Online Reporter
Fidelis Munyoro
Chief Court Reporter
The High Court in Bulawayo has granted Impala Enterprises (Pvt) Ltd, trading as Filibeg Investments, the urgent relief it sought, ordering the immediate restoration of its possession of Kings Riches Mine 3 in Matabeleland South.
The ruling by Justice Ngoni Nduna follows an unlawful takeover of the mine by the respondents, including Tracy Nyathi and seven others, on January 26 this year.
Justice Nduna emphasised the core principle of the “mandament van spolie”, stating, “The essence of the remedy is the restoration before all else of unlawfully deprived possession to the possessor. It seeks to prevent the taking of possession otherwise than in accordance with the law.”
The judge further explained that the spoliation order is designed to uphold public order by discouraging individuals from resorting to self-help, a principle fundamental to the rule of law.
Impala alleged that Nyathi and her co-respondents forcefully took control of the mine, driving away its workers and commencing mining operations without a court order.
While the first respondent, Tracy Nyathi, raised procedural objections, including claims of defective documentation and lack of “locus standi”, these arguments were dismissed by the court.
Justice Nduna noted that the respondents’ actions were unlawful.
“The respondents forcibly took possession of the mine without any court order. Instead of using lawful processes to assert whatever rights they believed they had, they chose to take the law into their own hands,” said the judge.
The court found no valid defences to the spoliation application and underscored that the respondents’ conduct showed a deliberate disregard for lawful authority.
Their resistance to police intervention further demonstrated their intent to remain in control of the mine by force.
In granting the application, the court ordered the respondents to restore possession of the mining claim, including all equipment and vehicles, to Impala Enterprises.
It also authorised the deputy Sheriff, with police assistance, to enforce the order and evict the respondents and their associates if necessary.
The respondents were further prohibited from coming within 100 meters of the mine, with violations leading to possible contempt of court proceedings.
The judge emphasised that the respondents’ conduct warranted a punitive costs order, awarding costs on a higher scale against the eight respondents.
“The award of costs must reflect the conduct of the parties,” Justice Nduna observed, adding that the respondents’ actions justified the adverse costs order to ensure Impala Enterprise would not be out of pocket.
