Mining Law

HH205-10 : AFRICA CONSOLIDATED RESOURCES (PVT) LIMITED AND FOUR OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT AND TWO OTHERS
Ruled By: HUNGWE J

In any event, in order to benefit from section 58 of the Mines and Minerals Act [Chapter 31:05] the applicants should have held the title to the mining rights for two years. It is not disputed that the applicants acquired the “rights” in 2006. By the end of that year the first respondent had ...

HB57-09 : TRYSON INVESTMENTS vs MAPLE LEAF MINING (represented by Cecil Madondo N. O.) and MINING COMMISSIONER
Ruled By: NDOU J

The applicant seeks a relief in the following terms:- “Terms of the final order sought 1. That pending the resolution of the dispute concerning mining claims listed in the Tribute Agreement, in terms of the law, this first respondent be interdicted from disposing the concerned mining claims in any way. 2. That pending the resolution of the dispute ...

The applicant seeks a relief in the following terms:-

“Terms of the final order sought

1. That pending the resolution of the dispute concerning mining claims listed in the Tribute Agreement, in terms of the law, this first respondent be interdicted from disposing the concerned mining claims in any way.

2. That pending the resolution of the dispute between the applicant and the first respondent, second respondent be interdicted from facilitating any transaction in respect of the mining claims concerned between first respondent and any third party.

Interim relief

1. The first respondent be and is hereby interdicted from disposing in any way the mining claims listed in the Tribute Agreement between it and applicant until the dispute is resolved in terms of the law.

2. The second respondent be and is hereby interdicted from facilitating any transactions involving the mining claims between first and any third party.

3. First respondent be and is hereby ordered to allow applicant to put security personnel at the disputed mining claims until the dispute is resolved.”

The salient facts of this matter are the following.

The first respondent is a company in liquidation, represented by Mr. Cecil Madondo in his official capacity as the company's liquidator.

On 12 March 2009, the applicant entered into an agreement, known as a Tribute Agreement in the mining world. The liquidator represented the first respondent in this Agreement. The Tribute Agreement gave the applicant mining rights over mining claims listed in the Agreement for a period of three years. The main mineral covered is gold.

The first respondent has sold the rights in the disputed mining claims to another person.

It is the first respondent's case that it was made clear to the applicant from the onset that for the Tribute Agreement to be consummated it was required of it to pay the requisite inspection fees to the second respondent. The applicant misrepresented to the first respondent that it had paid the fees when in fact that was not so.

On that basis, the first respondent decided not to submit the Tribute Agreement to the Mining Commissioner for examination and approval, as required in terms of section 284 of the Mines and Minerals Act [Chapter 21:05].

It is alleged by the first respondent that the said Tribute Agreement is a nullity at law and is not enforceable for non-compliance with section 284 of the Mines and Minerals Act [Chapter 21:05].

HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU
Ruled By: MAWADZE J

This is an urgent chamber application for a provisional order whose interim relief sought is stated as follows:“INTERIM RELIEF GRANTEDPending determination of the lawful owner of ANSH NORTH situated on the following map coordinates;Point A 0187976 ...

This is an urgent chamber application for a provisional order whose interim relief sought is stated as follows:

“INTERIM RELIEF GRANTED

Pending determination of the lawful owner of ANSH NORTH situated on the following map coordinates;

Point A 0187976
7820147

Point B 0188251
7820232

Point C 0188307
7820018

Point D 0188139
7820018

The first and second respondents be and are hereby barred and interdicted from carrying out any mining operations on ANSH NORTH and coming within one hundred metres of the coordinates stated above.

SERVICE

Service of this provisional order to be effected by a clerk in the employ of Messrs Chinyama and Partners Legal Practitioners.”

The terms of the final order sought are in the following terms;

“TERMS OF FINAL ORDER SOUGHT

1. The applicant be and is hereby declared the sole and lawful holder of title over six gold reef claims knows as ANSH NORTH situated on the following map coordinates:

Point A 0187976
7820147

Point B 0188251
7820232

Point C 0188307
7820018

Point D 0188139
7820018

2. The first and second respondents be and are hereby barred and interdicted from entering and mining on ANSH NORTH on the map coordinates stated in (1) above.

3. The first and second respondents to pay the cost of suit on a legal practitioner to client scale.”...,.

I turn to the facts of the matter giving rise to this application.

It is common cause that the applicant and the first respondent are registered owners of mining claims in the Midlands Province, being ANSH NORTH 28896 for the applicant, and ANSH BLUE 4 29220 for the first respondent. Both the applicant and the respondent have attached their respective registration licences or certificates.

The applicant's claim was registered on 10 December 2010 and there is also the applicant's inspection certificate indicating that the next inspection is due on 10 December 2012. The first respondent's certificate of registration, of ten (10) good reefs, is dated 7 July 2011. The first respondent has also attached Annexure D to the notice of opposition which shows the map of the first respondent's claim ANSH NORTH BLUE 4.

The map coordinates for the claims for both the applicant and the first respondent are not in issue and can be illustrated as tabulated hereunder;

Applicant 1st Respondent

Point A 0187976 0188899
7820147 7820142

Point B 0188251 01889302
7820232 7820441

Point C 0188307 0189378
7820018 7820263

Point D 0188139 0188957
7820018 7819944

The applicant, in her founding affidavit, stated that she has been carrying out mining operations on her claims since December 2010. According to the applicant, what has led to this urgent application for an interdict is that on or about 20 November 2011 the first and second respondents, both residents of Number 6120 Gwee Street, South Downs, Gweru descended on or invaded the applicant's claim, ANSH NORTH, and started to mine gold ore to the exclusive benefit of the first and second respondents.

According to the applicant, she protested against this blatant disregard of her mining rights and produced her certificates of registration for the six (6) gold reefs ANSH NORTH claim and the inspection certificates to the first and second respondents.

The applicant stated that the first respondent countered this by producing his own certificate of registration dated 7 July 2011 but was unable to produce the map coordinates for their alleged claims.

The second respondent had no certificate of registration.

The applicant alleges, therefore, that the first and second respondents are mining within the applicant's map coordinates illegally.

It is the applicant's contention that the certificates of registration bestows upon her the legal right to be at ANSH NORTH gold claims in terms of the Mines and Minerals Act [Chapter 21:05] (hereinafter the Act).

The applicant avers, in her founding affidavit, that she has been carrying out mining operations lawfully, in a peaceful and undisturbed manner, from December 2010 until about 20 November 2011 when the first and second respondents unlawfully came on to her claims thereby taking the law into their own hands and imposing themselves on the applicant's mining claims.

The basis for the urgent application, according to the applicant, is that the unlawful conduct by the first and second respondents is ongoing and that there is no other remedy available to the applicant as the first and second respondents are not accounting for the gold mined at the applicant's claims hence the applicant would not be able to sue for damages.

It is the applicant's belief that since the injury perpetrated by the first and second respondents is on-going in nature, this matter cannot await the normal court processes to be heard as irreparable harm would be occasioned to the applicant.

It is trite law that the requirements for an interdict are as follows;

(i) A prima facie right even if it is open to doubt;

(ii) An infringement of such right by the respondent or a well-grounded apprehension of such infringement;

(iii) Well-grounded apprehension of irreparable harm to the applicant if the interlocutory interdict should not be granted and if he should ultimately succeed in establishing his right finally;

(iv) The absence of any satisfactory remedy; and

(v) That the balance of convenience favours the granting of an interlocutory interdict.

See Bozimo Trade & Development Company (Pvt) Ltd v First Merchant Bank of Zimbabwe Limited & Ors 2000 (1) ZLR 1 (H)…,.

The applicant's contention is that she meets all the above requirements.

The certificate of registration of her claim, ANSH NORTH, confers upon her a prima facie right. Her view is that the injury caused to her by the first and second respondents is clear as the first and second respondents are infringing upon her right to own the mining claims by extracting gold ore on her claim in quantities unknown to her, illegally, and to the sole benefit of the first and second respondents.

The applicant's view is that her fear of irreparable harm is well grounded as the gold extracted by the first and second respondents is not quantifiable and proceeds thereof remain unaccounted for. This would make it difficult, if not impossible, for the applicant to claim for damages. As a result, the applicant strongly feels that there is no other satisfactory remedy available to her save to seek the protection of the law through the interlocutory interdict.

Lastly, the applicant contends that the balance of convenience favours the granting of an interlocutory interdict on the basis that she was granted the certificate of registration in December 2010 ahead of the first respondent who was granted his certificate of registration in July 2011; that she has been on site earlier than the first and second respondents and is unable to quantify the loss occasioned to her by the first and second respondents even if she would opt to sue for damages.

Counsel for the first and second respondents did not seek to challenge the applicant's perception of the law as already articulated. Instead, the first and second respondents opposed this application on basically two grounds;

(i) Firstly, that this matter is not urgent as the applicant has not been able to explain why this application was not timeously made on 20 November 2011, or soon thereafter, which is the period within which the alleged dispute arose.

It is not in issue that this application was only made on 9 December 2011.

The applicant, in her founding affidavit, has not proffered any explanation as to why the applicant failed to act when the need to act arose, on 20 November 2011 or soon thereafter.

(ii) The second basis upon which the argument by the first and second respondents is premised is that the applicant's request for an interlocutory interdict lacks merit and is based on false allegations of facts.

The first and second respondents averred, in their respective opposing affidavits, that the applicant's founding affidavit is fraught with material omissions which borders on deliberate misrepresentation of facts and falsehoods.

The question of what constitutes urgency, in my view, is now no longer an issue for debate in our law. See Kuvarega v Registrar General & Anor 1998 (1) ZLR 188.

In the case of Mathias Madzivanzira & 2 Ors v Dexprint Investments (Pvt) Ltd Anor HH145-05…, NDOU J made reference to remarks by PARADZA J in the case of Dexprint Investments (Pvt) Ltd v Ace Property & Investment Company HH120-02 in discussing what constitutes urgency in an application of this nature as follows:

“For a court to deal with a matter on an urgent basis, it must be satisfied of a number of important aspects. The court has laid down the guidelines to be followed. If, by its nature, the circumstances are such that the matter cannot wait, in the sense that if not dealt with immediately irreparable prejudice will result, the court can be inclined to deal with that on an urgent basis. Further, it must also be clear that the applicant did, on his own part, treat the matter as urgent. In other words, if the applicant does not act immediately and awaits for doomsday to arrive and does not give a reasonable explanation for that delay in taking action, he cannot expect to convince the court that the matter is indeed on that warrants to be dealt with on an urgent basis.”

See also the apt remarks by KUDYA J in Gifford v Muzire & Ors 2007 (2) ZLR 131 (H)…, in which the learned judge had this to say:

“All that the applicant has to show is that the matter cannot wait the observance of normal procedures and time frames set by the rules of the court for ordinary applications without rendering nugatory the relief that he seeks.”

According to the applicant, the first and second respondents invaded her mining claims on 20 November 2011 but she only filed this application on 9 December 2011 - after about a period of 18 days.

As already stated, there is no explanation by the applicant for this delay of eighteen (18) days in the applicant's founding affidavit which is quite lengthy (it covers five printed pages and thirteen paragraphs).

On that account alone the applicant's case should fail. The inference which can be drawn, in the absence of a plausible explanation for such a delay of about eighteen (18) days, is that the matter is not urgent.

I am also inclined to dismiss this application for not only the lack of merit but that the applicant has not been candid with the court.

In the case of Graspeak Investments (Pvt) Ltd v Delta Corporation (Pvt) Ltd & Anor 2001 (2) ZLR 551…, NDOU J dealt with the question of material non-disclosure, mala fides or dishonesty in urgent applications and how this should impact upon the case of the offending litigant.

The learned judge had this to say:

“The courts should, in my view, discourage urgent applications, whether ex parte or not, which are characterised by material non disclosures, mala fides or dishonesty.

Depending on the circumstances of the case, the court may make adverse or punitive orders as a seal of disapproval of mala fides or dishonesty on the part of litigants.

In this case, the applicant attempted to mislead the court by not only withholding material information but also by making untruthful statements in the founding affidavit. The applicant's non-disclosure relates to the question of urgency.

In the circumstances, I find that the application is not urgent and dismiss the application on that basis.”

In casu, the applicant has withheld material information in the founding affidavit both in relation to the question of urgency and the merits of the matter.

Counsel for the applicant could not make meaningful submissions in that regard.

Let me deal with the material non-disclosure by the applicant which only became apparent after the first and second respondents had filed opposing affidavits and relevant annexures.

The applicant did not disclose, that, when this dispute arose, between the applicant and the first and second respondents, she referred the dispute to the Mining Commissioner, Gweru, Midlands possibly in terms of the Mines and Minerals Act [Chapter 21:05] (hereafter the Act).

The Mines and Mineral Act provides various remedies in sections 345, 346, 348, 353 and 354. I find no cause to refer in any detail to these provisions – suffice to state that some of the provisions relate to jurisdiction of the Mining Commissioner to investigate and determine complaints, the judicial powers bestowed upon Mining Commissioners, the procedure in summary hearing of complaints by Mining Commissioners, powers of the Mining Commissioner to deal with disputes relating to encroachment, and the power to grant injunctions in appropriate cases.

The Mines and Minerals Act, therefore, provides various domestic remedies which an aggrieved party may elect to pursue before approaching this court.

The applicant, in a very dishonest manner, has decided to approach both the Mining Commissioner and this court with the same dispute without making/noting that disclosure to this court, a phenomenon generally described as double dipping or forum shopping.

When the Mining Commissioner received the applicant's complaint, a letter was written, by the Mining Commissioner, to the officer in charge CID Minerals Gweru on 2 December 2011 which letter was copied to the applicant and the first respondent. The letter acknowledges the receipt by the Mining Commission of the complaint by the applicant that the first and second respondents were mining gold ore on the applicant's claim, ANSH NORTH, and that the Mining Commissioner was in the process of examining all relevant documents pertaining to the claims owned by the applicant and the first respondent and to also visit the disputed area to ascertain, physically, the location of the claims.

Lastly, the Mining Commissioner requested the police to stop mining operations at the disputed site until the matter is finalised and that anyone claiming the area must approach the Mining Commissioner first for verification and clearance.

All this material information was not disclosed by the applicant and no explanation was proffered for that.

If indeed the Mining Commissioner is seized with the matter, and had stopped mining operations at the disputed site until further notice, what would be the basis for the applicant to seek an interlocutory interdict?

My view is that the applicant decided not to reveal this vital information in order to create the urgency now averred in the application and justify the basis to seek the provisional order.

This letter was written eight days before the applicant approached this court.

The applicant did not even deem it proper to refer to or attach a copy of the complaint she referred to the Mining Commissioner.

The Mining Commissioner, three days later, on 5 December 2011, well before this application, wrote another letter to officer in charge CID Minerals Shurugwi making reference to the letter dated 2 December 2011 written to CID Minerals Gweru. The contents of the letter are self-explanatory and are as follows:

“Be advised that there should be no dispute on these mines at all as according to records in this office 28896 ANSH NORTH is to the east of the Shurugwi-Zvishavane highway and 299220 ANSH BLUE 4 is to the west of the same highway. Whoever is mining on the wrong side of the highway must be stopped.”

This letter is copied to the applicant, the first respondent, and officer in charge, CID Minerals Gweru.

Again, the applicant chose not to refer to this vital information in her founding affidavit. Such disclosure would have compelled the applicant to explain the current situation obtaining on the site.

In a letter dated 14 December 2011, the Mining Commissioner advised the first and second respondents counsel of the coordinates for corner beacons for the first respondent's claim 29220 ANSH BLUE 4 as already explained. The mala fides on the part of the applicant is also apparent in this letter to which a copy of the map of the first respondent's claim was attached. The relevant part reads as follows:

“Loreen Mushangwa (applicant) refused to produce the plan endorsed by this office. However, her 28896 (ANSH NORTH) is approximately 800 metres south west of homestead PL4–Shurugwi and falls east of Shurugwi-Zvishavane highway while Bhadhi (first respondent claim) falls west of the same highway.”

The effect of the non-disclosure of this material information, by the applicant, is that the applicant has not explained, in the founding affidavit, the current nature of the dispute warranting the granting of the relief sought in view of the explicit explanations and orders issued by the Mining Commissioner.

The applicant did not even disclose the outcome of findings, if any, made by the Mining Commissioner.

The urgency referred to by the applicant is therefore perjured and self-created as there is no evidence that the first and second respondents have defied the instructions by the Mining Commissioner and the police.

Further, on the facts before me, there is no basis for the claim or remedy sought.

I am therefore inclined to make an adverse finding in relation to the applicant's cause as a seal of my disapproval of her mala fides, material non-disclosure, and apparent dishonesty.

Lastly, I now deal with the issue of costs.

Counsel for the respondents sought an order for costs on a higher scale and counsel for the applicant was of the view that there is no basis for punitive costs.

My view is that the manner in which the applicant has conducted herself shows a wanton abuse of the court process. This application is not informed by the applicant's genuine desire to enforce her rights but rather to mislead the court and possibly win at all costs.

The relief sought was apparently granted by the third respondent at the behest of the applicant. There is no evidence that the order or directive given by the third respondent is no longer in force. In fact, the applicant chose to conceal all these facts from the court. There is therefore no need for this application besides wasting the court's valuable time and compelling the first and second respondents to defend themselves in this court.

All in all, the applicant has not been open, candid, honest, and sincere with the court.

The decision by the court to set a matter down on an urgent basis is informed, mostly, by the applicant's founding affidavit. In my view, it is high time that litigants should be made aware that they should not abuse this procedure and that such conduct would invariably be visited with a punitive order of costs.

Accordingly, the application is dismissed with costs on a legal practitioner and client scale.

HH107-10 : CHIROSWA MINERALS (PRIVATE) LIMITED and BASE MINERALS (PRIVATE) LIMITED vs MINISTER OF MINES and MORIS TENDAI NYAKUDYA and VAMBO MILLS (PRIVATE) LIMITED
Ruled By: BHUNU J

The first applicant, hereinafter referred to as the Grantor, is the registered owner of certain six mining claims situate in the district of Shamva being - Name Registration Number Dodge 1 ...

HB05-11 : BMG MINING (PVT) LTD vs MINING COMMISSIONER BYO MINING DISTRICT and CHIEF MINING COMMISSIONER and KAMATIVI TIN MINES (PVT) LTD
Ruled By: MATHONSI J

The applicant seeks a declarator that it is the lawfully registered holder of mining claims called Kapata 11, registered number 11769BM held by certificate of registration number T30249.All the respondents have opposed the application mainly on the ground, that, the applicant's said claims overpeg already existing and registered claims of ...

The applicant seeks a declarator that it is the lawfully registered holder of mining claims called Kapata 11, registered number 11769BM held by certificate of registration number T30249.

All the respondents have opposed the application mainly on the ground, that, the applicant's said claims overpeg already existing and registered claims of the third respondent.

Sometime in 2001, Kapata Syndicate hired an approved prospector, Mr Mguni, to conduct investigations and carry out due diligence search with a view to establish if it was appropriate to prospect, peg, and register three (3) special base metal block claims in the area. Mr Mguni duly carried out the work which cleared the area for pegging resulting in the three (3) claims being registered and registration certificates number 11768BM, 11769BM and 11770BM being issued to Kapata Syndicate by the Mining Commissioner, Bulawayo.

The claims are located in the Dete area of Hwange.

Work on the area commenced thereafter to develop it resulting in boreholes being sunk and equipped, road networks were opened, geological exploration, mining engineering work, metallurgical plant designs and so on were done.

In 2002, the claims were transferred from Kapata Syndicate to the applicant.

The applicant maintained, and paid for, the claims throughout in accordance with the provisions of the Mines and Minerals Act [Chapter 21:05] ('the Act').

By letter dated 9 July 2009, Zimbabwe Mining Development Corporation ('ZMDC') complained to the first respondent that the applicant's claims over-pegged extant claims belonging to the third respondent. The locus stand in judicio of Zimbabwe Mining Development Corporation (ZMDC) having been questioned at the hearing, counsel for the third respondent submitted that this entity owns the third respondent 100%.

It turns out, that, in 1977 and 1979, the third respondent had pegged and registered certain Kapata claims some of which may have been encroached by the applicant's claim number 11769BM. The position is not clear, but, what is pretty obvious is that a pegging dispute has therefore arisen. Both the applicant and the third respondent appear to hold title to conflicting claims.

In response to the complaint made by the third respondent, the first respondent addressed a letter to the Secretary for Mines, dated 19 August 2009, in which she stated, that, a survey conducted by the Regional Survey Department had shown that the applicant's claims encroached onto the third respondent's claims and should thus be relocated.

Clearly, therefore, the first respondent determined that the applicant should relocate to those of its claims which did not overpeg the third respondent's claims. This was confirmed by the Chief Mining Commissioner who said the applicant's claims must be cancelled.

It is pertinent that the first and second respondents have proceeded on the premise that the applicant's claims have been cancelled and that the first respondent's decision to cancel was based on a survey by the Regional Survey Department whose officials she says state that the third respondent's beacons were in place and that the applicant went to peg its own claims despite the existence of beacons.

This conclusion is in sharp contrast with what the Regional Mining Surveyor says in his letter of 8 December 2009 addressed to the Regional Mining Engineer which reads as follows:

''Re: Survey of dispute between Kamativi Tin Mines and BMG Mining claims

This minute is a reply to your request of the need to see the survey report of the beacons mentioned by the Mining Commissioner concerning the above issue. It is alleged, that, the Regional Survey office carried out a survey in the area and it was one of the fact (sic) that the Mining Commissioner used to determine the results of the dispute. The dispute was never ever brought to the attention of the Regional Mining Engineer's Department – Bulawayo.

I categorically state, that, there was no survey work carried out in connection with the dispute, that is the survey that helps the Mining Commissioner in reaching the conclusions in the determination of the dispute concerning the blocks of claims.

Mr Alex Saurombe, on or about 20 February 2008, approached the Survey office requesting for a GPS Survey to be carried out in his three special blocks of base metal claims (Kapata 1, Kapata 11 and Kapata 111) for the purpose of producing a general Surface Plan.

Before the survey was done, the Survey office checked the status of the blocks of claims to verify whether they were current or not, and, whether the blocks of claims are marked on the claims plan of the state to a scale of 1:25,000 that is under the custody of the Mining Commissioner.

The BGM claims were found to be in order and marked clearly on the claims plan and there were no Kamativi blocks of claims appearing on the claims plan or plans kept by the Mining Commissioner. The Survey office was satisfied with the search.

Therefore, the Mine Surveyors went out into the field with the full knowledge that they were stepping on and carrying out the requested survey work on BMG Mining claims only.

Denis Eshmael Katema, REGIONAL MINING SURVEYOR''…,.

It is therefore unlikely, that, the findings of the first respondent, regarding the conflicting claims, were informed by a survey conducted by the Survey office as alleged.

Having been disowned by the Regional Mining Surveyor, the first respondent then prevaricated in her opposing affidavit where, at paragraph 8, she says:

“(a) Applicant is now the registered owner of the claim and it is immaterial who did the pegging.

(b) It was an administrative error that Kapata Syndicate was allowed to register claims over current mining locations.

(c) The survey was carried out at the instance of the applicant. Officials from the Regional Survey Department informed the first respondent that Kamativi beacons were in place. Contents of Annexure 'L' are factually incorrect and were not relied on in reaching the decision to cancel the said claims.”

This, coming from a person who earlier on said she relied upon the same survey, is difficult to understand.

The first respondent is definitely not credible in this aspect and it remains a mystery on what basis she decided to cancel the applicant's claims.

What is more, this puts into issue the question whether any beacons belonging to the third respondent existed.

Both the first and second respondents claim that the applicant's claim was cancelled but they are silent as to when and how the cancellation was affected.

In her submissions, counsel for the first and second respondents stated, that, the “claims were cancelled in line with section 50 of the Mines and Minerals Act, Chapter 21:05, which provides for cancellation of such certificates of registration notwithstanding the provisions of section 58 of the same Act.”

The issue which then arises is whether such cancellation was done in accordance with the provisions of the Mines and Minerals Act [Chapter 21:05].

The applicant has vehemently argued that it was not and, that, because there was no compliance, it remains the lawful holder of claim number 11769BM. The applicant asks for a declaratory order to that effect.

If a cancellation is done by the first respondent in breach of the Mines and Minerals Act, such cancellation is void ab initio because anything done by an official in excess of the powers conferred upon him or without following the procedure for such cancellation is null and void: Musara v Zinatha 1992 (1) ZLR 9 (H)…,.

In that case, ROBINSON J went on to state…, that, an interested person should be at liberty and entitled, at any time, to approach this court for an order declaring the act in question to be null and void and that the court should be slow to turn a party away where it seeks a declaratory order about its status. At 13F the learned judge concluded that:

“I consider that the same approach should be adopted by the court in a civil case where, on the papers before it, the moreso where those papers seek a declaratory order, an act of glaring invalidity is, as in this matter, staring the court straight in the face: for the court to refuse, save in exceptional circumstances justifying such refusal, to declare the act in question null and void ab initio on some technical ground would, I agree, be to ignore the courts fundamental duty to see that justice is done which, after all, is the duty which the layman expects the courts to discharge.”

Accordingly, I do not agree with counsel for the third respondent that the application for a declaratory order should not be entertained as it amounts to the court usurping the power of the first respondent to adjudicate and cancel the registration certificate.

To deny the applicant audience in the face of glaring inconsistencies on the part of the first respondent's conduct, and clear violations of the provisions of the Mines and Minerals Act, amounts to an abdication of duty.

The first respondent claimed to be acting in terms of section 50 of the Mines and Minerals Act [Chapter 21:05] in cancelling the claims. That section provides:

“(1) Subject to subsection (2) the Mining Commissioner may, notwithstanding subsection (1) of section 58, at any time cancel a certificate of registration issued in respect of a block or site if he is satisfied that;

(a) At the time when such block or site was pegged, it was situated on ground reserved against prospecting and pegging under section 31 or 35 on ground not open to pegging in terms of subsection (3) of section 258; or

(b) Provisions of this Act relating to the method of pegging a block or site were not substantially complied with in respect of such block or site.”

In a case which falls under subsection (1), the first respondent is required to act in terms of subsections (2) and (3) which provide;

“(2) At least thirty days before cancelling a certificate of registration under sub-section (1) the mining commissioner shall give notice to the holder of the block or site of his intention to cancel such certificate and of the grounds for such cancellation and of the proposed date of such cancellation, and shall at the same time inform the holder that he may, at any time before that date, appeal in writing to the Minister against such cancellation.

(3) Such notice shall be given by registered letter addressed to the holder of the block or site at the postal address recorded in the office of the mining commissioner, or, if no such address is recorded, by publication thereof in the Gazette.”

There has been a signal failure to comply with any of these provisions relating to cancellation of the registration certificate.

What the first respondent has done is merely to announce the cancellation without more.

So, even assuming that section 50 of the Mines and Minerals Act applied to this case, which is unlikely given that the area was not reserved against prospecting and pegging under sections 31 or 35 and section 258(3) has no bearing, and the pegging method has not been questioned, the first respondent has not complied with the procedure for cancellation set out in subsections (2) and (3) of section 50 of the Mines and Minerals Act.

This therefore means, that, her actions not only offended the audi alteram partem principle but also that failure to comply with the mandatory procedural requirements renders her decision ultra vires section 50 of the Mines and Minerals Act: see Cluff Mineral Exploration (Zimbabwe) Ltd v Union Carbide Management Services (Pvt) Ltd & Ors 1989 (3) ZLR 338 (S)…,.

It was half–heartedly argued, by counsel for the third respondent, that, the first respondent has not yet cancelled the registration certificate, and, as such, due process must be allowed to take its course.

Unfortunately, that argument directly contradicts the submissions made by counsel for the first and second respondents.

Counsel for the first and second respondents unequivocally submitted, that, the applicants “claims were cancelled in line with section 50 of the Mines and Minerals Act [Chapter 21:05]” in paragraph 6 of her heads of argument and maintained that position during the hearing.

Accordingly, the cancellation was effected, and, in view of the violations referred to above, it cannot be allowed to stand.

If the first respondent has reason to believe that the registration of the applicant's claims is questionable or that there may be a case of over-pegging, she must investigate the matter thoroughly and act in accordance with the provisions of the Mines and Minerals Act. Overpegging complaints should be dealt with in terms of sections 353 and 354 of the Mines and Minerals Act - and this has not been followed in this case.

The first respondent appears to have acted in terms of the complaint made on behalf of the third respondent and did not conduct any meaningful investigation let alone commission a survey in terms of section 353 of the Mines and Minerals Act. This explains why she has found it difficult to explain how she arrived at a decision to cancel the certificate and why she has found herself contradicting the Regional Mining Surveyor.

In the result, the provisional order made on 15 January 2010 is confirmed in the following terms, that:-

1. It be and is hereby declared, that, the applicant is the lawfully registered holder of claims named Kapata 11 registered number 11769BM as recorded on certificate of registration after transfer number T30249.

2. If there are any complaints of encroachment, such should be dealt with by the first respondent in compliance with the provisions of the law.

3. The first and second respondents should bear the costs of this application.

HB155-11 : (1) SABAWE MAZUVA HC1310/10 and (2) CHARLES SIMBI HC1349/10 vs (1) MINING COMMISSIONER,GWERU and OFFICER COMMANDING POLICE,MIDLANDS and MINISTER OF MINES and (2) SABAWE MAZUVA
Ruled By: MATHONSI J

These two applications are inter-related. HC1349/10 is an application for rescission of judgment made by Charles Simbi (herein after referred to as “the first respondent”) who is the first respondent in HC1310/10, an application made by Sabawe Mazuwa (hereinafter referred to as “the applicant”), who is the respondent in the ...

On 1 July 2010, the applicant obtained a default judgment in HC905/10 which is to the following effect:

“It is ordered that:

1. The 1^st respondent be and is hereby ordered to cease the operations at Thunderbird 42 and 21 mine forthwith, pending the hearing of applicant's appeal.

2. The 2^nd respondent be and is hereby barred from dealing with the dispute whatsoever other than for purposes of complying with the orders of this honourable court or his superiors.

3. The 1^st respondent only be and is hereby ordered to pay the costs of suit.”

In order to obtain that order, the applicant had made a court application in which he argued that there was a boundary dispute between himself and the first respondent which had been referred to the second respondent for adjudication. He had gone on to argue that after the second respondent had ruled in favour of the first respondent on the ownership of the disputed mine shaft, he had lodged an appeal to the Secretary of Mines against the decision of the second respondent made on 4 March 2010. As that appeal was still pending before the Secretary of Mines, he sought an order stopping mining operations at the disputed mining claim and barring the Mining Commissioner for Gweru from dealing with the dispute. As the application was unopposed, I granted the order on 1 July 2010 aforesaid.

It is that order which the first respondent wishes to have rescinded in HC1349/10.

With the consent of the applicant and the first respondent, on 28 September 2011, I ordered the consolidation of the two matters and directed that they be heard at the same time on 11 October 2011.

This judgment is in respect of the two applications....,.

In seeking rescission of judgment, the first respondent stated that when the application in HC905/10 was served upon his wife he had been out at his mining claim where he spends his time during the week. Upon his return home, his wife gave him the papers, part of which had been torn by his child. He had a “cursory” look at them and assumed they were the same documents he had received earlier in respect of another application that had been filed in this court because they had a striking resemblance of the earlier court papers especially as there was no case number. The first respondent stated that he had ignored the application and it was not until he received the court order I have referred to above, that he realized his error and rushed to his lawyers with instructions to file an application for rescission of judgment…..,.

In his address to the court, counsel for the applicant submitted that the determination of HC1310/10 should resolve the rights of the parties and that the order of 1 July 2010 in HC905/10 would be overtaken by events.

In deciding whether an applicant for rescission of judgment has discharged the onus of proving “good and sufficient” cause as provided for in Rule 63(2) of the High Court of Zimbabwe Rules 1971, the court has regard to the reasonableness of the applicant's explanation for the default; the bona fides of the application to rescind the judgment; and the bona fides of the defence on the merits of the case which carries some prospects of success. Barclays Bank of Zimbabwe Ltd v C C International (Pvt) Ltd SC16-86; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S)…,.

As stated in Stockill v Griffiths 1992 (1) ZLR 172 (S)…,;

“These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”…,.

The first respondent went on to say that the purported appeal against the Mining Commissioner's decision of 4 March 2010 was invalid given that it was noted in the wrong forum, the Secretary of Mines and Mining Development, instead of being noted in this court as provided for in section 361 of the Mines and Minerals Act [Chapter 21:05]. If it could be taken as a valid appeal it would still not automatically suspend the decision of the Mining Commissioner.

Counsel for the first respondent argued that the default judgment of 1 July 2010 cannot stand because there is, in essence, no appeal pending and that the filing of HC1310/10 by the applicant was a clear indication that the purported appeal had been abandoned.

Indeed, in his heads of argument, counsel for the applicant abandoned the appeal completely saying in paragraph 6:

“This application will not address anymore the propriety or otherwise of applicant's appeal to the Permanent Secretary of 4^th respondent and the desirability that mining operations should stop pending the resolution of the dispute.”

In my view, the concession made by counsel for the applicant, on the fate of the purported appeal to the Secretary of Mines, was well made. Section 361 of the Mines and Minerals Act [Chapter 21:05] provides:

“Any party who is aggrieved by any decision of a Mining Commissioner's court under this Act may appeal against such decision to the High Court, and that court may make such order as it deems fit on such appeal.”

In casu, no appeal was made to this court.

To the extent that the appeal was purportedly made to the Secretary of Mines, then it is a monumental nullity. There is no appeal at all. The order sought to be rescinded was made pending a non-existent appeal.

While the explanation for the first respondent's failure to respond to the application in HC905/10 is what MAKARAU JP…, referred to in Mwanyisa v Jumbo & Ors HH03-10 as “a dog's breakfast”, if the factors to be taken into account in deciding a rescission of judgment application as set out in Stockill v Griffiths 1992 (1) ZLR 172 (S) are taken in conjunction with one another, the applicant has discharged the onus of proving “good and sufficient cause” for the rescission of the judgment entered on 1 July 2010.

It simply cannot stand….,.

1. The default judgment entered on 1 July 2010 be and is hereby set aside.

2. The first respondent should file his opposing papers in HC905/10 within 10 days of the date of this order.

HMA31-17 : CHAMU MINING SYNDICATE vs SIBONGILE MPINDIWA N.O. and CHAMWANDOITA SYNDICATE
Ruled By: 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 ...

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 [Chapter 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 mid-stream….,.

Counsel 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 [Chapter 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….,.

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 section 345 of the Mines and Minerals Act [Chapter 21:05]. But this was neither here nor there. Section 345[1] of the Mines and Minerals Act [Chapter 21:05] 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 Mines and Minerals Act [Chapter 21:05] provides for the acquisition and registration of mining rights. Among other things, if certain procedures have been complied with, section 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 Mines and Minerals Act [Chapter 21:05]. 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.

HH59-15 : REUBEN MARUMAHOKO and EDWARD CHIMEDZA and NEVER CHIROWAPASI vs PROVINCIAL MINING DIRECTOR, MASHONALAND WEST (N.O) and OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE (N.O.)
Ruled By: MUREMBA J

From the submissions made by both parties, it is common cause that no appeal lies with the Minister of Mines. Both parties said that in terms of section 361 of the Mines and Minerals Act [Chapter 21:05], an appeal lies with the Supreme Court. However, the correct position is that in terms of that section ...

HH59-15 : REUBEN MARUMAHOKO and EDWARD CHIMEDZA and NEVER CHIROWAPASI vs PROVINCIAL MINING DIRECTOR, MASHONALAND WEST (N.O) and OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE (N.O.)
Ruled By: MUREMBA J

Looking at section 45(1) of the Mines and Minerals Act [Chapter 21:05], it is apparent that the person who is vested with the powers to receive applications for registration of mining blocks and issuing the certificates of registration is the Mining Commissioner. So, he is the authority who grants mining rights. In terms of section 346, the ...

HB135-16 : KAS FOODS (PVT) LTD vs GLADYS MOYO and ACTING PROVINCIAL MINING DIRECTOR – MIDLANDS
Ruled By: MATHONSI J

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.

HH339-14 : ROCK CHEMICAL FILLERS (PVT) LTD vs BRIDGE RESOURCES (PVT) LTD and TAPIWA GURUPIRA and MOST CHIKUMBA
Ruled By: MATHONSI J

The applicant is a mining concern which is the registered owner of certain mining claims known as Riverclay 101 located on Redfields Farm in Kwekwe District where it mines Barytes on 18 claims. The first respondent is also into mining, and, in that regard, it was issued with a Special Prospecting Licence to prospect and search ...

The applicant is a mining concern which is the registered owner of certain mining claims known as Riverclay 101 located on Redfields Farm in Kwekwe District where it mines Barytes on 18 claims.

The first respondent is also into mining, and, in that regard, it was issued with a Special Prospecting Licence to prospect and search for any minerals, mineral oils and natural gases in pursuance of which on 15 May 2014 it gave a prospecting notice which it posted at a spot adjacent to the applicant's registered mining claims. Upon prospecting and discovering baryte deposits, the first respondent gave a discovery notice and a registration notice demonstrating a clear intent to peg and register 130 baryte claims.

A mining dispute has now erupted as a result of the first respondent's activities. The applicant complains, bitterly, that its hitherto successful and undisturbed mining activities are being threatened by the first respondent, who, on 16 June 2014, set up mining machinery on mining claims adjacent to those it owns and commenced mining activities, drilling underground into the applicant's mining claims and extracting barytes. When the applicant's Site Manager confronted the first respondent, who had the second and third respondents on site, demanding that they cease operations, the applicant claims that they threatened violence and also claimed to have “powerful people” behind them.

A complaint to the Mining Commissioner has yielded nothing. The applicant, however, does not state how the complaint was made and has not attached any documentation substantiating the complaint. As attempts to reason with the first respondent's representatives have not been fruitful and the Mining Commissioner has elected not to take any action, the applicant says it has been forced to approach this court seeking provisional relief stopping the first respondent's mining activities.

In making the approach, the applicant has not cited the Mining Commissioner and a significant lacunae exists in the papers on the nature and extent of the applicants' engagement with the Mining Commissioner…,.

The first respondent is opposing the application….,.

The plot that is developing in this matter exhibits a boundary dispute where the applicant complains of encroachment on its duly registered mining claims.

Counsel for the respondents submitted that the boundary dispute should have been referred to the Mining Commissioner for resolution instead of burdening this court without the involvement of the Mining Commissioner. He submitted, further, that the application lacks merit given that the first respondent is entitled to prospect up to a radius of 300 meters from the posting point of its notice suggesting, while at the same time denying encroachment, that the first respondent can prospect onto the applicant's mining claims. Counsel for the respondents submitted, further, that recourse to the court of the Mining Commissioner presented the applicant with an alternative remedy thereby dis-entitling it from making this application. In addition, the first respondent has suggested that the parties enlist the services of surveyors to determine the boundaries especially as the first respondent has a right, in terms of its prospecting licence, to prospect around the applicant's mining claims and is in the process of registering its own baryte mining claims.

Counsel for the applicant insisted that this was not a boundary dispute but a clear case of encroachment and illegal extraction of a mineral belonging to the applicant by a party with no mining rights whatsoever….,.

The first respondent admits that it has been drilling and excavating at the site since 16 June 2014. In terms of section 27 of the Mines and Minerals Act [Chapter 21:05];

“(1) Subject to sections 21 and 368, every holder of a prospecting licence shall be entitled to the following rights -

(a) The right, subject to the provisions and limitations hereinafter contained, of prospecting and searching for any minerals, mineral oils and natural gases on land open to prospecting, but not of removing or deposing of any mineral discovered save for the bona fide purpose of having it assayed or of determining the nature thereof or with the permission of the Mining Commissioner;

(b) The right, subject to the provisions hereinafter contained, of pegging –

(i) One block of precious metal claims; or

(ii) One block of precious stones claims; or

(iii) One block of base mineral claims.

(2) No drilling or excavation work, whether at the surface or underground, shall be undertaken by the holder of a prospecting licence, save in the exercise of exclusive rights conferred on him by subsection (5) of section 41 or subsection (2) of sub-section 42.

(3)…,.” …,.

Section 41 of the Mines and Minerals Act [Chapter 21:05] allows the holder of a prospecting licence who desires to drill or excavate to post a prospecting notice on ground open to prospecting while section 42 provides that upon discovery of precious metals or precious stones he shall mark the point of discovery by a peg.

The first respondent says the drilling and excavation were conducted in accordance with these provisions.

The question of a referral of the dispute to the Mining Commissioner must be considered in conjunction with the provisions of section 345(1) of the Mines and Minerals Act [Chapter 21:05] which provides:

“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.”

Therefore, while the Mining Commissioner has judicial powers conferred upon him by section 346 of the Mines and Minerals Act [Chapter 21:05], to hold a court in any part of the mining district to which he is appointed and determine disputes in the simplest, speediest and cheapest manner possible, and also to authorise a survey (section 353), for the purpose of ascertaining whether an encroachment has occurred, this court still enjoys jurisdiction over such matters. The application can therefore not be defeated by a failure to refer the dispute to a Mining Commissioner. It is, however, important to note that it is within the province of this court to direct the Mining Commissioner to commission a survey. Indeed, the Mining Commissioner to whom a complaint has been made, as was done by the applicant in this case, has a duty to investigate the complaint thoroughly; BMG Mining (Pvt) Ltd v Mining Commissioner, Bulawayo and Ors 2011 (1) ZLR 74 (H)…,.; Mazuva v Simbi; Simbi v Mazuva 2011 (2) ZLR 319 (H)…,.

To my mind, it should not be difficult to determine whether an encroachment onto the applicant's mining claims has occurred. Those registered claims should be clearly marked with beacons easy to locate. If the first respondent's activities are being carried out within those claims, the first respondent should stop that immediately. There is, however, nothing preventing the first respondent from pursuing its endeavours in an area outside the marked domain of the applicant in accordance with its prospecting licence for it cannot lawfully do so on registered claims as it is precluded by section 31 of the Mines and Minerals Act [Chapter 21:05] from doing so. It would be safe to grant interim relief protecting the applicant's demarcated mining area from any interference while directing the Mining Commissioner to investigate the matter and compile a report. That way the dispute may be brought to a close.

Accordingly, I grant the provisional order, as amended, the interim relief of which reads:

“INTERIM RELIEF GRANTED

Pending the determination of this matter, the applicant is granted the following relief:

1. The first and third respondents, or any of their agents and/or employees, or anyone acting on their behalf, are hereby directed to forthwith cease all mining activities on the mining claims of the applicant known as Riverclay 101 on Redfields Farm as demarcated on the regional map attached to the application immediately upon service of this order.

2. The dispute over the boundaries of the applicant's mining claims is referred to the Mining Commissioner for Gweru/Kwekwe who shall, within 14 days from the date of this order, commission a survey to identify and clearly mark the boundaries of the applicant's mining claims.

3. The Mining Commissioner shall prepare a report which shall forthwith be filed in the court record, and, in any event, before the return date of this provisional order.

HH228-16 : ANJIN INVESTMENTS (PVT) LTD vs THE MINISTER OF MINES & MINING DEVELOPMENT and THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER-GENERAL OF THE ZIMBABWE REPUBLIC POLICE
Ruled By: MANGOTA J

Section 291 of the Mines and Minerals Act [Chapter 21:05]…., reads: “ISSUE OF SPECIAL GRANTS 1. The Secretary may issue to any person - (a) A special grant to carry out prospecting operations; or (b) A special grant to carry out mining operations for mining purposes; upon a defined area situated within an area which has been reserved against prospecting or pegging under section thirty-five for ...

Appealed
SC33-18 : SMIT INVESTMENT HOLDINGS SA (PROPRIETARY) LIMITED and GENET MINING (PROPRIETARY) LIMITED vs THE SHERIFF OF ZIMBABWE and PUNGWE MINING (PVT) LTD
Ruled By: MALABA CJ, HLATSHWAYO JA and PATEL JA

The Customs and Excise (Suspension) Regulations 2003 (S.I. 257 of 2003) as amended, provide, in section 9K(2), that: “Suspension of duty shall be granted to a holder in respect of specified goods which, during the specified period, are imported by that holder for use solely and exclusively for mining development operations.” A “holder” of a mining location, in ...

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HH193-16 : GRANDWELL HOLDINGS PL vs MINISTER OF MINES and ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and ZIMBABWE CONSOLIDATED DIAMOND COMPANY and MBADA DIAMONDS PL and ANOR
Ruled By: MAFUSIRE J

Relevant portions of section 291 of the Mines and Minerals Act [Chapter 21:05] say: “291 Issue of special grants [1] The Secretary may issue to any person – [a] A special grant to carry out prospecting operations; or [b] A special grant to carry out mining operations or any other operations for mining purposes; upon a defined area situated within an area ...

HB172-16 : STANLEY MASUMBA vs COLLEN TSHAYANA and PROVINCIAL MINING DIRECTOR - MIDLANDS and MINISTER OF MINES AND MINING DEVELOPMENT N.O.
Ruled By: MATHONSI J

A mining dispute arose between the applicant and the first respondent because the applicant has been carrying out mining operations on his mine known as Belingwe Star 40, mine registration number 13185, located somewhere next to a farm where the first respondent is farming. The dispute arose not because of clash of activities between the first respondent's farming exploits and the applicant's mining operations but because the farmer located a tuckshop within the mining boundaries of Belingwe Star 40 mined by the applicant.

The dispute was referred to the Mining Commissioner who issued a determination on 2 June 2015 in favour of the applicant. The first respondent appealed against that determination to the Secretary for Mines and Mining Development who issued a memorandum dated 11 March 2016 cancelling the certificate of registration of the mining claim belonging to the applicant. I say that because the results were communicated to the two antagonists by letter of the Provincial Mining Director - Midlands Province dated 27 April 2016. It reads:

“REF: FARMER-MINER DISPUTE BELINGWE STAR 40 MINE vs PLOT STAND 37 OF DUNNING FARM: MBERENGWA

Reference is made to the above subject matter. Following the appeal against the Acting Mining Director's decision dated 30 April 2016 this office is in receipt of a memorandum from the Secretary for Mines and Mining Development dated 11 March 2016 which states that:

1. The certificate of registration issued to Belingwe Star 40 mine to be cancelled as it pegged on an area that was not open to prospecting and pegging in terms of section 31 of the Mines and Minerals Act [Chapter 21:05].

2. The area in question is land under cultivation, and, as such, pegging in such a location can only be done with the consent of the farm owner.

3. Collen Tshayana's tuck shop should not be demolished as it is on his land which is less than hundred (100) hectares.

The certificate of registration for Belingwe Star 40 mine, registration number 13185, is hereby on this day, 27 April 2016, cancelled.”

If the date stamp on that letter for 5 May 2016 is anything to go by then the letter containing that decision must have been dispatched on that date. When the applicant received it, he was quick to file an application for review in this court in HC1283/16 on 23 May 2016 against the present respondents. He sought a review of the decision on the grounds of illegality because an appeal against a decision of the Mining Commissioner does not lie with the Secretary for Mining but the High Court. He argued that the decision in question is ultra vires the Act and therefore a nullity.

The second and third respondents have opposed that application.

In the opposing affidavit of Malcom Mazemo, the Provincial Mining Director for Midlands, they sought to argue that the Secretary did not determine an appeal because none was made. Instead, he only corrected “an error which was done in the administration of the Midlands Office.” The Secretary is entitled to do so by virtue of section 341(2) of the Act.

In my view, the respondents are hiding behind a finger. They should have chosen a better object behind which to hide because the finger is just too small for that purpose.

The letter I have reproduced above is clear and unambiguous. There was an appeal made against the decision of the Mining Commissioner. The Secretary upheld the appeal and cancelled the applicant's certificate of registration and gave reasons for doing so. There is no question whatsoever of correcting errors. No matter how hard the respondents may try to bring that action within the provisions of section 341(2) of the Act, which empower the Secretary to authorize the correction of errors in the administration committed by a Mining Commissioner, it simply will not work. This is a case where an appeal was directed to a tribunal with no appellate jurisdiction.

In fact, we are now being made to plough through land that has already been tilled. In Mazuva v Simbi; Simbi v Mazuva 2011 (2) ZLR 319 (H), I was confronted with exactly the same issue. An appeal against the decision of the Mining Commissioner was purportedly made to the Secretary of Mines ignoring the provisions of section 361 of the Act which provides:

“Any party who is aggrieved by any decision of a Mining Commissioner's court under this Act may appeal against such decision to the High Court and that court may make such order as it deems fit on such appeal.”

I still abide by the decision I took that such an appeal is a monumental nullity.

The use of the word “may” in that section does not mean more than that the aggrieved person has a discretion to appeal. It does not mean that there are other avenues of appeal. It certainly does not repose upon the aggrieved party a discretion to appeal to the Secretary of Mines. No such appellate jurisdiction is given to the Secretary of Mines. It is, in fact, the height of desperation to find such jurisdiction in section 341(2) of the Act because it is simply not there. The appeal was a nullity and so was the decision flowing from it.

The applicant has, in the present application, sought a provisional order the effect of which would be to suspend the decision to cancel his registration certificate pending the determination of his application for review in HC1283/16.

The first respondent, who appeared in person, stated that he is opposed to the application, firstly, because the applicant and himself attended at the office of the Secretary of Mines on 19 November 2015 and 3 December 2015. If he was objecting to the jurisdiction of the Secretary he should have done that long back and not to do so now. When his attention was drawn to the application for review, HC1283/16, he stated that he had received the application and was yet to file his opposition.

In my view, failure to object to the Secretary's jurisdiction cannot clothe the Secretary with jurisdiction he does not have.

Secondly, the first respondent submitted that the mining claim of the applicant is located on his land. He produced a map which he says was also submitted to the second respondent after he had already made his decision, annexure A, and the latter underwent some damascene experience. He then advised him to approach the Secretary of Mines for recourse.

In my view, the applicant has shown that he has a prima facie right to the relief that he seeks. He has had his registration certificate cancelled on the decree of a Secretary of Mines who has overturned a decision taken earlier by the Mining Commissioner. That course of action was taken following an appeal made in violation on section 361 of the Act. The applicant has already taken action in pursuit of a remedy by filing a review application in this court.

As that application is yet to be determined, he certainly requires protection in the interim. On the other hand, as long as his certificate remains cancelled he cannot undertake mining operations. Doing so would be illegal. I perceive of no other remedy available to the applicant in the circumstances and the balance of convenience would seem to favour the grant of the provisional order. Until the decision of the Secretary, the applicant was lawfully mining and the first respondent confirmed that he neither has a registration certificate nor the wherewithal to conduct mining operations. He will suffer no prejudice whatsoever by returning to the status quo.

In the result, the provisional order is hereby granted in terms of the amended draft order.

HH169-15 : ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and STANBIC BANK and MNISTERS OF MINES AND MINING DEVELOPMENT and MINERALS MARKETING CORPORATION OF ZIMBABWE
Ruled By: MAKONI J

The applicant approached this court seeking a declaratur and consequential relief in the following terms:- “1. The Application for a Declaratur is hereby granted. 2. The garnishee order issued on 16 November 2011 by the 1st Respondent to the 2nd Respondent against the applicant is invalid. For the avoidance of doubt, it is specifically declared that: 2.1. The definition of taxes, ...

The applicant approached this court seeking a declaratur and consequential relief in the following terms:-

“1. The Application for a Declaratur is hereby granted.

2. The garnishee order issued on 16 November 2011 by the 1^st Respondent to the 2^nd Respondent against the applicant is invalid. For the avoidance of doubt, it is specifically declared that:

2.1. The definition of taxes, under Income Tax Act [Chapter 21:05], does not include royalties under the Mines and Minerals Act (read with Chapter VII of the Finance Act [Chapter 23:04]).

2.2. The 1^st Respondent acted ultra vires when it used the power granted unto it under section 58 of the Income Tax Act [Chapter 23:06] for enforcing payment of taxes under that Act, in an attempt to enforce payment of royalties under Part XIV Section 245 of the Mines and Minerals Act [Chapter 21:05] as read with Chapter XII Section 26, Section 37 and Section 37A of the Finance Act [Chapter 23:04].

3. Owing to the operation of Part XIV, section 243 of the Mines and Minerals Act [Chapter 21:05], the Applicant's Mining Agreement with the Government of Zimbabwe takes precedence over Part XIV section 244 and Section 245 of the Mines and Minerals Act [Chapter 21:05] and takes precedence over Chapter VII Section 36, Section 37 Section 37A and the Schedule of the Finance Act [Chapter 23:04]. For the avoidance of doubt, it is specially declared that:

3.1. The applicant is liable to pay royalty rates at 2.5% of the fair market value of all products produced from the mining area, and not 5% or any other rate appearing [in the Schedule under Chapter VII of the Finance Act [Chapter 23:04] enacted by the Mines and Minerals Act [Chapter 21:05];

3.2. The applicant overpaid royalty rates to the 1^st respondent for the period of 1 January 2004 to 30 September 2010 when it paid at the legislative rate of 3% and 3.5% instead 2.5%. The Applicant is entitled to recover the amount overpaid in the sum of US$6,057,146= (six million fifty seven thousand one hundred and forty six United States Dollars) by way of set off royalties which were due and payable for the period of 1 October 2010 to 31 March 2011.

4. Each party shall bear its own costs.”

The background to the matter is that the applicant is the holder of a Special Mining lease issued by the Minister of Mines to the applicant, in terms of the Mines and Minerals Act [Chapter 21:05] (the Act). It is also a holder of a Mining Agreement (MA) signed between it and the Government of Zimbabwe (the Government). Both documents were executed on 24 August 1994. Up until December 2003, the applicant paid a flat royalty rate of 2.5% across the board for all products as per the royalty rate contained in the Mining Agreement. The payments were made quarterly. From January 2004 to 30 September 2010, the applicant paid royalties according to rates stipulated in the Mines and Minerals Act but according to dates as provided for in the Mining Agreement. The reason given by the applicant for such payments is it anticipated a substantive agreement and performance by the Government on the change of the tax regime by it. The parties had at one point contemplated revisiting the tax regime applicable to the applicant. A framework for the agreement contemplated was signed and executed by the parties. The actual agreement to vary the Mining Agreement never saw the light of day. When the Government failed to implement the new tax regime, the applicant reverted to the original royalty provisions as provided by the Mining Agreement. The first respondent claimed royalties from the applicant using the legislature rates. When the applicant did not pay the amounts claimed by the first respondent, the first respondent issued a garnishee to the second respondent against the applicant.

The applicant then instituted the present proceedings.

It is the applicant's case that there is no legal basis for collection of royalties by the first respondent in terms of the Mines and Minerals Act as opposed to the Mining Agreement. The first respondent therefore collected in excess of the rates applicable to the applicant and has therefore been over-compensated. The applicant overpaid the first respondent in the sum total of $6,057,146=….,.

The Royalties Regime which applies to the applicant

The issue for determination is whether it is the Mining Agreement regime or the legislature regime which applies in the assessment of royalties payable by the applicant.

Counsel for the applicant contended that clause 6 of the Mining Agreement provides for the payment and levying of royalties due by the applicant. Paragraph 6.1 thereof prescribes the rate of two and half per cent (2.5%) of the fair market value determined in accordance with Clause 11 thereof, payable on a quarterly basis. He further contended that section 244 and section 245 of the Mines and Minerals Act do not apply to the applicant as he is a holder of a Mining Agreement.

Counsel for the first respondent submitted that section 167 of the Mines and Minerals Act provides that you cannot enter into an agreement which is inconsistent with the Act. The Mines and Minerals Act, in section 244 and 245, provides for royalties which fluctuate and are payable monthly. The Mining Agreement provides for 2.5 per cent. If section 244 and 245 are read together with section 167, the Mining Agreement falls foul of the law.

Section 167 of the Mines and Minerals Act [Chapter 21:05] provides:

“The Minister, with the approval of the President, may enter into an agreement, not inconsistent with the Act, with any person regarding -

(a)…,.

(b)…,.

(c) The liabilities and obligations of the person in terms of any special mining lease that may be issued to him, including payments by way of royalties, rents and fees; and

(d)…,.”

Section 243 of the Mines and Minerals Act [Chapter 21:05] provides:

“This part shall apply to the holder of a special mining lease only to the extent that the terms and conditions of his special mining lease or of any agreement entered into with him in terms of section one hundred and sixty seven and consistent with this part.”

It is common cause that the Mining Agreement was entered into in terms of section 167 of the Mines and Minerals Act. It has a royalty clause as provided for in the section. The parties differ on the interpretation of section 167 as read with section 243, section 244 and section 245 of the Mines and Minerals Act [Chapter 21:05].

Counsel for the applicant contends that in terms of section 243, the rates, as promulgated in terms of section 245, do not apply to it as it is a holder of a Mining Agreement. He submitted that if the words of section 243 are given their ordinary grammatical meaning they clearly exclude the application of section 245 to anyone who holds a mining lease.

Section 243 of the Mines and Minerals Act gives precedence to the Mining Agreement.

Counsel for the first respondent contends that section 243 only gives precedence to a Mining Agreement if it is properly entered into in terms of section 167. According to his interpretation, an agreement is properly entered into in terms of section 167 if the rates payable are made in terms of the Act. He argued that section 167 allows parties to enter into an agreement and agree on rate as set in terms of the Act or above it.

What is clear from the above is that there is an obvious and glaring discrepancy in clause 6 of the Mining Agreement and the provisions of section 244 and 245 of the Mines and Minerals Act. The Mining Agreement provides for a fixed rate of 2.5 per cent payable quarterly. The Act provides for various rates based on the mineral produced which are generally higher than those provided for in the Mining Agreement and which are payable monthly.

In terms of Part IX of the Mines and Minerals Act, Special Mining Agreements were set up, inter-alia, in order to encourage investment in the mining sector. The lease holders would exploit the resources while at the same time creating employment. Section 243 was put in place to specifically deal with situations such as the present one, where there are inconsistencies between a special mining agreement and Part XIV of the Act, which regulate royalties. The provision gives precedence to the mining agreements. To interpret it in the manner suggested by the respondent would be to defeat the intention of the legislature in setting up the special mining leases. The question would be why enter into the special mining lease, which must contain a royalty clause in terms of section 167, and, at the same time, have royalties regulated in terms of Part XIV which, invariably, will be higher than the rates in the Mining Agreement. Such an interpretation will lead to an absurdity.

I agree with counsel for the applicant that section 243 of the Mines and Minerals Act [Chapter 21:05] specifically confers precedence to the Mining Agreement and the respondent had no legal basis to levy royalties against the applicant in terms of the legislature regime….,.

Accordingly, I will make the following order:

IT IS ORDERED THAT:-

1. Owing to the operation of Part XIV, section 243 of the Mines and Minerals Act [Chapter 21:05], the applicant's Mining Agreement with the Government takes precedence over Par XIV section 244 and section 245 of the Mines and Minerals Act [Chapter 21:05] and takes precedence over Chapter VII, section 36, section 37, section 37A and the Schedule of the Finance Act [Chapter 23:04]. For the avoidance of doubt, it is specifically declared that:

1.1 The applicant is liable to pay royalty rates at 2.5% of the fair market value of all products produced from the mining area and not 5% or any other rate appearing in the Schedule under Chapter VII of the Finance Act [Chapter 23:04] enacted by the Mines and Minerals Act [Chapter 21:05];

2. Each party shall bear its own costs.

HMA26-18 : DYNAMIC MINING SYNDICATE vs ZIMASCO (PVT) LTD and ENELY MUZENDA and BUSYWORK DUBE and PROVINCIAL MINING DIRECTOR, MIDLANDS PROVINCE and OFFICER IN CHARGE, LALAPANZI and ANOTHER
Ruled By: MAWADZE J

This urgent chamber application for a provisional interdict is anchored on an appeal filed with this court on 22 March 2018. The applicant is a mining syndicate involved in chrome mining in the Lalapanzi area in Gweru. The first respondent, ZIMASCO (Pvt) Ltd, is a duly registered company in terms of the laws of Zimbabwe and ...

This urgent chamber application for a provisional interdict is anchored on an appeal filed with this court on 22 March 2018.

The applicant is a mining syndicate involved in chrome mining in the Lalapanzi area in Gweru. The first respondent, ZIMASCO (Pvt) Ltd, is a duly registered company in terms of the laws of Zimbabwe and also involved in the mining of chrome. The second and third respondents are individuals contracted by the first respondent to engage in chrome mining on behalf of the first respondent at the disputed chrome mining claims known as Mackenzies 11 in Lalapanzi....,.

The facts giving rise to this urgent chamber application are largely common cause. They can be summarised as follows;

A dispute has arisen between the applicant and the first respondent in relation to the chrome mining claims known as Mackenzies 11 in Lalapanzi near Gweru. Both the applicant and the first respondent are holders of certificates of registration in respect of the said mining claims issued by the fourth respondent. The dispute is centred on over pegging by either party. The said dispute was referred to the fourth respondent for adjudication sitting as a Mining Commissioner's Court. On 19 January 2018 the fourth respondent pronounced its ruling in favour of the first respondent. A finding was made that the applicant had violated section 177 of the Mines and Minerals Act [Chapter 21:05] [The Act]. As a result, the fourth respondent proposed, as a penalty, to cancel the applicant's certificate of registration in accordance with the provisions of section 50 of the Mines and Minerals Act. The applicant was further advised to appeal to the Minister of Mines and Mines Development if it so wished within the prescribed period against the penalty proposed.

The applicant did not take that advice.

The applicant, irked by the decision of the fourth respondent, appealed to this court on 22 March 2018. It is the applicant's contention now that despite the noting of this appeal against the fourth respondent's decision the first respondent, through the second and third respondents, has continued mining activities at the disputed claims. The applicant, on the other hand, has suspended all its mining activities at the disputed claims pending the determination of the appeal. This has not been disputed by the respondents - especially the first to third respondents.

The applicant contends that it is still the registered owner of the disputed claims known as Mackenzies 11 Lalapanzi and that the continued mining activities by the first respondent, through the second and third respondents, is prejudicial to its interests as the chrome deposits would be depleted or exhausted before the pending appeal is finalised. This would render the outcome of the appeal an exercise in futility. This is what has caused the applicant to approach this court, through the urgent chamber book, seeking a temporary interdict pointing out that it has no other remedy.

At the commencement of the hearing both counsel for the first to third respondents and counsel for the fourth to sixth respondents took points in limine. I now revert to the points in limine....,.

The second point in limine raised by counsel for the first to third respondents is that the applicant's appeal to this court was noted out of time. She submitted that no application for condonation for late noting of the appeal has been made nor granted. She argued that on this basis alone the applicant's case should be dismissed.

In support of this argument, counsel for the first to third respondents relied on section 360 of the Mines and Minerals Act [Chapter 21:05] which provides as follows;

“360. Magistrates Court procedure to be observed in Mining Commissioner's Court

Save as otherwise provided in this Act, the procedure to be observed by a Mining Commissioner's Court and fees chargeable in respect of any proceedings therein shall, so far as practicable, be in accordance with the law and rules governing procedure and fees in civil cases in the Magistrates Court.”

Counsel for the first to third respondents further submitted that that the appeal against the decision of the Mining Commissioner's Court to the High Court should necessarily be governed by the Magistrates Court (Civil Rules) 1980. In that vein, she argued, rather convincingly, that in terms of Order 31 Rule 2(1)(a) of the Magistrates Court (Civil) Rules 1980 the applicant should have noted this appeal within 21 days from the date applicant was served with the fourth respondent's ruling which is on 19 January 2018. Instead, the appeal was only noted on 22 March 2018 well outside the dies induciae of 21 days. Counsel for the first to third respondents therefore contended that the applicant's purported appeal is invalid and that in the absence of such a valid appeal the applicant cannot be granted the relief sought.

Despite the aromatic scent exuded from counsel for the first to third respondents argument, my appetite is not aroused by such an argument.

It is incorrect to say that an appeal noted in terms of section 361 of the Mines and Minerals Act [Chapter 21:05] is governed by the provisions of section 360 of the same Act. To my mind, section 360 of the Mines and Minerals Act simply deals with the procedure the Mining Commissioner's Court should observe during hearings related to disputes and the fees chargeable. It does not provide for what happens ipso facto such hearings. It does not provide for the period within which an aggrieved party should note an appeal to the High Court. It is section 361 of the Mines and Minerals Act [Chapter 21:05] which deals with the appeals to the High Court against the decision of the Mining Commissioner's Court. Further, section 361 of the Mines and Minerals Act is silent on the time within which such an appeal should be made. The inference I can draw is that such an appeal should simply be noted within a reasonable time. In my view, what amounts to a reasonable time depends on the circumstances of each case and the court should be guided by the interests of justice and fairness. I am therefore inclined to dismiss the second point in limine taken by counsel for the first to third respondents....,.

I now turn to the merits of the application.

The law in relation to temporary interdicts is again well settled. The requirements of an interdict are as follows;

(i) A prima facie right, even if it is open to some doubt;

(ii) A well-grounded apprehension of irreparable harm if the relief sought is not granted;

(iii) That the balance of convenience favours the granting of the interim interdict;

(iv) That there is no other satisfactory remedy;

(v) That there are reasonable prospects of success in the merits of the main case.

See Setlogelo v Setlogelo 1914 AD 221; Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Another 2000 (1) ZLR 234 (H).

The above requirements, in my view, are applied conjunctively and not disjunctively.

I now proceed to apply these requirements to the facts of this case.

The applicant has a prima facie right on account of the fact that it has a certificate of registration issued by the fourth respondent in respect of the disputed mining claim. It matters not that such a prima facie right is now open to some doubt as the fourth respondent has expressed an intention to cancel the certificate of registration.

It has not been refuted by the first to third respondents that mining activities are continuing at the disputed mining claims despite the noting of an appeal by the applicant. Mineral resources, like chrome, are a finite resource hence the applicant's apprehension of irreparable harm is well grounded.

What other remedy would the applicant have in the circumstances in order to stop the activities of the first to third respondents after noting the appeal? None. The only remedy available to the applicant is to stop the mining operations through the interim interdict.

It cannot be said that the applicant's prospects of success in the merits of the main case are not reasonable. All what the applicant has to show is that they have an arguable case on appeal or a fighting chance. It matters not if the applicant is subsequently knocked out in the last rounds of the fight. The question really is whether the appeal is simply a hopeless one, not whether the applicant has an unassailable case on appeal.

This court is mindful of the fact that it is not sitting as an Appeal Court. I should therefore simply have a glancing view of the grounds of appeal to assess the applicant's prospects of success on appeal.

As per the grounds of appeal, the nature of the evidence relied upon by the fourth respondent in making the decision which is being impugned by the applicant is an issue clearly articulated by the applicant. The applicant further submits that such evidence was also not properly assessed. While I admit that where there is a dispute relating to over-pegging the only remedy available would be to cancel the certificate of registration of one of the competing parties, and that, in casu, the fourth respondent has religiously adhered to the procedure relating to cancellation of such certificate of registration as provided for in section 50 of the Mines and Minerals Act [Chapter 21:05], I still hold the view that the applicant has an arguable case on the other grounds of appeal which relate to the inadequacy of evidence adduced and assessment of such evidence. Those issues are food for the Appeal Court to chew and digest not this court.

In the circumstances, the balance of convenience would favour the halting of all mining activities at the disputed area until all remedies available are exhausted. I would not hesitate, therefore, to state that this is a classic case for granting an interim interdict. I am amazed why the first to third respondents strenuously opposed this application. I am left asking myself whether miners at times lose their senses as soon as they go underground as it were.

In the result, the application for an interim interdict is granted as amended.

Appealed
SC10-19 : SIPHIWE DUBE vs TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and 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.

HH480-18 : MILMATH SECURITY PL vs TABATANA MINING SYNDICATE and PAUL CHENJERAI and ISAAC JIRI and EARTHROW INVESTMENTS PL and PROSPER MACHEKERA and ORS
Ruled By: MANGOTA J

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 ...

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.

SC05-20 : GRANDWELL HOLDINGS PL vs ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and MBADA DIAMONDS PL
Ruled By: GWAUNZA DCJ, MAVANGIRA JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court handed down on 26 October 2016 dismissing the appellant's application for specific performance with costs.

The facts are that the appellant and the second respondent are each the holders of fifty percent of the issued share capital in the third respondent, a special joint venture company incorporated in terms of a joint venture agreement entered into between the appellant and the second respondent on 21 July 2009.

In terms of the Joint Venture Agreement, the appellant would provide funding for the business of mining diamonds through the third respondent. The second respondent undertook to ensure that the mining rights held under special grants at Marange existed in perpetuity.

The first respondent, which is the sole shareholder in the second respondent, guaranteed the second respondent's performance of its obligations under the agreement.

Although the appellant performed its obligations under the agreement, the second respondent did not pay the special grants' renewal fees. The second respondent let the special grants, in terms of which the mining rights existed, expire.

When that happened, the second respondent did not secure the reinstatement of the special grants. The first respondent, which had guaranteed the second respondent's performance of its contractual obligations, also failed to do anything about that breach of the agreement.

On 30 September 2015, the first respondent addressed a letter to the Permanent Secretary for Mines and Mining Development which, because of its centrality in the resolution of this case, is reproduced hereunder:

“RE: RENEWAL OF THE MARANGE DIAMOND SPECIAL GRANTS: 4718, 4719, 4720, 4765, 5244, 5247, 5249 & 5769

Reference is made to the above matter. As per attached table below, ZMDC has five diamond Special Grants (SG) which expired in October 2013 and one in December 2010. These are SG Nos. 4718, 4719, 4720, 4765 and 5769.

From this date, the Corporation has to raise the required renewal fees, and, in 2014, the Ministry of Mines and Mining Development granted a 12 month exemption on the payment of the renewal fees for the said grants. Given the fact that ZMDC's financial position has remained severely constrained, the Corporation is applying for a further exemption on renewal fees for these SGs, which have currently expired.

Further, given the fact that actual mining is now taking place in the first four of the above SGs, it is necessary for the SGs to be converted from prospecting to mining SGs, a process that also requires cash outlay by ZMDC, which funds the Corporation is currently finding difficult to raise.

In addition, Marange Resources (Pvt) Ltd, a wholly owned subsidiary of ZMDC, which is currently mining on Block B under SG4720, has requested for a valid copy of SG4720, which it requires in its application for exemption of import duty for an X-Ray Transmography Machine (XRT machine) that it intends to import. Unfortunately, the Corporation is not able to assist, given the fact that the SG has expired.

Under these circumstances, therefore, the Corporation is appealing to the Ministry, for the Ministry to reconsider its earlier position not to extend the exemption of payment of renewal SG fees, and grant ZMDC an exemption to update its diamond SGs for a further period of 3 years to 2016, to allow Marange Resources to process its application for exemption of import duty.

Sir, we are kindly requesting for your favourable consideration to our submission of renewal of the ZMDC held diamond Special Grants Nos. 4718, 4719, 4720, 4765, 5244, 5247, 5249 & 5769 and conversion of SGs Nos. 4718, 4719, 4720 from prospecting to mining.

Yours faithfully
S. Simango General Manager.”…,.

It is clear from the contents of the letter that the special grants, in terms of which mining operations were to be carried out by the third respondent, had expired in 2010 and 2013.

The respondents did not have money to pay renewal fees and were thus asking for exemptions from the Secretary. They had relied on exemptions previously to renew the special grants because they again did not have money. If they were to be granted exemptions from paying renewal fees, only then would they apply for renewal or revival of the expired special grants.

The Secretary of Mines and Mining Development was not impressed. He rejected the request for exemptions in a letter to the first respondent dated 22 February 2016. It reads:

“RE: RENEWAL OF THE MARANGE DIAMOND SPECIAL GRANTS: 4718, 4719, 4720, 4765, 5244, 5247, 5249 AND 5769

The above matter refers.

We acknowledge receipt of your letter to our Ministry dated 30 September 2015 contents of which have been noted (copy attached for ease of reference). As clearly admitted and indicated by yourselves, you have neglected or failed to renew the Special Grants that were issued to you, some expired as far back as 2010 and others in 2013. An exemption had been extended to you but there has been no commitment on your part to rectify this anomaly which is in contravention of section 293 of the Mines and Minerals Act [Chapter 21:05].

Instead, you are requesting for a further exemption.

It has also come to our attention that there are some Special Grants that are purported not to have a duration period.

It is trite law that a Special Grant is issued upon application and its issuance is done in terms of section 291 of the Mines and Minerals Act [Chapter 21:05] which demands that a period for the subsistence of the Special Grant shall be specified failure of which renders the Special Grant void. In light of this, these Special Grants shall be deemed to have been granted for the period which the applicant had requested in its application.

After serious consideration of this matter, we do hereby notify you that the Ministry is not in a position to give any further exemptions for the renewal of all Special Grants, namely, 4718, 4719, 4720, 4765, 5244, 5247, 5249 and 5769 that were issued to you and neither are we renewing the same.

Prof. P.F. Gudyanga
Secretary for Mines and Mining Development.”…,.

After the rejection of the request for exemptions, it is common cause that the respondents did not do anything. They did not challenge the Secretary's decision. Neither did they raise money to pay for the renewal or revival of the expired Special Grants.

The appellant then launched an application in the High Court seeking an order directing the respondents to pay renewal fees for the Special Grants and to file renewal applications among other ancillary relief. The application was prompted by the third respondent's inability to carry out mining operations without regularisation of the special mining grants. The application was premised on the respondents' breach of the joint venture agreement.

The first and second respondents opposed the application.

They denied breaching the agreement asserting that they applied for both exemption to pay renewal fees and the renewal of the Special grants to the Secretary for Mines.

It therefore became an issue for determination by the court a quo whether the first and second respondents breached the terms of the Joint Venture Agreement by failing to perform specific acts in pursuance of their contractual obligations.

The court a quo held that the first respondent's letter of 30 September 2015 is indeed an application for renewal of the Special Grants. The court a quo found that the response to the application by the Secretary for Mines dealt with the issues of exemption and renewal of the Special Grants which had expired. The court a quo held that the Secretary for Mines had made a decision not to renew the Special Grants. It would therefore be incompetent, so the court a quo reasoned, for the court to order the Secretary to review his own decision by granting an order for specific performance.

This appeal is the fruit of the appellant's grief with that judgment of the court a quo. The grounds of appeal are that:

1. The court a quo erred and grossly misdirected itself in finding that an application for renewal of the Special mining grants had been filed by the first and second respondents in discharge of their contractual obligations to the appellant;

2. The court a quo erred and grossly misdirected itself in limiting the first and second respondents' contractual obligations to filing an application for renewal of the special mining grants whereas their obligation was to do all that was necessary to ensure the existence, in perpetuity, of the special mining rights.

Whether or not the court a quo correctly held the letter of the first respondent to the Secretary for Mines as an act of specific performance in terms of the parties' agreement

Generally, the policy of the law is to give effect to the contracts of the parties because it is salutary in our jurisdiction to uphold the freedom of the parties to contract lawfully. This notion is embodied in the principle of sanctity of contract.

Once the parties have contracted, it is not open to the courts to rewrite the contract they have entered into. In addition, the court will not excuse any of the parties from the consequences of the contract that they freely and voluntarily entered into with their eyes wide open. This is so even if the consequences are onerous or oppressive. See Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397 (S)…,.

As to the remedy of specific performance in the Law of Contract, it is accepted that it is aimed at upholding the contract and obtaining the performance of the terms of the contract as agreed. Indeed, specific performance is the primary or default remedy for breach of contract and is usually claimable.

According to the learned author I MAJA, The Law of Contract in Zimbabwe, 2015, The Maja Foundation…,:

“The general rule, under Roman Dutch Law, is that an innocent party has a right, in every case of breach of contract, to a remedy of specific performance unless there are exceptional circumstances which justify refusal of an order for specific performance.

According to Farmers Co-operative Society (Reg) v Berry 1912 AD 343 at 350:

'Prima facie, every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract. As remarked by KOTZE CJ in Thompson v Pullinger the right of the plaintiff to the specific performance of a contract, where the defendant is in a position to do so, is beyond all doubt.'”

See also Smith & Ors v ZESA 2003 (1) ZLR 158 (H)…,; Savanhu v Marere N.O. & Ors 2009 (1) ZLR 320 (S).

However, the right to claim specific performance is predicated on the concept that the party claiming it must first show that he or she has performed all his or her obligations under the contract or is ready, willing and able to perform his or her side of the bargain.

Even then, the court has a discretion, which should be exercised judicially, to grant or refuse a decree of specific performance. It follows, therefore, that the court's discretion should not be exercised arbitrarily or capriciously. See Minister of Public Construction & National Housing v Zescon (Pvt) Ltd 1989 (2) ZLR 311 (S), where…, this Court stated:

“The law is clear. This is a remedy to which a party is entitled as of right. It cannot be withheld arbitrarily or capriciously.”

It is important to consider the specific terms of the contract entered into between the parties which the appellant wishes to enforce.

Clause 6.3 of the Joint Venture Agreement provides:

“6.3 Marange undertakes that it shall forthwith after the signature date and thereafter for the duration of this Agreement –

6.3.1 Pay all necessary fees and make application for the renewal and/or continued existence and do all that may be necessary so as to ensure that the special grants and rights thereunder are in good standing and remain valid for the duration of this Agreement allowing Marange to mine and prospect the concession area in perpetuity…,.”

The appellant's case is that the respondents breached that provision by failing to pay the necessary fees and to make the requisite application for the renewal of the Special Grants. As a result, the Special Grants lapsed.

The respondents submitted that the letter written by the first respondent to the Secretary of Mines, on 30 September 2015, constituted a valid application for the renewal of the Special Grants which application was rejected by the Secretary for Mines. They therefore fulfilled their part of the bargain.

It is common cause that the appellant fulfilled its own obligations in terms of the contract and was therefore entitled to demand specific performance. The court a quo found that the letter of 30 September 2015 was “an application for renewal” and that its heading was very clear needing no further explanation. The court said at p7 of the cyclostyled judgment:

“What is clear from the above is that it is an application for renewal. The heading is very clear and needs no further explanation. The first paragraph makes reference to the heading and therefore the renewal of the special grants.

The second paragraph relates to an exemption to pay renewal fees. Paragraphs 3 and 4 are not relevant to the determination of the issue at hand. Paragraph 4, again, relates to exemptions. The last paragraph puts paid to any doubt what the letter relates to. It talks about renewal.

I agree with Mr Tsivama that there is no procedure or format laid down in JVA as to how the application for renewal is to be submitted.”

With respect, the court a quo took a very simplistic, if not pedestrian, approach to the letter in question.

Clause 6.3.1 of the Joint Venture Agreement required the respondents, first and foremost, to pay all necessary fees for the renewal of the Special Grants. It also required them to make the necessary application for such renewal. It recognised the reality that the payment of fees was a pre-requisite for a valid and successful application for renewal. Such a situation is not what was obtaining on the ground, and, as such, the letter of 30 September 2015 cannot, by any stretch of the imagination, be regarded as a fulfilment of the respondents' obligations under Clause 6.3.1 of the Joint Venture Agreement.

Clearly, it was not a valid or competent application for renewal.

It is clear from the provisions of section 293 of the Mines and Minerals Act [Chapter 21:05] that the payment of renewal fees is central to the validity of an application for renewal. Section 293 of the Mines and Minerals Act provides:

“The person to whom a special grant is issued shall pay the prescribed fee in respect of the issue of a special grant or any renewal thereof.”

It is common cause that the respondents did not pay renewal fees. In fact, all the relevant special grants were allowed to expire years before the letter of 30 September 2015 was written. The contents of that letter are clear that the first respondent was seeking an exemption from paying renewal fees because of an incongruent financial position. Without the payment of renewal fees the renewal could only be done by the benevolence of the Secretary for Mines.

The respondents could not possibly be said to have performed their obligations of ensuring the mining rights existed in perpetuity. The rights had expired.

The court a quo fell into error in that aspect. The letter of 30 September 2015 did not constitute specific performance of the respondents' obligations in terms of the contract.

Whether the respondents did all that was necessary to ensure the Special Mining rights existed in perpetuity

Counsel for the appellant submitted that the obligations of the respondents set out in the contract were much broader than merely submitting an application for renewal of the Special Grants. They were required, so the argument goes, to ensure that the mining rights existed in perpetuity. They failed to perform to such an extent that the special grants expired in 2010 and 2013 - long before the respondents even submitted the letter they relied on.

I agree.

In fact, once it is accepted that the respondents did not pay renewal fees and that they allowed the grants to expire, it cannot be said at the same time that the respondents did all that was necessary to ensure the existence of the special mining rights in perpetuity. They could only so exist if there was full compliance with renewal requirements including the timeous payment of renewal fees and submission of the necessary applications.

Repeated requests for exemptions from payment would never ensure perpetuity as that left everything in the hands of the Secretary for Mines.

Whether the court should exercise its discretion in favour of granting specific performance

Counsel for the respondents submitted that the Secretary for Mines made a decision not to renew the Special Grants which decision is contained in his letter of 22 February 2016 quoted above. He submitted that the court a quo cannot be faulted for concluding that it would be incompetent for the court to direct him to review his own decision by granting specific performance.

Counsel for the appellant, on the other hand, sharply differed with that assertion.

In his view, there was no application for renewal placed before the Secretary for Mines. He could not grant an application which was not made and his response clearly showed his disquiet about the respondents' repeated failure to pay renewal fees.

I have said that the court has a discretion whether to grant specific performance but that discretion should be exercised judicially and not arbitrarily or capriciously. This is because specific performance is a remedy to which a party is entitled to as of right. See Minister of Public Construction & National Housing v Zescon (Pvt) Ltd 1989 (2) ZLR 311 (S).

The court a quo did not consider the circumstances that are relevant in deciding whether to grant a decree of specific performance or not. In its view that was unnecessary because it had come to the conclusion that the respondent's letter to the Secretary for Mines amounted to specific performance. I therefore do not agree with counsel for the respondents that the court a quo exercised judicial discretion and refused specific performance, which discretion can only be interfered with if exercised capriciously or upon a wrong principle.

The discretion was simply not exercised by the court a quo for obvious reasons, namely, its finding that specific performance had occurred.

There is no doubt that the Secretary for Mines was called upon to decide whether or not to grant the respondents exemption from paying renewal fees. He refused to do so because, according to him, an exemption had been granted previously but the respondents showed no commitment to rectify the anomalies. The respondents were not entitled to further exemptions.

What is significant to note is that the respondents' obligations, in terms of the contract, are not to apply for exemptions but to pay renewal fees.

It is clear from the letter of the Secretary for Mines dated 22 February 2016 that if renewal fees are paid the application will be favourably considered.

In light of that, I perceive no ground whatsoever for exercising the discretion reposed upon the court against the granting of specific performance. After all, it is the primary remedy for breach of contract. The appellant has shown that the respondents breached the contract. Specific performance is possible, and, as such, it should be granted.

In the result, it is ordered that:

1. The appeal succeeds with costs.

2. The judgment of the court a quo is set aside and substituted with the following order:

“2.1. The application be and is hereby granted.

2.2. The 1st and 2nd respondents be and are hereby directed to pay renewal fees in respect of the special grants constituting the concession on which the 3rd respondent was carrying out mining operations and which mining grants are referred to in the Joint Venture Agreement and the Shareholders Agreement attached to the application.

2.3. Thereafter, the 1st and 2nd respondents be and are hereby directed to file a renewal application in respect of the said special grants and to provide the renewing statutory authority with all that is required to enable the said authority to process the renewal application including a detailed written motivation to ensure urgent renewal of the special grants.

2.4. The 1st and 2nd respondents shall provide the applicant with copies of the renewal application together with proof of payment of fees.

2.5. The 1st and 2nd respondents shall pay the costs of this application jointly and severally the one paying the other to be absolved.

SC39-20 : ANJIN INVESTMENTS PL vs MINISTER OF MINES AND MINING DEVELOPMENT and MINISTER OF HOME AFFAIRS and THE COMMISSIONER – GENERAL OF THE ZIMBABWE REPUBLIC POLICE
Ruled By: BERE JA

This is an opposed chamber application for condonation of late noting of an appeal and extension of time within which to appeal in terms of Rule 43 of the Supreme Court Rules, 2018. The applicant seeks an order couched in the following terms:

“It is hereby ordered that;

(a) The application for condonation for non-compliance with Rule 38(1)(b) of the Supreme Court Rules, 2018 be and is hereby granted.

(b) The application for an extension of time to note the applicant's appeal be and is hereby granted.

(c) The appeal is deemed noted in terms of the Notice of Appeal attached hereto from the date of this order.

(d) Costs of this application shall be costs in the cause.”

The facts giving rise to this application can be gleaned from the filed papers and are as follows:

The applicant had been conducting mining operations in Chiadzwa District from 2009 under a Special Grant and stated that it was in undisturbed possession and occupation until February 2016. On 22 February 2016, the first respondent wrote a letter to the applicant notifying it that the special grant issued to it had expired therefore the applicant had to cease all mining activities with immediate effect and had to vacate the mining area. The applicant, together with its employees, was forced to vacate the mining location on the same date by armed police, leaving its assets on the site.

In March 2016, the applicant filed an urgent chamber application in the High Court against the respondents seeking restoration of the parties' status quo ante. This application was further necessitated by the first respondent's decision to terminate the applicant's right to conduct mining operations under a Special Grant. In the application, the applicant stated that it was substantially prejudiced by the respondents' conduct, and, resultantly, there was significant financial harm. In addition to this the applicant sought to justify its continued operations on the strength of the special grant which it alleged had been ceded to it by the first respondent.

That application was opposed by the first respondent who argued that the matter was not urgent and that the relief sought by the applicant sought to perpetuate an act of illegality. It stated that the applicant had no rights in the special grant as it had expired some years before. Further, it stated that the mining grant had been issued to the 'Zimbabwe Mining Corporation' and not to the applicant.

The application was argued before the court a quo and judgment in the matter was handed down on 30 March 2016.

In that judgment, the court a quo stated that although several points in limine had been raised by the respondents, it was of the view that the application had to be disposed of on substance and not on technicalities.

On substance, the court a quo found that the special grant relied on by the applicant had expired five years before it was declared expired in February 2016. It also held that the clause which allowed the applicant to work on sites ceded to it for an indefinite period was contrary to the peremptory provisions of section 291 of the Mines and Minerals Act [Chapter 21:05]. Resultantly, the applicant's application was dismissed.

Counsel for the applicant argued that the explanation of the delay in filing the appeal was reasonable as the applicant sought to deal with his Constitutional Court application before seeking remedy in the Supreme Court.

In addressing prospects of success in the intended appeal, counsel for the applicant submitted that the court a quo erred in finding that the special grant had expired and thus the applicant had not acquired any rights through the grant. He further contended that the question of legality or unlawfulness on the part of the applicant was irrelevant. He also contended that the court a quo had erred in not finding that the applicant was entitled to an order restoring the status quo ante when it had established that it was in peaceful and undisturbed possession of the mining location, and, further, that the court a quo had also erred in finding that the first respondent was entitled to summarily cancel the special grant, even without following due process.

Per contra, counsel for the first respondent argued that the applicant, in deciding not to appeal, and, instead, choosing to approach the Constitutional Court, had deliberately lost its right to appeal.

He further stated that by approaching the Constitutional Court, the applicant showed acquiescence of the judgment of the High Court. Counsel further argued that the applicant, by raising issues of entitlement to the special grant had invited the court a quo to make a determination on the substantive issue between the parties and that the court had proceeded to properly do so, as a result of which he opined that the applicant had no prospects of success on appeal.

APPLICATION OF THE LAW TO THE FACTS

In the case of Tel-One (Pvt) Ltd v Communication and Allied Services Workers Union of Zimbabwe SC01-06, GWAUNZA JA…, said the following:

“Essentially, in an application of this nature, the applicant must satisfy the court;

(i) Firstly, that he has a reasonable explanation for the delay in question; and

(ii) Secondly, that his prospects of success on appeal are good.”

Further, in the case of Florence Chimunda v Arnold Zimuto SC76-14 the court, per ZIYAMBI JA, held that the approach of the courts when dealing with applications of this nature is to consider the cumulative effect of the following:

“(i) The extent of the delay;

(ii) The reasonableness of the explanation tendered therefor;

(iii) The prospects of success on appeal;

(iv) The prejudice, if any, that is likely to be caused to the respondent should the application be granted; and

(v) The need to bring finality to the proceedings.”

EXTENT OF THE DELAY AND REASONABLENESS OF THE EXPLANATION

In the case of Ganda v First Mutual Life Assurance Society SC01-05, it was stated that:

“In addition, it is pertinent to note that it has been stated in a number of cases that a person seeking condonation of the late noting of an appeal should give a reasonable explanation, not only for the delay in noting the appeal, but also for the delay in seeking condonation…,.”

From the record, the judgment which the applicant seeks to appeal against was handed down on 30 March 2016 and the present application was filed on 13 July 2018 following the handing down of the Constitutional Court judgment on 29 June 2018. The extent of the delay is therefore 2 years 3 months.

It is apparent that the delay was quite inordinate.

The applicant stated that it did not file a Notice of Appeal at the time it was supposed to because it had filed an application in the Constitutional Court under case number CCZ38/2016. In that application, the applicant sought relief in terms of section 85(1)(a) of the Constitution of Zimbabwe against the respondents together with 'ZMDC and ZCDC.'

In my view, the explanation for the delay is unreasonable in the sense that the time lines for an appeal have no relevance to any form of remedy desired in the Constitutional Court.

It was not necessary for the applicant to either wait for or link its appeal to the outcome of the Constitutional Court application. It was therefore unreasonable for the applicant to awake from his slumber, after the dismissal of his application in the Constitutional Court on 29 June 2018, to file the instant application.

PROSPECTS OF SUCCESS

In the case of Kombayi v Berkout 1988 (1) ZLR, KORSAH JA stated thus:

“The broad principles the court will follow in determining whether to condone the late noting of an appeal are: the extent of the delay; the reasonableness of the explanation for the delay; and the prospects of success.

If the tardiness of the applicant is extreme, condonation will be granted only on his showing good grounds for the success of his appeal.”…,.

As alluded to in the above case, it is imperative for an applicant making an application for condonation for the late noting of an appeal, to demonstrate to the court that the appeal enjoys prospects of success on the merits.

The issue to be determined in the intended appeal is whether the first respondent could summarily cancel the special grant without following due process.

The requirements and defences for a spoliation order were re-stated in the case of Augustine Banga & 2 Ors v Solom Zawe SC54-14 by GWAUNZA JA…, to be as follows:

“(i) The applicant was in peaceful and undisturbed possession of the thing; and

(ii) He was unlawfully deprived of such possession.”

In the case of Botha and Anor v Barrett 1996 (2) ZLR 73 (S)…, also cited by the learned judge a quo, the court qualified “unlawful deprivation” to mean that the respondent deprived the applicant of possession 'forcibly and wrongfully against his consent'.

The court a quo went on to list the valid defences against a spoliation claim, among them that:

“(i) The applicant was not in peaceful and undisturbed possession of the thing in question at the time of dispossession; and

(ii) The dispossession was not unlawful and therefore did not constitute spoliation.”

In the case of Chesveto v Minister of Local Government and Town Planning 1984 (1) ZLR 240 (H) REYNOLDS J…, stated that:

“It is a well-recognised principle that in spoliation proceedings it need only be proved that the applicant was in possession of something and that there was a forcible or wrongful interference with his possession of that thing – that spoliatus ante omnia restituendus est (Beukes v Crous & Another 1975 (4) SA 215 (NC)).

Lawfulness of possession does not enter into it.

The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these objectives, it is necessary for the status quo ante to be restored until such time that a competent court of law assesses the relative merits of the claims of each party. Thus, it is my view that the lawfulness or otherwise of the applicant's possession of the property in question does not fall for consideration at all.”…,.

From the cited cases, the position of the law is quite clear in that an application for a spoliation order is not concerned with the legality or otherwise of the applicant's conduct. The court would be called upon to determine whether one was in a peaceful and undisturbed possession and whether he was dispossessed unlawfully.

The situation that confronted the court a quo was adequately dealt with in a recent decision of this Court, viz, Minister of Mines and Mining Development and 2 Others v Grandwell Holdings (Private) Limited and 2 Others SC34-18 which reaffirmed the requirements for spoliation.

The case which was placed before the court a quo was by way of an urgent chamber application which sought to have the status quo ante of the parties restored after the applicant had been evicted from its mining activities without due process on 22 February 2016. The judgment of the court a quo completely ignored dealing with the issue to do with spoliation and decided to deal with the application on the substantive issues between the parties, that is, on the existence or otherwise of the special grant which the applicant claimed to have.

In my view, it is doubtful if such issues could have been adequately determined in an urgent chamber application.

It does seem to me, as argued by counsel for the applicant that the dominant issue that the court ought to have dealt with was the issue of spoliation. It was a misdirection for the court not to deal with this issue and focus exclusively on the substantive rights of the parties which could have been dealt with on the return day.

It is precisely because of this that I believe that there are prospects of success in the intended appeal.

I accept there was tardiness on the part of the applicant as argued by counsel for the first respondent but the prospects of success on appeal has tilted the balance in favour of the applicant.

As observed by CHIDYAUSIKU J…, in the case of Lovemore Sango v Chairman of Public Service Commission and Anor:

“In deciding whether to condone the delay or not two factors are of paramount importance;

(a) Firstly, the period of the delay and the reasons for such a delay.

(b) Secondly, the prospects of success on the merits.”

In the result, I make the following order:

1. The application for condonation of non-compliance with Rule 38(1) of the Supreme Court Rules, 2018 be and is hereby granted.

2. The application for an extension of time to note the applicant's appeal be and is hereby granted.

3. The appeal is deemed noted in terms of the Notice of Appeal attached hereto from the date of this order.

4. Costs of this application shall be costs in the cause.

SC01-10 : ZIMBABWE MINING DEVELOPMENT CORPORATION and MINERALS MARKETING CORPORATION OF ZIMBABWE vs AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application in which the applicants seek to set aside an order by HUNGWE J. The order sought to be set aside provides that the learned Judge's judgment will not be suspended by the noting of an appeal. The order of the court a quo provides as follows:

“I therefore issue the following order:

1. The African Consolidated Resources P/L claims issued to the third, fourth, fifth and sixth applicants within the area previously covered by Extension Prospecting Order 1523 held by Kimberlitic Searches P/L are valid and have remained valid since the date they were originally pegged.

2. The right granted to the third respondent by virtue of the Special Grant shall not apply in respect of the African Consolidated Resources P/L claims area as indicated on annexure 'B' to the papers. In that regard, it is hereby ordered that the third respondent cease its prospecting and diamond mining activities in the said area.

IT IS FURTHER ORDERED AS FOLLOWS:

3. That the second respondent return to the applicants possession of the 129,400 carats of diamonds seized from the applicants' offices in Harare on 15 January 2007.

4. The second respondent return to the applicants all diamond(s) acquired by the second respondent from the African Consolidated Resources (P/L) claims area using the register kept by the second respondent in compliance with the Kimberley Process Certification Scheme.

5. That the fourth respondent be and is hereby ordered to direct (the) police to cease interfering with the applicants' prospecting and mining activities.

6. That the first, second and third respondents (pay) the applicants' cost(s) on a legal practitioner and client scale, the one paying the other to be absolved.

7. Any appeal noted against this order shall not suspend the operation of the order.”

Paragraph 7 of the above order authorises the respondents to execute the judgment despite the noting of an appeal against that judgment.

The applicants are dissatisfied with the order, and, having noted an appeal against the judgment, have filed this Chamber application.

The applicants contend that HUNGWE J misdirected himself in ordering execution of his judgment despite the noting of an appeal. They submitted that the grant of such an order, prior to the noting of an appeal, was irregular and should be set aside.

The applicants' case is set out in paragraphs 13-15 of the founding affidavit, which provide as follows:

“13. During argument, the respondents, who were the applicants in that matter, indicated to the court a quo that they would be amending their draft order to include a seventh paragraph to the effect that any appeal noted against that order would not suspend its operation.

14. Although no submissions were made by the first to the sixth respondents to justify the proposed amendment it was submitted, on the applicants' behalf, that such order was incompetent at this stage. It was also submitted that an applicant's recourse would be to apply for leave to execute pending appeal. It was further submitted that it is only after judgment has been delivered that any proper assessment can be made whether there has been any misdirection or not and that sometimes the aggrieved party may even easily show, to the satisfaction of the court, that indeed there has been such (misdirection).

15. The court a quo, in its judgment handed down later that day (the 24th of September 2009), granted the order as amended such that the appeal that the applicants subsequently filed, under Case No. SC230/09, did not suspend the operation of that order. A copy of the operative part of the judgment is attached hereto and marked 'A' and the yet to be typed full judgment as ANNEXURE 'B'.”

The respondents did not file any opposing affidavits.

Counsel for the first to the sixth respondents (hereinafter referred to as “the respondents”), during the course of his submissions, made averments to the effect that the application for execution of judgment despite the noting of an appeal was made during the course of the main hearing before judgment was given.

He, however, did not give details of the application. I will assume no detailed basis for the application was submitted to the court a quo.

The law on the effect of the noting of an appeal against a judgment is well settled.

At common law, the noting of an appeal against a judgment suspends the operation of that judgment. It is also trite that, at common law, the court granting the judgment enjoys inherent jurisdiction to order the execution of that judgment despite the noting of an appeal.

In the leading case of South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) CORBETT JA…, had this to say:

“Whatever the true position may have been in the Dutch Courts, and, more particularly, the Court of Holland (as to which see Ruby's Cash Store (Pty) Ltd v Estate Marks and Anor 1961 (2) SA 118 (T) at pp120-3), it is today the accepted common law rule of practice in our Courts that, generally, the execution of a judgment is automatically suspended upon the noting of an appeal, with the result that, pending the appeal, the judgment cannot be carried out and no effect can be given thereto - except with the leave of the Court which granted the judgment.

To obtain such leave, the party in whose favour the judgment was given must make special application. See, generally, Olifants Tin 'B' Syndicate v De Jager 1912 AD 377 at p481; Reid and Anor v Godart and Anor 1938 AD 511 at p513; Gentiruco A.G. v Firestone SA (Pty) Ltd 1972 (1) SA 589 (AD) at p667; Standard Bank of SA (Pty) Ltd v Stama (Pty) Ltd 1975 (1) SA 730 (AD) at p746.

The purpose of this rule, as to the suspension of a judgment on the noting of an appeal, is to prevent irreparable damage from being done to the intending appellant, either by levy under a writ of execution or by execution of the judgment in any other manner appropriate to the nature of the judgment appealed from (Reid's case supra at p513).

The Court to which application for leave to execute is made has a wide general discretion to grant or refuse leave, and, if leave be granted, to determine the conditions upon which the right to execute shall be exercised (see Voet 49.7.3; Ruby's Cash Store (Pty) Ltd v Estate Marks and Anor supra at p127). This discretion is part and parcel of the inherent jurisdiction which the Court has to control its own judgments (cf. Fismer v Thornton 1929 AD 17 at p19).

In exercising this discretion, the Court should, in my view, determine what is just and equitable in all the circumstances, and, in doing so, would normally have regard, inter alia, to the following factors:

(1) The potentiality of irreparable harm or prejudice being sustained by the appellant on appeal (the respondent in the application) if leave to execute were to be granted;

(2) The potentiality of irreparable harm or prejudice being sustained by the respondent on appeal (the applicant in the application) if leave to execute were to be refused;

(3) The prospects of success on appeal, including, more particularly, the question as to whether the appeal is frivolous or vexatious or has been noted not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose, eg. to gain time or harass the other party; and

(4) Where there is the potentiality of irreparable harm or prejudice to both (the) appellant and (the) respondent, the balance of hardship or convenience, as the case may be.

See in this connection Ruby's case supra at pp127-8; also Rood v Wallach 1904 TS 257 at p259; Weber v Spira 1912 TPD 331 at pp333-4; Rand Daily Mails Ltd v Johnston 1928 WLD 85; Frankel v Pirie 1936 EDL 106 at pp114-6; Leask v French and Ors 1949 (4) SA 887 (C) at pp892-4; Ismail v Keshavjee 1957 (1) SA 684 (T) at pp688-9; Du Plessis v Van der Merwe 1960 (2) SA 319 (O).

Although most of the cases just cited dealt with the exercise of the Court's discretion under a statutory provision or Rule of Court, the statute or Rule concerned did not prescribe the nature of the discretion except in broad general terms (e.g. secs 36 and 39 of Proc. 14 of 1902 (T) empower the Court to give directions as 'may in each case appear to be most consistent with real and substantial justice') and the same general approach would be appropriate to the exercise of a discretion under the aforementioned rule of practice.”

South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) is clear authority for the proposition that before a court can exercise the discretion to order execution despite the noting of an appeal, the successful party has to make a special application for such relief.

For the court to be able to exercise this discretion properly, the special application must set out, in some detail, the basis for seeking such relief.

The respondent is entitled to an opportunity to respond to the application.

It is common cause that none of the respondents (then the applicants) in this case made a special application for leave to execute. They simply applied to amend the draft order to include paragraph 7 at some stage in the course of proceedings before judgment.

This, in my view, is totally inadequate because the court was not provided with details necessary for the proper exercise of its discretion.

South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) sets out, in some detail, the factors that a court takes into account in determining whether to grant or refuse the relief of execution despite the noting of an appeal.

There is no indication on the record, in particular in the reasons for judgment, that the learned Judge in the court a quo gave consideration to these or any other factors. The reasons for judgment do not indicate what the learned Judge took into account and what he did not take into account in arriving at the conclusion that there should be execution despite the noting of an appeal. Without reasons, it is impossible to understand the learned Judge's reasoning.

Failure to give reasons in an application to execute despite the noting of an appeal is a serious misdirection justifying the setting aside of such a determination.

On this ground alone, I would set aside the court a quo's order that there should be execution despite the noting of an appeal.

I have serious reservations on the propriety of a Judge, including in his main judgment, an order authorising execution despite the noting of an appeal against that judgment.

It is only in exceptional circumstances that such an order should be made part of the main judgment. For instance, if in a dispute over the custody of a minor child it is clear that the noting of an appeal will be used to facilitate the removal of the minor child from the jurisdiction of the court, such a course might be justified. In the absence of exceptional circumstances, due process must be observed before issuing such an order.

I hold this view because the litigant's right to appeal should not be abrogated lightly and without due process. The right of appeal is fundamental and critical to our justice system. Where the law confers the right of appeal on a litigant it should not be rendered nugatory or abrogated without due process.

Due process requires that a case proceeds to finality, namely, the giving of a judgment.

Once a judgment is given, the losing party, who has a right to appeal, is entitled, if he so wishes, to note an appeal. The noting of an appeal has the effect of suspending the judgment. It is only then that the successful party can make a special application for leave to execute the judgment despite the noting of an appeal. The losing litigant is entitled to respond to that application. It is only after hearing both parties to the special application for leave to execute that a court can properly exercise its discretion on the matter.

No doubt, in the making of that determination, the court will be guided by the factors set out in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) and other factors relevant to the application.

This was not done in this case.

The applicants' right to be heard by the highest court in the land was rendered nugatory without any semblance of due process. No reasons were given. The failure to give reasons in this case smacks of arbitrariness and the ruling cannot be allowed to stand.

After taking into account the facts of this case, it was clear to me that the diamonds in question could easily disappear without trace pending the hearing of the appeal irrespective of which of the parties had possession of the diamonds and that any mining activities pending the appeal had the potential of causing irreparable damage to the party who was not mining during that period.

For these reasons, I concluded that a standstill position pending the appeal was the most equitable solution.

I made it very clear to the parties, at the conclusion of their submissions, that I intended to set aside the order to execute judgment despite the noting of an appeal made by HUNGWE J and that I intended to substitute that order with a more equitable arrangement.

To that end, I directed the parties to nominate a banker who could keep the diamonds in dispute pending the determination of this matter on appeal.

The parties subsequently advised that they were unable to agree on a banker to act as an honest broker. When I was advised of this, I directed the parties to enquire from the Reserve Bank of Zimbabwe (“the Reserve Bank”) if it could keep the diamonds pending the appeal. As the Reserve Bank was not a party to these proceedings, the parties were directed to jointly enquire into the attitude of the Reserve Bank.

Counsel for the respondents advised that the Reserve Bank was agreeable to this arrangement. In a letter dated 18 November 2009 the applicants submitted their position. Regrettably, the letter from the applicants was filed in the case file without being brought to my attention. The letter only came to my attention on 23 January 2010 when the applicants advised the Registrar that the respondents were seeking to execute against the diamonds on the basis of the judgment of HUNGWE J, which had not been formally set aside. I immediately issued the following order on 25 January 2010 pending these reasons for judgment:

“IT IS ORDERED THAT:

(1) All the diamonds referred to in paragraphs 3 and 4 of the High Court Order in judgment no. HC6411/07 of the High Court be surrendered to the Reserve Bank of Zimbabwe for safekeeping pending the determination of the appeal noted against that judgment.

(2) Execution of costs granted in terms of paragraph 6 of the same order is suspended pending the determination of the said appeal.

(3) Costs of this Chamber application will be costs in the cause.”

Shortly after the issuance of the above order, through correspondence to the Registrar, I learned that the respondents were seeking to evict the applicants from the disputed claim on the basis of the judgment of HUNGWE J and that the parties were seeking guidance on whether my order of 25 January 2010 suspended the eviction of the applicants.

I directed the Registrar to advise both parties that the effect of my order was to suspend the enforcement of JUSTICE HUNGWE's order. Her letter to the parties reads as follows:

“Previous correspondence refers.

Please be advised that the Honourable Chief Justice has advised that the order granted on 25 January 2010 suspends the whole of the Honourable Justice Hungwe's judgment as will appear more fully in the reasons for judgment that His Lordship will hand down shortly.”

Paragraph 1 of my order of 25 January 2010 is very explicit. In terms of that paragraph the diamonds are to be kept at the Reserve Bank until the finalisation of the appeal.

To interpret the letter of the Registrar to the parties as reversing my very clear order of 25 January 2010, that the diamonds are to be kept at the Reserve Bank pending appeal, is the height of mischief. If anyone has removed the diamonds from the Reserve Bank, he has done so unlawfully and in contempt of the order of this Court. The diamonds must be returned to the Reserve Bank immediately in order to purge the contempt. Failure to do so should attract serious consequences.

As regards the situation on the disputed claims, the fact of the matter is that the applicants are in physical control of those claims. The balance of convenience favours the applicants remaining on the site of the claims pending appeal - but they must cease all mining activities and it is so ordered. Allowing the applicants to continue mining pending appeal has the potential of causing irreparable damage to the respondents should the appeal fail.

As indicated in my order of 25 January 2010 the costs in this case will be costs in the cause.

SC19-12 : JAMESON RUSHWAYA and ANNIE RUSHWAYA and XELOD INVESTMENTS PL vs SWIMMING POOL & UNDERWATER REPAIRS PL and PATTERSON TIMBA and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

This is an appeal against a judgment of the High Court.

The second respondent (“Timba”) and the first and second appellants (“the Rushwayas”) are the majority and minority shareholders respectively in Aepromm Resources (Pvt) Ltd. On 3 May 2011, following a series of lawsuits, the Rushwayas entered into an agreement (“the Sale Agreement”) with Timba in which they sold, to the latter, their rights and interest in Tolrose Investments (Pvt) Ltd (“Tolrose”) and Aepromm (Pvt) Ltd (“Aepromm”) in contemplation of a 'clean break' between the parties.

It was a specific clause of the agreement that the assets, which included gold mine claims currently registered in the name of Xelod Investments (Pvt) Ltd, 'shall be immediately re-transferred to Tolrose and Aepromm, at any rate before the payment of the deposit.'

That agreement was meant to end all lawsuits between the parties.

However, on the 27 June 2011 the parties were again before the courts. This came about as follows:

Following the signature by the parties of the Sale Agreement, Timba appointed, as Accredited Agent for all mining rights registered in the name of Tolrose (Pvt) Ltd, one Stephenson Timba, who, in turn, appointed one Ernest Mudimu as Mining Manager of Tolrose. This caused Jameson Rushwaya to write, on or about 16 June 2011, to the Mining Engineer querying the appointment and complaining that, as the claim holder, he was not consulted on this appointment. The Mining Engineer, by letter dated 20 June 2011, and addressed to the Operator, Glencairn Mine, cancelling the appointment of Ernest Mudimu as Mine manager of Telrose, and suspending all operations at the mine pending 'proper Manager's appointment'.

The respondents brought an urgent application in the High Court seeking the following relief:

“TERMS OF THE FINAL ORDER SOUGHT

The decision by the first respondent, of 20 June 2011, be and is hereby set aside, and, accordingly, the suspension of mining operations at Glencairn Mine is uplifted immediately and that the parties resort (sic) to the status quo ante that prevailed prior to the aforesaid decision.

INTERIM RELIEF GRANTED

1. The operation of the decision by the first Respondent, on 20 June 2011, be and is hereby suspended pending the return date.

2. Second, Third and Fourth respondents be and are hereby interdicted from commencing any mining operations and interfering with any administrative operations whatsoever at Glencairn Mine.”

The respondents in the High Court were the Mining Engineer as the first respondent, Xelod Investments (Pvt) Ltd as the second respondent, and the Rushwayas as the third and fourth respondents.

The court a quo found in favour of the respondents and granted the order sought. It found that the decision to close mining operations was made without hearing the respondents in violation of the principles of natural justice.

It found, also, that the decision by the Mining Engineer amounted to a determination of the parties' contractual rights and that there was no basis on which the Mining Engineer could have entertained the determination of a contractual dispute between the parties.

It is against this order that the appellants now appeal.

They purport to appeal against the whole judgment of the court a quo. The Notice of Appeal contained no less than nine grounds of appeal.

It was contended, by counsel for the respondents, in his heads of argument, that there was no appeal before this Court as the Notice of Appeal was invalid for the following reasons:-

(i) There were four respondents in the court a quo of whom the Mining Engineer was the first and the main respondent in the matter. The substantive relief granted was against the Mining Engineer who did not appeal against the decision. Hence, the appellants brought an appeal against an order not made against them.

(ii) The appellants took issue, in their grounds of appeal, only with paragraph 1 of the Order (which suspended the operation of the Mining Engineer's letter).

(iii) The grounds of appeal did not comply with Rule 29(1)(d) as read with Rule 32(1) of the Rules of this Court being verbose in nature as well as containing argument.

(iv) The order appealed against being neither final nor definitive but interlocutory, and not being an interdict, it was imperative that leave to appeal be obtained from the court a quo. No leave having been obtained, the appeal is a nullity.

(v) The grounds of appeal were directed at the reasons for the judgment and not the decision of the court a quo. In any event, even if they did relate to the decision, the appeal would be met with the same fate because the party against whom the decision was given has not appealed against it.

Dealing with the first submission by counsel for the respondents, the Mining Engineer, against whom the order was given, did not appeal against it.

A litigant cannot appeal against an order not given against him.

The order suspending the operation of the Mining Engineer's letter was made against the Mining Engineer who was the first respondent in the court below and who has not appealed against the order. There is nothing on the record to suggest that the Mining Engineer was dissatisfied with the order of the court a quo.

The appellants had no locus standi to appeal against that part of the Order which was given against the Mining Engineer.

Indeed, although the appeal purports to be against the whole of the judgment of the court a quo, the grounds of appeal were directed only against paragraph 1 of the Order. This leads me to the submission by counsel for the respondents that the appeal was against an interlocutory order and is invalid for want of leave of the court a quo to file it.

None of the grounds of appeal was directed against paragraph 2 of the Order which contains an interdict and which could have justified an approach to the Supreme Court without leave from the court a quo.

Paragraph 1 of the Order is neither final nor definitive.

It suspended the Mining Engineer's decision pending the return day. On the return day, the Mining Engineer may, if he so chooses, show cause to the court as to why his decision should not be set aside.

Even assuming the appellants had locus standi to appeal against paragraph 1 of the Order, that Order is interlocutory, and, failure to obtain leave of the court a quo to appeal against it is fatal.

These two heads are, in my view, dispositive of the appeal.

However, the criticism of the grounds of appeal by counsel for the respondents is not without justification.

The grounds of appeal contain argument, are not concise, and, many of them are directed at the reasoning of the trial Court rather than the order of the court; see Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S)…,.

They certainly do not comply with Rule 29(1)(d) of the rules of this Court.

Counsel for the appellants, while not abandoning the appeal, was understandably unable to advance any argument in support thereof, save as to the issue of costs of two counsel appearing on behalf of the respondents.

It was his submission that the matter was not so complicated as to justify the appearance of two counsel.

We are in agreement with the stance taken by counsel for the appellants that the appeal is unsupportable save on the issue of costs.

While it is the respondents' prerogative to employ two counsel if they so wish, the matter was not of such a standard of difficulty as to warrant the appearance of two counsel.

Accordingly, the appeal is dismissed and the respondents are awarded costs of one counsel.

HH19-11 : JAMESON RUSHWAYA and ANNIE RUSHWAYA vs PATTERSON TIMBA and SWIMMING POOL & UNDER WATER REPAIRS PL and TOLROSE INVESTMENTS PL and MESSENGER OF COURT, KADOMA
Ruled By: MAVANGIRA J

This is an urgent chamber application in which the applicants seek a Provisional Order in the following terms:“TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:-1. That first, second, and fourth respondents and/or their agents ...

This is an urgent chamber application in which the applicants seek a Provisional Order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:-

1. That first, second, and fourth respondents and/or their agents shall not interfere in any manner whatsoever with applicants' possession of Glencairn Mine or the assets thereat.

INTERIM RELIEF GRANTED

Pending the determination of this matter, the applicants are granted the following relief:-

2. That first, second, and fourth respondents be and are hereby ordered to remove all the locks on the 3 gold concentrators, carbon room, 4 fuel pumps, workshop, and gates leading to the mining areas at Glencairn Mine.

3. That the first, second, and fourth respondents restore possession of the Nissan NP 300 (registration no. ABP 0456) and Nissan Hardbody 2.5 (registration no. ABG 4956) to the applicants.”

At the onset of proceedings, counsel for the first, second, and third respondents raised four preliminary points for determination by the court before the matter could be heard on the merits:

(i) The first point raised is that as counsel for the applicants, the legal practitioner who had prepared the application and was also appearing for the applicants in this matter, was the same legal practitioner who had prepared and signed the certificate of urgency: the said certificate of urgency was therefore clearly defective. There is thus no certificate of urgency before the court and the urgent chamber application must therefore fail on that basis. He cited, in support of his submission, Chafanza v Edgars Stores Ltd & Anor 2005 (1) ZLR 299…,.

(ii) The second point raised is that the matter is res judicata as there have been no less than four urgent chamber applications involving more or less similar parties as the fourth respondent herein has not been a party to all matters. Counsel for the first, second, and third respondents submitted that in one of the four urgent chamber applications the Order that was sought is very similar to the Order sought herein. The application in that particular matter was however dismissed by the court.

(iii) The third point raised is that the applicants herein have no locus standi in judicio to institute these proceedings. Counsel for the first, second, and third respondents submitted that the mine and assets are owned by the third respondent. The applicants are shareholders, the first applicant being also a director of the third respondent. The company has not mandated them to bring these proceedings which they have brought in their personal capacities.

(iv) The fourth point raised in limine is that the matter is lis pendens as the applicants have filed both an appeal and an application for review in relation to an order granted by the Magistrates' Court in which the parties have been ordered to co-exist. The proceedings in both the appeal and the review are pending before this Court yet the present application seeks to reverse the Magistrates' Court's order of co-existence. It was submitted that the hearing of this application would be tantamount to hearing and determining the appeal which is now pending before the Court.

It appears to me that the preliminary point that must first be determined is whether or not the applicants have the locus standi in judicio to bring this application before the Court.

The essence of the applicants' claim is that they were despoiled of their possession and control of Glencairn Mine, and the assets thereat.

In his founding affidavit, the first applicant has stated that the second applicant and he, in their capacities “as the legal directors and shareholders of the third respondent, have been in peaceful and undisturbed possession of the mine…, and all the assets thereat.”

Clearly, the applicants' said possession was not exercised or enjoyed in their personal capacities.

It is common cause that the third respondent owns and runs the mine. Any disturbance of peaceful and undisturbed possession, therefore, could only be complained of by the third respondent.

Had the third respondent passed a resolution authorising the institution of these proceedings, they would have been instituted in the name of the third respondent and the applicants, as authorized agents, would have been on solid ground.

The applicants have rather opted to cite the third respondent as a respondent to their claim. The third respondent cannot be a respondent in the applicant's claim. If any spoliation has occurred, the third respondent herein would be the applicant. Its Board of Directors would then pass a resolution authorising the institution of the necessary proceedings and indicating the person or persons who would do the necessary acts on its behalf.

It is not the applicants' stance that they were acting independently of the third respondent. Rather, in paragraph 6 of the first applicant's founding affidavit, he states that he only cited the third respondent as a respondent because in proceedings instituted by the first respondent against the applicants, which application resulted in the granting of the order that has prompted these proceedings, the third respondent herein was joined as third applicant.

It appears to me that the applicants' stance and explanation is self-contradictory.

The institution of proceedings against them, by the third respondent, under whose auspices they were engaged in all the pertinent activities, negates their very locus standi in this matter having regard to the nature of their claim.

For the above reasons, the said point in limine is upheld.

It appears to me that it is not necessary, in view of my finding on the discussed point in limine, to deal with the rest of them. The nature of the point in limine that has been upheld is such as to make it unnecessary to do so. No purpose would be served thereby.

In the result, it is found that the applicants have no locus standi in judicio to institute this urgent chamber application.

HH57-10 : AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT and SECRETARY FOR MINES AND MINING DEVELOPMENT and CHIEF MINING COMMISSIONER
Ruled By: UCHENA J

The first applicant is a public company listed on the London Stock Exchange. The second to fifth applicants (Dashaloo Investments (Pvt) Ltd, Possession Investments (Pvt) Ltd, Heavy Stuff Investments (Pvt) Ltd, Olebile Investments (Pvt) Ltd) are Zimbabwean companies duly incorporated in terms of the laws of Zimbabwe. They are wholly ...

The second to fifth applicants are holders of registered mining claims in the Chiadzwa diamond mining area of Manicaland. Their claims have been subjected to cancellations and litigation over such cancellations. The claims were declared valid by HUNGWE J in HC6411/07.

The respondents appealed against that decision to the Supreme Court, where the appeal is still pending.

The first respondent is the Minister of Mines and Mining Development. The second respondent is the Permanent Secretary in the Ministry of Mines and Mining Development. The third respondent is the Chief Mining Commissioner in the Ministry of Mines and Mining Development.

The second respondent gave notice to the second to fifth applicants of his intention to cancel their claims with effect from 10 March 2010. The notice is dated 28 January 2010. The cancellations are premised on the applicants' claims having been registered over a reserved area in contravention of the Mines and Minerals Act [Chapter 21:05] the (“Mines Act”). He advised the applicants that the area was reserved against pegging and prospecting by Reservation 1558, dated 19 February 2004.

The applicants filed an urgent application on 5 March 2010, seeking a provisional order interdicting the respondent's from canceling their claims on 10 March 2010.

The respondents opposed the application and raised the following preliminary issues:

1. That the application was not urgent.

2. That the applicants had not exhausted domestic remedies, and had not complied with Order 33 of the High Court rules.

3. That the second to fifth applicants, who are the holders of the claims, did not exist at the time the claims were registered.

Urgency

Counsel for the respondents submitted that the applicants' application is not urgent because the applicants', who where notified of the cancellations on 28 January 2010, waited until the eleventh hour before filing their application.

He further submitted that the applicants have not exhausted domestic remedies provided in section 50(2) of the Mines and Minerals Act [Chapter 21:05].

He further submitted, that, the applicants appealed to the Minister, on 9 March 2010, therefore that process must be completed before this court can intervene.

Counsel for the applicants submitted that the delay was caused by the applicants' attempt to persuade the second respondent to withdraw the cancellation. The applicants had previously succeeded in getting the respondents to withdraw the 8 December 2009 cancellations. They believed communication with the second respondent would achieve similar results.

She further submitted that the applicants had applied to this court against the 8 December 2009 cancellations, and appealed to the Minister. Those proceedings were rendered academic by the second respondents' withdrawal of the 8 December cancellations.

The applicants had incurred heavy litigation expenses and wanted to avoid the same in respect of the 28 January cancellations.

The second to fifth applicants received the 8 December 2009 notices to cancel from the Acting Mining Commissioner Manicaland. They challenged the cancellations, by pointing out that there was no Mining Commissioner for Manicaland. That led to the withdrawal of that cancellation by the second respondent in this case.

In his letter of 28 January 2010, the second respondent advised the applicants that he had, in terms of section 341 of the Mines and Minerals Act, taken over the functions of the Mining Commissioners, Harare, Masvingo and Manicaland, and was withdrawing the 8 December 2009 cancellations to avoid unnecessary litigation.

The second respondent then gave the 28 January 2010 notices of the cancellation of the second to fifth applicants' claims. He again advised them that he had, in terms of section 341 of the Mines and Minerals Act, assumed the functions of the aforesaid Commissioners.

The second respondent's conduct was clearly aimed at correcting the error pointed out by the applicants, and to personally repeat the same act with resolve. The fact that the withdrawal, and the subsequent cancellations, took place on the same day must have been of significance to the applicants.

The applicants attached to their application the letters they wrote to and received from the second respondent before they filed this application. They attached the second respondents' letters dated, 28 January 2010, 12, 19 and 23 February 2010, and their letters to the second respondent dated 1, 11, 16, 23 and 24 February 2010.

The correspondence reveals the applicants' attempt to settle the dispute without litigation and the second respondent's insistence that the cancellations were not going to be reversed.

It is clear that the applicants genuinely wanted to avoid litigation, and hoped the second respondent could be persuaded to withdraw the cancellation. It is also equally clear, from the second respondent's letters, that the applicants' attempts were not going to be acceded to. This must have warned the applicants that their delay in applying to the courts or appealing to the Minister, may, in the circumstances, be to their own disadvantage.

I am therefore satisfied that the applicants' explanation for the delay is not satisfactory.

Counsel for the respondents made forceful submissions on the effect of the applicants' coming to this court before exhausting domestic remedies.

He submitted that section 50(2) of the Mines and Minerals Act provides for an appeal to the Minister.

The second respondent, in his notices of cancellation, drew the applicants' attention to their right to appeal. He submitted that the applicants had not appealed to the Minister when they filed this application. He further submitted that this was a deliberate abstention from exhausting domestic remedies. He further submitted that the applicants have now appealed to the Minister. They did so on 9 March 2010, a day before the date of cancellation, and four days after they filed this application.

Counsel for the applicants submitted that the applicants had no hope of a fair hearing before the Minister. She referred to HUNGWE J's comments in HC6411/07 where the applicants' chance for a fair hearing by the Minister was compared to that of “an ice block against hell fire.”

She pointed out the applicants' allegations of the Minister's alleged involvement with companies which have been granted rights to mine diamonds from the disputed claims.

If these were the true facts they would have been a fair response to counsel for the respondents submissions.

An analysis of the applicants' appeal to the Minister is revealing.

It seeks the Minister of Mines and Mining Development's recusal from considering the applicant's appeal. This means, if that request is acceded to, the Minister, who is alleged to be biased will not decide the applicant's appeal. If he considers the appeal against them without good grounds for refusing to recuse himself the applicants can take his decision on review.

The applicants, therefore, have a fair chance of their appeal being properly considered on the merits.

The appeal was submitted a day before the date of cancellation, and four days after this application was filed.

The filling of the appeal places this court in competition with the Minister on the determination of the dispute between the parties. When such a situation arises, the court must defer to the determination of the issues through domestic remedies.

That is consistent with the courts' clear position on the need for a party to first exhaust domestic remedies before seeking a remedy before this court.

In the case of Girjac Services (Private) Limited v Mudzingwa 1999 (1) ZLR 243 (SC)…, GUBBAY CJ, commenting on the need to exhaust domestic remedies said:

“In its opposing affidavit, the appellant specifically raised the complaint that the respondent had adopted the wrong procedure in applying to the High Court for relief rather than following the domestic procedure outlined in the Code of Conduct. In his answering affidavit, the respondent significantly proffered no explanation for taking the route he did. He appears to have been of the view that both options were open; the choice being un-inhibited.

The learned judge a quo did not deal with this issue although it was argued and the relevant authorities referred to him. He ought to have done so.

In Tutani v Minister of Labour & Ors 1987 (2) ZLR 88 (H) at 95D, MTAMBANENGWE J observed that where domestic remedies are capable of providing effective redress in respect of the complaint, and, secondly, where the unlawfulness alleged has not been undermined by the domestic remedies themselves, a litigant should exhaust his domestic remedies before approaching the courts unless there are good reasons for not doing so.

The same approach was applied by SMITH J in Musandu v Chairperson Cresta Lodge Disciplinary and Grievance Committee HH115-94 (not reported); and was referred to with approval by MALABA J in Moyo v Forestry Commission 1996 (1) ZLR 173 (H) at 191 D-192B.

I respectfully endorse it.”

In this case, the applicants did not only come to court before exhausting domestic remedies; they are asking this court to determine the legality of the respondents' handling of the cancellations when an appeal is pending before the first respondent or another Minister who will decide the case if the first respondent accedes to the applicants' request for his recusal.

The later should, in terms of the case law referred to above, and section 7 of the Administrative Justice Act [Chapter 10:28] (hereinafter referred to as the AJ Act), be sought first.

The simultaneous filing of an application before this court, and an appeal before the first respondent, or his substitute, as already said, places this court in competition with the determiner of the domestic remedy.

When that happens, this court must defer to domestic proceedings and allow them to be exhausted before it can hear the dispute between the parties.

The pendency of the domestic remedy would, in my view, take away urgency from an application to this court.

Section 7 of the Administrative Justice Act [Chapter 10:28] provides as follows:

“Without limitation to its discretion, the High Court may decline to entertain an application made under section four, if the applicant is entitled to seek relief under any other law, whether by way of appeal or review or otherwise, and the High Court considers that any such remedy should first be exhausted.”

My understanding of section 7 of the of the Administrative Justice Act is that this court can decline to hear an application, based on an alleged failure to comply with the provisions of the Administrative Justice Act, if it is of the view that the applicant has other legal remedies through which he can obtain the remedy sought before it and it considers that such remedy should first be exhausted.

The court can exercise its discretion, but, it should not do so in a manner that terminates pending domestic remedies unless there are compelling reasons for it to do so.

The intention of the legislature, in providing domestic remedies, must be respected by the courts, and the officials charged with the authority, to determine domestic appeals or reviews must be allowed to do their work before this court intervenes.

In my view, this court should only intervene in cases where it is obvious that domestic remedies will not do justice in the case before it.

This approach is consistent with the principle of judicial deference, commented on, in the South African cases of Bato Star Fishing (Pty) Limited v Minister of Environmental Affairs 2004 (4) SA 490…, and Ekuphuleni Metropolitan Municipality v Dada NO & Ors 2009 (4) SA 463 (SCA)…, where HURT AJA commented on judicial deference as follows:

“In Logbro Properties CC v Bedderson NO & Ors 2003 (2) SA 460 (SCA) (2003) 1 All SA 424, para 21, CAMERON JA referred, in the context of a necessity for 'judicial deference', with approval to the following passage from an article by CORA HOEXTER entitled The Future of Judicial Review in South African Administrative Law (2000) 117 SALJ 484, at 501-2, which is to the following effect:

'…, the sort of deference we should be aspiring to consists of a judicial willingness to appreciate the legitimate and constitutionally-ordained province of administrative agencies; to admit the expertise of these agencies in policy-laden or polycentric issues; to accord their interpretation of fact and law due respect; and to be sensitive in general to the interests legitimately pursued by administrative bodies and the practical and financial constraints under which they operate. This type of deference is perfectly consistent with a concern for individual rights and a refusal to tolerate maladministration.'

This passage was also referred to with approval and the theme taken up by SCHUTZ JA in Minister of Environmental Affairs and Tourism & Ors v Phambili Fisheries (Pty) Limited; Minister of Environmental Affairs and Tourism & Ors v Bato Star Fishing (Pty) Limited 2003 (6) SA 407 (SCA) ([2003] 2 All SA 616), paras 52 and 53, where, after quoting the passage set out above, the learned judge said:

I agree with what is said by HOEXTER (op cit at 185):

'The important thing is that judges should not use the opportunity of scrutiny to prefer their own views as to the correctness of the decision, and thus obliterate the distinction between review and appeal'.

(53) Judicial deference is particularly appropriate where the subject-matter of an administrative action is very technical or of a kind in which a court has no particular proficiency. We cannot even pretend to have the skills and access to knowledge that is available to the Chief Director. It is not our task to better his allocations, unless we conclude that his decision cannot be sustained on rational grounds.”

In the present case, the urgency of the application is diluted by the applicants' conduct.

They appealed to the Minister a day before the date of cancellation when this application was already pending before this court.

They knew, from 28 January 2010, that they had a right to appeal to the Minister. They avoided that option preferring to communicate with the Minister's subordinate, whose letters show that he was not prepared to budge. They then applied to this court, before appealing to the Minister, well knowing that they would also appeal to the Minister. They appeared before this court on 9 January 2010 when the case was postponed, to 12 March 2010, with the respondents' counsel undertaking to ensure that the applicants' claims would not be cancelled before the determination of this application.

They therefore resorted to applying to this court simultaneously with an appeal to the Minister.

This tends to show that the applicants deliberately delayed appealing to the Minister so that they could apply to this court on the pretext that they did not expect justice from the Minister, when they knew that they would appeal to the Minister and ask him to recuse himself so that their appeal would be heard by an impartial acting Minister.

No explanation was given as to why the applicants did not appeal to the Minister in the manner they did before 9 March 2010.

The delay in approaching this court, or appealing to the Minister, was, therefore, a result of a deliberate abstention from acting when the urgency arose on 28 January 2010.

In the case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188…, CHATIKOBO J said:

“What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency, which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules.”

In the circumstances, it cannot be said that the application is urgent as I have to defer to the appeal under domestic remedies. I therefore hold that the applicants' application is not urgent.

Other points in limine

The respondents had also sought the dismissal of this application on the grounds that the application does not comply with Order 33 of the High Court Rules, and that the applicants had not yet been incorporated when they registered the claims in dispute.

Counsel for the respondents submitted that the fact that they were not in existence when the claims were registered means the registration is invalid in terms of the Mines and Minerals Act [Chapter 21:05].

In view of my finding that the application is not urgent, I need not determine the other preliminary issues.

Once a case is judged to be not urgent, no further consideration should be given to any other aspect of it. This is because urgency is the key entitling a case to this court's attention on an urgent basis and ahead of other cases awaiting the court's attention.

The appropriate Order

Counsel for the respondents urged this court to dismiss the application if the court found in favour of any of the respondents' preliminary issues.

As I cannot deal with other issues in view of my finding that the application is not urgent, the order sought by the respondents is not appropriate.

A finding that a case is not urgent does not mean that the applicant's case has no merits. It means the case does not qualify for hearing on an urgent basis in terms of Rule 244 of the High Court Rules. It should therefore be set down and heard like any other case. It should simply take its place among cases awaiting to be set-down for hearing in terms of the Rules applicable to none urgent applications: see the comments of CAMERON JA in the case of Commissioner, South African Revenue Services v Hawker Air Services (Pty) Ltd; Commissioner, South African Revenue Service v Hawker Aviation Partnership & Ors 2006 (4) SA 292 (SCA)…,.

A case judged to be not urgent should simply be struck off the roll for it to be proceeded with like any other case.

In the result, the applicant's application is struck off the roll.

View Appeal
HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

Section 275 of the Mines and Minerals Act [Chapter 21:05]...,. reads in relevant part:“275 Registration of transfer of mining locations and transfer duty payable1. When any registered mining location or any interest therein is sold or otherwise alienated in any manner whatsoever, the seller or person who so alienates shall ...

Section 275 of the Mines and Minerals Act [Chapter 21:05]...,. reads in relevant part:

“275 Registration of transfer of mining locations and transfer duty payable

1. When any registered mining location or any interest therein is sold or otherwise alienated in any manner whatsoever, the seller or person who so alienates shall notify the mining commissioner of the transaction within sixty days of the date of such transaction, and shall inform him of the name of the person to whom such location or interest is sold or otherwise alienated and of the amount of the valuable consideration, if any, agreed upon and the date of the transaction.

2. When any registered mining location, or any interest therein, has been sold or otherwise alienated, whether before or after the first November, 1961, in any manner whatsoever, for valuable consideration, transfer duty at the rate fixed by Parliament shall be paid by the purchaser, which terms shall include any person becoming entitled to such location or interest therein by way of sale, exchange or other like transaction;

1….,.

2….,.

3….,.

4. Subject to this Act, any person entitled to be registered as the holder of a registered mining location, or any interest therein, shall make application to the mining commissioner for the transfer of such location or interest, and every such application shall be in writing and signed by or on behalf of the applicant, and shall be accompanied by the following particulars -

(a) The last issued certificate of registration or of special registration of the location or the holder's copy of the mining lease, as the case may be;

(b) Certificates by the transferor and transferee in the prescribed form;

(c) A duplicate original grosse or notarially certified copy of any and every existing written agreement affecting or bearing upon the sale, alienation, exchange or transfer;

(d) In the event of there being no such existing written agreement, certificates by the transferor and transferee to that effect;

(e) The original or notarially certified copy of any power of attorney which may be required to authorize an agent to act on behalf of any party to the transfer; if the original power is lodged with the mining commissioner and the applicant does not wish the mining commissioner to retain it, he shall furnish with it a copy which the mining commissioner shall compare with the original, certify to be a true copy and retain;

(f) If such application is in respect of the transfer of any mining location registered for precious stones or any interest therein, a certificate from the secretary that the Minister has granted the permission required under section two hundred and eighty two in respect of such transfer.

5. The mining commissioner shall, on receipt of such application and other documents, and of the transfer duty or, if no such duty is or may in the future be payable or the whole of such duty has been remitted under subsection (9) of the prescribed fee, and if he is satisfied that the other provisions of this Act have been complied with, register transfer by making the necessary entries in his registers and other records: Provided that -

(i) No transfer, as aforesaid, shall be valid unless it has been registered by the mining commissioner, and no such registration shall be made -

(a) Where such location is liable for forfeiture or under attachment;

(b) Until dues, fees, royalties, rents or other moneys due and payable to the mining commissioner under this Act in respect of the property to be transferred have been paid;

(c)…,.

(d) Where the transferee is not a permanent resident of Zimbabwe, unless the mining commissioner, after consultation with the Reserve Bank of Zimbabwe, is satisfied that all requirements imposed by or under the Exchange Control Act [Chapter 22:05] have been complied with;

(i)…,.

(ii)…,.

(8) The mining commissioner shall also, on receipt of the prescribed fee, issue to the transferee a certificate in the form prescribed and such certificate shall record the interest of the transferor, whether whole or otherwise, in such block.”

HH118-18 : PINKSTONE MINING (PVT) LTD and TIMOTHY MATANGI and AFRICAN MILLS & MINERALS (PVT) LTD vs LAFARGE CEMENT ZIMBABWE LTD and MINISTER OF MINES AND MINES DEVELOPMENT
Ruled By: ZHOU J

This is an urgent application for an order interdicting the first respondent from carrying on mining operations on the applicant's mineral claims described in the papers as Contrica 9 Registered Number 23331BM; Contrica 21 Registered Number 24482BM; Contrica 45 Registered Number 24866BM; and Contrica 46 Registered Number 24867BM.

The order also seeks the barring of the first respondent from coming within two hundred metres of the mining claims referred to above.

The terms of the final order, in addition to seeking the interdict as recited above and costs of suit, asks the court to set aside the first respondent's mining claims under Registration numbers 41334BM and 42332BM.

The mining claims in dispute are in an area falling under the Pfura Rural District Council.

The application is opposed by the first respondent.

The second respondent, through his legal practitioner, advised that he would abide by this court's decision.

The brief facts upon which the application is founded are as set out below:

The third applicant is the holding company in the first applicant. The first applicant is the holder of the mining claims described above. It registered the claims in 1996. The current certificates of registration and inspection are attached to the applicants papers.

At some point, the applicants and the first respondent had business dealings involving minerals from those claims. It appears that the agreement was not pursued.

The respondent went on to register mining claims over a piece of land which included the claims already registered under the applicants names.

The applicants became aware of the first respondent's intention to carry on mining operations on the claims in dispute on 19 February through an article which appeared in The Herald newspaper of 14 February 2018.

The first respondent does not dispute that it has registered the claims in dispute. It, however, contests the relief being sought in this application....,.

The second ground of objection which is set out in the opposing affidavit is that the relief sought in the draft order is incompetent, because, according to the respondent, it is final in its effect.

That submission is incorrect as clearly the relief is being sought pending the determination of this matter on the return date.

On the merits, the relief sought is an interim interdict. The requirements for such an interdict are settled. They are:

(a) A clear right, or a prima facie right though open to some doubt. Where a clear right is established, the applicant does not need to establish a well-grounded apprehension of irreparable harm. But, where the right is only prima facie established, the second requirement must be established, namely;

(b) That there is a well grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and the applicant ultimately succeeds in establishing the right; and

(c) The balance of convenience favours the granting of interim relief; and

(d) The applicant has no other satisfactory remedy.

See Watson v Gilson Enterprises (Pvt) Ltd 1997 (2) ZLR 318 (H).

The applicants have produced the relevant documents to show title in the mining claims in dispute. The certificates of registration of transfer of the claims as well as the inspection certificates show that the applicants hold rights in the claims in question.

Their right is therefore clearly established.

The respondents have not placed any evidence before the court to contradict the title established by those documents.

The first respondent clearly intends to mine on the same claims which are subject to the applicants rights.

The fact that the first respondent has registered claims over the same area does not take away the extant rights of the applicants.

It is the policy of the law to give priority to the first in title unless there are special reasons.

No such special reasons have been shown by the first respondent, but, in any event, that is a matter that is better left for a determination on the return date.

The first respondent suggested, without evidence, that, the applicants probably failed to maintain their title in the claims as required by section 173 of the Mines and Mineral Act [Chapter 21:05].

The second respondent would not have issued the applicants with the documents of title and inspection certificates referred to above if that was the case.

Even if the documents were to be taken as only prima facie evidence establishing the applicants rights, it is clear that the fear of irreparable prejudice is properly founded.

The first respondent evinces an intention to mine on the claims even though no actual mining activities have commenced. The applicants cannot wait until actual mining starts when there is evidence of an intention to mine on the disputed claims.

In deciding whether the balance of convenience favours the granting of the interim interdict, the court weighs the prejudice to the applicant if the interim relief is not granted against the harm to the respondent if the relief is granted.

The present situation is that the first respondent is not carrying on any mining activities on the claims. It is therefore not prejudiced by the granting of the interim relief being sought which is essentially the maintenance of the status quo.

The first respondent, through its legal practitioner, suggested, in the alternative, that an interdict could be granted stopping all mining activity by both parties until the dispute is resolved.

Such an order would unduly prejudice the applicant whose title to the claims has not been challenged, let alone set aside.

Counsel for the first respondent submitted, that, there is an alternative remedy of approaching the Mining Commissioner.

The remedy is not an alternative remedy to the interdict being sought in the present case as it does not achieve the same result. It is doubtful, that, the suggested recourse would afford the applicants the relief of ensuring that the first respondent's employees should not be allowed within two hundred metres of the mining claims.

In the result, the application is granted in terms of the draft provisional order as amended.

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Mining Law

HH205-10 : AFRICA CONSOLIDATED RESOURCES (PVT) LIMITED AND FOUR OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT AND TWO OTHERS
Ruled By: HUNGWE J

HB57-09 : TRYSON INVESTMENTS vs MAPLE LEAF MINING (represented by Cecil Madondo N. O.) and MINING COMMISSIONER
Ruled By: NDOU J

HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU
Ruled By: MAWADZE J

HH107-10 : CHIROSWA MINERALS (PRIVATE) LIMITED and BASE MINERALS (PRIVATE) LIMITED vs MINISTER OF MINES and MORIS TENDAI NYAKUDYA and VAMBO MILLS (PRIVATE) LIMITED
Ruled By: BHUNU J

HB05-11 : BMG MINING (PVT) LTD vs MINING COMMISSIONER BYO MINING DISTRICT and CHIEF MINING COMMISSIONER and KAMATIVI TIN MINES (PVT) LTD
Ruled By: MATHONSI J

HB155-11 : (1) SABAWE MAZUVA HC1310/10 and (2) CHARLES SIMBI HC1349/10 vs (1) MINING COMMISSIONER,GWERU and OFFICER COMMANDING POLICE,MIDLANDS and MINISTER OF MINES and (2) SABAWE MAZUVA
Ruled By: MATHONSI J

HMA31-17 : CHAMU MINING SYNDICATE vs SIBONGILE MPINDIWA N.O. and CHAMWANDOITA SYNDICATE
Ruled By: MAFUSIRE J

HH59-15 : REUBEN MARUMAHOKO and EDWARD CHIMEDZA and NEVER CHIROWAPASI vs PROVINCIAL MINING DIRECTOR, MASHONALAND WEST (N.O) and OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE (N.O.)
Ruled By: MUREMBA J

HH59-15 : REUBEN MARUMAHOKO and EDWARD CHIMEDZA and NEVER CHIROWAPASI vs PROVINCIAL MINING DIRECTOR, MASHONALAND WEST (N.O) and OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE (N.O.)
Ruled By: MUREMBA J

HB135-16 : KAS FOODS (PVT) LTD vs GLADYS MOYO and ACTING PROVINCIAL MINING DIRECTOR – MIDLANDS
Ruled By: MATHONSI J

HH339-14 : ROCK CHEMICAL FILLERS (PVT) LTD vs BRIDGE RESOURCES (PVT) LTD and TAPIWA GURUPIRA and MOST CHIKUMBA
Ruled By: MATHONSI J

HH228-16 : ANJIN INVESTMENTS (PVT) LTD vs THE MINISTER OF MINES & MINING DEVELOPMENT and THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER-GENERAL OF THE ZIMBABWE REPUBLIC POLICE
Ruled By: MANGOTA J

Appealed
SC33-18 : SMIT INVESTMENT HOLDINGS SA (PROPRIETARY) LIMITED and GENET MINING (PROPRIETARY) LIMITED vs THE SHERIFF OF ZIMBABWE and PUNGWE MINING (PVT) LTD
Ruled By: MALABA CJ, HLATSHWAYO JA and PATEL JA

View Appeal
HH193-16 : GRANDWELL HOLDINGS PL vs MINISTER OF MINES and ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and ZIMBABWE CONSOLIDATED DIAMOND COMPANY and MBADA DIAMONDS PL and ANOR
Ruled By: MAFUSIRE J

HB172-16 : STANLEY MASUMBA vs COLLEN TSHAYANA and PROVINCIAL MINING DIRECTOR - MIDLANDS and MINISTER OF MINES AND MINING DEVELOPMENT N.O.
Ruled By: MATHONSI J

HH169-15 : ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and STANBIC BANK and MNISTERS OF MINES AND MINING DEVELOPMENT and MINERALS MARKETING CORPORATION OF ZIMBABWE
Ruled By: MAKONI J

HMA26-18 : DYNAMIC MINING SYNDICATE vs ZIMASCO (PVT) LTD and ENELY MUZENDA and BUSYWORK DUBE and PROVINCIAL MINING DIRECTOR, MIDLANDS PROVINCE and OFFICER IN CHARGE, LALAPANZI and ANOTHER
Ruled By: MAWADZE J

Appealed
SC10-19 : SIPHIWE DUBE vs TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

HH480-18 : MILMATH SECURITY PL vs TABATANA MINING SYNDICATE and PAUL CHENJERAI and ISAAC JIRI and EARTHROW INVESTMENTS PL and PROSPER MACHEKERA and ORS
Ruled By: MANGOTA J

SC05-20 : GRANDWELL HOLDINGS PL vs ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and MBADA DIAMONDS PL
Ruled By: GWAUNZA DCJ, MAVANGIRA JA and MATHONSI JA

SC39-20 : ANJIN INVESTMENTS PL vs MINISTER OF MINES AND MINING DEVELOPMENT and MINISTER OF HOME AFFAIRS and THE COMMISSIONER – GENERAL OF THE ZIMBABWE REPUBLIC POLICE
Ruled By: BERE JA

SC01-10 : ZIMBABWE MINING DEVELOPMENT CORPORATION and MINERALS MARKETING CORPORATION OF ZIMBABWE vs AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS
Ruled By: CHIDYAUSIKU CJ

SC19-12 : JAMESON RUSHWAYA and ANNIE RUSHWAYA and XELOD INVESTMENTS PL vs SWIMMING POOL & UNDERWATER REPAIRS PL and PATTERSON TIMBA and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

HH19-11 : JAMESON RUSHWAYA and ANNIE RUSHWAYA vs PATTERSON TIMBA and SWIMMING POOL & UNDER WATER REPAIRS PL and TOLROSE INVESTMENTS PL and MESSENGER OF COURT, KADOMA
Ruled By: MAVANGIRA J

HH57-10 : AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT and SECRETARY FOR MINES AND MINING DEVELOPMENT and CHIEF MINING COMMISSIONER
Ruled By: UCHENA J

View Appeal
HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

HH118-18 : PINKSTONE MINING (PVT) LTD and TIMOTHY MATANGI and AFRICAN MILLS & MINERALS (PVT) LTD vs LAFARGE CEMENT ZIMBABWE LTD and MINISTER OF MINES AND MINES DEVELOPMENT
Ruled By: ZHOU J

Categories

Law Portal Zimbabwe

Mining Law

HH205-10 : AFRICA CONSOLIDATED RESOURCES (PVT) LIMITED AND FOUR OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT AND TWO OTHERS Ruled By: HUNGWE J

HB57-09 : TRYSON INVESTMENTS vs MAPLE LEAF MINING (represented by Cecil Madondo N. O.) and MINING COMMISSIONER Ruled By: NDOU J

HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU Ruled By: MAWADZE J

HH107-10 : CHIROSWA MINERALS (PRIVATE) LIMITED and BASE MINERALS (PRIVATE) LIMITED vs MINISTER OF MINES and MORIS TENDAI NYAKUDYA and VAMBO MILLS (PRIVATE) LIMITED Ruled By: BHUNU J

HB05-11 : BMG MINING (PVT) LTD vs MINING COMMISSIONER BYO MINING DISTRICT and CHIEF MINING COMMISSIONER and KAMATIVI TIN MINES (PVT) LTD Ruled By: MATHONSI J

HB155-11 : (1) SABAWE MAZUVA HC1310/10 and (2) CHARLES SIMBI HC1349/10 vs (1) MINING COMMISSIONER,GWERU and OFFICER COMMANDING POLICE,MIDLANDS and MINISTER OF MINES and (2) SABAWE MAZUVA Ruled By: MATHONSI J

HMA31-17 : CHAMU MINING SYNDICATE vs SIBONGILE MPINDIWA N.O. and CHAMWANDOITA SYNDICATE Ruled By: MAFUSIRE J

HH59-15 : REUBEN MARUMAHOKO and EDWARD CHIMEDZA and NEVER CHIROWAPASI vs PROVINCIAL MINING DIRECTOR, MASHONALAND WEST (N.O) and OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE (N.O.) Ruled By: MUREMBA J

HH59-15 : REUBEN MARUMAHOKO and EDWARD CHIMEDZA and NEVER CHIROWAPASI vs PROVINCIAL MINING DIRECTOR, MASHONALAND WEST (N.O) and OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE (N.O.) Ruled By: MUREMBA J

HB135-16 : KAS FOODS (PVT) LTD vs GLADYS MOYO and ACTING PROVINCIAL MINING DIRECTOR – MIDLANDS Ruled By: MATHONSI J

HH339-14 : ROCK CHEMICAL FILLERS (PVT) LTD vs BRIDGE RESOURCES (PVT) LTD and TAPIWA GURUPIRA and MOST CHIKUMBA Ruled By: MATHONSI J

HH228-16 : ANJIN INVESTMENTS (PVT) LTD vs THE MINISTER OF MINES & MINING DEVELOPMENT and THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER-GENERAL OF THE ZIMBABWE REPUBLIC POLICE Ruled By: MANGOTA J

Appealed SC33-18 : SMIT INVESTMENT HOLDINGS SA (PROPRIETARY) LIMITED and GENET MINING (PROPRIETARY) LIMITED vs THE SHERIFF OF ZIMBABWE and PUNGWE MINING (PVT) LTD Ruled By: MALABA CJ, HLATSHWAYO JA and PATEL JA

View Appeal HH193-16 : GRANDWELL HOLDINGS PL vs MINISTER OF MINES and ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and ZIMBABWE CONSOLIDATED DIAMOND COMPANY and MBADA DIAMONDS PL and ANOR Ruled By: MAFUSIRE J

HB172-16 : STANLEY MASUMBA vs COLLEN TSHAYANA and PROVINCIAL MINING DIRECTOR - MIDLANDS and MINISTER OF MINES AND MINING DEVELOPMENT N.O. Ruled By: MATHONSI J

HH169-15 : ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and STANBIC BANK and MNISTERS OF MINES AND MINING DEVELOPMENT and MINERALS MARKETING CORPORATION OF ZIMBABWE Ruled By: MAKONI J

HMA26-18 : DYNAMIC MINING SYNDICATE vs ZIMASCO (PVT) LTD and ENELY MUZENDA and BUSYWORK DUBE and PROVINCIAL MINING DIRECTOR, MIDLANDS PROVINCE and OFFICER IN CHARGE, LALAPANZI and ANOTHER Ruled By: MAWADZE J

Appealed SC10-19 : SIPHIWE DUBE vs TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS and OTHERS Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

HH480-18 : MILMATH SECURITY PL vs TABATANA MINING SYNDICATE and PAUL CHENJERAI and ISAAC JIRI and EARTHROW INVESTMENTS PL and PROSPER MACHEKERA and ORS Ruled By: MANGOTA J

SC05-20 : GRANDWELL HOLDINGS PL vs ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and MBADA DIAMONDS PL Ruled By: GWAUNZA DCJ, MAVANGIRA JA and MATHONSI JA

SC39-20 : ANJIN INVESTMENTS PL vs MINISTER OF MINES AND MINING DEVELOPMENT and MINISTER OF HOME AFFAIRS and THE COMMISSIONER – GENERAL OF THE ZIMBABWE REPUBLIC POLICE Ruled By: BERE JA

SC01-10 : ZIMBABWE MINING DEVELOPMENT CORPORATION and MINERALS MARKETING CORPORATION OF ZIMBABWE vs AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS Ruled By: CHIDYAUSIKU CJ

SC19-12 : JAMESON RUSHWAYA and ANNIE RUSHWAYA and XELOD INVESTMENTS PL vs SWIMMING POOL & UNDERWATER REPAIRS PL and PATTERSON TIMBA and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

HH19-11 : JAMESON RUSHWAYA and ANNIE RUSHWAYA vs PATTERSON TIMBA and SWIMMING POOL & UNDER WATER REPAIRS PL and TOLROSE INVESTMENTS PL and MESSENGER OF COURT, KADOMA Ruled By: MAVANGIRA J

HH57-10 : AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT and SECRETARY FOR MINES AND MINING DEVELOPMENT and CHIEF MINING COMMISSIONER Ruled By: UCHENA J

View Appeal HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS Ruled By: CHIKOWERO J

HH118-18 : PINKSTONE MINING (PVT) LTD and TIMOTHY MATANGI and AFRICAN MILLS & MINERALS (PVT) LTD vs LAFARGE CEMENT ZIMBABWE LTD and MINISTER OF MINES AND MINES DEVELOPMENT Ruled By: ZHOU J

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Law Portal
Zimbabwe

HH205-10 : AFRICA CONSOLIDATED RESOURCES (PVT) LIMITED AND FOUR OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT AND TWO OTHERS
Ruled By: HUNGWE J

HB57-09 : TRYSON INVESTMENTS vs MAPLE LEAF MINING (represented by Cecil Madondo N. O.) and MINING COMMISSIONER
Ruled By: NDOU J

HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU
Ruled By: MAWADZE J

HH107-10 : CHIROSWA MINERALS (PRIVATE) LIMITED and BASE MINERALS (PRIVATE) LIMITED vs MINISTER OF MINES and MORIS TENDAI NYAKUDYA and VAMBO MILLS (PRIVATE) LIMITED
Ruled By: BHUNU J

HB05-11 : BMG MINING (PVT) LTD vs MINING COMMISSIONER BYO MINING DISTRICT and CHIEF MINING COMMISSIONER and KAMATIVI TIN MINES (PVT) LTD
Ruled By: MATHONSI J

HB155-11 : (1) SABAWE MAZUVA HC1310/10 and (2) CHARLES SIMBI HC1349/10 vs (1) MINING COMMISSIONER,GWERU and OFFICER COMMANDING POLICE,MIDLANDS and MINISTER OF MINES and (2) SABAWE MAZUVA
Ruled By: MATHONSI J

HMA31-17 : CHAMU MINING SYNDICATE vs SIBONGILE MPINDIWA N.O. and CHAMWANDOITA SYNDICATE
Ruled By: MAFUSIRE J

HH59-15 : REUBEN MARUMAHOKO and EDWARD CHIMEDZA and NEVER CHIROWAPASI vs PROVINCIAL MINING DIRECTOR, MASHONALAND WEST (N.O) and OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE (N.O.)
Ruled By: MUREMBA J

HH59-15 : REUBEN MARUMAHOKO and EDWARD CHIMEDZA and NEVER CHIROWAPASI vs PROVINCIAL MINING DIRECTOR, MASHONALAND WEST (N.O) and OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE (N.O.)
Ruled By: MUREMBA J

HB135-16 : KAS FOODS (PVT) LTD vs GLADYS MOYO and ACTING PROVINCIAL MINING DIRECTOR – MIDLANDS
Ruled By: MATHONSI J

HH339-14 : ROCK CHEMICAL FILLERS (PVT) LTD vs BRIDGE RESOURCES (PVT) LTD and TAPIWA GURUPIRA and MOST CHIKUMBA
Ruled By: MATHONSI J

HH228-16 : ANJIN INVESTMENTS (PVT) LTD vs THE MINISTER OF MINES & MINING DEVELOPMENT and THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER-GENERAL OF THE ZIMBABWE REPUBLIC POLICE
Ruled By: MANGOTA J

Appealed
SC33-18 : SMIT INVESTMENT HOLDINGS SA (PROPRIETARY) LIMITED and GENET MINING (PROPRIETARY) LIMITED vs THE SHERIFF OF ZIMBABWE and PUNGWE MINING (PVT) LTD
Ruled By: MALABA CJ, HLATSHWAYO JA and PATEL JA

View Appeal
HH193-16 : GRANDWELL HOLDINGS PL vs MINISTER OF MINES and ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and ZIMBABWE CONSOLIDATED DIAMOND COMPANY and MBADA DIAMONDS PL and ANOR
Ruled By: MAFUSIRE J

HB172-16 : STANLEY MASUMBA vs COLLEN TSHAYANA and PROVINCIAL MINING DIRECTOR - MIDLANDS and MINISTER OF MINES AND MINING DEVELOPMENT N.O.
Ruled By: MATHONSI J

HH169-15 : ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and STANBIC BANK and MNISTERS OF MINES AND MINING DEVELOPMENT and MINERALS MARKETING CORPORATION OF ZIMBABWE
Ruled By: MAKONI J

HMA26-18 : DYNAMIC MINING SYNDICATE vs ZIMASCO (PVT) LTD and ENELY MUZENDA and BUSYWORK DUBE and PROVINCIAL MINING DIRECTOR, MIDLANDS PROVINCE and OFFICER IN CHARGE, LALAPANZI and ANOTHER
Ruled By: MAWADZE J

Appealed
SC10-19 : SIPHIWE DUBE vs TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

HH480-18 : MILMATH SECURITY PL vs TABATANA MINING SYNDICATE and PAUL CHENJERAI and ISAAC JIRI and EARTHROW INVESTMENTS PL and PROSPER MACHEKERA and ORS
Ruled By: MANGOTA J

SC05-20 : GRANDWELL HOLDINGS PL vs ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and MBADA DIAMONDS PL
Ruled By: GWAUNZA DCJ, MAVANGIRA JA and MATHONSI JA

SC39-20 : ANJIN INVESTMENTS PL vs MINISTER OF MINES AND MINING DEVELOPMENT and MINISTER OF HOME AFFAIRS and THE COMMISSIONER – GENERAL OF THE ZIMBABWE REPUBLIC POLICE
Ruled By: BERE JA

SC01-10 : ZIMBABWE MINING DEVELOPMENT CORPORATION and MINERALS MARKETING CORPORATION OF ZIMBABWE vs AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS
Ruled By: CHIDYAUSIKU CJ

SC19-12 : JAMESON RUSHWAYA and ANNIE RUSHWAYA and XELOD INVESTMENTS PL vs SWIMMING POOL & UNDERWATER REPAIRS PL and PATTERSON TIMBA and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

HH19-11 : JAMESON RUSHWAYA and ANNIE RUSHWAYA vs PATTERSON TIMBA and SWIMMING POOL & UNDER WATER REPAIRS PL and TOLROSE INVESTMENTS PL and MESSENGER OF COURT, KADOMA
Ruled By: MAVANGIRA J

HH57-10 : AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT and SECRETARY FOR MINES AND MINING DEVELOPMENT and CHIEF MINING COMMISSIONER
Ruled By: UCHENA J

View Appeal
HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

HH118-18 : PINKSTONE MINING (PVT) LTD and TIMOTHY MATANGI and AFRICAN MILLS & MINERALS (PVT) LTD vs LAFARGE CEMENT ZIMBABWE LTD and MINISTER OF MINES AND MINES DEVELOPMENT
Ruled By: ZHOU J