Fidelis Munyoro Chief Court Reporter
Government has complied with a court order for Mbada Diamonds (Pvt) Limited security team to return to the diamond mining site in Chiadzwa to secure its gems and equipment after the High Court last week threatened to refuse it audience until full compliance.
Justice Joseph Martin Mafusire last week issued a stern warning against Government for defying court orders. Yesterday the hearing into the dispute pitting Mauritius-registered Grandwell Holdings and Mines and Mining Development Minister Walter Chidhakwa and three other co-defendants resumed after the judge was satisfied Government had fully complied with the order he issued on February 29, this year.
“We have had a preliminary discussion in chambers proper and I was advised that there was substantial compliance with my order of 29 February 2016 and the issue of jurisdiction over first to fifth respondents has fallen away,” said Justice Mafusire, before the hearing commenced.
Grandwell Holdings, which holds 50 percent controlling stake in Mbada, is suing Minister Chidhakwa, Zimbabwe Mining Development Corporation (ZMDC), Marange Resources (Private) Limited, Zimbabwe Consolidated Diamond Company (ZCDC), after being ejected from the Chiadzwa diamond fields.
Justice Mafusire yesterday heard arguments both on preliminary points and on the merits of the matter and reserved judgment. Grandwell Holdings is challenging Government’s decision to eject Mbada out of Chiadzwa. Mr Sternford Moyo of Scanlen and Holderness, who is acting for Grandwell, argued that the structure created by the agreements between the parties coupled with the conduct of the minister and his co-respondents created a derivative action against them.
“A shareholder is allowed to appear as plaintiff,” said Mr Moyo citing several case laws to buttress his argument.
“He acts not as representative of the other shareholder, but as representative of the company to enforce rights derived from the company. The action is brought by him in his own capacity to vindicate the company’s rights.”
In this case, Mr Moyo submitted that the order was being sought on behalf of Mbada Diamonds which was ejected from the diamond mining site.
He said Minister Chidhakwa and his co-respondents disregard of contractual was intentional with ulterior motive of seizing possession of Grandwell’s mining site.
“It appears to be part of a scheme of unlawful dispossession and therefore an element of spoliation,” he said. “ It certainly is illustrative of bad faith on behalf of respondents. That they are all represented as they are, confirms that they have been acting in concert.”
Advocate Thabani Mpofu, who is representing Mbada though cited as respondent, made submissions in support of Grandwell.
“The interest of justice dictates that given the exigence of the matter, shareholder must sue,” he said. He said once entered into contracts it is obliged by law to behave like a contractor. “Its rights and obligations are set out in the contracts,” said Adv Mpofu. “The State cannot turn around and seek to rid itself of obligation in the contract.”
Adv Lewis Uriri, appearing for Minister Chidhakwa, made submissions opposing the application together with Adv Sylvester Hashiti acting for ZMDC, Marange Resources and ZCDC.
Adv Garikayi Sithole, who represented Commissioner-General of Police Dr Augustine Chihuri, maintained that police were there to ensure law and order at the diamond mining site.