Oliver Masomera N.O and Savanna Africa Holdings (Private) Limited [Under Provisional Judicial Management] v Tamani Investments (Private) Limited and Others

The second applicant, Savanna Africa Holdings (Private) Limited, was the registered owner of Juno 5 Mine in Chakari, Kadoma, engaged in gold extraction. In August 2012, the company was placed under judicial management with the first applicant appointed as Provisional Judicial Manager. On 13 April 2017, a memorandum of agreement was entered into with the first respondent, Tamani Investments (Private) Limited, granting it exclusive rights to run the affairs of the mine. The first respondent breached the agreement by failing to produce required monthly reports, producing instead reports belonging to another entity. The applicants terminated the agreement on 10 July 2018, whereupon the first respondent vacated the mine. The applicants remained in peaceful and undisturbed possession for six months. On 5 December 2018, the first respondent, armed with a letter from the second and third respondents (mining authorities) claiming the existence of a tribute agreement, returned to the mine with armed police and security guards. They forcefully evicted the applicants' employees, changed locks, and took over the mining operations without following due process.

• Whether the application was urgent
• Whether the interim relief sought was final in nature and therefore incompetent
• Whether there were material disputes of fact requiring oral evidence
• Whether a director could depose to an opposing affidavit on behalf of a company without a resolution from the board of directors
• Whether the applicants were in peaceful and undisturbed possession of the mine
• Whether the first respondent despoiled the applicants of their possession without following due process
• Whether a spoliation order should be granted

The court granted the spoliation order and interim interdict. The court ordered: (1) the first respondent to restore the status quo ante at Juno 5 mine; (2) the second applicant to be declared the sole and exclusive registered owner/holder of Juno 5 mine with exclusive rights to extract minerals; (3) the second and third respondents to cancel tribute agreement number TR 29/2018 registered on 14 September 2018; (4) costs on an attorney and client scale against the respondents. Interim relief pending the return date included: (1) the first respondent to stop all mining operations; (2) the first respondent to desist from interfering with the applicants' possession and operations; (3) eviction of the first respondent from the mine with immediate effect; (4) the first respondent to allow applicants' officers, agents and employees unfettered access to the mine, including the right to place security guards; (5) costs on an attorney and client scale.

The binding legal principles established are: (1) In a spoliation application, the applicant must prove two essential elements: peaceful and undisturbed possession, and dispossession without consent or due process; (2) Spoliation orders are by their nature urgent applications and the relief sought is final in nature, which is competent; (3) Questions of ownership, validity of underlying agreements, or rights to possession are irrelevant in spoliation proceedings - the sole issue is whether possession was disturbed without following due process; (4) Even if a party has no legal right to possess property, they may not be dispossessed except through lawful process - self-help is prohibited; (5) A company director cannot depose to an affidavit on behalf of a company without proper authorization by board resolution, except where there is a single director; (6) The presence of a letter from government authorities does not constitute due legal process for eviction or dispossession; (7) Urgency in spoliation matters arises when the dispossession occurs, not when earlier breaches of agreements took place.

The court made several non-binding observations: (1) The court suggested that "some kind of corruption was involved" based on the circumstances of how the mining authorities and police facilitated the first respondent's forcible takeover of the mine; (2) The court noted that if the first respondent's employees had truly remained on the mine after June 2018, it would be illogical for them to return with armed guards and a government letter six months later; (3) While upholding the point about lack of board resolution, the court followed the Supreme Court approach in Tapson Madzivire by allowing consideration of the first respondent's oral submissions rather than completely dismissing their defense, noting they had a "genuine defence that needs to be resolved"; (4) The court observed that the validity of the tribute agreement and whether proper registration procedures under sections 280-290 of the Mines and Minerals Act were followed would be issues for determination on the return date, but were not relevant to the spoliation application itself; (5) The court indicated surprise at the role of police in facilitating what appeared to be a civil dispute, questioning why law enforcement would assist in such circumstances.

This case is significant in Zimbabwean jurisprudence for several reasons: (1) It reinforces the principle that spoliation orders protect possession, not ownership, and that even unlawful possessors are protected from dispossession without due process; (2) It confirms that spoliation applications are inherently urgent and that interim relief in such matters is final in nature and competent; (3) It applies company law principles requiring proper authorization by board resolution for directors to represent companies in legal proceedings, following the Supreme Court decision in Tapson Madzivire v Misheck Brian Zvarivadza; (4) It demonstrates the courts' willingness to intervene where state authorities (mining officials and police) appear to facilitate unlawful dispossession; (5) It emphasizes that parties cannot use administrative letters or invoke state power to bypass legal processes for eviction or dispossession; (6) It provides guidance on when urgency arises in the context of terminated agreements and subsequent dispossession.