Andries Hendrik Joubert v Daniel Moyana & 2 Others [2025] ZWMTHC 8 (19 May 2025)

1 HCMTJ HCMTC 94/25 ANDRIES HENDRICK JOUBERT versus DANIEL MOYANA and SELINA MOYANA and JOUBERT CRUSHERS AND TRANSPORT (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE MUZENDA J MUTARE, 12 and 19 May 2025 URGENT CHAMBER APPLICATION Mr P Nyakureba assisted by Mr C Maunga (Jr), for the applicant Mr B Mudhau, for the respondents MUZENDA J: This is an urgent chamber application where the applicant is seeking the following: “1. TERMS OF FINAL ORDER SOUGHT 1. The 1st, 2nd and 3rd Respondents or their agents are interdicted from entering Sheerluck Mine, Fern Valley, Mutare, without authorization of the Applicant and from usurping its control. 2. The Respondents are to pay the Applicant’s costs of suit on an attorney-client scale. INTERIM ORDER SOUGHT Pending determination of this matter on the return date, the Applicant is granted the following relief: 1. Respondents and their agents are hereby ordered to effectively lift blockade to Sheerluck Mine, Fern Valley, Mutare and not interfere with Applicant or his agents’ right of access and control of Sheerluck Mine with immediate effect upon service of this Order.” The urgent chamber application is opposed by the respondents. In opposing the application respondents raised four preliminary points. a) b) c) d) that there is a material dispute of facts. that applicant lacks locus standi to seek the relief placed before this court. that applicant’s hands are tainted. that the targeted relief is lis pendens before the Magistrates Court. HCMTJ HCMTC 94/25 BACKGROUND FACTS In 1991 applicant registered a quarry mine called Sheerluck Mine under certificate of registration No. 22492BM at the mining offices at Mutare. He went on to appoint one Phillip Kumunda as the mining mine manager to supervise the mining of granite rock and processing quarry stones and other takings at the site. Phillip Kumunda was issued with a non-transferable mine blasting license number 027228 MBL. The applicant then established third respondent Joubert Crushers and Transport (Private) Limited, applicant refers to it as a logistics entity where first and second respondents are shareholders and directors. Third respondent provides services at the sole discretion of the applicant. In as far as the mining interests at Sheerluck are concerned, applicant contends that the mining rights are registered in his name distinct from third respondent private limited company and that first and second respondents have no business at Sheerluck Mine. However, in March 2025 first and second respondents effected a boardroom coup and enforced a hostile takeover of third respondent effectively booting out applicant and his family from third respondent. According to applicant and first and second respondents erroneously perceived that third respondent company was the registered owner of Sheerluck Mining claim. First and second respondents went on to chase away applicant and his employees from the mine and took control of the mine. First and second respondents went on to employ a mine manager and planted bouncers to make sure applicant does not access the mine. Phillip Kamunda, applicant’s manager resigned and Ministry of Mines and Mining Development proceeded to suspend operations at the site. The applicant contends in his papers that he has since appointed a new mine manager and has been authorized to resume operations but he cannot access the mining premises because respondents have effected an embargo or blocked applicant. This prompted applicant to come to court for the relief specified herein above. On the other hand, in addition to the points in limine, respondents contend that they have since bought shares in third respondent and paid a total of US400 000 to the applicant and got shares in third respondent company whose assets among others include the mine sited at the Remainder of Subdivision A of the subdivision D of Dora. They also added that at a special meeting of Directors they have since ousted applicant and his family and they now own HCMTJ HCMTC 94/25 Sheerluck Mine. Applicant no longer controls the mine and the application must be dismissed with costs. Points in limine raised by the Respondents a) Material Dispute of facts Respondents’ counsel Mr Mudhau submitted that the document attached to applicant’s papers, a card, falls far too short to prove a clear right over Sheerluck Mine. At least a certificate of registration from the Provincial Mining Commissioner, Manicaland could have assisted. He added further that the occupied mine is situated in the remainder of Subdivision D of Dora Farm and tendered a diagram prepared by the Surveyor General of Zimbabwe. That area depicts that third respondent was granted a lease by the former owner of the farm Mr David Manyarara. Third respondent later purchased the area under lease, and counsel produced both the lease and agreement of sale as exhibits. It was a further contention by respondents that applicant cannot apply for an interdict without producing a diagram from the Ministry of Mines showing proper coordinates and such coordinates relating to the mine in dispute so as to establish whether applicant has a clear right. One has also to be exact and clear as to whether Sheerluck Mine is the same mine located under Subdivision D of Dora Farm. These are the material disputes perceived by the respondents which they believe can never be resolved on paper. In response Mr Nyakureba for the applicant submitted that the Surveyor-General’s diagram depicts nothing worthy to talk about relating to Sheerluck Mine. The lease agreement and agreement of sale were entered into by the applicant well before first and second respondent allegedly acquired shares on third respondent’s logistics company. In any case the person who prominently feature on all these documents is none other than the applicant himself. He is the one who registered the quarry at the Ministry of Mines it was argued. In effect it was the contention of Mr Nyakureba that the ownership of the mine is apparently a well-cut issue and wholly in favour of the applicant. The same applies to the coordinates, boundaries and location of the Mine, which is described as Sheerluck Mine. To the applicant there were no disputes of fact that would warrant interfering or forestalling the determination of the urgent chamber application. HCMTJ HCMTC 94/25 The applicant produced a card sourced from the Ministry of Mines containing the registration number, the registered owner and regular information entered thereto. He stated in his affidavit that due to the blockade by respondents he could not access the registration certificate of the mine. The agreement of sale between the late David Manyarara and Joubert Crushers and Transport (Private) Limited indicates that applicant represented the company (third respondent) and it appears he did so as a director. The same equally applies to the commercial lease produced by the respondents. The suspension order from the Ministry of Mines dated 2 May 2025 issued by Mr J. Charamba, the Mining Engineer reflects that applicant in his capacity as “owner (Director)” acknowledged receipt of the prohibition order. Respondent alleged during the hearing that applicant is the one who applied for suspension, it does not appear from the document, applicant only acknowledged receiving the suspension order. The payments made to the local authority and Zimbabwe Revenue Authority do not in my view assist the respondents. None of the respondents produced any document to the effect that the quarry mine is registered in the name of the third respondent. First and second respondent did not produce any document before the court to show any document before the court to show any connection of them to the mine. Sheerluck Mine is being operated by the applicant and third respondent is principally occupying a logistical position. I am satisfied that there are no material dispute of facts and that point in limine lacks merit and it is dismissed. b) Whether applicant lacks locus standi? Having exhaustively analysed the aspect of registered ownership in the preceding paragraph, this sub-topic is well covered. This court has accepted that applicant is the registered proprietor or claimant of the mine and consequently he has all the full rights to ensure its successful commercial smooth operations. The point in limine lacks merit it is therefore dismissed. c) Whether applicant’s hands are dirty? HCMTJ HCMTC 94/25 Respondents’ argument is that applicant has not yet fulfilled the two conditions set by the Mining Engineer which led to the suspension of operations at the mine. Applicant to the contra submitted that he has since met the pre-conditions and has now been allowed to resume work at the site and could actually have started had respondents not blocked his entry. In my view if applicant has since been allowed to resume operations then the presumption is that he has met the conditions set by the Provincial Mining Engineer if the applicant is lying to the court about meeting the set requirements then he will be resuspended. I fail to see the logic of the respondents that if a provisional order is granted this court will be perpetuating an illegality. The point in limine has no merit, it is also dismissed. d) Whether the matter is lis pendens before the Magistrate Court. Respondents spiritedly argued that the same matter is pending before the lower courts. Applicant pointed out that that application went to court as an application for a spoliation and that a rule nisi returnable on 13 May 2025 was granted in favour of the application. When respondents were asked by the court to clarify whether the blockade was perpetrated in the face of the rule nisi, respondents could neither deny or confirm but from the chronicle of events advanced by the applicant, it is clear that respondents deliberately violated the terms of the rule nisi and did so with impunity. I am satisfied that there is no application for an interdict before the Magistrates court involving the parties herein and the point in limine lacks weight, it is dismissed. On the Merits The requirements an interdict are well etched in judicial precedents of this country. Whether an applicant had a clear right to protect, the potentiality of irreparable harm or prejudice likely to be sustained by the applicant if the interdict is to be refused. It should also be established whether or not there is an alternative relief readily available to the applicant. A court has also to determine the aspect of balance of convenience where potentiality of irreparable harm or prejudice is to both applicant and respondents. HCMTJ HCMTC 94/25 Having heard submissions made by both sides it appears to me that the balance of convenience heavily leans in favour of the applicant. He is the founding owner and or Director of the Mine in dispute and has been operating it since 1991. Respondents allege that they have bought shares in third respondent company but assuming they are telling the truth, they have not yet changed ownership of the Mine at the Ministry of Mines up to now. The registration still reflects applicant’s name. I will accept applicant’s version that third respondent does work at the pleasure of the applicant as a logistics entity and not owner of Sheerluck Mine. Applicant is losing income if not operating the Mine and virtually there is no readily available alternative remedy. Respondents failed to explain a number of issues posed to them by the court during hearing. I am therefore satisfied that applicant has met all the requirements for an interdict and the provisional order is granted as prayed and that costs be in the cause.