BHUNU
JA: This
is an appeal against the High Court's judgment sitting at Bulawayo.
The judgment granted the first respondent a provisional order
interdicting the appellant and all her employees from conducting all
forms of mining on the five disputed claims pending confirmation of
the provisional order. The order dated 27 April 2017 is couched in
the following terms:
“Interim
relief granted
Pending
the confirmation of the provisional order, the applicant be and is
hereby granted the following relief:
that
all forms of mining activities by the first respondent (appellant)
and anyone in her employ on the five disputed claims be and are
hereby suspended.”
The
disputed 5 claims are:
1.
Legion C under claim no. 10224BM.
2.
Legion D under claim no. 10225BM.
3.
Legion F under claim no. 10226BM.
4.
Legion 13 under claim no.33216PM.
5.
Legion 14 under claim no. 33217PM.
All
the 5 mining claims commonly known as Legion Mine are situated in the
District of Gwanda. It is common cause that the first respondent is
the registered owner of all the 5 claims having obtained transfer of
the claims from Falcon Gold (Private) Limited sometime in 2012. On 20
December 2012 the parties concluded a tribute agreement in which the
respondent granted a tribute to the appellent subject to agreed terms
and conditions.
The
tribute agreement was to endure for a period of 3 years from the
first day of 20 December 2012 to 31 December 2015 subject to renewal
on stipulated terms. Clause 1(b) provided for renewal and
cancellation of the tribute agreement as follows:
“Renewal
The
tributor shall have the right to extend this period of the tribute
for a further period of THREE years after the expiry of the above
period providing he has complied with the terms of this tribute
agreement and providing he gives notice of such intention to the
Grantor as follows:
At
least three months prior to 31 December 2015 (termination of the
first period) the Tribute shall give written Notice to the Grantor
stating whether he wishes to relinquish his Tribute at the end of the
first period or to exercise his right to Extend the Tribute Agreement
for the further period stated.
Cancellation
of Agreement by Grantor
It
is expressly agreed that, if
at
any time during the initial period or any subsequent renewal of this
agreement, the Grantor desires to commence prospecting or mining over
the mining claims, he may cancel this agreement by written notice to
the Tributor of not less than Six months.”
Clause
10 of the Agreement provided for breach of contract as follows:
“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 seven days from the date of demand and should
the tributor fail to rectify such breach of agreement, then and in
such case the grantor shall have the right to terminate this
agreement by giving one month's notice to that effect to the
Tributor subject to such determination not in any way affecting any
claim for damages sustained by the Grantor in respect of such
breach”.
The
appellant did not exercise her option to renew the Tribute in terms
of clause 1(b) of the agreement despite a written offer to renew the
Tribute by 31 December 2015. That date came and passed without the
appellant accepting the offer. Notwithstanding the non-renewal, the
appellant continued to mine the claims illegally without contract.
The appellant's continued unlawful conduct in this respect prompted
the respondent to write to her on 6 October 2016 demanding vacant
possession of the mining claims. The letter reads:
“Mrs
Siphiwe Dube
NOTICE
OF TERMINATION OF OPERATIONS AT LEGION MINE
We
have been in discussion with you for several times with regards to
you signing the tribute agreement and in respect of same without
success. The Board has finally decided to part ways with you. And
pursue their own operations. We hereby request you to move out of our
mining locations and wind up all operations within the next seven
days. On 14 October 2016 our resident manager Mr Siziba will be there
for a complete inspection of your withdrawal.
Thank
you for the time you have been with us”.
The
respondent's letter provoked a rather surprising and unexpected
response from the appellant through her legal practitioners Majoko
and Majoko
Legal Practitioners. In that letter dated 1 December 2016 she now
claimed to have occupied and worked the claims under the auspices of
Falcon Gold whom she claimed to be the rightful owners of the mining
claims. She disputed the respondent's ownership of the claims and
averred that she had been promised change of ownership into her name
by Falcon Gold. For that reason she refused to vacate the mining
claims until she had received contrary information from the Ministry
of Mines and Falcon Gold. The letter written by her legal
practitioners reads:
“A
brief history, we believe will assist in the understanding of our
client's position. Our client has been mining from Legion since
2003, having done so under tribute from Falcon Gold Zimbabwe Ltd.
Discussion
involving the Ministry of Mines and Mineral Development were held
with Falcon Gold and our client as a result of which it was agreed
that the claims would be registered in our client's names and our
client has, and there is evidence of this written understanding, from
so far back as 2007, been awaiting formal transfer and registration
of the claims into her name.
If
there were any changes in this understanding, it was not communicated
to our client. She has been in occupation and working the claims on
the bona fide understanding that the claims were to all intents and
purposes hers.
At
no time was our client advised, as she would have been entitled to,
of any change of ownership of the claims from Falcon Gold to
yourselves.
You
will appreciate, in the circumstances that our client cannot, without
prejudicing her rights, accede to your demand that she vacates the
claims, until she has received formal communication from the Ministry
of Mines and Falcon Gold, that what was agreed upon regarding the
claims has been changed”(sic)
Despite
that spirited resistance to eviction, the appellant neither called
upon Falcon Gold and the Ministry to vindicate her rights of
occupation nor as witnesses to support her story. Falcon Gold has
however laid no claim to ownership of the mining claims as alleged by
the appellant or at all. Thus in the absence of any evidence or
support from Falcon Gold and the Ministry, the appellant's claim to
lawful entitlement to the mining claims in question through Falcon
Gold sounds hollow and unbelievable.
In
a clear about turn the appellant wrote to the respondent on 12
January 2017 offering to pay royalties in return for permission to
continue mining on the claims. The letter reads in part at page 57 of
the record of proceedings:
“Our
client, her legitimate expectations notwithstanding, is not averse to
paying royalties and (in) this respect repeats her tender of the
agreed royalty of 5 percent. In the event that your client wish(es)
to engage ours in negotiating a variation of the royalty they are
free to do so and our client will in good faith negotiate any
variation your client may wish”.
The
appellant's offer to pay royalties to the respondent without
recourse to Falcon Gold and the Ministry of Mines undoubtedly amounts
to an unequivocal admission that the respondent is the registered
owner of the disputed mining claims. It is inconceivable that a
litigant represented by a competent law firm would enter into a
tribute agreement with a non-owner and pay royalties for 5 years in
circumstances where she claims to be the true owner of the mining
claims. At the expiration of the tribute agreement she continued to
mine illegally with impunity without a contract from the respondent.
When
faced with eviction she initially resisted claiming to be the lawful
owner or tributor through Falcon Gold. When challenged she made an
about turn and offered to pay royalties to the respondent thereby
recognising its claim to ownership of the disputed mining claims. The
appellant's conduct in this respect betrays a devious character
bent on reaping where she did not sow. For that reason she was
obviously telling a patent lie when she claimed to be the owner of
the disputed mining claims or tributor granted by Falcon Gold.
For
obvious reasons, courts are averse to and detest dishonest litigants
bent on misleading the courts. The function of the courts is to do
justice. Lies are detrimental and incompatible with the due
administration of justice in that they are bound to mislead the court
into the wilderness of injustice. This prompted NDOU J in Leader
Trend Zimbabwe v Smith
H – H - 1311/03 at page 7 to remark that:
“It
is trite that if a litigant gives false evidence, his story will be
discarded and the same adverse inferences may be drawn as if he had
not given evidence at all – see
Tamahole Bereng v R [1949]
AC 253 and South
African Law of Evidence
by L H Hoffman and D T Zeffertt (3rd
ed) at page 472. If a witness lies about a particular incident the
court may infer that there is something about it which he wishes to
hide”.
In
this case the only reasonable inference to be drawn from the proven
facts is that the appellant wanted to mislead the court into
believing that she was lawfully mining on the disputed claims so that
it would allow her to continue mining illegally to the detriment of
the respondent. Having failed to pull wool over the court's eyes,
it is hardly surprising that she lost the plot and the court a
quo
issued a provisional order stopping her from continuing with her
illegal conduct pending the final determination of the dispute.
Having
failed to attack the court a quo's
judgment on the merits the appellant sought to rely in vain on
technicalities. It was argued on her behalf that the facts of the
case did not warrant the issuing of a provisional interdict.
The
requirements for a provisional interdict are however well known.
These requirements were spelt out in the South African case of Myflor
Investments (Pty) Ltd v Everett NO
[2000] All SA 586 (C) and refined in the well-known domestic case of
Airfield
Investments (Pvt) (Ltd) v Minister of Lands and Ors 2004
(1) ZLR 511 (S). In light of the precedent set by the two cases, the
requirements of a provisional interim interdict may be summarised as
follows:
1.
The applicant must establish a prima
facie
right.
2.
That there is a real likelihood of him suffering irreparable harm if
the provisional interdict is not granted.
3.
That the balance of convenience favours the granting of the
provisional interdict.
4.
That there is no other appropriate remedy.
A
perusal of the record of proceedings and having recourse to the
summation of the evidence above, shows clearly that the respondent
fulfilled all the requirements for the granting of a provisional
interim interdict by proving:
1.
That it was the registered owner of the disputed claims as ownership
was never put in issue, thereby establishing a prima
facie
right.
2.
That the minerals extracted from the mining claims once disposed of
by the appellant are not recoverable. The respondent would therefore,
suffer irreparable loss if the provisional interdict was not granted.
On the other hand the appellant would suffer no such injury if the
provisional interdict was granted as the minerals would remain on
site pending the final determination of the dispute
for the benefit of the winning party.
3.
That the balance of convenience favoured the respondent in that it
stood to suffer irreparable loss if the provisional interdict was not
granted, whereas, the appellant would continue to benefit from her
ill-gotten gains to its loss and detriment if the provisional
interdict was not granted.
4.
That there was no other remedy in that if the appellant continued to
mine pending the final resolution of the dispute, the respondent
would suffer irretrievable loss.
It
is the function of the courts to put a stop to the continuation of
violation of other people's rights and interests. Thus the court a
quo
would have failed in its duty to protect the respondent's vested
rights of ownership had it failed to issue the provisional interdict
in this case. For that reason, no blame or error can be attributed to
the court a
quo
as it commendably discharged its duties.
Turning
to the question of costs, the appellant was callous and devious in
her quest to continue mining illegally on the respondent's mining
claims to its loss and detriment. She therefore mounted a costly,
lengthy, frivolous and vexatious appeal with no prospects of success
at all. Courts frown upon this dishonourable conduct which must be
discouraged by costs at the punitive scale as claimed by the
respondent, to deter the appellant and other like-minded litigants.
For
the foregoing reasons the appeal cannot succeed.
It
is accordingly ordered that the appeal be and is hereby dismissed
with costs at the legal practitioner and client scale.
GARWE
JA: I
agree
MAVANGIRA
JA: I
agree
Majoko
& Majoko, appellant's
legal practitioners
Dube-Tachiona
& Tsvangirai, first
respondent's legal practitioners
