quo held, that, the order that the appellants sought to rely on did not give them any right to occupy the mining claims without relying on a warrant of execution, and, in any event, the order did not allow them to illegally occupy the (five) 5 mines. It only ordered the Provincial Mining Director and the Minister of Mines to allow the first appellant to resume mining at the Impaluli claim.
That order could only be executed through due process in respect of the Impaluli claim.
No similar order was made in respect of the (five) 5 claims the appellants invaded. HC3419/20 only ordered the Provincial Director of Mines and the Minister of Mines to allow the first appellant to pay inspection fees for the mines they invaded.
The court a quo held, that, the first respondent had proved that it was in peaceful and undisturbed possession of the mining claims when the appellants despoiled it. The court further found, that, the first appellant was in contempt of court for failing to obey an extant court order in HC119/18.
It therefore granted a spoliation order against the appellants and a contempt of court order against the first appellant.
It is against these orders that the appellants appealed to this Court. The appeal is premised on the following grounds of appeal:
“1. The High Court grossly erred in finding, that, the application before it was urgent in the face of evidence showing, that, the first respondent had not acted when the need to act arose on the 16th of March 2022.
2. The High Court further grossly erred in finding, that, Tapiwa Gurupira had the authority to represent the first respondent and institute proceedings on its behalf when he had placed before the court an invalid instrument of authority; a resolution bearing a date which had not yet arrived as the date of a meeting authorising him to act on its behalf.
3. The High Court further grossly erred in failing to find, that, the founding affidavit of Tapiwa Gurupira, in para 11, contained an alteration which rendered it invalid.
4. The High Court further grossly erred in finding, that, the first respondent was in peaceful and undisturbed possession of the mines in issue in the face of evidence showing, that, Chamunorwa Daniel Gozhora was in possession of Lucky Mine as an independent actor, and with his own assets and equipment, and in the absence of any evidence of the possession of any other mine.
5. The High Court further grossly erred in failing to find, that, there was a peaceful handover by the said Chamunorwa Daniel Gozhora of Lucky Mine to the second appellant, and, therefore, there was no justification for the grant of a spoliation order.
6. The High Court further grossly erred in failing to find, that, the appellants, acting in accordance with a court order in case number HC3419/20, had renewed the mining certificates in respect of the relevant mines and therefore were in peaceful and undisturbed possession of the mines.
7. The High Court further grossly erred in finding, that, the first appellant had been served or was otherwise aware of the terms of the court order in case number HC119/18 and therefore that a requirement for contempt of court had been established.
8. The High Court further grossly erred in finding, that, the first appellant had intentionally acted in any manner as to violate the terms of an extant court order when he had not presented himself at any of the mines and it had not been established that any other person had acted on his behalf.”
SUBMISSIONS BEFORE THIS COURT
Counsel for the appellant submitted, that, the court a quo misdirected itself in holding that the matter was urgent and that Tapiwa Gurupira had authority to represent the first respondent.
He asserted, that, the resolution submitted on behalf of the first respondent was forged as it had a future date, which meant that it was passed after the proceedings had already been instituted. He submitted, that, Tapiwa Gurupira, being one of the directors of the first respondent, could not have given himself the authority to represent the first respondent, and, as such, he was not properly before the court.
On the merits, he argued, that, the first respondent was not in peaceful and undisturbed possession of the property in question given the fact that Tapiwa Gurupira was not in possession of the mines in issue since he was not physically present at any of the mines. He further contended, that, the takeover was not forceful since the first respondent's manager negotiated with the persons taking over the mines.
Counsel for the appellant submitted, that, there was no act of spoliation and there was, therefore, no justification for the orders granted by the court a quo.
Per contra, counsel for the first respondent argued, that, the first respondent had been in peaceful and undisturbed possession of the (five) 5 mining claims pursuant to the extant court order which clearly stipulated that the first respondent was the owner of the mining claims. He further submitted, that, to prove its peaceful possession, the first respondent had renewed its mining certificates over the mining claims and the appellants unlawfully dispossessed it of the claims.
Although the appeal is premised on eight grounds, only four issues arise for determination. These are:
1. Whether or not the court a quo correctly found that the application was urgent.
2. Whether or not the court a quo correctly found that Tapiwa Gurupira had authority to represent the first respondent and that his founding affidavit was valid.
3. Whether or not the court a quo erred in granting the first respondent a spoliation order.
4. Whether the court a quo correctly found that the first appellant was in contempt of court.
I now turn to deal with each of these issues, taking into consideration the submissions made by counsel for the parties....,.
WHETHER OR NOT THE COURT A QUO ERRED IN GRANTING THE FIRST RESPONDENT A SPOLIATION ORDER
The rationale for granting a spoliation order has been set out in various decisions of the courts in this jurisdiction.
In Chisveto v Minister of Local Goverrnment and Town Planning 1984 (1) ZLR 248…, REYNOLDS J quoted with approval the remarks of INNES CJ in Nino Bonino v De Lange 1906 TS 120…, that:
“It is a fundamental principle, that, no man is allowed to take the law into his own hands; no one is permitted to dispossess another, forcibly or wrongfully, and against his consent, of the possession of property, whether movable or immovable. If he does so, the Court will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute.”
Put simply, it matters not who actually owned the mining claims or what the dispute between the parties was; as long as the first respondent had peaceful and undisturbed possession, which in fact is not disputed, and was wrongfully dispossessed, spoliation is established.
The alleged lawfulness of possession by the appellants does not determine whether or not the respondents were despoiled, therefore, counsel for the appellant's argument, that, the first respondent did not have possession of the mining claims, because it did not have a valid mining certificate, has no merit at all: see Minister of Mines and Mining Development & Ors v Grandwell Holdings & Ors SC34-18 where this Court held, that, issues of rights are irrelevant in spoliation proceedings and proceeded to quote with approval from the case of Yeko v Oana 1973 (4) SA 735 (AD)..., where it was stated that:
“The fundamental principle of the remedy is that no one is allowed to take the law into his own hands. All that the spoliatus has to prove is possession of a kind which warrants the protection accorded by the remedy, and that he was unlawfully ousted.”
In determining whether or not the court a quo erred by granting the spoliation order, the decision of this Court, in the case of Botha & Anor v Barrett 1996 (2) ZLR 73 (S) is instructive. GUBBAY CJ, at 79D-E, said:
“It is clear law, that, in order to obtain a spoliation order, two allegations must be made and proved. These are:
(i) That, the applicant was in peaceful and undisturbed possession of the property; and
(ii) That, the respondent deprived him of the possession forcibly or wrongfully against his consent.”
In Streamsleigh Investments (Pvt) Ltd v Autoband (Pvt) Ltd SC43-14 this Court held as follows:
“It has been stated in numerous authorities, that, before an order for mandament van spolie may be issued, an applicant must establish that he was in peaceful and undisturbed possession and was deprived illicitly.
In Scoop Industries (Pty) Ltd v Longlaagte Estate & GM Co. Ltd (In Vol Liq) 1948 (1) SA 91 (W) LUCAS AJ said at pp98-99:
'Two factors are requisite to found a claim for an order for restitution on allegation of spoliation. The first is that the applicant was in possession, and the second that he has been wrongfully deprived of that possession against his wish. It has been laid down, that, there must be clear proof of possession and illicit deprivation before the order is granted.'”...,.
The determinant factors are that the deprivation should be done unlawfully and that the applicant was in peaceful possession. The party seeking spoliation must establish that possession was not only physical, but, that, it was accompanied by animus, the intention to secure a benefit.
In Rex v Kasamula 1945 TPD 252, the court held that:
“The ordinary meaning of possess, is, physical detention or control plus the intention to exercise control for one's own purpose or benefit.”
In this case, the evidence established, that, the first respondent was in peaceful and undisturbed possession of the mining claims at the time the appellants dispossessed it by chasing away its workers and taking them over. The first respondent was in peaceful occupation of the mining claims since the issuance of the High Court's order in HC119/18 until 24 March 2022 when the appellants invaded the mines.
There can be no doubt, therefore, that, it was in peaceful and undisturbed possession at the time the appellants invaded and took over the mining claims. An invasion and taking over of a property that one has been interdicted from entering is clearly unlawful.
It was also argued for the appellants, that, there was no spoliation because the first respondent did not possess the mining claims. In that same vein, it was also contended, that, there was a voluntary surrender by the first respondent's workers, and, as such, there was no act of spoliation.
The court a quo, in determining this issue, held, that, the first respondent could not surrender that which it did not possess. It therefore found, that, the first respondent had been in peaceful and undisturbed possession of the mining claims.
The findings of the court a quo in this regard are unassailable.
There is an extant court order, in HC119/18, which bars the appellants from entering the mining claims in question, yet, they chose to be in contempt of that court order and despoiled the first respondent.
That order effectively barred the appellants from entering the mining claims in question.
The appellants, however, in clear defiance of a lawful court order, seek to justify their invasion of the mining claims in terms of an order granted under HC3419/20 which does not confer any rights on both appellants to enter, occupy, or work the five (5) mining claims.
The order issued by MUSITHU J, in HC3419/20, reads:
“1. The forfeiture of Impaluli 4 registration number 11727BM located in Shurugwi be and is hereby set aside.
2. First and second respondents and all their assignees, agents be and are hereby ordered to allow first applicant to pay for the inspection fees and allow resumption of mining operations on the claim above by the first applicant.
3. First and second respondents and all their assignees, agents be and are hereby ordered to allow first and second applicants to pay inspection fees in respect of the following claims; Danga number 16442, Ocean 5545BM, Reedbuck 15535BM, Lucky 8260BM. IXL16153.
4. There shall be no order as to costs.”…,.
The order was granted on 20 November 2020, yet, the appellants did not take occupation of the mines upon issuance of that order because it clearly did not confer them with any rights to do so.
They only invaded the mining claims on 24 March 2022, which clearly proves that they waited for over a year before seeking to purport to enforce that order.
Even if the order in HC3419/20 had authorized the appellants to resume mining on the five (5) claims, which it did not, they could only do so after following due process in executing the court order.
The appellants forcefully invaded the mines and chased away the first respondents employees which amounts to a clear act of spoliation. There is no doubt in my mind, that, these facts show that the first respondent was removed from the mining claims without its consent. The removal is also unlawful as it was carried out without due process.
The court a quo, therefore, correctly found that the first respondent was unlawfully despoiled. The factors which must be proved in order to grant spoliatory relief were established. The court a quo correctly granted the order as prayed for by the first respondent.
