ZIYAMBI JA: After hearing submissions by
counsel, the Court dismissed the appeal with costs on the higher scale of legal
practitioner and client and indicated that the reasons for its judgment would
follow. The following are the reasons.
On 1 February 2006 and in terms of the Mines and
Minerals Act [Cap 21:05] the first respondent (“KCGM”) as grantor
and the Reserve Bank of Zimbabwe as tributor entered into a
standard tribute agreement as well as a rental agreement in respect of
Chaka Gold Plant. The life span of the agreement was three (3) years
ending 2009 and renewable for another three (3) years to expire on 2 February
2012. The agreement was registered with the Mining Commissioner.
The Reserve Bank during the initial term of the agreement mined the tributed
claims and operated the Chaka Gold Plant through its subsidiary company
Carslone Enterprises (Pvt) Ltd, (“Carslone”) the second respondent
herein. However, following a shift in policy, the Reserve Bank decided to
shed all quasi – fiscal operations and the renewal of the tribute
agreement was concluded between KCGM and Carslone.
On 15 December 2011 shortly before the expiry of the agreement Carslone wrote
to the KCGM as follows:
“Dear Sir
RE: CARSLONE TRIBUTES,
CHAKA PLANT
1.0
I refer to our telephone conversation and advise as follows:-
1.1
The Carslone tributes from KCGM will expire in February, 2012.
1.2
The Chaka Plant rental agreement will also automatically expire at the same
time.
1.3
There are outstanding amounts for the tribute royalties and plant rental which
you may discuss with Mr W. Kapofu and Mr E. Shuro for their correctness.
1.4
As we can no longer continue with quasi-fiscal operations, we recommend Midkwe
Mining Services to be considered by KCGM to take over from Carslone. Your
contact person is Honourable Mutomba.
1.5
Carslone will continue to rent out the escavator and two dumpers to Midkwe to
ensure payment to the creditors outstanding as at today.
1.6
Your company may, as per recommendation, negotiate new tribute and rental
agreements to replace our current arrangements at their expiration.
I would like to thank your
company for the professional
manner in which you handled
business with Carslone
Enterprises.
We undertake to do our best to
pay the outstanding debts due to KCGM.
Our contact person remains Mr
Wonder Kapofu, whom you are very familiar with.
Yours faithfully,
M.E. Chiremba
Chairman”
This letter was followed by a memorandum addressed to
Carslone's Plant Engineer at Chaka Gold Plant which read as follows.:
MEMO
“TO:
Mr C. Knight Plant Engineer, Chaka Gold Plant
FROM:
Mr W. Kapofu
CC
Mr A. Adolfo Technical Services Manager
CC
Mr ET Nhamo
GM Homestake Mining Group
DATE
30 January 2012
RE:
EXPIRY OF TRIBUTE FOR CASLONE ENTERPRISES AND HANDOVER OF ASSETS
1. The above issue refers.
2. Attached are letters from
Homestake/KCGM as well as from their lawyers, Matatu and Partners, as you aware
and can deduce from the letters the tribute agreement has expired for Carslone
Enterprises. Please, therefore render their officials all the necessary
assistance, in the most utmost professional manner, to facilitate a smooth hand
over take over of all the assets from that were handed over to Carslone
Enterprises in 2006.
3. Thanking you for your usual co-operation”.
Despite this memorandum, on the expiry of the lease
Carslone continued to mine at Chaka Plant and refused to hand the plant over to
KCGM. Thus it was that KCGM sought and was granted by the High Court on
29 February 2012, an interim interdict in the following terms:
“Pending the confirmation or discharge of the order,
Applicant is granted the following interim relief:-
(a)
The Respondent be and is hereby interdicted from carrying out any mining
operations on any of Applicant's Mining Claims or any operations at Chaka Gold
Plant in whatever nature whatsoever.
(b)
The Respondent be and is hereby interdicted to ensure that any business
partners, associates, previous employees or current employees refrain from
carrying out any mining operations on mining claims previously tribute by the Respondent
or the Reserve Bank of Zimbabwe and from any operations at Chaka Gold Plant,
4.5km peg, Kwekwe – Gokwe Road, Kwekwe”.
On 5 March 2012, the order was executed and the Deputy
Sheriff closed down Chaka Gold Plant. The appellant immediately, on
the 9 March 2012, filed an urgent application to the High Court in which it
sought and obtained the following order:
“PROVISIONAL ORDER SOUGHT
a)
The 1st and 2nd Respondent be and are hereby interdicted
from disturbing Applicant's operations at Chaka Gold Plant and it's mining
claims especially using court order under Case No. HC 683/12 against
Applicant.
b)
In the event that the Applicant's custody possession and control had been
disturbed by the Respondents the Respondents are hereby ordered to restore
Applicant's peaceful possession and control of Chaka Gold Plant and its mining
claims”.
The Order lacked the characteristics of a provisional
order. By all accounts it was a final order. Nevertheless the two
matters came before the High Court for confirmation of the provisional orders
and were consolidated. KAMOCHA J in his judgment dated 8 November 2012
confirmed the first order and discharged the second. This appeal is
against the judgment of KAMOCHA J.
Much has been made by the appellant of the fact that the
order of 29 February 2012 did not apply to it as it was not one of the parties
to the application. However the order includes the business associates of
Carslone and it is clear from an affidavit filed by William Mutomba who described
himself as a director of the appellant, that the latter entered into a joint
venture with Carslone for mining at Chaka plant. That affidavit was filed
in the High Court on 1 February 2012 in a matter in which the appellant was the
first applicant and Carslone the second respondent. Paragraph 5 of the
affidavit reads as follows:
“5.
On or about 31st March 2011, the 1st Applicant and the 2nd
Respondent entered into an agreement whereby the 1st Applicant took
over the 2nd Respondent's business as a going concern at Chaka Gold
Plant, No. 1 Gokwe Road, Kwekwe. I attach hereto the agreement as Annexure 'A'.
Further to that agreement (Annexure 'A') the parties entered into a joint
venture agreement on the 1st day of April 2011, wherein the 2nd
Respondent indicated that it is 'the holder of mining rights in terms of a
tribute agreement with respect to certain gold claims situated in Kwekwe, namely
Kwekwe Consolidated Gold Mines Claims'. I attach hereto the joint
venture agreement as Annexure 'B'. As this Honourable Court will note
from Annexure 'B', Mr Mirirai E. Chiremba, as the chairman of the Board for
the 2nd Respondent signed the agreement as a representative for the
2nd Respondent”.
The appellant has not established any right whatsoever to
occupy and mine on the premises which belong to the respondent. The
tribute agreement with Carslone expired on 2 February 2012 as did the
rental agreement which automatically expired at the same time. No tribute
and rental agreements were concluded between the appellant and KCGM. The
Mining Commissioner in his letter to KCGM dated 29 February 2012 advised as
follows:
“Dear Sir
REF: Current status of Tribute Agreement No.
U/R05/06
KCGM in favour of RBZ
Please be advised that according to records in this office,
the above tribute lapsed on 3 February 2012 after six years to 2 February
2012.
Any person who is mining under the former agreement is
doing so in contravention of Mining Law and should be reported to the police
and section 289 of the Mines and Minerals Act (Chapter 21:05) should be
invoked”.
The court a quo correctly found in my view that
the appellant was mining in contravention of the law when he approached the
court for the second provisional order on 9 March 2012. On p 4 of the
cyclostyled judgment the court said:
“The applicant of the provisional order granted on 9 March
2012 under case number HC 800/12 was clearly mining in contravening of the
mining law. This ought to have been clear to the applicant yet it still sought
to have the provisional order confirmed when in fact it does not even have a prima
facie right or real right to permanently interdict the owners from
retaking their mining claims. There is no document filed of record from which
the applicant in that case could derive a right.
In the result the provisional order granted in that case
must be discharged while the provisional order granted under case HC 683/12 is
confirmed”.
In the absence of a tribute
agreement between it and KCGM the appellant has failed to establish a right to
mine on the mining claims in question.
The judgment of the court a
quo is unassailable. The appeal is devoid of merit.
As to the question of costs, an order for punitive costs
was sought by the respondent. The request is in our view appropriate.
The appellant has persisted in this appeal notwithstanding that it ought to
have been quite clear to it that there was no legal justification for remaining
in occupation of Chaka Gold Plant and mining the claims in question. Indeed
the Mining commissioner on 17 August 2012 obtained a provisional order
requiring the appellant to cease its mining activities on the said premises and
to remove its machinery and workforce from the site yet the appellant has
persisted in this appeal. There is no doubt that this is a proper case
for a punitive order of costs.
Before concluding this judgment, I wish to express the
disapproval of this Court of the manner in which this appeal was conducted by
the appellant.
At the onset of the hearing, MrRungwanda made an
application to have the matter struck off the roll. The reason tendered
for this application was that AdvocateUriri whom he had briefed to
argue the matter was 'attending to family matters'. He could give no
further details. The application was opposed by MrMazibisa on 3
grounds. Firstly, that the appellant was unwilling to prosecute the
appeal and was employing delaying tactics. It had not paid the costs of
preparation of the record nor had it paid security for costs as required by the
Rules of this Court. It was KCGM who had applied to the Registrar to have
the matter set down for hearing. Secondly, he was only notified, in
court, of the intention to make this application and was unable to forewarn
his colleague who appeared with him for KCGM and who had travelled from
Kwekwe to attend the hearing. Thirdly, he alleged that the application
lacks bona fides because the appellant is in control of the gold
processing plant and has nothing to lose and everything to gain by the delay in
finalizing the matter.
Mr Rungwanda in reply advised the Court that
although he had instructed Mr Uriri to argue the appeal, he had no
idea as to why Mr Uriri was unable to attend Court. He equally had no
personal knowledge of the case and was not in a position to argue the matter,
but stood by the Heads of Argument prepared by Mr Uriri. The
Court took into account the submissions made in the Heads of Argument
prepared by Mr Uriri in the determination of the appeal.
The conduct of the appellant's legal practitioners exhibit
disdain and disrespect for the Court which had travelled to Bulawayo from
Harare to hear the appeal, only to be told at the hearing that the appellant
wanted the appeal to be postponed sine die.
The grant or otherwise of a postponement is in the
discretion of the court. A party seeking the grant of a postponement or
other indulgence at the hearing must come prepared for a grant or refusal of
its request. A legal practitioner must be prepared, in the event of a
refusal by the court to grant a postponement, to proceed with the hearing if so
ordered. In this case the legal practitioners for the appellant had filed
heads of argument as far back as 10 July 2013. To appear before the Court
totally unprepared and totally ignorant of the merits of the case in my view
smacks of negligence on the part of the legal practitioner. Mr Rungwanda
ought to have come prepared to argue the matter in the event that his
application for deferment was refused.
CHIDYAUSIKU
CJ: I
agree
MUTEMA
AJA:
I agree
Garikayi & Company, appellant's legal
practitioners
Mutatu & Partners, respondents' legal practitioners
