Summary

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By the time I heard the matter the third term in the interim relief sought cited above had fallen away, the applicants having already instituted the arbitration proceedings on 31 January, 2011 at the International Court of Arbitration in Paris, France.

The present application is opposed both on the question of urgency and on the merits. On the hearing day I restricted the parties' arguments to the issue of urgency.

The bare bones of the dispute are these: Following the conclusion of the Memoranda of Understanding (MOUS) alluded to in relief 1 supra, the first respondent advised the applicants by letter dated 10 November, 2010 of the termination of the MOUS for both platinum and nickel. What can be gleaned from the papers that were filed by first respondent, as the main grounds for terminating the MOUS are that they had lapsed, that they were entered into without the approval of the responsible Minister, hence invalid and that they were tainted with corruption in that the applicants or one of their directors had a corrupt relationship/dealing with Dominic Mubayiwa the erstwhile Chief Executive Officer of the first respondent. On 21 December, 2010 the first respondent reiterated its position regarding the termination of the MOUS in these words, "... The mutual negotiations and meetings do not in any way affect or change our position regarding the cancellation of the MOU. We further reiterate that the chairman never assured you of the reinstatement of MOU as you seem to suggest in your letter. We hope this will put the record straight as has always been our emphasis in our meetings and you will be guided accordingly".

The applicants' need to act on an urgent basis arose on 10 November, 2010 when the MOUS were cancelled by first respondent. They did not. Instead on 22 November, 2010 they demanded that first respondent makes an undertaking "not to attempt to disturb the presently existing legal relationship as established by the MOUS and the rights preceding that relationship and flowing there-from in any way whatsoever, for examples (sic) by alienating any rights to any third party or affecting the Amari Group's rights in any way whatsoever.

If no such undertaking is given pending the negotiations to be undertaken and pending the outcome of the arbitration before the International Court of Arbitration,. .. it would become necessary for an urgent interim interdict to be brought in the appropriate Zimbabwean Court to preserve the Amari Group's rights".

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