Tuesday, April 27, 2010

(HERALD) Court okays diamond sales

Court okays diamond sales
By Chakanetsa Chidyamatiyo

Government can start selling diamonds mined from Africa Consolidated Resources’ claims in Chiadzwa, the High Court has ruled. Justice Bharat Patel yesterday dismissed — with costs — an ACR application seeking an interim interdict against the sale of the precious stones by the State.

ACR had approached the High Court seeking an interim order interdicting the Minerals Marketing Corporation of Zimbabwe, the Zimbabwe Mining Development Corpo-ration, Mbada Diamonds (Pvt) Ltd and Canadile Miners from selling the diamonds mined from the Chiadzwa diamond fields.

ACR argues that it owns the claims from which the diamonds are mined.

In his ruling, Justice Patel said ACR had failed to satisfy the requirements of urgency as provided by High Court rules.

"In the result, the application is dismissed with costs for want of urgency," he said.

Justice Patel said the sale of the diamonds would not prejudice the company in the event they succeed on appeal as they can be compensated for the losses.

"In the event that they succeed on appeal, the loss that they might have incurred through the sale of their diamonds is properly compensated by way of damages that are readily quantifiable.

"If this is correct, it constitutes an additional basis for not treating this matter as being urgent," the judge ruled.

Justice Patel also noted that ACR’s application was premised on the Kimberley Process Certification Scheme monitor, South African industrialist Mr Abbey Chikane, whom they argued intended to visit Zimbabwe between April 6 and 8.

"As already indicated, the monitor does not appear to have visited Zimbabwe on the dates anticipated and there is no clear indication as to when he might be invited to finalise the certification process.

"In the absence of any clarity in this regard, the declared ground of urgency falls away and affords a further unchallengeable reason for rejecting the urgency of this application," Justice Patel said.

He said ACR’s argument of the possibility of irreparable harm through suffering serious financial consequences by having to wait for their turn to be heard in court did not warrant them being given preferential treatment.

"However, the urgency of commercial interests may justify the invocation of urgency no less than any other interests," he said.

The judge said each case, however, depended on its own circumstances.

"In the instant case, the applicants seek to secure the safe custody of all diamonds mined from the claims pending the appeal in the Supreme Court.

"Assuming the validity of their title to the disputed claims, it seems to me that the harm that they apprehend is purely pecuniary and not such as to be deemed irreparable," said Justice Patel.

He blamed ACR for taking long before filing an urgent application in the High Court.

"It seems to me that the applicants should have taken action against the present respondents (MMCZ, ZMDC, Mbada Diamonds and Canadile Miners) at the latest on the 5th of February 2010.

"This is when they were apprised of the effect of the Supreme Court order and when it became apparent that there was nothing to preclude the sale of diamonds by the respondents," he said.

The Supreme Court order of February 5 nullified an ear-

lier High Court ruling in favour of ACR filed against MMCZ and ZMDC.

The High Court ruling had declared ACR’s mining claims in the Marange/Chiadzwa areas as valid.

"The present application was only instituted two months later, on April 9, 2010.

"There is nothing in the applicant’s papers explaining its failure to act earlier.

"The reasons for that delay should have been articulated in the founding affidavit.

"The court should not be left to speculate on the possible reasons for the delay and in the absence of the explanation, it must be held that the matter is not urgent within the meaning of the Rules (of the High Court)," said Justice Patel.

The judge also ruled the certificate of urgency filed by ACR defective.

He said in terms of the High Court rules, a chamber application must be considered forthwith when accompanied by a certificate from a lawyer citing reasons for urgency.

"The certificate of urgency in casu (this case) is defective because it was signed by Mr (Jonathan) Samkange who is the applicant’s legal practitioner of record."

He cited Justice Mafios Cheda’s ruling in a 2005 case in which he said: " . . . it is totally undesirable for a legal practitioner to either attest to an affidavit or sign an urgent certificate for and on behalf of a client who is being represented at his firm as such lawyer clearly has an interest in the matter at hand."

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