MAFUSIRE J: The applicant
was a mining syndicate. It was involved in gold mining and prospecting. In this
application it sought several remedies against the first respondent in her
official capacity. These were in respect of a certain gold mining block,
Coronation 5, somewhere in Masvingo Province. The first respondent was the
provincial mining director.
The second respondent was
also a mining syndicate. The orders sought by the applicant against the first
respondent would materially affect it.
Sticking nearly as close
as possible to the applicant's own wording in the draft order, the several remedies
sought by the applicant against the first respondent and which would materially
affect the second respondent, were these:
1
that
the first respondent should issue the applicant with a certificate of
registration over Coronation 5 Gold Block;
2
that
the second respondent, and all those claiming occupation through it, or all
those people working on that site, should vacate;
3
that
the deputy sheriff [sic] should give
effect to paragraph 2 above;
4
that
the police commander [sic] for Masvingo
District [sic] should render
assistance to the deputy sheriff as he gives effect to the order.
Coronation 5 Gold Block
was at all materially times “owned” by the second respondent. The basis of the
applicant's claims above, in my own words, as I understood the argument, was that,
in spite of the first respondent having forfeited it; in spite of the first
respondent having allocated it to the applicant; in spite of the applicant
having paid the requisite registration fee as calculated by the first respondent
herself, and despite demand, the first respondent was, without just cause,
refusing to issue the applicant with the necessary registration certificate,
and that opportunists had converged on the mine to carry out illegal mining activities
there, to the prejudice of the applicant.
The background facts were
largely common cause. The second respondent was the registered holder of the
mining certificate over Coronation 5 Gold Block since 1986. However, on 14
September 2016, i.e. 30 years later, the first respondent forfeited, or
purported to forfeit it. This was in terms of a forfeiture notice that affected
a staggering 385 other locations. Following the forfeiture, the affected sites
would be open for relocation to third parties. The forfeiture notice said the
relocation would start from 18 October 2016. On 27 October 2016, the applicant paid
the registration fee for Coronation 5. On 2 November 2016 the first respondent
invited it to send its surveyors for pegs verification on the site. However,
the first respondent postponed the exercise. The applicant said the first
respondent kept prevaricating until the verification exercise failed to take
place altogether.
Fed up by the first
respondent's conduct, the applicant's lawyers wrote a letter of demand on 9
November 2016. On the premise that it had acquired the mining rights over the
block, the letter demanded that the first respondent should stop the illegal
mining activity at the site and expel all the culprits thereat. It was also
demanded that the first respondent should attend to the inspection of the
applicant's pegs at the site and issue the applicant with a certificate of
registration.
The first respondent did
not respond.
On 24 November 2016 the
applicant filed the present application to seek the above remedies. Its
argument was basically that having paid the requisite fee at the instance of
the first respondent, it was entitled to be issued with the registration
certificate.
The first respondent
opposed the application on the substantive basis that it could no longer
proceed with the pegs verification exercise, let alone registering the block in
favour of the applicant, because her purported forfeiture and relocation of the
mine had been challenged by the second respondent, and that the matter was
still to be considered. Although in the heads of argument and oral submissions
the first respondent raised several other technical objections, this remained her
dominant ground of opposition.
The second respondent
also opposed the application, also on the same substantive basis as that by the
first respondent. It went on to provide more details on the respects in which
it considered the forfeiture notice and purported relocation of the mine to the
applicant to be null and void. Basically, it was said the purported forfeiture
notice had been issued in terms of the wrong section of the Mines and Minerals
Act, Cap 21:05 [“the Act”]; that the
mandatory time limits prescribed by the Act in terms of which a mining location
can be relocated after forfeiture, and the period allowed for objections thereto,
had not been observed.
The second respondent
filed its objection with the first respondent on 28 October 2016, that is, some
10 days after the expiry of the date given in the forfeiture notice as the date
after which the relocations could be made. This was less than a day after the
applicant had paid for the registration certificate. The reason for this detail
shall soon become apparent, especially given that during argument, the
applicant sought to amend its draft order in midstream.
Originally, the second
respondent was a syndicate of six individuals. Four had died, including one
Lawrence Nyakutsikwa [“Lawrence”]. He had died more than
twenty years before. In this application, the opposing affidavit for the second
respondent was by Lawrence's son and heir to the estate, one Lovemore
Nyakutsikwa [“Lovemore”].
At the hearing, Mrs Dzitiro, for the applicant, took a point
in limine. She argued that Lovemore
was not qualified to speak on behalf of the syndicate, especially given that
there were still two other members surviving. She said these had been served
with the application but that they had chosen not to file any opposing papers.
As such, there was no proper opposition before the court by the second
respondent.
In counter, Mr Ndlovu, for the second respondent, first
complained about being ambushed on this point as the applicant had neither
raised it in its answering affidavit, nor referred to it in its main heads of
argument. He said the applicant had only raised it for the first time in its
supplementary heads of argument. These were filed a mere two court days before
the hearing.
Mrs Dzitiro said since it was a legal point, the applicant could raise
it at any time.
Mr Ndlovu referred to s 61 of the Act, particularly subsection [2] thereof.
It provides that when two or more persons are registered as joint holders of a
mining location, each and every such person shall be jointly and severally
responsible for every obligation and liability attaching to the registered
holder of such location.
Mr Ndlovu's point was that in as much as the obligations and
liabilities attach jointly and severally to joint holders of a mining location,
profits and benefits accrue to them in the same way. He argued that Lovemore,
as heir, could legitimately stand in his late father's shoes and claim, or
protect, what was due to the estate.
Mrs Dzitiro rejected the notion that where responsibilities and
liabilities are said to attach to members of an entity jointly and severally, it
is the same with regards to the benefits or accruals due to that entity. She
maintained that Lovemore could well represent and protect the interests of his
late father's estate as heir, but that in no way could he represent the
syndicate, especially given that its two original members were still alive.
With respect, the
parties' arguments on this point were more heat than light. Neither side cited
any authorities for their diametrically opposed views, or referred me to any
other principle or philosophy that would show that where an enactment provides,
as s 61 of the Act does, that if joint members of an entity are jointly and
severally liable for the debts or liabilities of that entity, their right to
the accruals or profits of the entity is [or is not] joint and several, in the
sense that a payment to one is [or is not] a payment to all. Mrs Dzitiro submitted that the right cannot
be joint and several, as Mr Ndlovu
said it was, because if, for example, the applicant won the case with costs, it
could not recover against Lovemore.
But I failed to
understand why Mrs Dzitiro was saying
that. The concept of liability that is joint and several is such that the
creditor is not obliged to split the debt equitably, or pro rata, between the
debtors. Each is liable to the creditor to the full extent of the debt. It is
up to the one that pays to seek reimbursement from the others to the extent of
their respective portions. So, to Mrs Dzitiro's
example, if the applicant won the case with costs, and if Lovemore was deemed a
member of the second respondent's syndicate through his being the heir of his
late father's estate, then he would be liable for those costs jointly and
severally with the other members.
None of the parties
answered satisfactorily the query that I repeatedly raised during argument,
namely, whether these so-called syndicates are corporate bodies whose corporate
status would ordinarily remain unaffected by changes in their membership. None
of them shed any light on how, as syndicates, they were constituted. Mrs Dzitiro said they were not corporate bodies
and that, at any rate, the wording of s 61 aforesaid militated against such a
construction. However, this was despite the fact that in its own founding
affidavit, the applicant described itself as “… a body corporate / universitas …”
I reserved judgment on
the point in limine and opted to hear
the merits.
Mr Mutomba, for the first respondent also raised numerous
inter-related preliminary objections. He argued that, in my own words as I
understood him, the remedies sought by the applicant were incompetent because
this court was being asked to usurp the functions of the first respondent, an
administrative functionary as envisaged by the Administrative Justice Act, Cap 10:28. The first respondent also
argued that the applicant could not seek an order of eviction because it had
not yet acquired any rights over the location in question. Finally, it argued that
the police could not competently be ordered to execute civil orders as that is
a function reposed in the Sheriff in terms of the High Court Act, Cap 7:06.
As the first respondent's
so-called points in limine were
effectively, or substantially, the very same issues for determination on the
merits, I directed the parties to argue the merits. Afterwards I also reserved
judgment. This now is my judgment, starting with the point in limine on Lovemore's capacity to represent the second
respondent.
The law says he who
alleges must prove. It was the applicant that said, in spite of his being the
heir to the estate of his late father, who himself had been a member of the
syndicate, Lovemore was not qualified to stand for, and or speak on behalf of
the second respondent's syndicate. The onus was on it. It has not discharged
it.
The applicant described
itself as a body corporate / universitas.
But no incorporation document was produced. The mere coming together of a group
of people, or gang, for some commercial purpose such as mining, does not
automatically transform it into a body corporate. In casu, there was nothing placed before me, either by way of documents
or cogent argument, to show why Lovemore was disbarred from representing
Lawrence's interest in the syndicate that had devolved to him by intestate succession.
At any rate, in the
opposing affidavit, Lovemore did not say he was representing the second respondent.
He said he was the heir to Lawrence's estate and that he had the authority to respond
to the application.
In the circumstances, the
applicant's point in limine is hereby
dismissed.
On the merits, the entire
application was a huge misconception. It was a gloss. The applicant sued over
non-existent rights.
From the cover, the
application was allegedly a complaint in terms of s 345 of the Act. But this
was neither here nor there. Section 345[1] gives this court the original
jurisdiction in every civil matter, complaint or dispute arising under the Act,
unless the parties have agreed, or this court has decided, to refer the matter
to the mining commissioner in the first instance.
Part IV of the Act
provides for the acquisition and registration of mining rights. Among other
things, if certain procedures have been complied with, s 45 provides for the
registration of a mining location. In terms of it, one applies to the mining
commissioner. One must pay the prescribed fee. One must also submit a litany of
documents. The application may be granted or rejected. There is nowhere in that
provision, or any other, that says that the mere payment of an application fee
for registration automatically confers rights of ownership or leasehold, or any
other entitlement on the applicant.
The applicant argued that
by being invited for pegs verification after it had already been invoiced for
the registration fee, which it had paid, it shows that the first respondent had
already made a decision to grant its application. But this is a gloss and a
misconception. The payment is one prescribed by the Act. It does not in the
least preclude the mining commissioner from afterwards rejecting an
application. No enforceable rights were created by such payment, except
perhaps, to sue for a refund.
Furthermore, the first
respondent explained why it did not proceed with the applicant's registration.
Within a period of one month of the date set in the first respondent's
forfeiture notice for any possible revocation of the forfeiture, namely 27
September 2016, the second respondent had filed its objection, namely on 28
October 2016 as aforesaid. That date was within ten days of the date when the
forfeited locations could properly be relocated, namely 18 October 2016. A
further nine days later, namely 9 Novembers 2016, the applicant's lawyers wrote
the letter of demand. Before the month was out, the applicant sued, namely on
24 November 2016.
So, in all the
circumstances, quiet apart from the fact that the applicant had not yet
acquired any sort of right to enforce, the first respondent's reason for not
having proceeded with issuing a registration certificate was quite reasonable
under the circumstances.
Virtually all the parties
urged me to peek into the second respondent's objection to the purported forfeiture
of its mine and make a decision on it. The applicant urged me to disregard the
objection as being invalid, allegedly because the purported forfeiture had
properly been carried out in accordance with the provisions of the Act. I was
also asked to rule that the purported objection had been launched outside the
prescribed time limits.
On her part, the first
respondent urged me to take note of the fact that an objection had indeed been
launched, and that therefore she was now enjoined to adjudicate upon it. It was
argued that the applicant's reference to s 266 of the Act as being the
provision dealing with the power of the mining commissioner to relocate the mining
locations belonging to estates of deceased persons was misplaced because that
was not the issue before the court.
On its part, the second
respondent urged me to consider that the reasons proffered by it in its notice
of objection were valid. It was argued that the first respondent had cited
non-existent provisions in its purported forfeiture notice. Furthermore, she
had given an insufficient period for objections.
With all due respect, the
issue whether the first respondent's purported forfeiture of the second
respondent's mining location was, or was not valid, was not before me. It could
not have been before me before the first respondent herself had adjudicated
upon it. For the parties to urge me to consider it was to jump the gun.
From s 345 of the Act
onwards, the mining commissioner is given wide powers to resolve all kinds of
mining disputes. The issue whether or not the second respondent's objection was
valid fell squarely within the scope of disputes the mining commissioner is
clothed with the necessary jurisdiction.
Mrs Dzitiro did not agree. She said because in s 345[1] this court is
reposed with the original jurisdiction over any dispute arising under the Act,
and that because as a court of justice it does not have to wait for an
irregularity to play out before it can intervene, it meant there was no need for
waiting for the first respondent to consider the second respondent's objection
to the purported forfeiture when I could examine for myself the nature and
manner of the objection and easily see that it was a nullity.
Mrs Dzitiro's argument was ill-conceived. Section 345[1] of the Act
reads:
“Except where otherwise provided in
this Act, or except where both the complainant and defendant have agreed in
writing that the complaint or dispute shall be investigated and decided by the
mining commissioner in the first instance, the High Court shall have and
exercise original jurisdiction in every civil matter, complaint or dispute
arising under this Act and if in the course of any proceeding and if it appears
expedient and necessary to the Court to refer any matter to a mining
commissioner for investigation and report, the Court may make an order to that
effect.”
Even accepting that this
court has the original jurisdiction as urged upon me by the applicant, this
section does not say this court can commandeer proceedings that are already
under way within the mining commissioner's structures and finish them off itself.
The dispute as to whether the first respondent's forfeiture of the second
respondent's location, or whether the second respondent's subsequent objection thereto
were valid or not are matters properly pending before the first respondent. No
case has been made out why this court should intervene and interfere with them
before they have been determined.
In the course of
argument, Mrs Dzitiro evidently
realised the futility of the applicant's case. She changed tack. At first she
sought an alternative order, without abandoning the original one. The new order
would be that, within sixty [60] days, the first respondent should be ordered
and directed to attend to the verification and inspection of the applicant's
pegs at the location, as well as consider the applicant's application for
mining rights. When I intimated that the original remedies and the alternative
ones seemed mutually exclusive, Mrs Dzitiro
was initially adamant that she wanted it that way. Eventually, she completely
abandoned the original orders and threw all her weight on the new ones.
Plainly, the applicant's
case had not been thought through properly right from the beginning.
In order for me to
determine the applicant's new claim, it was necessary, at the very least, to
prove that there had been an inordinate delay by the first respondent in
resolving the matter. No such averment existed in the body of the application.
That simply had not been the focus of the original complaint. Thus, no basis
for such a relief had been laid out anywhere. The period of sixty days was just
a thumb-suck.
Furthermore, and at any
rate, Mrs Dzitiro was constrained to
argue convincingly that the paltry fifteen days between her letter of demand,
on 9 November 2016, to when she launched the application, 24 November 2016,
could, in all seriousness, be described as an unreasonable or inordinate delay.
It was also not possible to argue convincingly that the less than one month
period from the date when the second respondent launched its objection, on 28
October 2016, to the date of filing of the application, 24 November 2016, was
an unreasonable delay. The applicant had just been rash in all its dealings.
Mrs Dzitiro changed tack further. She insisted that the period to
consider should be from when the objection was launched with the first
respondent, 28 October 2016, to when I heard the application, 30 May 2017, i.e.
about five months. With due respect, that was just being garrulous. There could
be no substance in that argument. No such case had been laid out in the
application. None of the parties had dealt with the fate of the second
respondent's objection after the launch of this application. Nothing was laid
out before me to enable a decision to be made on the point. There was no
indication how much time would ordinarily be required for such objections to be
dealt with. Even if the period beyond the filing of the application could
properly be considered, still there was nothing to suggest that five months was
a reasonable, or an unreasonable delay. There was no yardstick given or
suggested by which to measure the reasonableness, or unreasonableness. It was
all a dog's breakfast.
The application lacks merit.
It is hereby dismissed with costs.
21 June 2017
Mutumbwa Mugabe
& Partners,
applicant's legal practitioners
Civil Division of
the Attorney-General's Office, first respondent's legal practitioners
Ndlovu & Hwacha, second respondent's
legal practitioners
