KAMOCHA J: In this
matter, the 1st respondent Maphepha Syndicate applied and was
granted an order ex parte by the magistrates' court on 16 October, 2008. The order authorised the Messenger of Court
to proceed and evict the applicant, her employees and any persons claiming
title through her from the mining claim identified in annexure "A" and "B". The Messenger of Court was authorised to
enlist the assistance of members of the Zimbabwe Republic Police Sun Yet Sen if
the need arose.
On receipt of the above magistrate's
order the applicant applied for and was granted a provisional order by this
court on 22 October 2008 wherein the Deputy Sheriff, Gwanda was ordered and
directed to immediately eject Maphepha Syndicate and all those claiming title
through it from the mining claim referred to in annexure "A" and "B" from which
the applicant was evicted 6 days previously i.e. 16 October 2008, and to restore
applicant in possession thereof. The 1st
respondent was then interdicted from interfering with the applicant's
possession of and utilisation of the aforesaid mining claim.
The parties approached me requesting
if I could hear an application for confirming or discharging the provisional
order early. I acceded to the request
and set the matter on the earliest available date i.e. 26 November 2008.
In the final relief the applicant
sought the following order.
"(a) The rule nisi
issued on the 16th October, 2008 in PA 28/08 by the 3rd
respondent be and is hereby set aside and declared a nullity.
(b)
The 1st respondent
be and hereby is interdicted from interfering with the applicant possession of,
and enjoyment of the mining claim set out in annexure "A" and "B" to PA 28/08
unless there is a valid court order to that effect.
(c)
That the 1st
respondent pays the costs of this application on a legal practitioner and
client scale and 2nd and 3rd respondents pay costs of
this application on a legal practitioner and client scale only in the event
that they oppose this application."
The
1st respondent filed a counter application wherein it sought an
order in the following terms:-
"It
is ordered that:-
1.
The applicant and the 1st
respondent herein, together with all those claiming title through them, be and
are hereby interdicted from carrying on any mining operations for gold or other
mineral at the disputed site, until such time as the 2nd respondent
has resolved as to in whose claim the site lies.
2.
Any gold ore already mined at
the site, but not yet removed be left at the site until the resolution of this
current dispute, at which stage its ownership will go to the party with the
right to exploit the site for mining purposes.
3.
The parties, by arrangement and
agreement, be and are hereby allowed to station security guards for the
purposes of ensuring compliance with this court order.
4.
The 1st respondent
be and is hereby ordered to pay the costs of this application if she opposes
it, otherwise each party to meet its own costs".
The
main allegation by the applicant in the main application was that the 1st
respondent had unlawfully ejected her from her mining claim with effect from 16
October 2008. The reason being that the
magistrates' court which granted the eviction order had no jurisdiction to
entertain a claim relating to the ejectment of the applicant from a valuable
mining claim. The magistrates' court
monetary civil jurisdiction was at the relevant time a paltry $50,00 after
revaluation. Quite clearly a mining
claim is worth infinitely far much more than that. The magistrates' court being a creature of
statute should operate within the confines of monetary jurisdiction bestowed on
it by law. See section 11(b)(ii) and
(iii) of the Magistrates' Court Act, [Chapter 7:10].
It
was submitted on behalf of the applicant that what the magistrate had done was
similar to a situation where the magistrate presides over a murder trial and
sentences the accused to death. That
would be clearly wrong and a nullity.
There
is merit in the applicant's contention.
When a magistrates' court does what is not within its jurisdiction, the
result of what it purports to do is void and it is a nullity in law with no
force or effect. No benefit can be
derived from it. It has been repeatedly
stated that it is like trying to build something on nothing and expect it to
stand; it will collapse. See for
instance McFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC).
See
also Mkhize v Swemmer and Others 1967 (1) SA 186 (D) where it was
stated at 197C-D that:
"judicial decisions will ordinarily
stand until set aside by way of appeal or review, but to that rule there are
exceptions, one of them being that, where a decision is given without
jurisdiction, it may be disregarded without the necessity of a formal order
setting it aside."
See also a Zimbabwe case Manning v Manning
1986 (2) ZLR 1 (S) at 3D-F where a village court acted without jurisdiction.
In the light of the foregoing I
hold that the applicant was unlawfully evicted from the mining claim in question
on 16 October 2008.
In
the result the need to consider other issues that were raised by the 1st
respondent does not arise.
As
regards the counter application I find no factual or legal basis for the order
that is being sought. The founding
affidavit falls far too short from meeting the requirement to prove its
case. For instance it is not clear why
the 1st respondent wants the applicant to be interdicted from
carrying on any mining operations for gold on the said mining claim. She has been doing so for years with the
authority of the Mining Commissioner.
She has got a certificate of registration and a letter from the Mining
Commissioner dated 29 June 2005. In the
result the counter application must fail with costs.
Consequently,
the order of this court is this:-
It
is ordered that:-
(a)
the provisional order be and is
hereby confirmed in terms of the draft order; and
(b)
that the counter application be
and is hereby dismissed with costs.
James, Moyo-Majwabu and Nyoni applicant's legal practitioners
Messrs Galen Moyo-Masiye 1st respondent's legal practitioners