MALABA
CJ: This
is an appeal against the judgment of the High Court (“the court a
quo”)
which effectively held that a dispute over which party between the
appellant and the first respondent owned certain mining claims
registered in the appellant's name was incapable of resolution on
the papers.
At
the hearing of the appeal, the Court found that the decision of the
court a
quo
was incorrect, for the reason that it failed to appreciate the
evidence of registration of the mining claims in the appellant's
name.
The
appeal was allowed with costs and the judgment of the court a
quo
set aside.
The
Court indicated that reasons for the decision would be given in due
course. These are they.
FACTUAL
BACKGROUND
The
facts giving rise to the appeal are largely common cause. They may be
summarised as follows.
The
appeal revolved around mining claims at Wendale 43 Block situated in
Domboshava registered under certificate no.18007. The parties were
all registered companies, having been registered in terms of the
company laws of Zimbabwe.
In
February 2018 the first respondent wrote to the appellant, seeking
from it a tribute arrangement in respect of the mining location in
issue.
The
request was rejected.
Despite
the rejection, on 30 May 2018 the first respondent was observed
exploiting minerals at the appellant's mining location. When
confronted, the first respondent indicated that it had partnered with
the second respondent in a mining venture for the exploration of
minerals in the area in dispute.
The
appellant contended that it was the registered holder of the said
mining claims, as evidenced by a certificate of registration filed of
record.
It
was alleged by the respondents that the Minister of Mines and Mining
Development (“the Minister”) had gazetted the area
in dispute as a reserved area. They further alleged that the
reservation of the area by the Minister had a profound effect on the
status of the mining area, in that title over mining claims vested in
a party only through the issuance of special grants. It was alleged
that the legal status of the mining claims changed as a result of the
reservation. As holders of a special grant in the mining area, it was
alleged that the respondents were the rightful owners of the mining
claims in question.
The
appellant approached the court a
quo
in an application for a provisional order, in which it sought an
interdict against the respondents, and any person acting under their
authority, preventing them from carrying on mining activities on the
disputed mining claims.
It
further sought an order that the respondents, and any person acting
under their authority, vacate the mining claims and remove all mining
equipment belonging to them. The appellant sought an order declaring
it to be the holder of title over the mining claims in dispute.
The
respondents raised two points in
limine
in opposing the provisional order sought.
The
first point was that the Minister had not been joined in the
proceedings. The second point was that there was a material dispute
of fact.
The
import of the first objection was not understood, as the respondents
were not claiming that they had the right to exploit the mineral
resources at the mining location in dispute. Regarding the second
preliminary objection, the nature of the dispute was not identified.
As such, the court granted a provisional order pending the
determination of the matter on the return day whereupon the
respondents were called upon to show cause why the appellant should
not be declared the rightful holder of title over the mining claims
in dispute.
On
15 June 2018 the appellant filed an application for confirmation of
the provisional order granted.
The
respondents opposed the application.
They
persisted with the two points in
limine,
namely that there was material non-joinder of the Minister, and that
there was a material dispute of fact which could not be resolved on
the papers.
The
court a
quo
upheld the two points in
limine
and dismissed the application.
The
court a
quo
was of the view that the dispute of fact as to which party was the
rightful owner of the mining claims was apparent to the appellant
before the application was instituted. It said that it should have
been clear to the appellant that the dispute would require the
involvement of the Minister, as it related to title of a mining
claim. The court a
quo
said at pp2-3 of the judgment:
“The
Minister of Mines and Mining Development clearly has a direct and
substantial interest in the subject matter of this matter because he
is the authority responsible for giving title to mining claims
including the one in dispute… . The respondents allege that the
mining claim no longer belongs to the applicant because it was
forfeited by the Minister responsible for Mines and Mining
Development. This dispute of fact as to who holds title cannot be
resolved on papers… . It would also have been clear to the
applicant that this dispute would require the involvement of the
Minister of Mines and Mining Development to resolve as it pertains to
title to a mining claim. It would be untidy to refer the matter to
trial on the bulky papers filed and in circumstances where an
interested party has not been joined… . It seems to me that it is
appropriate, given that the dispute of fact was obvious, to dismiss
the application….”
Dissatisfied
with the decision of the court a
quo,
the appellant noted the appeal on three grounds, which essentially
raised one issue for determination. The issue was whether there was a
material dispute of fact.
It
was argued that the court a
quo
misdirected itself in dismissing the application for the confirmation
of the provisional order on the basis that there was a material
dispute of fact.
THE
APPELLANT'S ARGUMENT ON APPEAL
At
the hearing of the appeal, counsel for the appellant submitted that
the appellant has held title over the mining claims since 1974, as
evidenced by the certificate of registration.
It
was alleged that the same was inspected by the Minister, who
confirmed the ownership of the mining claims by the appellant.
It
was argued that mineral rights are real rights and once acquired they
remain effectual until lost in terms of the Mines and Minerals Act
[Chapter
21:05].
The
certificate of title was filed of record and it was submitted that it
was current.
It
was also argued that the Ministry of Mines and Mining Development
did
not reserve the block over which the appellant had mining rights.
Therefore, the appellant's rights were never lost.
The
appellant relied on the case of Chase
Mineral (Pvt) Ltd v Madzikita
2002 (1) ZLR 488 (H)
at
490C-E, where the court said:
“It
will be seen, therefore, that the applicant, as the holder of the
registered claims, has the exclusive rights of mining the claims
under dispute. Such rights are protected by section 379 of the Act…
it is thus submitted that the respondent has been, in fact, working
on the applicant's claims, (and) he is therefore guilty of
contravening section 379 of the Act. To suggest that the eviction
order be suspended or stayed pending appeal… so as to enable the
respondent to continue mining amounts to authorising the
contravention of section 379 of the Act. That would create an
untenable situation in which this court would not only be condoning
but authorising the criminal conduct of the respondent in breach of
the provisions of the Act.”
THE
RESPONDENTS ARGUMENT
Counsel
for the respondents submitted that the finding by the court a
quo
that there was a material dispute of fact incapable of resolution on
papers was correct.
He
argued that the area containing the mining claims had been reserved
and that title to the mining claims could only be by way of a special
grant, which was not granted to the appellant.
He
also argued that both parties claimed to have obtained title to the
mining claims through the Ministry of Mines and Mining Development.
The
question as to which party
held
title between the holder of the special grant or the certificate of
registration raised a material dispute of fact.
The
respondents relied on the case of Anjin
Investments (Pvt) Ltd v Minister of Mines and Mining Development and
Ors
HH228/16, where the court held that no person can claim any right in
a mining claim falling under a reserved area without a special grant.
It
was also held that it was for the Minister to confirm whether the
appellant's title to the area, notwithstanding the reservation and
subsequent special grant in favour of the second respondent, still
existed.
Lastly,
counsel for the respondents submitted that the appeal was without
merit and ought to be dismissed.
THE
LAW AND THE FACTS
The
finding by the court a
quo
that there was a material dispute of fact is being tested as a matter
of misdirection.
It
is a settled principle of law that an appellate court will not
readily interfere with the findings of fact made by a lower court.
In
Beckford
v Beckford
2009 (1) ZLR 271 (S)
at
283D,
the following was stated:
“In
any event, an appellate court would not readily interfere with the
findings of fact made by a trial judge.”
It
is trite that for an appellate court to interfere with factual
findings of a lower court gross misdirection must be alleged and
established. This was enunciated in TM
Supermarkets v Mangwiro
2004 (1) ZLR 186 (S)
at
189D,
where
the following was stated:
“I
am also persuaded by the contention that the court a
quo
in this particular respect misinterpreted the evidence before it….
The evidence makes it clear this was not so. The misdirection of the
court is thus evident.”
The
grounds on which the finding of the court a
quo is being
challenged have to be looked at from the point of view of the
sequence of events.
The
first issue that has to be considered relates to the issues that were
before the court a
quo: the main issue
was whether there was a dispute of fact.
It
was the respondents contention that there was a dispute of fact in
respect to which a robust approach could not be adopted for its
resolution. The appellant argued that there was conclusive evidence
on record to prove that there was no dispute of fact.
What
a dispute of fact entails was well articulated in Supa
Plant Investments (Pvt) Ltd v Chidavaenzi
2009 (2) ZLR 132 (H) at 136F where the court said:
“A
material dispute of fact arises when material facts alleged by the
applicant are disputed and traversed by the respondent in such a
manner as to leave the court with no ready answer to the dispute
between the parties in the absence of further evidence.”
In
Pignons
S.A. de Mecanique de Precision v Polaroid Corporation
657 F 2d 482, the United States Court of Appeals had this to say
regarding material disputes of fact:
“A
factual dispute is material if it affects the outcome of the
litigation and genuine if manifested by substantial evidence going
beyond the allegations of the complaint.”
In
this regard, the mere allegation of a possible dispute of fact is not
conclusive of its existence.
From
the decided cases, it is evident that a dispute of fact arises where
the court is left in a state of reasonable doubt as to which course
to take in resolving the matter without further evidence being led.
The
alleged dispute of fact in the present case pertained to the
ownership of the mining claims where the respondents had commenced
mining activities.
They
averred that they were digging where they had lawful authority to
dig, on the basis that a special grant had been given to them by the
mining commissioner. They claimed therefore that they had rights over
the mining area in dispute. It was the same mining area that the
appellant has held title over the mining claims in question since
1974 and has never ceased to hold such title.
The
existence of the alleged dispute of fact regarding the ownership of
the mining claims was not supported by the evidence on record.
The
Court was called upon to test what the claim by the respondents
entailed.
They
alleged they had legal title over Wendale Block 43, which was granted
to them by the Ministry of Mines and Mining Development through a
special grant.
It
is therefore critical to look at the special grant, as it was a legal
document which gave the respondents authority to explore a specific
mining area.
Looking
closely at the appellant's certificates of registration, it is
evident from the record that the appellant was the registered holder
of claims that were specifically identified as Wendale 42 Block under
registration number 18006B.M. Darwendale and Wendale 43 Block under
registration number 18007B.M. Darwendale, issued in 1974.
The
special grant being referred to by the respondents as proof of title
over the mining claims in dispute was identified as relating to “an
area situated within RAMSW003 Darwendale” and this area was
depicted on the Ministry of Mines and Mining Development map.
The
mining claims referred to in the special grant clearly differed from
the location of the appellant's mining claims.
It
is a misrepresentation of fact by the respondents that they had legal
rights over Wendale 43 Block under registered certificate number
18007B.M. Darwendale.
The
respondents mining activities were encroaching onto the appellant's
claims yet, as the evidence on the map clearly showed, the
respondents should have been on a different location on the ground.
The
court a
quo
failed to appreciate the evidence placed before it.
The
appellant's rights were conferred in terms of the law and there was
precedent evidence in the record proving that the appellant has
always been there since 1974.
The
appellant also had a letter dated 22 June 2018, filed of record, from
the Ministry of Mines and Mining Development, confirming that it was
the rightful owner of the mining claims in dispute. The letter reads
as follows in relevant part:
“Please
be advised, according to records held by this office, Wendale
43 chrome mine Registration Number 18007 BM is owned by Rio Zim
Limited.
The block was inspected under Inspection Certificate Number
235014P…”. (the underlining is for emphasis)
The
above documentary evidence is clear and unambiguous.
A
written proof of title is indispensable evidence as regards proof of
ownership.
By
holding that there was a dispute of fact because of the respondents
special grant, the location of which was different from the
appellant's mining claims, the court a
quo
undoubtedly misdirected itself.
As
further evidence of the appellant's ownership of the said mining
claims, the Ministry of Mines and Mining Development continued to
collect money from the appellant for the purposes of renewing its
certificate of registration.
Such
payments can only be done by the holder of legal entitlement over a
mining location. This means that not only did the appellant get
confirmation from the Ministry of Mines and Mining Development that
it was the owner of the claims and had the right to mine them, but
that its registration was current.
The
court a
quo
erred and misdirected itself by failing to appreciate that the letter
from the Ministry of Mines and Mining Development was further
confirmation of the appellant's legal entitlement to the mining
claims.
As
such, there was no dispute of fact.
The
ownership of the mining claims
was
apparent from the evidence adduced before the court a
quo
in the form of receipts showing that the appellant made payments to
the Ministry of Mines and Mining Development for the registration of
its claims.
The
documentary evidence before the court a
quo
pointed to the conclusion that the appellant was legally entitled to
the mining claims in question.
The
court a
quo's
conclusion that there was a dispute of fact was erroneous.
There
was no question of ownership of the mining claims being in dispute,
as there was evidence to establish such ownership conclusively.
Once
the Ministry of Mines and Mining Development confirmed that the
appellant was the owner of title over the mining claims, the legal
effect of that confirmation was that the apparent dispute of fact
fell away.
In
Agrifoods
v Chiruka and Ors
SC 116/04, the court said the following at p4 of the judgment:
“The
legal position regarding misdirection based on facts is clearly
articulated in the case of Hama
v National Railways of Zimbabwe 1996
(1) ZLR 774 (S) where at p670A the learned judge observed as follows:
'For
an appellant to avail himself of a misdirection as to the evidence,
the nature and circumstances of the case must
be such that it is reasonably probable that the Tribunal would not
have determined as it did had there been no misdirection; in other
words, that the determination was irrational.'
I
am satisfied, on the strength of this dictum,
which I find to be apposite in
casu,
that the court a
quo
did
indeed misdirect itself as to the evidence before it. Had the court
not so misdirected itself, I have no doubt in my mind that it might
very well have reached a different conclusion.
In
particular, the court a
quo
may
not have reached the conclusion that the order to report for work the
following morning would have violated the respondents right to one
day off per week. The
misdirection in question amounts to a misdirection in law.”
(the underlining is for emphasis)
Applying
the reasoning in the Agrifoods
case supra,
it is apparent that if the court a
quo
had taken into account the evidence placed before it, it would not
have reached the decision that it did.
It
would have confirmed the provisional order granted to the appellant.
The
failure by the court a
quo
to appreciate the nature of the evidence placed before it warranted
interference by the Court.
DISPOSITION
In
the result, the
Court ordered as follows:
“1.
The appeal hereby succeeds with costs.
2.
The decision of the court a
quo
is set aside and substituted with the following order:
'1.
The provisional order be and is hereby confirmed.
2.
It is declared that the applicant is the holder of title over mining
claims under Certificate No.18007BM, being Wendale 43 Block situate
in Darwendale.
3.
That the respondents and any person acting under their authority or
direction be and are hereby interdicted from conducting mining
activities, including the prospecting and extraction of chrome ore,
at Wendale 43 Block.
4.
That the respondents and all those claiming occupation through them
be and are hereby ordered to evacuate the mining location covered by
Block 43 Wendale and shall to that end remove all their mining
equipment.
5.
The respondents shall cease and desist from interfering with the
applicant's mining operations at Wendale 43 Block.
6.
Costs of this application shall be borne by the respondents jointly
and in solidium
at the scale of legal practitioner and own client.'”
UCHENA
JA:
I concur
CHIWESHE
AJA:
I concur
Wintertons,
appellant's
legal practitioners
T
Pfigu Attorneys,
respondents legal practitioners
