The
applicant is the holder of 4 gireef mining claims known as Unit 2
Mine, registration number 22287, in Kwekwe, originally registered on
5 January 1998 but transferred to the applicant by Certificate of
Registration After Transfer number 20928 of 14 January 2001. Since
then it has been extracting gold deposits from those claims and has
also installed a stamp mill on the block which processes gold ore
obtained from the mine and from another mining claim known as Naitwch
12180 located elsewhere.
The
first respondent is said to be a former part-time employee of the
applicant who turned round in 2012 and pegged a block adjacent to
that of the applicant, namely number 28895, from where she has made
forays onto the applicant's claims causing havoc and generally
constituting a perennial irritant.
According
to Lovemore Kasipo, a Director of the applicant, who deposed to the
founding affidavit in support of this application, when the first
respondent encroached onto the applicant's claims in 2012, sunk a
mining shaft and commenced mining activities on those claims, the
matter was referred to the Mining Commissioner for adjudication. The
latter resolved the dispute in favour of the applicant by letter to
the parties dated 4 June 2012 to wit;
“REF:
PEGGING DISPUTE KAS FOODS VS G. MOYO 22287 UNIT 2 AND 28895 UNIT
The
above refers. Addresses be advised that according to this office
observation, as extrapolated from the co-ordinates taken on 24 April
2012, the shaft where Gladys Moyo's employees were working falls
within 22287 Unit 2. In terms of the Mines and Minerals Act [Chapter
21:05],section 117, Kas Foods has priority of mining rights over G.
Moyo as Kas Foods P/L were the prior pegger and Moyo the subsequent
pegger. G. Moyo should therefore stop working the shaft and not to
interfere with Kas Foods operations. OIC CID Minerals is advised by a
copy of this letter of the above decision.
W.
M. Dube
Mining
Commissioner.”
Following
that determination, the first respondent is said to have capitulated.
She closed her offending mine shaft with rubble and ceased
operations. That must have been a tactical retreat because the
applicant complains that she returned, in March 2016, with added
vigor. With employees on tow, the first respondent is said to have
re-opened the closed shaft and resumed mining operations.
A
letter of complaint addressed by the applicant's legal
practitioners on 15 March 2016 to the second respondent and copied to
her may have assisted in bringing her to her senses again because she
apparently responded by cessation of operations. Again, this was a
pyrrhic victory for the applicant because the first respondent
returned on 15 May 2016 in a mean mood and determined to be a law
unto herself. With a fifteen men strong squad she is said to have
invaded the applicant's mining claim armed to the teeth with axes
and machetes. They chased away the applicant's employees and closed
the applicant's mining shafts with rubble - burying tools and
equipment underground. Five tonnes of gold ore in those shafts was
not spared either.
Ironically,
and perhaps intending to cover up the unlawful conduct, the first
respondent allegedly proceeded to lay charges of violence against the
applicant's employees resulting in some of them being arrested.
Since then, she has been bragging that she has connections in the
police force and that any of the applicant's employees who tries to
stand in her way will be arrested.
That
way, the first respondent has succeeded not only to cow down the
applicant's employees and instill fear in them, she has also
adversely affected mining operations to the prejudice of the
applicant as production levels have plummeted. An approach to the
police has yielded negativity while a report to the second respondent
has only attracted a snail's pace.
Distraught
and devoid of any other sense of solution, the applicant has made
this application seeking to interdict the first respondent from
carrying out mining operations on its claim, from interfering with
its lawful mining operations, and to desist from acts of unbridled
violence they have unleashed at the site….,.
Counsel
for the first respondent
submitted, on the merits, that the applicant has misled the court by
relying on the letter of the Mining Commissioner dated 4 June 2012,
which I have reproduced above, when that letter does not contain the
final determination of the Mining Commissioner. Instead, the latter's
final determination is contained in a letter addressed to the Mining
Commissioner of 2 July 2012 by the Regional Mine Engineer which reads
in part:
“RESULTS
1.
Unit mine, Registration 28895, belongs to Ms G. Moyo and has three
shafts named 1 to 3 all go underground but use Number 2 shaft to go
underground.
2.
Unit 2 mine, registration 22287, belongs to Mr Kasipo has two shafts
named 1 and 2 all go underground.
3.
The old Unit mine i.e. underground workings starts in Unit 2 mine
registration 22287 and extended into the present Unit mine
registration 28895 to 8 level owned by Ms G. Moyo.
4.
If one was to produce line C–F of Unit mine 2 registration 22287 to
meet line B–A of Unit registration 28895 one gets where Beacon B
should be giving the required size and rectangle shape of Unit 2
(co-ordinates Unit 2B- 077984OE, 7902750N).
5.
The survey carried out established that the underground workings in
dispute falls (sic)
under Unit Registration number 28895 claim owned by Ms G. Moyo not in
Unit 2 Registration number 22287 owned by Mr Kasipo.
T.
N T Paskwavaviri
REGIONAL
MINE ENGINEER.”
It
is not clear who commissioned a survey and for what purpose.
I
agree with counsel for the applicant that what the Regional Mine
Engineer was dealing with was underground workings of the parties and
their interpolation as opposed to the offending surface shaft sunk by
the first respondent on the applicant's site which she was ordered
to close by the Mining Commissioner.
Even
if I am wrong in drawing that conclusion, I would still not agree
with counsel for the first respondent
that
the letter of 2 July 2012 is a determination by the Mining
Commissioner which is binding on the parties. For a start, the letter
appears to be an internal correspondence between the engineer and the
Commissioner which was not meant for the parties. In fact, none of
the parties claimed receipt of that document at the time suggesting
that if at all the Mining Commissioner had elected to adopt the
findings of the engineer in resolving a dispute between the parties,
he did not communicate that decision to the parties. They cannot
therefore be bound by what was stored in the mind of that official.
More
importantly, the Mining Commissioner had already made a decision on
the dispute between the parties which he communicated to them by
letter of 4 June 2012. He specifically ordered the first respondent
to close her shaft. What business had he, therefore, on 3 July 2012,
to request the parties to come for another determination?
I
ask the rhetorical question because counsel for the first respondent
produced
a letter dated 3 July 2012, written by the Mining Commissioner,
requesting the parties to come to his office on 9 July 2012 for a
determination. It turns out that the letter in question was not
served on the parties and none of them attended that meeting - again
affirming the assertion that only the determination of 4 June 2012
was communicated to the parties.
In
terms of section 345(1) of the Mines and Minerals Act [Chapter
21:05], where both the complainant and the defendant have agreed, in
writing, that a dispute be investigated and resolved by the Mining
Commissioner in the first instance, the latter shall do so
notwithstanding the original jurisdiction of the High Court. Section
346 of the Mines and Minerals Act [Chapter 21:05] confers upon the
Mining Commissioner judicial power to hold a court in any part of the
mining district to which he is appointed in order to determine a
dispute in the simplest, speediest and cheapest manner possible
(section 353).
See
Rock
Chemical Fillers (Pvt) Ltd v Bridge Resources (Pvt) Ltd and Others
HH339-14.
What
is significant about those provisions is that in resolving a mining
dispute and determining whether there has been any encroachment, the
Mining Commissioner exercises judicial power. To that extent, he is
subject to the usual trappings on the exercise of such power
including the rules of natural justice. In that regard, once the
Mining Commissioner has pronounced himself on a matter, whether he
has commissioned a survey or not, he becomes functus
officio
and cannot revisit the same dispute in order to review his own
decision.
In
the present case, he investigated the complaint and came up with a
decision which he handed down on 4 June 2012. It was therefore no
longer within his power to come up with another decision on 2 July
2012 - he having been functus
officio.
So, even if that decision was his, which it was not, it being that of
the Regional Mine Engineer, it would be invalid for that reason. I
conclude therefore that the decision binding on the parties was that
of the Mining Commissioner communicated to them by letter of 4 June
2012.
Counsel
for the second respondent submitted that they had come to indicate
that the second respondent was not opposed to the order being sought.
She, however, found herself in a quandary when counsel for the first
respondent produced correspondence emanating from the second
respondent's office which appeared contradictory. In light of what
I have said above she need not have been worried at all. There could
only be one binding decision of the Mining Commissioner and it is the
first one made on 4 June 2012.
In
an application of this nature, the applicant is required to establish
the essentials of a temporary interdict, namely;
1.
A prima
facie
right, even though it may be open to some doubt;
2.
A well-grounded apprehension of harm or injury;
3.
The absence of any other ordinary remedy; and
4.
A balance of convenience favouring the grant of an interdict.
See
Charuma
Blasting and Earthmoving Services (Pvt) Ltd v Njainjai and Others
2000 (1) ZLR 85 (S)…,.; Eriksen
Motors (Welkom) Ltd v Proten Motors, Warrenton and Another
1973 (3) SA 685 (A)…,.; Bozimo
Trade and Development Co (Pvt) Ltd v First Merchant Bank of Zimbabwe
Ltd and Others
2000 (1) ZLR 1 (H)…,.
The
applicant has exhibited proof of lawful registration of the mining
claims and also proof that the mining dispute was investigated by the
Mining Commissioner who made findings that the first respondent was
working on a shaft located on pre-existing claims of the applicant.
She was ordered to stop but has allegedly resumed illegal activity.
Therefore a prima
facie
right has been established.
According
to the evidence that has been presented; not only is the first
respondent extracting gold on someone else's claim, itself an
exhaustible resource, she is also interfering with the applicant's
operations in the most despicable and primitive way. She has
proceeded to fill up the applicant's shafts and bury its equipment
underground. That conduct is unlawful and amounts to self-help, but,
even more significant is the harm and injury being caused to the
applicant.
While
the Mining Commissioner has jurisdiction to resolve a mining dispute,
it occurs to me that in the circumstances of this matter, that cannot
be regarded as a suitable course of action. For a start, the
Commissioner has already ruled on the matter which ruling has been
disregarded by the first respondent with impunity. More importantly,
the exigency of the matter calls for urgent action which the
Commissioner appears incapable of.
In
any event, the balance of convenience would seem to favour the grant
of the interdict.
The
first respondent has been banished previously from the site. She
complied, and, therefore, her unlawful return this time around cannot
be said to tilt the scales in her favour. It is the applicant that
has been on site all along. If the first respondent has suddenly
found a basis for taking over, she has to follow lawful means of
dislodging the applicant instead of resorting to self-help which has
created a dangerous situation on the ground.
I
am therefore satisfied that the applicant has made out a case for the
relief that it seeks. Accordingly, the provisional order is granted
in terms of the draft order.
