After initially reserving its judgment at the end of the hearing in this matter, the court later allowed the appeal and issued the following order;“1. The appeal be and is hereby allowed with costs.2. The judgment of the court a quo be and is hereby set aside and substituted with ...
After initially reserving its judgment at the end of the hearing in this matter, the court later allowed the appeal and issued the following order;
“1. The appeal be and is hereby allowed with costs.
2. The judgment of the court a quo be and is hereby set aside and substituted with the following:
(1) The first respondent and all persons claiming occupation rights, title and interest through him, shall remove or cause the removal of themselves and all such persons occupying the mining claim, Tigress, held under registration number 10098BM and as identified by the second respondent.
(2) Failing such removal, the Sheriff of Zimbabwe be and is hereby authorised and directed to evict the first respondent and all those claiming occupation, rights, title and interest through and under him from mining claim being Tigress number 100098BM as identified by the second respondent.
(3) The first respondent and all those claiming with or through him are barred from carrying out any mining activities on the mining claim Tigress registration number 10098BM.
(4) The first respondent is ordered to pay the costs of suit on an attorney and client scale.”
The court indicated that full reasons for the judgment would follow in due course. These are they.
This appeal is against the entire decision of the High Court handed down on 31 March 2022 in which the court dismissed the appellant's application for a spoliation order against the respondents.
FACTUAL BACKGROUND
The appellant and the first respondent have engaged in a litany of disputes in the court a quo, all related to their respective entitlements to the mining claims that they operate on. The two mining claims are situate in Insiza District, Matebeleland South and are adjacent to each other. The appellant is the holder of mining claims known as Tigress, while the first respondent has been conducting mining operations on claims known as Lion West 25.
Sometime in 2021, a boundary dispute arose between the appellant and the first respondent.
The former alleged that the latter had encroached onto its mining location and proceeded to mine gold ore, thereby depleting the finite resource on its mine. At the time that the boundary dispute arose, the first respondent had amassed a substantial amount of gold ore which was stockpiled on the part of the appellant's claim that he was accused of encroaching onto.
In disputing the allegations of encroachment onto the appellant's claim, the first respondent insisted that he had been carrying out mining operations on his mining claim, that is Lion West 25, for the past 17 years without interruption and that no encroachment had taken place.
On 8 March 2021, the second respondent (Provincial Mining Director, Matebeleland South) wrote to the parties to the effect that after attending at the disputed claims to ascertain the co-ordinates of the parties mining claims, as ordered by the High Court at the instance of the appellant (HC276/21), his finding was that the first respondent had indeed encroached onto the appellant's mining claim.
The second respondent went on to direct the first respondent to vacate the appellant's claim and revert to his own coordinates.
The latter did not comply, prompting the appellant to later on request the second respondent's intervention.
The second respondent subsequently advised the appellant of his failure to prevail upon the first respondent to vacate the part of the appellant's claim that he had encroached onto. He consequently suggested that the appellant could seek an interdict against the first respondent, from the court a quo, since the court was already seized with the matter.
It is pertinent to note that both the appellant and the first respondent attended at the mining claims together with the second respondent, in compliance with the order of the court.
An interdict sought by the appellant was subsequently granted against the first respondent under case number HC884/21. This was after the first respondent, who had consented to the provisional order sought against him, failed to oppose the confirmation of the final order interdicting him from further encroaching onto the appellant's claim.
Faced with imminent eviction from the appellant's claim, the first respondent sought to have the interdict rescinded but later withdrew the application. This circumstance led to the enforcement of a Warrant of Ejectment by the Deputy Sheriff that saw the first respondent being evicted from the part of the appellant's claim onto which the encroachment had taken place.
The appellant submits that this action, conducted by the Deputy Sheriff on 1 February 2022, restored it to its peaceful and undisturbed possession of the disputed part of its claim, as well as the stockpiles of gold ore that the first respondent had 'unlawfully' extracted therefrom.
The appellant further averred, that, on 16 February 2022, the first respondent recruited a mob of about twenty (20) men who forcibly removed it and its workers from the same portion of its mining claim from which the first respondent had been evicted barely two weeks earlier.
It is not disputed that the first respondent, thereafter, and despite the presence of the police to whom the appellant had appealed for assistance, loaded and removed around 400 truckloads of gold ore from the same stockpile that he had left on the disputed part of the appellant's claim upon his earlier eviction therefrom.
The estimation of the quantity of the gold ore carried away by the first respondent was given in a sworn statement deposed to by an eye witness to the event.
The appellant claims that the first respondent thereafter took the gold ore to a stamp mill.
In evicting the appellant and its workers from the same place that he had been evicted from two weeks earlier, the first respondent acted on the strength of a spoliation order granted against persons other than the appellant, on 16 February 2022, in case no HC190/2022.
The appellant's workers, who had earlier been served with a copy of the court order in question, correctly pointed out, firstly, that the order was issued in a matter in which the first respondent had not cited the appellant, but other parties unknown to it, and therefore having no connection to the appellant's claim.
Secondly, that the order related to the first respondent's mining claim Lion West 25, and not Tigress, the appellant's claim from which the first respondent had earlier been evicted.
The appellant submits further, that, the invasion of and eviction of its workers from the disputed part of Tigress, its claim, had been carried out without the assistance of the Deputy Sheriff of Zimbabwe, and so was a case of self-help by the first respondent.
It then emerged, that, unbeknown to the appellant, the first respondent, after being evicted from the appellant's claim, had successfully filed an urgent application for spoliation against parties other than the appellant.
It is also evident from the order in question, that it was granted in default, as those cited as the perpetrators did not appear in court....,.
The first respondent did not articulate a response as to why he had acted on the basis of a court order not issued against the appellant nor concerning its mining claim...,.
