REINFORCED STEEL CONTRACTORS ZIMBABWE (PRIVATE) LIMITED v MINE SUPPORT SOLUTIONS (PRIVATE) LIMITED and ANOTHER (408 of 2025) [2025] ZWHHC 408 (8 July 2025)

4 HH 408 - 25 HCH 550/25 REINFORCED STEEL CONTRACTORS ZIMBABWE (PRIVATE) LIMITED versus MINE SUPPORT SOLUTIONS (PRIVATE) LIMITED and THE SHERIFF FOR ZIMBABWE HIGH COURT OF ZIMBABWE MANZUNZU J HARARE, 25 June & 8 July 2025 Court Application – Preliminary Point R Mabwe, for the applicant J V Mushunje, for the respondent MANZUNZU J: INTRODUCTION This court application was brought as an urgent application before it was ruled not urgent. It then proceeded as an ordinary application. The applicant seeks a final order in the form of an interdict in the following terms: that; “The 1st Respondents retention of the Applicant’s plant machinery and equipment listed in Annexure H be and is hereby declared to be unlawful.The 1st respondent be and is hereby ordered to return the plant machinery and equipment listed in the attached schedule, Annexure H located the Mines Support Solutions Factory being Stand Number 7402, Turf Ngezi to the applicant within twenty-four hours (24) of granting of this order.In the event of non-compliance with paragraphs 2 above, the Sheriff or his lawful assistant be and is hereby authorised within twenty-four (24) Hours of this order being granted to take possession of the plant machinery and equipment listed in the attached schedule, Annexure H, situate Mines Support Solutions Factory located at stand Number 7402, Taurf Town, Ngezi or wherever it is located and return to the Applicant or alternatively.The applicant be and is hereby ordered to uplift disconnected the plant machinery and equipment listed in the attached schedule Annexure H located the Mines Support Solutions Factory being stand number 7402, Turf Town, Ngezi to the Applicant within twenty (24) hours of the granting of this order.The 1st respondent shall pay Applicant’s costs of suit on the higher scale of attorney and client.” The application is opposed by the first respondent (hereinafter referred to as “the respondent”) who has raised a preliminary point that there are material disputes of fact, and to that end, prays for the dismissal of the application with costs. This is the judgment to resolve the preliminary point. Material Dispute Of Fact - The Law In Zerere v Earthwales Private Limited & Another HH 26/24 this court highlighted on what amounts to material disputes of fact in a case, when it stated: “Several authorities have settled what amounts to material disputes of fact in a case. It arises when the court is faced with two conflicting stories, which in the absence of further oral evidence, the court cannot decide where the truth lies. The court is put in a position where it will say, ‘it is not safe to decide for either side unless more evidence is led” In the celebrated case of Supa Plant Investments Pvt Ltd v Chidavaenzi 2009 (2) ZLR 132 (H) at 136 F-G the court remarked; “A material dispute of fact arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.” (emphasis is mine) Furthermore, the Supreme Court in Riozim Private Limited v Falcon Resources Private Limited & Anor SC 28/22 the court held that: “In this regard, the mere allegation of a possible dispute of fact is not conclusive of its existence. From the decided cases, it is evident that a dispute of fact arises where the court is left in a state of reasonable doubt as to which course to take in resolving the matter without further evidence being led.” (emphasis is mine) The Supreme court in Riozim Private Limited case (supra) also cited with approval the United States Court of Appeals case of Pignons S.A. de Mecanique de Precision v Polaroid Corporation 657 F 2d 482, where the court stated that, “A factual dispute is material if it affects the outcome of the litigation and genuine if manifested by substantial evidence going beyond the allegations of the complaint.”The factual dispute to qualify as a material dispute of fact must be; material affect the outcome of the casemust leave the court in a state of reasonable doubt as to which course to takemust leave the court with no ready answerthe matter cries for more evidence Applicant’s Case The applicant alleges that, around June 2022, the applicant and the respondent intended to enter into an operating lease agreement under which the applicant would lease its plant, machinery, and equipment to the respondent for the manufacture and production of mining bolts.The applicant as a result, delivered its fully functional and operational plant, machinery and equipment to the respondent’s factory in Ngezi between December 2022 and June 2023.The proposed commencement date of the lease was the 1st of July 2023.The respondent failed, refused and neglected to sign the proposed operation lease agreement despite numerous requests by the applicant. On the 11th of December 2024 the applicant and the respondent agreed that the applicant could uplift its equipment from the first respondent’s factory.The applicant attempted to collect their equipment from the respondent’s factory on the 12th of December 2024 and were denied access. On the 16th of January 2025, the applicants wrote a letter of demand informing the respondent that it would uplift its equipment on or before the 22nd of January 2025.Thereafter correspondence ensued between the parties yielding no positive results, hence the present application.In the answering affidavit, the applicant denies that the respondent has any legal basis to hold on to the plant machinery and equipment. Without recognizing the relevance of the shareholder’s agreement as stated by the respondent, the applicant alleges the agreement’s capitalisation was never fulfilled. It was agreed the applicant’s machinery and equipment would be leased. Respondent’s Case Aveng Zimbabwe (Private) Limited (Aveng) is the applicant’s affiliate company and have the exact same shareholders as the applicant.In August 2019 the respondent’s shareholders being Grindale Engineering (Private) Limited (Grindale), Aveng, and Zimplants Enterprises (Private) Limited (Zimplants) entered into shareholders agreement regarding the governance of the respondent. The agreement was preceded by an approved business model.In terms of the business model and shareholder’s agreement each party was to provide a designated amount of money to capitalize the operations of the respondent.Aveng was to provide USD562 248.00 in capital. The capital contribution was then provided by the applicant albeit in the form of equipment and machinery which is now the centre of dispute. Grindale and Zimplants were to inject their capital contribution in the form of money.The respondent alleges that the draft of an operating lease agreement was not signed as differences arose between the applicant and the respondent, on issues pertaining to the value of the equipment, the rentals payable for the lease equipment and the shareholder resolution for the execution of the lease. The respondent contends that the email written by the chairman of the respondent approving the removal of the equipment is null and void as it does not constitute a resolution binding the shareholders and the board as is set out in the shareholders agreement. Analysis The alleged dispute of fact in this matter is that, in anticipation of signing an operating lease agreement, the applicant delivered to the respondent its plant machinery and equipment for the purpose of manufacturing and production of mining bolts. The lease agreement never came into being and the applicant wants the return of its property. On the other hand the respondent alleges that Aveng, the sister company to the applicant and shareholder to the respondent was in terms of the shareholders agreement supposed to contribute toward the capital of the respondent. The applicant delivered to the respondent the plant machinery and equipment as Aveng’s contribution to the capital of respondent in line with the shareholder’s agreement.The question is why did the applicant give the machinery and equipment to the respondent? Did the applicant surrender its machinery and equipment to the respondent in anticipation of a lease agreement or it did so as a contribution on behalf of Aveng as a capital contribution. The parties are at loggerheads on this and can only be untied through viva voce evidence in a trial.The court is alive of the need to take a robust approach in application proceedings which aims to avoid unnecessary delays and costs associated with formal trials. However, such an approach can only be resorted to if it does not cause injustice to either party. In casu, the disputed facts are central to the case and their resolution requires hearing oral evidence. I do not think this is a proper case where a robust approach, applied judiciously, can ensure fairness and accuracy in the outcome. The applicant must have foreseen this dispute of fact before making a choice to proceed by way of application. It did so at its own risk. Conclusion There are material disputes of fact which cannot be resolved on paper. The preliminary point is bound to succeed. The proper course is to dismiss this application. Disposition The preliminary point that there are material disputes of fact be and is hereby upheld.The application is hereby dismissed with costs. Manzunzu J: …………………………………………. DLS Attorneys, the applicant’s legal practitioners Beramasamba, 1st respondent’s legal practitioners 4 HH 408 - 25 HCH 550/25 4 HH 408 - 25 HCH 550/25 REINFORCED STEEL CONTRACTORS ZIMBABWE (PRIVATE) LIMITED versus MINE SUPPORT SOLUTIONS (PRIVATE) LIMITED and THE SHERIFF FOR ZIMBABWE HIGH COURT OF ZIMBABWE MANZUNZU J HARARE, 25 June & 8 July 2025 Court Application – Preliminary Point R Mabwe, for the applicant J V Mushunje, for the respondent MANZUNZU J: INTRODUCTION This court application was brought as an urgent application before it was ruled not urgent. It then proceeded as an ordinary application. The applicant seeks a final order in the form of an interdict in the following terms: that; “The 1st Respondents retention of the Applicant’s plant machinery and equipment listed in Annexure H be and is hereby declared to be unlawful. The 1st respondent be and is hereby ordered to return the plant machinery and equipment listed in the attached schedule, Annexure H located the Mines Support Solutions Factory being Stand Number 7402, Turf Ngezi to the applicant within twenty-four hours (24) of granting of this order. In the event of non-compliance with paragraphs 2 above, the Sheriff or his lawful assistant be and is hereby authorised within twenty-four (24) Hours of this order being granted to take possession of the plant machinery and equipment listed in the attached schedule, Annexure H, situate Mines Support Solutions Factory located at stand Number 7402, Taurf Town, Ngezi or wherever it is located and return to the Applicant or alternatively. The applicant be and is hereby ordered to uplift disconnected the plant machinery and equipment listed in the attached schedule Annexure H located the Mines Support Solutions Factory being stand number 7402, Turf Town, Ngezi to the Applicant within twenty (24) hours of the granting of this order. The 1st respondent shall pay Applicant’s costs of suit on the higher scale of attorney and client.” The application is opposed by the first respondent (hereinafter referred to as “the respondent”) who has raised a preliminary point that there are material disputes of fact, and to that end, prays for the dismissal of the application with costs. This is the judgment to resolve the preliminary point. Material Dispute Of Fact - The Law In Zerere v Earthwales Private Limited & Another HH 26/24 this court highlighted on what amounts to material disputes of fact in a case, when it stated: “Several authorities have settled what amounts to material disputes of fact in a case. It arises when the court is faced with two conflicting stories, which in the absence of further oral evidence, the court cannot decide where the truth lies. The court is put in a position where it will say, ‘it is not safe to decide for either side unless more evidence is led” In the celebrated case of Supa Plant Investments Pvt Ltd v Chidavaenzi 2009 (2) ZLR 132 (H) at 136 F-G the court remarked; “A material dispute of fact arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.” (emphasis is mine) Furthermore, the Supreme Court in Riozim Private Limited v Falcon Resources Private Limited & Anor SC 28/22 the court held that: “In this regard, the mere allegation of a possible dispute of fact is not conclusive of its existence. From the decided cases, it is evident that a dispute of fact arises where the court is left in a state of reasonable doubt as to which course to take in resolving the matter without further evidence being led.” (emphasis is mine) The Supreme court in Riozim Private Limited case (supra) also cited with approval the United States Court of Appeals case of Pignons S.A. de Mecanique de Precision v Polaroid Corporation 657 F 2d 482, where the court stated that, “A factual dispute is material if it affects the outcome of the litigation and genuine if manifested by substantial evidence going beyond the allegations of the complaint.” The factual dispute to qualify as a material dispute of fact must be; material affect the outcome of the case must leave the court in a state of reasonable doubt as to which course to take must leave the court with no ready answer the matter cries for more evidence Applicant’s Case The applicant alleges that, around June 2022, the applicant and the respondent intended to enter into an operating lease agreement under which the applicant would lease its plant, machinery, and equipment to the respondent for the manufacture and production of mining bolts. The applicant as a result, delivered its fully functional and operational plant, machinery and equipment to the respondent’s factory in Ngezi between December 2022 and June 2023. The proposed commencement date of the lease was the 1st of July 2023. The respondent failed, refused and neglected to sign the proposed operation lease agreement despite numerous requests by the applicant. On the 11th of December 2024 the applicant and the respondent agreed that the applicant could uplift its equipment from the first respondent’s factory. The applicant attempted to collect their equipment from the respondent’s factory on the 12th of December 2024 and were denied access. On the 16th of January 2025, the applicants wrote a letter of demand informing the respondent that it would uplift its equipment on or before the 22nd of January 2025. Thereafter correspondence ensued between the parties yielding no positive results, hence the present application. In the answering affidavit, the applicant denies that the respondent has any legal basis to hold on to the plant machinery and equipment. Without recognizing the relevance of the shareholder’s agreement as stated by the respondent, the applicant alleges the agreement’s capitalisation was never fulfilled. It was agreed the applicant’s machinery and equipment would be leased. Respondent’s Case Aveng Zimbabwe (Private) Limited (Aveng) is the applicant’s affiliate company and have the exact same shareholders as the applicant. In August 2019 the respondent’s shareholders being Grindale Engineering (Private) Limited (Grindale), Aveng, and Zimplants Enterprises (Private) Limited (Zimplants) entered into shareholders agreement regarding the governance of the respondent. The agreement was preceded by an approved business model. In terms of the business model and shareholder’s agreement each party was to provide a designated amount of money to capitalize the operations of the respondent. Aveng was to provide USD562 248.00 in capital. The capital contribution was then provided by the applicant albeit in the form of equipment and machinery which is now the centre of dispute. Grindale and Zimplants were to inject their capital contribution in the form of money. The respondent alleges that the draft of an operating lease agreement was not signed as differences arose between the applicant and the respondent, on issues pertaining to the value of the equipment, the rentals payable for the lease equipment and the shareholder resolution for the execution of the lease. The respondent contends that the email written by the chairman of the respondent approving the removal of the equipment is null and void as it does not constitute a resolution binding the shareholders and the board as is set out in the shareholders agreement. Analysis The alleged dispute of fact in this matter is that, in anticipation of signing an operating lease agreement, the applicant delivered to the respondent its plant machinery and equipment for the purpose of manufacturing and production of mining bolts. The lease agreement never came into being and the applicant wants the return of its property. On the other hand the respondent alleges that Aveng, the sister company to the applicant and shareholder to the respondent was in terms of the shareholders agreement supposed to contribute toward the capital of the respondent. The applicant delivered to the respondent the plant machinery and equipment as Aveng’s contribution to the capital of respondent in line with the shareholder’s agreement. The question is why did the applicant give the machinery and equipment to the respondent? Did the applicant surrender its machinery and equipment to the respondent in anticipation of a lease agreement or it did so as a contribution on behalf of Aveng as a capital contribution. The parties are at loggerheads on this and can only be untied through viva voce evidence in a trial. The court is alive of the need to take a robust approach in application proceedings which aims to avoid unnecessary delays and costs associated with formal trials. However, such an approach can only be resorted to if it does not cause injustice to either party. In casu, the disputed facts are central to the case and their resolution requires hearing oral evidence. I do not think this is a proper case where a robust approach, applied judiciously, can ensure fairness and accuracy in the outcome. The applicant must have foreseen this dispute of fact before making a choice to proceed by way of application. It did so at its own risk. Conclusion There are material disputes of fact which cannot be resolved on paper. The preliminary point is bound to succeed. The proper course is to dismiss this application. Disposition The preliminary point that there are material disputes of fact be and is hereby upheld. The application is hereby dismissed with costs. Manzunzu J: …………………………………………. DLS Attorneys, the applicant’s legal practitioners Beramasamba, 1st respondent’s legal practitioners