An
owner of property may recover it from whoever possess it without his
consent; Badela
Ndlovu v Spiwe Posi
HH475-15.
The
actio
rei vindicatio
is an action brought by an owner of the property to recover it from
any person who retains possession of it without his consent; Tendai
Savanhu v Hwange Colliery Company
SC08-15. The principle that an owner cannot be deprived of his
property against his will means that he is entitled to recover it
from any person who retains possession of it without his consent;
SILBERBERG and SCHOEMAN, Law
of Property,
3ed…,.
A
common thread runs through the above cited dicta.
It
is that no person is allowed, at law, to retain the property of
another against the latter's will. Put differently, the law allows
the owner to recover his property from whoever is holding the same
against the owner's will. The only exception which the law
recognizes is where the possessor has some enforceable right against
the owner.
The
generally accepted position which is enunciated in the first
paragraph of this judgment constitutes the applicant's cause of
action. Its contention is that gold claim number 45464, Makaha
[“Makaha”] belongs to it. Makaha is in Mudzi which is under
Mutoko District. It states that:
(a)
Makaha was granted to it in 2012 by the fourteenth respondent
(Minister of Mines and Mining Development); and
(b)
In an ownership dispute of Makaha which ensued between the fourth
respondent and it in October 2016, the Acting Provincial Mining
Director for Mashonaland East Province, who works under the purview
of the fourteenth respondent (Minister of Mines and Mining
Development), decided the dispute in its favour.
It
alleges that the first to thirteenth respondents' continued
occupation of, and mining at, Makaha adversely affects its interests
as well as its mining rights. It, therefore, moves the court to evict
the respondents from Makaha.
All
the respondents oppose the application.
The
second to the thirteenth respondents are a syndicate which is known
as Tabatana Mining Syndicate, the first respondent in
casu.
The
fourteenth respondent is the Minister of Mines and Mining
Development.
(i)
They own Makaha through the fifth respondent; and
(ii)
They appealed the decision of the Acting Provincial Mining Director
to the fourteenth respondent who is yet to decide the appeal.
They
allege that the application for their eviction was prematurely filed.
They contend that the parties should await the decision of the
fourteenth respondent.
They
state that there is a dispute of ownership of Makaha in terms of
which the applicant and them are both in possession of certificates
of registration. They aver that there is a material dispute of fact
which cannot be resolved on the papers. The matter, they insist,
should be properly ventilated and determined by way of an action.
They aver that it requires viva
voce
evidence for its resolution.
They
challenge the applicant's certificate of registration. They say it
is not authentic but a fraud.
They
deny that there was ever any forfeiture of Makaha which was made
against them or against the fifth respondent. The forfeiture, they
state, was improperly done and is, therefore, invalid. They insist
that their mining activities at Makaha are within the law. They state
that their appeal suspends the decision of the Acting Provincial
Mining Director. They aver that all the processes are suspended
pending the determination of the appeal. They deny having ever
despoiled the applicant of Makaha. They move the court to dismiss the
application with costs on a higher scale.
The
fourteenth respondent's affidavit (Minister
of Mines and Mining Development)
aims at clarifying issues, he says. He acknowledges that the
respondents' appeal is before him for his consideration. He states
that he set up what he terms the Disputes Committee which he mandated
to hear, deliberate and make recommendations on the parties'
dispute to him. He confirms that the Disputes Committee is seized
with the parties' case.
As
proof of its ownership of Makaha, the applicant attached to its
application Annexure C. The annexure is a certificate of registration
which the fourteenth respondent issued to it on 9 September 2014. It
shows that it is the registered owner of Makaha.
The
applicant's statement, which is to the effect that it acquired
mining rights of Makaha in 2012, cannot possibly be correct. The date
of registration which appears on the certificate does not support
that allegation. Mineral rights are not acquired through any form
other than by way of the annexure which bears 9 September 2014 as the
date that the fourteenth respondent granted mining rights of Makaha
to the applicant.
It
is common cause that the respondents, less the fourteenth respondent
(Minister of Mines and Mining Development), showed some activity at
Makaha in 2016. Their activity created the dispute between the
applicant and them. The same was referred to the Acting Provincial
Mining Director (“the Director”) for Mashonaland East Province
for resolution. The Director works under the supervision of the
fourteenth respondent. The dispute which, in earnest, was between the
applicant and the fourth respondent was decided in the applicant's
favour.
The
Director's ruling, which is dated 25 October 2016, reads, in part,
as follows:
“Please
be advised that Earthrow Investments (Pvt) Ltd has no legal right
over
mining claims registered in favour of Prosper Machekera
even
though he might be a Director in the company. Earthrow Investments
and Prosper Machekera should
sign an official tribute agreement and/or transfer title from
Machekera P.
Basing
on the above observations it is concluded that Earthrow Investments
(Pvt) Ltd does not have a claim in
the areas under dispute….,.
Milmath Securities should be allowed to work…,.”…,.
It
is the statement of the applicant that the decision of the Director
constitutes its second reason for claiming title in Makaha. It
submits that it should be allowed to continue its mining operations
at Makaha without any interference from the respondents. It avers
that these despoiled it of Makaha. It therefore moves the court for
their eviction from the same.
The
decision of the Director should, in my view, be read in its proper
context.
An
effortless reading of the same shows that the Director acknowledged
the fifth respondent's title in Makaha. What he is disagreeing with
is the allegation that the fourth respondent has title in the same.
He, in all probability, must have examined the records which are in
his office. Those must have revealed to him that the fifth (Proper
Machekera),
and not the fourth (Earthrow
Investments)
respondent has title in Makaha.
It
is for the mentioned reason, if for no other, that he stated that the
fourth respondent (Earthrow
Investments)
has no legal right over mining claims which are registered in favour
of the fifth respondent (Proper
Machekera).
He
acknowledged, as late as October 2016, that Makaha was registered in
the name of the fifth respondent. He acknowledges, further, that the
fifth respondent may be a director of the fourth respondent. He
states the correct position of the law which is that the only
occasion when the fourth respondent can have title of Makaha occurs
when the registered owner of Makaha (i.e. the fifth respondent) signs
an official tribute agreement with, and/or transfers title in Makaha
to, the fourth respondent.
According
to the Director's records, therefore, two persons have title in
Makaha. These are the applicant and the fifth respondent (Proper
Machekera).
The fourth respondent (Earthrow
Investments)
does not.
It
was by way of comparative analysis that he remained of the view that
when the fourth respondent's case is compared with that of the
applicant, the latter entity, which has title in Makaha, was better
placed than the fourth respondent to continue its mining operations
at Makaha. That is the context in which the Director's decision
should be understood.
The
applicant makes every effort to discredit the appeal which the first
to the thirteenth respondents filed with the fourteenth respondent
(Minister
of Mines and Mining Development)
against the Director's decision. It states that the appeal is
defective for lack of locus
standi
on the part of the twelfth respondent who filed the same. He, it
says, was not authorized by the fourth respondent which was involved
in the dispute with it to appeal as he did. He, it alleges further,
is not a director or an employee of the fourth respondent. He, it
concludes, does not have the authority to appeal as he did. It states
that the appeal does not, at any rate, suspend the decision of the
Director.
The
respondents' contrary statement is that their appeal is properly
before the fourteenth respondent. They state, further, that the
appeal suspends the decision of the Director.
Whether
or not the appeal is defective, as the applicant would have me
believe, is not for me to decide. I am not seized with the appeal.
The fourteenth respondent (the Minister of Mines and Mining
Development) remains seized with the same. He will decide that at his
own time. The applicant's submission on the propriety or otherwise
of the appeal is, therefore, misplaced.
What,
however, I am called upon to decide is whether or not the appeal
which the respondents filed with the fourteenth respondent (the
Minister of Mines and Mining Development) suspends the decision of
the Director.
If
it does, the application cannot be granted. If it does not, and in
the absence of such matters as should be considered in
casu,
nothing
would stand in my way to grant the application as well as to order
the eviction of the first to the thirteenth respondents from Makaha.
The
principle which speaks to the suspension of the decision appealed
against has advantages and disadvantages to the one or the other of
the parties who appear before the court a
quo.
The principle is, in my view, a double-edged sword. It goes against
the normally accepted statement which is to the effect that one
cannot approbate and reprobate. It blows both hot and cold as it
were. That is so as the appeal can be
bona fide
or
mala fide.
The principle, by and large, depends on the appellant's underlying
reason for appealing.
A
bona
fide
appeal
occurs where the appellant who is not genuinely satisfied with the
decision of the court a
quo
appeals the same. His aim and object would be to test the correctness
of the decision, and, in the same breadth, attain justice for
himself.
It
stands to good reason that the decision of the court a
quo
should
not be enforced until the appeal has been conclusively heard. The
rationale for the same is simple. It is that, if the decision is
enforced before the appeal is heard, the appeal which he files would
be more academic than it assists in the attainment of real and
substantial justice.
Justice,
it is accepted, must not only be done but must be seen to be done.
With
a bona
fide
appeal, therefore, the principle which insists that an appeal should,
and does in fact, suspend the decision appealed against remains very
sound law which should not be disturbed. It serves a very useful
purpose. It allows the wheels of justice to turn slowly but surely
for the proper administration of justice as well as for the parties'
benefit.
At
the other end of the scale is the case of a mala
fide
appellant.
He
knows in his heart of hearts that his appeal would never see the
light of day. He remains alive to the hopelessness of the appeal
which he files. He sees some advantage if he appeals a sound decision
properly grounded in law which the court a
quo
enters
against him. He intends its suspension for his own ulterior reasons.
He remains aware that the moment he appeals, the court a
quo's
decision which was entered against him remains suspended until the
appeal is heard and determined. He, in the process, makes every
effort to delay the day of reckoning which he knows will one day take
effect notwithstanding the appeal. His appeal becomes more effective
where the subject of the parties' dispute relates to property which
is capable of being dissipated. He remains of the firm view that,
during the period which extends from the date that he files his
appeal to the date of its hearing, he will have reaped a lot from his
adversary's property with probably no means of compensating the
latter in the event of his appeal being dismissed for lack of merit.
This
is a sad and very bad phenomenon which justice, unfortunately for the
disadvantage party, has to go alone with.
A
diligent bona
fide
litigant who suffers from the second described set of circumstances
applies to the court a
quo
for leave to execute notwithstanding the appeal. The rules of court
allow him the leeway. He has, however, to satisfy the court that his
application has merit.
The
court to which he applies for enforcement is, unfortunately for him,
not infallible. It is manned by human beings who are not unnaturally
immune to fallibility. They may not share his view in which case the
undesirable situation which the mala
fide
appellant creates continues to rear its ugly head in the parties'
case in an un-abetted manner.
The
way forward in regard to this unnecessary, but very real, challenge
which unscrupulous litigants are very much fond of remains unclear as
well as undefined. Perhaps the drafters of the rules of courts of all
levels require some re-think on this aspect. That is all the more so
because bone
fide
litigants whose cases are unquestionably well decided should not
continue to be held to ransom under the guise of the principle which
is under consideration. The principle, which is otherwise good in
substance, should be crafted in such a way that it is able to, as it
were, separate the sheep from the goats.
In
our jurisdiction, the Supreme Court pronounced itself clearly and
unambiguously on the principle which is under consideration. It
proceeded on the accepted common law practice which is to the effect
that an automatic stay of execution upon the noting of an appeal is
binding only to the extent that it relates to superior courts of
inherent jurisdiction. These are the High Court and the Supreme
Court. Reference is made in this regards to the pertinent remarks of
CHIDYAUSIKU CJ who eloquently discussed the subject at hand in
Associated
Newspapers of Zimbabwe v Min of State for Information and Publicity &
Ors
2005
(1) ZLR 222 (S)…, wherein he said:
“It
is quite clear…, that the power of a court to order execution of
its own judgment, despite the notice of an appeal, is founded in the
common law doctrine of inherent jurisdiction. It is trite that only
the superior courts enjoy inherent jurisdiction. In this country,
these are the High Court and the Supreme Court. Courts
created by statute
do not have inherent jurisdiction, and, consequently, do
not have power to order execution of their judgments
unless such jurisdiction is conferred on them by statute.”…,.
GARWE
JA clarified the matter further in Longman
Zimbabwe (Pvt) Ltd v Midzi & Ors
2008
(1) ZLR…, wherein he remarked as follows:
“The
position may now be accepted as settled in this jurisdiction that
unless empowered by law to do so, an
inferior court, tribunal or other authority has no power to order the
suspension of its own orders or judgments,
and, further, that the noting of an appeal against the judgment or
order of such a court, tribunal or authority, in the absence of a
statutory provision to that effect,
does not have the effect of suspending the operation of the judgment
or order
that is sought to be appealed against.”…,.
It
follows, from the above-cited dicta,
that the respondents' appeal to the fourteenth respondent (the
Minister of Mines and Mining Development) does not suspend the
decision of the Director. That
decision remains extant until it is varied or set aside by the
fourteenth respondent. The respondents' statement, which was to the
contrary effect is, therefore, misplaced.
The
first to the thirteenth respondents' case would have crumpled to
pieces if they relied on the appeal for their continued presence at
Makaha. They cannot properly argue that the appeal which they filed
suspends the decision of the Director, and, in the process, offers an
avenue to them to remain at Makaha. The above decided case
authorities negate their contention.
The
applicant has real rights in Makaha. The fifth respondent does also
have real rights in the same. The remaining respondents who teamed up
with the fifth respondent whose rights the Director recognized in his
ruling do, through him, have some rights in Makaha.
Whether
or not the respondents, the fifth respondent in particular, suffer(s)
forfeiture of Makaha remains a matter for another day. The issue of
the alleged forfeiture can only be resolved through viva
voce
evidence. That is so because the respondents contest the same in a
very emphatic manner. They describe the alleged forfeiture as having
been of no force or effect. Their reason is that it was irregularly
implemented. They challenge the applicant's certificate of
registration for Makaha. They state that the certificate is a fraud
on the part of the person or official who issued it in the name of
the applicant.
There
are, in my view, material disputes of fact in the parties' case.
The fourteenth respondent states as much. He is seized with the
parties' dispute which he will determine after he has received the
recommendations of the Disputes Committee which he set up to
investigate the parties' competing claims of Makaha.
It
goes without saying that neither party has a better claim to Makaha
than the other. Their claims are equal in competition one against the
other. The court cannot, in the circumstances, grant the application.
The
applicant failed to establish its case on a balance of probabilities.
Its application is without merit. It is, accordingly, dismissed with
costs.
