KAMOCHA J: The background information in this matter may be surmised as
follows:
The first respondent Brighton Nyamucho entered into a tribute agreement with Anatoth
Mining (Pvt) Ltd – the applicant on 15 June 2012 in terms of which applicant
leased respondent's mining claims in Gweru district being Panorama 191, 193, 22
and 207.
The tribute agreement was for a period of three years with applicant having the
right to renew it for a further three year period until 14 June, 2018
In terms of section 13 of the tribute agreement the grantor gave the tribute
the option to purchase the tribute mining claims during the tribute period.
Despite the option to buy given to the applicant in the tribute agreement the
first respondent proceeded to sell the tribute mining claims to the second
respondent on 24 July 2012 without the knowledge of the applicant who had, by
that time, submitted the tribute agreement to the Gweru Mining Commissioner for
approval in terms of section 284 of the Mines and Minerals Act [Chapter 21:05]
– 'the Act” and had also paid $38 200 inspection fees.
The purported second sale was not submitted to the Mining Commissioner for his
examination and approval.
Neither was it registered and transferred into the name of second respondent by
the Mining Commissioner in terms of section 275 (7) of the Act.
On 30 July, 2012 first respondent wrote a letter to the applicant purportedly
to cancel the tribute agreement with the applicant. The purported
cancellation was, however, contrary to the provisions of clause 10 of the
tribute agreement between the parties which provides:-
“(1)
should the Tributor commit any breach of the conditions of this agreement the
grantor may make immediate demand upon the Tributor to rectify any such breach
within 7 days from the date of demand and should the Tributor fail so to
rectify that breach of agreement then and in such case the grantor shall have
the right to terminate this agreement by giving one month's notice in writing
to that effect to the tributor subject to such determination not in any way
affecting any claim grantor (sic) in respect of such breach.”
The first respondent completely ignored the above provisions for reasons only
known to himself.
While conceding that there was no evidence to show that the second respondent
was mala fide when it purchased the said claims it was submitted by
the applicant's counsel that second respondent had not been diligent because if
it had been, it would have found out that there was a registered tribute
agreement in force which had a right of first refusal clause in it.
Mr Mashanyare representing the second respondent correctly conceded,
in my view, that the sale between first and second respondents was not
completed. He, however, suggested that it was at an advanced stage of
completion. The simple fact is that it was not complete that is why
transfer and delivery had not been effected. Further the second
respondent had not even taken occupation. The applicant was still in
occupation.
The balance of convenience favours the applicant which had thus far incurred
expenses in excess of $70 000 on the claims and had filed proof of
expenses. The second respondent had incurred expenses in the sum of $17
000 only.
The first respondent has filed an affidavit wherein he consented to the order
sought by applicant and undertook to refund the second respondent what he had
paid for the claims and compensate whatever expenses it incurred pursuant to
their purported agreement.
The second respondent refused to accept that and maintained that he was the new
owner of the claims. His assertion was erroneous. He was not the
new owner as transfer and delivery had not been effected in his favour.
Costs
The applicant submitted that this was a proper case to award punitive costs
against the losing parties. The first defendant although he has had a
change of heart he is the one who caused all the trouble. He knew he had
entered into a tribute agreement with applicant on 15 June 2012 and yet
purported to sale the same mining claims on 24 July 2012 to the 2nd
respondent. He knew the first sale had a first refusal clause. He
was clearly dishonest. He deserves to pay punitive costs.
The second respondent went wrong by taking the law into his own hands and
resorted to self help. That cannot be countenanced by this court which
shall show its displeasure by an award of punitive costs against him.
The parties agreed at the commencement of the hearing that the decision in this
particular case number HC 2818/12 will dispose of case in number HC 2817/12.
Accordingly, it is ordered that the application in case No. HC 2818/12 be and
is hereby granted in terms of the draft as amended and the one in case No. HC
2817/12 automatically falls away.
Wilmot & Bennet, applicant's legal practitioners
Garikayi
& Company, 2nd respondent's legal practitioners
