Shamrock Holdings (Pvt) Ltd v Parks & Wildlife Management Authority & Ors (HC 3447 of 2006) [2006] ZWHHC 82 (13 July 2006)

HH 82-2006 HC 3447/06 SHAMROCK HOLDINGS (PRIVATE) LIMITED versus PARKS AND WILDLIFE MANAGEMENT AUTHORITY and THE MINISTER OF ENVIRONMENT AND TOURISM N. O. and DESIRED LIASON AUCTIONEERS (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE GOWORA J HARARE, 22 and 26 June and 14 July 2006 Urgent Chamber Application Advocate E Matinenga, for the applicant W P Zhangazha, for the first respondent Mrs V Chigwida, for the second respondent GOWORA J: On 18 December 1996 the applicant and the second respondent hereinafter referred to as the Minister entered into a written agreement in terms of which the latter granted to the former the exclusive right to conduct hunting safaris, game viewing and photographic safaris, and in pursuance thereof to hunt wild animals in respect of a property described as Unit 3 Matetsi Safari Area. The applicant was in addition granted the right to process, sell or otherwise dispose of the products of animals hunted within the said area. The agreement was to commence on 1st January 1997 and was to endure for a period of ten years thereafter unless terminated earlier. In granting these rights the Minister was acting in accordance with powers granted to him in terms of section 37 of the Parks and Wildlife Act [Chapter 20:14], the Act. Part II of the Act was amended in 2001 by Act 19 /2001 to make provision for the Parks and Wildlife Management Authority whose functions, which are specified in section 4 include the control management and maintenance of national parks botanical reserves and gardens, sanctuaries, safari areas and recreational parks. The Authority thus created is the first respondent herein. For convenience I will refer to it as the Authority. HH 82-2006 HC 3447/06 On 24 February 2006 the Director-General of the Authority advised the applicant by letter that the ‘lease agreement’ for Unit 3 would be renewed for a further period of five years effective from 1 st January 2007. This was followed up by a letter dated 27th February 2006 with conditions upon which the ‘lease’ would be renewed. The applicant was requested to sign an attached form as proof of acceptance of the offer and the terms attaching thereto. The applicant duly signed the form and returned the same to the Authority. On 1 June 2006, the Authority addressed yet another letter to the applicant. The applicant was advised that Government had decided to rescind the renewal of Matetsi Unit 3 and instead would be auctioning the rights in respect to the same. The applicant was advised that it was free to participate in the auction which would be advertised in the local press. On 7th June 2006 the third respondent sent an email message to the applicant advising it that the auction in respect of Matetsi Unit 3 would take place on 28 June 2006. It is this action on the part of the third respondent that compelled it to launch these proceedings on a certificate of urgency. The relief sought by the applicant is in following terms: “Terms of the order made That you show cause to this Honourable court why a final order should not be made on the following terms:- 1. 2. That the interim order to interdict and refrain the first, second and third respondents, from selling or disposing of in anyway of Unit 3 Matetsi Concession Area, pending the expiration of the agreement between the applicant and second respondent represented by first respondent, which expires on 1st January 2007, be and is hereby confirmed. that the interim order to interdict the first, second and third respondents, from selling or disposing of in anyway Unit 3 Matetsi Concession Area, pending the outcome of the application to compel specific performance of the renewal agreement, between the applicant and the second respondent represented by the first respondent, be and is hereby confirmed. HH 82-2006 HC 3447/06 3. The costs of this application to be borne by the first and second respondents jointly and severally liable, on a legal practitioner and client scale. Interim Relief Granted 2. Pending the determination of this Urgent Chamber Application in respect of the final order sought, the applicant is granted the following relief. 2.1. That the first, second and third respondents, be and are hereby interdicted and ordered to refrain, from the sale or disposal in any way of Unit 3 Matetsi Concession area, pending the expiration of the lease agreement between the applicant and second respondent, represented by the first respondent, which expires on 1st January 2007. 2.2. That the first, second and third respondents be and hereby interdicted and ordered to refrain, from the sale and disposal in any way, of Unit 3 Matetsi Concession Area, pending the outcome of the application to be instituted by the applicant, to compel specific performance of the renewal agreement between the applicant and second respondent represented by the first respondent. 2.3. The application to compel specific performance by the applicant in terms of paragraph 2.2 of this interim order shall be filed with the Honourable High Court of Zimbabwe, at Harare, within (15) days, from the date of the granting of this interim order.” The applicant seeks a temporary interdict against all three respondents that they refrain from selling and or disposing of Unit 3 Matetsi Area. It wishes to launch an application for specific performance against the Authority for the renewal of the agreement for rights to the unit. The sole issue before me therefore is whether the applicant has satisfied the requirements for a temporary interdict. It is trite that in order to succeed in this application, the applicant must establish the following factors; a prima facie right, which may be open to doubt or a clear right (which in the event, would entitle the applicant to a final interdict), a reasonable apprehension of irreparable harm if the interim relief is not granted and the final relief is HH 82-2006 HC 3447/06 granted, that the balance of convenience favours the granting of an interim order and that the applicant has no alternative relief. It is not in dispute that the applicant is the holder of certain rights to the unit which rights will terminate on 31st December 2006 when the agreement between the parties expires due to the effluxion of time. The applicant seeks the interim interdict on the basis of the offer made to it by the Authority to have the agreement extended by a period of five years. Section 37, which regulates the grant of rights in safari areas provides: “The Authority, with the concurrence of the Minister, may,- b) grant hunting or other rights over in a safari area to such person as he deems fit; Provided that- b) the period of hunting or other rights in terms of paragraph(b) shall not exceed ten years;” My reading of this section is that the Authority has the power to grant hunting rights in a safari area. Such power as it has is, however, exercised after consultation with the Minister and with the concurrence of the latter. The applicant concedes this point. In the absence of the concurrence of the Minister, my view is that no proper offer has been made and it then begs the question as to whether or not there is a prima facie right which the applicant can seek to rely on in having the interim relief granted. The first respondent contends that the applicant has not established a prima facie right as relates to future rights in the unit, such as would entitle it to an interim interdict. There is no new agreement and the only basis upon which the applicant could claim a right would be if the agreement were renewed for the five years suggested by the letter from the Authority. The initial agreement was for a period of ten years and that is the maximum duration provided for in terms of the Act. An extension of the agreement which would be achieved by a renewal would, therefore, be contrary to the requirements of the Act, vis section 37 of the Act. I find HH 82-2006 HC 3447/06 therefore that there was no new agreement between the parties nor was there a renewal of the existing agreement. The applicant has been informed by the Authority that it intends to auction the hunting rights in respect of the unit and this has prompted the applicant to approach this court on an urgent basis, alleging the infringement of its rights before termination of the agreement on 31 st December 2006. Indeed, an advertisement was placed in the Herald of 12 June for an auction on 28th June 2006. The hunting rights being auctioned are effective from 1st January 2007 according to the Authority. I am also advised from the bar that this is the manner in which rights are obtained and that an agreement follows a successful bid at an auction. The applicant has not shown that the proposed auction would affect the current agreement, and in the absence of such proof I cannot accept that the applicant has a reasonable apprehension of irreparable harm. Nowhere on the papers does the Authority evince an intention to cancel the current agreement or unilaterally resile from its terms and conditions. In addition the applicant claims to have heavily invested in the unit not only for the years 1996 to 2007 but from January 2007 to January 2012. The applicant claims to have marketed hunts in Spain and in the United States up to the end of 2011. No documentary proof of this has been submitted or exhibited to the court. However, even if the applicant had forward sold the hunts as claimed, it cannot be, as submitted by the Authority, due to fault on the part of the respondents. The applicant has been in the business of selling hunts for the last nine years. It is aware or at any rate should be aware that quotas for animals to be hunted are given out every year. In my view, in this case, the balance of convenience favours the respondents. The grant of rights is regulated by statute and the respondents are not entitled to overlook the provisions of the Act in order to accommodate the applicant. The applicant has not established to the court that it stands to be unduly prejudiced were the interim relief not granted. If indeed, as it claims, hunts were advertised from which it stands HH 82-2006 HC 3447/06 to lose out, what stopped it from exhibiting one of such adverts. As submitted by Mr Zhangazha, the applicant could not have advertised hunts in advance before the annual hunting quotas were released by the Minister. The agreement, Annexure A clearly provided for this in clause 9. Any forward selling of hunts by the applicant prior to the provision of annual quotas was therefore a risk that the applicant would have taken with full knowledge that such animals as it was selling were not available for hunts until animal quotas were set. Hunts are also advertised on a yearly basis so it stands to reason that the applicant could not have bookings up to the year 2011. On the other hand the respondents are obliged to conduct themselves in terms of the provisions of the Act, both for purposes of conservation of natural resources as well as accountability. I am satisfied that the balance of convenience does not favour the granting of the interim relief. If as the applicant says it would suffer financial loss due to the actions of the two respondents, there is no reason why it would not sue them for damages if the facts point to the same. There would in my view be an alternative remedy available to the applicant if the order for specific performance succeeds. The applicant has failed to meet all the requirements for a temporary interdict. The application is therefore dismissed. The applicant is ordered to pay the costs of the application. IEG Musimbe & Partners, applicant’s legal practitioners Chinamasa Mudimu & Chinongwenya, 1st respondent’s legal practitioners Civil Division of the Attorney-General’s Office, 3rd respondent’s legal practitioners HH 82-2006 HC 3447/06