Asmdev Incorporated (Pvt) Ltd v Joh and Lewis Investment (Pvt) Ltd and Others

In September 2022, Asmdev Incorporated (Pvt) Ltd (the applicant) entered into a memorandum of agreement with Mazoe Mining Company (under corporate rescue) to mine and provide mining and processing equipment at Lonrho Mining Site. The agreement was to run from 1 August 2021 to 31 July 2024, subject to renewal. The applicant took occupation of shafts on 1 August 2021 until 16 September 2024 when it was allegedly despoiled by the respondents. The applicant instituted spoliation proceedings under HCH 4269/24, which was converted to trial by DEME J and remains pending at pre-trial stage. While litigation under HCH 4269/24, HCH 4118/24 and HCH 5692/24 was pending, the applicant discovered on 28 April 2025 and 5 May 2025 that the respondents had unlocked the mining shaft, erected a fence, and were pumping water using the applicant's machinery. The respondents were also conducting mining activities at the disputed site. The applicant sought an anti-dissipation interdict to preserve the finite mineral resource pending determination of the pending cases regarding who has mining rights to the Lonrho Mining Site.

• Whether the application satisfied the requirements of urgency under Rule 60(6) of the High Court Rules
• Whether there was non-joinder of Mazoe Mining Company (a necessary party under corporate rescue)
• Whether the matter was res judicata given the pending case HCH 4269/24
• Whether the matter was lis pendens given pending related litigation
• Whether there were material disputes of fact that could not be resolved on the papers
• Whether the applicant established the requirements for an anti-dissipation interdict: (a) prima facie right, (b) well-grounded apprehension of irreparable harm, (c) absence of alternative remedy, (d) balance of convenience
• Whether the applicant had locus standi to institute the proceedings

The court granted the final anti-dissipation interdict barring the first to fourth respondents, their workers, subordinates, nominees and agents from: (1) carrying out any mining activities and extracting gold ore from Lonrho mining site pending determination of matters HCH 4269/24, HCH 4118/24 and HCH 5692/24; (2) transporting or removing gold ore from Lonrho mining site pending determination of the same matters. The first to fourth respondents were ordered to pay costs of suit on an attorney and client scale jointly and severally. Interim relief was granted interdicting the respondents from carrying out mining activities at the disputed site, with the officer in charge at Concession Police Station ordered to assist in execution if needed. The applicant, their legal practitioners or any attested member of the ZRP were authorized to serve the order.

The binding legal principles established are: (1) Applications for anti-dissipation interdicts are by their very nature urgent and treating them otherwise would aid disposal of disputed assets. (2) A company under corporate rescue subject to a moratorium under section 126(1) of the Insolvency Act cannot be joined as a party to litigation. (3) Rule 32(11) provides that no matter shall be defeated by non-joinder and the court may determine issues affecting rights of parties actually before it. (4) For an anti-dissipation interdict to be granted, an applicant must establish: (a) a prima facie right; (b) a well-grounded apprehension of irreparable harm; (c) absence of alternative remedy; and (d) that the balance of convenience favours the applicant. (5) The test for urgency is objective - the court must be satisfied that when the need to act arose, the matter could not wait and the applicant took immediate action. (6) A material dispute of fact arises only when material facts are disputed in such a manner as to leave the court with no ready answer in the absence of further evidence; a mere allegation of a possible dispute is not conclusive. (7) Courts should take a robust and common-sense approach to disputes of fact in motion proceedings and resolve issues without causing injustice to either party.

The court made several obiter observations: (1) That in appropriate cases, purely commercial interests can be protected urgently, citing Silver Trucks (Pvt) Ltd v Director of Customs & Excise. (2) That attempting to cite Mazoe Mining Company would be an exercise in futility given the corporate rescue moratorium. (3) That the apprehension of dissipation is heightened where respondents admit to rehabilitating a shaft with machinery whose ownership they are uncertain of and continuing to extract finite resources. (4) That lis pendens is not absolute but discretionary. (5) That the decision whether to hear an applicant on the basis of urgency is that of the judge and involves the exercise of discretion. The court also observed that urgency is tested objectively rather than subjectively, and that it cannot be constructed as deliberate or careless abstention from action until a deadline draws near.

This case is significant in Zimbabwean jurisprudence for clarifying several important principles: (1) it reinforces that applications for anti-dissipation interdicts are by their very nature urgent and must be treated as such to prevent disposal of disputed assets; (2) it provides guidance on how corporate rescue proceedings affect joinder requirements, confirming that a company under corporate rescue with a moratorium cannot be joined as a party; (3) it demonstrates the court's willingness to apply a robust common-sense approach to alleged disputes of fact in interdict applications; (4) it illustrates the application of anti-dissipation interdicts in the mining context to preserve finite mineral resources pending determination of competing claims to mining rights; (5) it confirms that purely commercial interests can be protected urgently in appropriate cases. The judgment also provides useful guidance on distinguishing between res judicata and lis pendens, and when these pleas will not succeed.