PAARLWEB Investments (Private) Limited (Under Corporate Rescue) v Hwange Coal Gasification Company (Private) Limited (248 of 2024) [2024] ZWHHC 248 (12 June 2024)

PAARLWEB INVESTMENTS (PRIVATE) LIMITED

(Under Corporate Rescue)

versus

HWANGE COAL GASIFICATION COMPANY (PRIVATE) LIMITED

and

AFROCHINE SMELTING (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 29 May & 12 June 2024

Urgent Court Application

G Nyengedza, with him G. Maromo, for the applicant

E Mubaiwa for the respondent

ZHOU J: This is an urgent court application for an order directing the first respondent to withdraw the contents of its letter written to the Zimbabwe Revenue Authority on 15 February 2024. The same letter was copied to other government authorities. The other relief sought is for the first respondent to be ordered to retract its letter to the second respondent. The third relief sought is for the first respondent to be ordered not to make any communications suggesting that the applicant “is in any way connected to the coke stolen from the first respondent in February 2024”. Finally, the applicant seeks an order directing the second respondent to abide by the terms of an agreement concluded with the applicant on 1 February 2024. The applicant is praying for costs to be awarded in its favour on the attorney-client scale.

The application is opposed by the first respondent. Apart from contesting the matter on the merits the first respondent raised three preliminary objections, namely (a) that the matter is not urgent; (b) that the applicant’s papers disclose no cause of action; and (c) that there are material disputes of fact which cannot be resolved on the papers. These objections in limine must be considered first beginning, conveniently, with the question of urgency. However, before considering the preliminary objections, it is important to set out the factual context of the dispute between the parties.

An objection to the validity of the first respondent’s opposing papers that had been taken by the applicant was abandoned at the hearing of the matter.

The facts are as follows: The applicant, a company under corporate rescue, is in the business of commodity broking in coke and coal products. The first respondent is a company that is in the business of mining coke and coal products. The second respondent is said to be a company that trades in coke and coal. Although the applicant in para. 3 of the founding affidavit states that no substantive relief is being sought against the second respondent, the draft order shows that the applicant is seeking an order for that respondent to render specific performance in terms of a contract concluded between it and the applicant. However, at the hearing nothing was said in relation to that relief.

At the centre of the applicant’s complaint are two letters authored on behalf of the first respondent. The first letter is dated 15 February 2024. It was addressed to the manager of the Zimbabwe Revenue Authority (hereinafter referred to as “ZIMRA”). In that letter the first respondent alleges that one Lisa Maropafadzo “and her team of thugs or assailants” had unlawfully stolen and removed about one thousand four hundred tonnes of coke worth about US$360 000.00 from the first respondent’s plant between 13 and 14 February 2024. The letter further alleges that the author had information to the effect that the coke was being kept at the premises of Bruno Takawira in Hwange, and was destined for smuggling to Zambia or for sale in Zimbabwe. The letter implored the ZIMRA to stop the sale of the coke or its movement. It further informed that a complaint of the alleged theft had been made at Hwange Police Station. The letter was copied to the ZIMRA Head Office in Harare, the ZACC, Immigration Office in Victoria Falls, MMCZ Harare Office, and PGHQ Harare. ZACC is a known acronym for the Zimbabwe Anti-Corruption Commission, while MMCZ is an acronym for the Minerals Marketing Corporation of Zimbabwe. PGHQ is a known acronym for Police General Headquarters.

The second letter, dated 17 April 2024, was addressed to the second respondent. It was written by the first respondent’s legal practitioners, Manase & Danana, on behalf of the first respondent. The letter referred to a “batch of coke” allegedly stolen from the first respondent and sold to the second respondent. The letter alleged that the coke in question had been unlawfully taken from the first respondent on 14 to 15 February and on 22 February by “a group of thugs” led by one Gutai Lisa-Marie Mutuke/Lisa Maropafadzo through the use of fraudulent documents, violence and other unlawful means. It stated that a complaint had been made to the police. The letter further intimated that an agent acting for the said Gutai Lisa-Marie Mutuka had been approaching the second respondent to seek payment for the coke allegedly stolen from the first respondent, and suggested that such payment be declined.

The applicant’s complaint is that the said letters are defamatory of it, and that as a consequence of the defamation the second respondent was refusing to pay it for coke delivered. It further alleges that the persons mentioned in relation to the alleged theft of coke, particularly one Bruno Takawira, are associated with it such that the applicant is sufficiently identified by that association as the one that stole the first respondent’s coke. The premises mentioned as belonging to Bruno Takawira are in actuality the applicant’s business premises. Applicant also refers to police investigations which targeted it in connection with the alleged theft of coke. In this regard, a letter from the Zimbabwe Republic Police Officer in Charge of Hwange is attached as part of the applicant’s papers. The letter is dated 16 April 2024.

Urgency

The objection to the urgent hearing of the matter is predicated upon the ground that the defamation complained of took place in February 2024. This is not entirely correct. The second letter complained of was written on 17 April 2024. The application was filed on 13 May 2024. About 26 days after that date. That letter was written after the letter by the police referred to earlier on. That period can hardly be characterized as a delay that could deprive a matter of its urgency.

The applicant through counsel submitted that the first respondent is not entitled to raise an objection to the urgent hearing of the matter because by not raising it at the case management meeting it must be taken to have acquiesced to the matter being heard on the merits and thereby conceded to the urgent hearing of the matter. The purpose of the case management meeting was to discuss dates for the filing of the papers and agree on the date for the hearing of the matter. Its purpose was not to debate the substance of the matter. The objection to the urgent hearing of the matter could not therefore be properly raised at that meeting. The applicant’s submission cannot, therefore be sustained.

The authorities show that a matter is urgent if it cannot wait to be dealt with as an ordinary court application, see Pickering v Zimbabwe Newspapers (1980) Ltd 1991 (1) ZLR 71(H) at 93; Dilwin Investments (Pvt) Ltd t/a Formscaff v Jopa Engineering Company (Pvt) Ltd HH 116-98; Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 232(H) at 244C-D. It has been held that urgency which stems from deliberate in action until the arrival of the day of reckoning will not be acceptable for the purposes of dealing with a matter urgently, because the court expects a litigant to expeditiously institute proceedings upon realising that their rights are about to be infringed or are being interfered with. See Kuvarega v Registrar General and Another 1998 (1) ZLR 188(H). In the instant case I have already found that there was no delay that could deprive the matter of its urgency.

Accordingly, the objection to the urgent hearing of the matter is dismissed.

Whether the applicant’s papers disclose no cause of action

The respondent’s objection that there is no cause of action disclosed is based on the fact that the letters relied upon by the applicant do not mention its name. An objection that papers filed disclose no cause of action assumes the correctness of the applicant’s papers from which such an assessment has to be made. In casu, the issue of whether the letters concerned can reasonably be understood as referring to the applicant is one that ought to be raised in respect of the merits because that is a defence on the merits. The applicant states that by the mention of persons associated with it and making allegations of theft against them, the letters can reasonably be understood as referring to the applicant. Applicant further mentions that the place at which the stolen coke was said to be kept are its business premises, and that by such an association it has been defamed. An allegation by a party that it has been or is being defamed discloses a cause of action. Whether there is sufficient evidence to support that allegation is a matter for the merits and should not be raised by way of an objection in limine.

The other complaint by the first respondent is that the applicant has not identified the portions of the letters which it relies upon as having defamed it. For that reason, so goes the argument, no cause of action is disclosed. I do not agree. It is permissible for the court to look at a whole article in considering whether it is defamatory, see Ndewere v Zimbabwe Newspapers (1980) Ltd & Anor 2001 (2) ZLR 508(S) at 509F; Rogaly v General Imports (Pvt) Ltd 1948 (1) SA 1216(C). A reading of the two letters reveals that allegations of criminal conduct were being made.

For the foregoing reasons, the objection is dismissed.

Disputes of fact

The third point in limine taken on behalf of the first respondent is that there are material disputes of fact. In the opposing affidavit the alleged dispute which the first respondent relies upon is, as stated in para. 3.3 of the opposing affidavit, that “the alleged defamation is truth and justification” (sic). First respondent states that it challenges the veracity of the contents of the letter written by the Zimbabwe Republic Police. It avers that it intends to lead evidence from some witnesses. However, no affidavits have been tendered from those witnesses to show the nature of the evidence that they would give if they were to testify orally. Indeed, the first respondent has not led any evidence to support the truthfulness of the allegations stated in the letters being complained of. Police investigations showed that the coke that was delivered by the applicant was not taken from the first respondent. That is a finding that the allegations of theft were false in the absence of any other evidence to challenge the findings by the police. The first respondent has not placed before this court any evidence on the basis of which it challenges the conclusions reached by the police. If such evidence had been adduced it would show that there is a genuine dispute of facts and not merely one that is based on bare allegations. As stated in Herbstein & Van Winsen, The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa 5^th Ed. p. 296: “A real dispute of fact arises most obviously when the respondent denies material allegations made by deponents on the applicant’s behalf and produces positive evidence to the contrary.” (emphasis added) See also Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155(T) at 1165, 1166. The first respondent has thus failed to establish any dispute of fact, which it could only do by proving that the coke which formed the basis of its complaint to ZIMRA and the police was stolen from it.

At the hearing the first respondent’s counsel submitted that the dispute of fact pertains to the position of Bruno Takawira in the applicant and the nature of his involvement in the business of the applicant. However, in the opposing affidavit the first respondent never denied the specific allegations made in the applicant’s papers that Bruno Takawira is the marketing manager of the applicant. The settled position of the law is that whatever is not denied in affidavits must be taken to be admitted. See Fawcett Security Operations (Pvt) Ltd v Director of Customs and Excise & Others 1993 (2) ZLR 121(S) at 127F; Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65(S) at 70G-71A; Chihwayi Enterprises (Pvt) Ltd v Atish Investments (Pvt) Ltd 2007 (2) ZLR 89(S). There can therefore, be no dispute of fact that is not based on the affidavits.

The objection based on the existence of material disputes of fact must therefore be rejected.

The merits

The applicant’s complaint is that it has been, and continues to be, injured in its reputation as a consequence of the publication of the letters complained of. Applicant also contends that its commercial interests have been and continue to be jeopardized by the same letters. The first respondent insists that its allegations are true, which means that it does not accept that it should not continue to make these allegations.

A person who anticipates the causing of injury by the publication of defamatory material is entitled to apply for an interdict restraining the conduct of the respondent. Moyo v Muleya & Others 2001 (1) ZLR 251(H) at 265E-F, citing the case of Roberts v The Critic Ltd & Ors 1919 WLD 26 at 28-29 for the proposition that the court has the competence and authority to grant an interdict to restrain the publication of defamatory material. Also see J. Burchell, Principles of Delict (Juta & Co, Cape Town, 1993), p. 126. The interdict may be final or temporary. In casu the interdict being sought is final. The requirements for such an interdict are: (a) a clear right on the part of the applicant; (b) an injury actually committed or reasonably apprehended; and (c) the absence of similar protection by any other remedy. Setlogelo v Setlogelo 1914 AD 221 at 227; J. Burchell Principles of Delict pp. 126-127; Herbstein & Van Winsen The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa 5^th Ed. p. 1456.

Whether the applicant has a right is a question of substantive law; whether that right is clearly established is a question of evidence. In this case the right to protection of one’s reputation is recognized by the common law and the Constitution of Zimbabwe. Equally, a person who is experiencing or anticipates the infliction of patrimonial loss through the publication of falsehoods or defamatory matter is entitled to protection through an interdict; J. Burchell Principles of Delict p. 126. The existence of the right is not being disputed in casu.

In the context of an interdict, the term ‘injury’ must be comprehended in the broad sense of encapsulating any prejudice suffered by the applicant as a consequence of the interference with his or her rights, and not in the narrow sense of physical harm or pecuniary loss. Minister of Law and Order, Bophuthatswana v Committee of the Church Summit of Bophuthatswana 1994 (3) SA 89(B) at 98H-I; Bamford v Minister of Community Development and State Auxiliary Services 1981 (3) SA 1054(C). Injury to reputation suffices for the purposes of this requirement. Allegations of theft or illegal takeover of coke using fraud and/or violence or of trying to smuggle stolen coke are per se defamatory because they are imputations of criminal conduct. See Aitken v Zimbabwe Newspapers (1980) Ltd 1997 (1) ZLR 383(H) at 387G-H. In casu there is the additional dimension of patrimonial loss that the applicant has been exposed to as a consequence of the publication of the statements. The applicant has tendered evidence to show that as a result of the letters the second respondent withheld payment due to it for material supplied. The patrimonial loss is injury suffered and continues to be suffered.

The issue to be determined is whether the statements concerned could reasonably be understood as referring to or concerning the applicant. The test is whether a reasonable person aware of the material published would understand it as concerning or referring to the applicant. This is an objective test. In the case of Moyo v Chipanda 2004 (2) ZLR 67(H) the defamatory statement did not identify the plaintiff. There was a subsequent publication of a statement disclosing the plaintiff’s identity and linking him with the previous statement. The court held that the plaintiff was entitled to base his claim on the earlier statement. In the case of Ndewere v Zimbabwe Newspapers (1980) Ltd, supra, the plaintiff was not identified by name. The article complained of merely referred to an “in-house lawyer” of the entity mentioned. The court concluded that in the circumstances the article would reasonably be understood as referring to the plaintiff.

The premises mentioned as the place where the stolen coke was being kept belong to the applicant. The letter by the police mentions the applicant, which means that the investigations also involved it and targeted its premises. The fact that the investigations and the mention of the applicant in the letter by the police took place after the publication of the first respondent’s letters does not exclude the claim. The authorities show that the publication of the defamatory material and the identification of the person of or concerning whom the publication relates to do not need to take place contemporaneously. See Moyo v Chipanda, supra, p 72 A. Bruno Takawira who is mentioned by name in one of the letters was associated with the applicant as its marketing manager. The unchallenged evidence tendered shows that he never conducted business in his personal capacity in Hwange but was known as a representative of the applicant.

The last requirement to be considered is of the absence of a similar or adequate protection. The relief that is being sought is for the retraction of the contents of the letters and for the first respondent to be ordered to make written communication informing that the applicant is not implicated in the alleged theft of coke or coal belonging to second respondent. This is relief that only an interdict can afford. Damages for defamation do not compensate the injured party for the impairment of its reputation but merely provide solace or satisfaction. Also, the first respondent has not undertaken not to persist with the allegations complained of. Where the allegations are being persisted with the injury is likely to continue, and damages would not be an adequate remedy to redress the violation of the applicant’s rights. See Rivas v Premier (Transvaal) Diamond Mining Co Ltd 1929 WLD 1.

Relief

Nothing was said in argument or in the papers regarding the relief that is being sought against the second respondent. Indeed, in the founding affidavit the applicant stated that no relief was being sought against that respondent.

As regards the interdict directed at the first respondent, I come to the conclusion that the applicant is entitled to the relief sought.

Applicant has sought costs on the attorney-client scale. A punitive order of costs is granted in special circumstances, especially where there is some reprehensible conduct on the part of the party concerned. In this instance the first respondent has brazenly persisted with the allegations notwithstanding the findings made by the police regarding the coke that is at the centre of the dispute. The first respondent has stated that it has witnesses who will testify that the coke in question which was delivered to the second respondent by the applicant or on its behalf belonged to it. But it has not attached a single affidavit from any of those witnesses some of whom are said to be drivers who were involved or witnesses who saw the coke being taken or experts who tested it. This attitude calls for censure, hence the special order of costs is warranted.

In the result, IT IS ORDERED THAT:

1. The application for an interdict is granted.

2. The first respondent retracts the contents of its letters to the Zimbabwe Revenue Authority dated 15 February 2024 and to the second respondent dated 17 April 2024; such retraction shall be communicated to the state agencies to whom the said letters were copied.

3. The first respondent is interdicted from making further communication repeating the allegations contained in the letters referred to in paragraph 2 hereof to any person whatsoever.

4. The first respondent shall pay costs on the attorney-client scale.

Hogwe & Nyengedza, applicant’s legal practitioners

Manase & Danana, first respondent’s legal practitioners