MATHONSI J: These
two applications are inter related. HC
1349/10 is an application for rescission of judgment made by Charles Simbi
(herein after referred to as “the first respondent”) who is the first
respondent in HC 1310/10, an application made by Sabawe Mazuwa (hereinafter
referred to as “the applicant”), who is the respondent in the former case.
On 1 July 2010 the applicant
obtained a default judgment in HC 905/10 which is to the following effect:
“It is ordered that:
- The 1st respondent be
and is hereby ordered to cease the operations at Thunderbird 42 and 21
mine forthwith, pending the hearing of applicant's appeal.
- The 2nd respondent be
and is hereby barred from dealing with the dispute whatsoever other than
for purposes of complying with the orders of this honourable court or his
superiors.
- The 1st respondent
only be and is hereby ordered to pay the costs of suit.”
In order to obtain that order the applicant had made a court
application in which he argued that there was a boundary dispute between
himself and the first respondent which had been referred to the second
respondent for adjudication. He had gone
on to argue that after the second respondent had ruled in favour of the first
respondent on the ownership of the disputed mine shaft, he had lodged an appeal
to the Secretary of Mines against the decision of the second respondent made on
4 March 2010.
As that appeal was still pending
before the Secretary of Mines, he sought an order stopping mining operations at
the disputed mining claim and barring the Mining Commissioner for Gweru from
dealing with the dispute. As the
application was unopposed, I granted the order on 1 July 2010 aforesaid. It is that order which the first respondent
wishes to have rescinded in HC 1349/10.
With the consent of the applicant
and the first respondent on 28 September 2011 I ordered the consolidation of the
two matters and directed that they be heard at the same time on 11 October
2011. This judgment is in respect of the
two applications.
In seeking rescission of judgment
the first respondent stated that when the application in HC 905/10 was served
upon his wife he had been out at his mining claim where he spends his time
during the week. Upon his return home
his wife gave him the papers part of which had been torn by his child. He had a “cursory” look at them and assumed
they were the same documents he had received earlier in respect of another
application that had been filed in this court because they had a striking
resemblance of the earlier court papers especially as there was no case number.
The first respondent stated that he
had ignored the application and it was not until he received the court order I
have referred to above, that he realized his error and rushed to his lawyers
with instructions to file an application for rescission of judgment.
The first respondent went on to say
that the purported appeal against the Mining Commissioner's decision of 4 March
2010 was invalid given that it was noted in the wrong forum, the Secretary of
Mines and Mining Development, instead of being noted in this court as provided
for in section 361 of the Mines and Minerals Act [Chapter 21:05]. If it could be taken as a valid appeal it
would still not automatically suspend the decision of the Mining Commissioner.
Mrs Moyo for the first respondent argued that the default judgment of 1
July 2010 cannot stand because there is, in essence, no appeal pending and that
the filing of HC 1310/10 by the applicant was a clear indication that the
purported appeal had been abandoned.
Indeed in his heads of argument, Mr Murambasvina
for the applicant abandoned the appeal completely saying in paragraph 6:
“this application will not address anymore the propriety or
otherwise of applicant's appeal to the Permanent Secretary of 4th
respondent and the desirability that mining operations should stop pending the
resolution of the dispute.”
In his address to the court Mr Murambasvina submitted that the
determination of HC 1310/10 should resolve the rights of the parties and that
the order of 1 July 2010 in HC 905/10 would be overtaken by events.
In deciding whether an applicant for
rescission of judgment has discharged the onus of proving “good and sufficient”
cause as provided for in Rule 63(2) of the High Court of Zimbabwe Rules 1971,
the court has regard to the reasonableness of the applicant's explanation for
the default; the bona fides of the
application to rescind the judgment; and the bona fides of the defence on the merits of the case which carries
some prospects of success. Barclays Bank of Zimbabwe Ltd v C C International (Pvt) Ltd S-16-86; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (5) at 211C-F.
As stated in Stockill v Griffiths 1992
(1) ZLR 172 (S) at 173F;
“These factors must be considered not only individually but
in conjunction with one another and with the application as a whole.”
In my view the concession made by Mr Murambasvina on the fate of the
purported appeal to the Secretary of Mines was well made. Section 361 of the Act provides:
“Any party who is aggrieved by any decision of a Mining
Commissioner's court under this Act may appeal against such decision to the
High Court, and that court may make such order as it deems fit on such appeal.”
In
casu, no appeal was made to this court.
To the extent that the appeal was purportedly made to the Secretary of
Mines, then it is a monumental nullity.
There is no appeal at all. The
order sought to be rescinded was made pending a non-existent appeal.
While the explanation for the first
respondent's failure to respond to the application in HC 905/10 is what MAKARAU JP (as she then was) referred to in Mwanyisa v Jumbo & Ors HH-3-10 as “a dog's breakfast”, if the factors to
be taken into account in deciding a rescission of judgment application as set
out in Stockill v Griffiths (supra) are taken in
conjunction with one another, the applicant has discharged the onus of proving
“good and sufficient cause” for the rescission of the judgment entered on 1
July 2010. It simply cannot stand.
In HC 1310/10 the applicant made a
climb down on the order that he sought in this court by amending the draft
order remaining only with a prayer for a declaratory order that he is the
registered owner of a mining claim known as Thunderbird 21 in which the
disputed mining shaft falls and that his claim has priority over the claims of
the first respondent which were subsequently registered after his.
This is the same dispute that was
placed before the second respondent. In
order to adjudicate on the dispute, the second respondent commissioned a survey
by the Regional Mining Engineer one C. C. Goremusandu. In pursuance thereof the erstwhile Regional
Mining Engineer compiled a report dated 15 February 2010 which reads in part as
follows:
“RE: PEGGING DISPUTE BETWEEN S.
MAZUWA VS C. SIMBI
INTRODUCTION
The survey of this dispute was requested by the Mining
Commissioner see dated letter 09 February 2010 (i.e. pegging dispute 15/2010)
The actual surveying using the G.P.S was done by the Regional
Mine Surveyor Mr Goremusandu in the presence of the two miners Mr C Simbi for
Thunderbird 42, Mr Mazuwa and Gambe for Thunderbird 45 and 21. The CID Minerals, Shurugwi were unable to be
present because of other work. The
results were plotted by the (RMS) Mr Goremusandu. The plan so produced is divided into three
sections as figure 1 in the survey report sheet, figure 2 as the claims report
sheet and 3a and 3b are the registration sketches.
SURVEY REPORT SHEET (Fig 1)
The plan was prepared using the GPS co-ordinates taken by the
RMS on the 15 February 2010. The plan
was drawn to 1:1000, the plotted two mines are shown as Thunderbird 21 and 45 (Mr
S. Mazuwa) in bold lines and Thunderbird 42 (Mr C. Simbi) in broken lines.
CLAIMS REPORT SHEET (Fig 2)
This is a redirection of a survey report sheet (fig 2). It is drawn to a scale of 1:2 5000m. The purpose of this plan is to be able to
compare these plottings with the registration sketch (fig 3a and 3b). From this we determined the position and
distance from the reference point as described on the registration
certificate. In this case the reference
point in homestead P2340 on Ballock Farm hence Thunderbird 45 is approximately
1,7km south west, Thunderbird 42 is 1km south west and Thunderbird 21 is 0,95km
south west of homestead.
COMMENT
- For Thunderbird 21 and 45 (S.
Mazuwa) the positions on ground are approximately the same on the
registration notice to the GPS coordinates taken by the RMS. Also in Thunderbird 21 the reef have
been mined towards Thunderbird 42 also note that the disputed shaft is on
the common boundary.
- The calculated area on the
registration sketch equals to 21 hectares and the area calculated by the
RMS equals 21,35 hectares. The
difference in area is equal to the common unpegged area that is, the area
between Thunderbird 21 and Thunderbird 42 see fig 3b.
- For Thunderbird 42 C. Simbi the
position differs from Approved Prospector Mr Gambe registration sketch
(Mining Commissioner's plan) and Mr Gambe GPS co-ordinates submitted. Thus it is likely S. Mazuwa shifted
Thunderbird 21 boundaries to include the unpegged area.
- On figure 1 the position marked
X is the disputed shaft which is in Thunderbird 42 (Mr Simbi).
C C Goremusandu
For: REGIONAL MINING ENGINEER”
(The underlining is mine)
That the second respondent acted on the strength of this
survey report in arriving at a decision can be found in his letter dated 15
March 2010 addressed to the Secretary for Mines and Mining Development which
reads in part as follows:
“The writer would like to point out that the survey was
carried out by the Regional Mine Surveyor – Gweru, who produced a report and a
map plan of the disputed area for this office to make a determination of
dispute. The decision was made by
this office based on that report and survey.”
The second respondent determined
that “the disputed shaft falls within Thunderbird 42” thereby liberating the
first respondent to continue mining operations at the shaft. In doing so it is not clear whether he
considered the argument made by the applicant that the first respondent's
Thunderbird 42 was registered much later than his Thunderbird 21 in 2005 when
his was registered in 2001. The
applicant's argument is that the first respondent's claim over-pegged extant
claims belonging to himself.
Whichever way, these are the issues
that have to be determined.
Unfortunately, the second respondent relied upon a survey report which
was later disowned by its author. In an
affidavit deposed to much later on 12 May 2010 Christopher Goremusandu, the
Regional Mining Surveyor for Gweru Mining District, recanted the survey report
relied upon by the second respondent. He
said:
“I submit that indeed I made an error particularly on page 3
of my report paragraph 3. The correct
position and what comment number 3 should is as (sic)
'For Thunderbird 42 C Simbi the position differs from the
Approved Prospector Mr Gambe – registration sketch (Mining Commissioner's plan)
and Mr Gambe GPS coordinates submitted. Thus
it is likely Mr C Simbi shifted Thunderbird 42 boundaries to include the
unpegged area.'
The Regional Mining Surveyor
therefore contradicts himself sharply and yet the decision of the second respondent
was premised upon his findings. Mrs Moyo for the first respondent submitted
that the affidavit was elicited after the second respondent had made a decision
and therefore it must be ignored.
Regrettably I am unable to do
that. The affidavit has come to my
attention and it shows that the Surveyor is one person that cannot be relied
upon. The second respondent determined
the matter on the basis of a survey report which is demonstrably unreliable. It is a principle of our law that an
interested party should be allowed to approach the court at any time to seek a
declaratory order that an act done on the strength unreliable advice is a
nullity. The courts should be very slow
to turn away a party seeking a declaration of its rights or status.
In BMG Mining (Pvt) Ltd v Mining
Commissioner, Byo Mining District & Ors HB-5-11 at p4 I cited with
approval the pronouncement made by ROBINSON J in Musara v Zinatha 1992(1) ZLR 9 (H) at 13F where
the learned judge said:
“I consider that the same approach should be adopted by the
court in a civil case where, on the papers before it – the more so where those
papers seek a declaratory order – an act of glaring invalidity is, as in this
matter, starring the court straight in the face. For the court to refuse, save in exceptional
circumstances justifying such refusal, to declare the act in question null and
void ab initio on some technical
ground would, I agree, be to ignore the court's fundamental duty to see that
justice is done which, after all is the duty which the layman expects the
courts to discharge.”
That there is a boundary dispute
between the parties in respect of their adjoining mining claims is beyond
doubt. That the said dispute has not
been addressed satisfactorily is pretty obvious from the prevarications of the
Surveyor whose findings were relied upon by the second respondent. I cannot ignore such a glaring injustice.
There is a need to remit the matter
for a proper survey to be carried out by an untainted person to enable the
second respondent to resolve the dispute between the parties.
Regarding costs, this is one of
those rare instances where the success of the parties concerned is evenly
balanced. The applicant has not been
significantly successful as to attract an award of costs in his favour. The same goes for the first respondent. For that reason the loss should lie where it
falls.
In the result I make the following
order that:
- The default judgment entered on
1 July 2010 be and is hereby set aside.
- The first respondent should file
his opposing papers in HC 905/10 within 10 days of the date of this order.
- The decision of the second
respondent contained in his letter of 4 March 2010 to the effect that the
disputed mining shaft falls within Thunderbird 42 is hereby set aside.
- The dispute over ownership of
the mining shaft is remitted to the second respondent for adjudication and
the second respondent should assign another Mining Surveyor, other than
Christopher Goremusandu, to conduct a fresh survey and compile the
requisite report to enable a fair determination of the matter.
- Each party should bear its own
costs.
Messrs I. Murambasvina, applicant's legal practitioners
Jumo Mashoko & Partners c/o Mabhikwa, Hikwa & Nyathi 1st
& 2nd respondents' legal practitioners
