1
HH 312-16
HC 4673/16
FAKAZI SONNY TARUTHULA
versus
TECHMATE ENGINEERING (LILLY MINE) MINE MANAGER AND TOM
and
MALVERN PATIRAO
and
LILLY MIN AND MILLS (TECHMATE ENGINEERING) PVT LTD
and
OFFICER IN CHARGE KADOMA RURAL POLICE
and
OFFICER IN CHARGE CID MINERALS
and
PROVINCIAL MINING DIRECTOR KADOMA (NO)
HIGH COURT OF ZIMBABWE
MANGOTA J
HARARE,11 and 20 May, 2016
Urgent chamber application
F Misihairambwi, for the applicant
J Ndomene, for the 1st – 3rd respondents
T Tabana, for the 4th – 6th respondents
MANGOTA J: On 26 December 2015, the applicant filed an urgent chamber application with the Magistrates’ Court, Kadoma. The application which was granted in his favour, on an interim basis, was filed under case number CGK 1813/15. He, in the application, moved the Magistrates’ Court to, inter alia:
- interdict the first, second and third respondents from carrying out mining operations at his Marcona Mine the registration certificate of which was given as 18037-and
- order the fourth and fifth respondents to assist him to clear all illegals who were working at the mine.
The above mentioned order did not go down well with the first respondent in the case. He, for the reasons which he gave in his application, applied to the High Court in Bulawayo for a review of the order of the Magistrate’s Court. The application for review was filed under case number HC211/16.
Whilst the review which he filed with the court at Bulawayo was pending at that court, the first respondent filed an ex-parte urgent chamber application under case number HC301/16. He, in the application, successfully moved the court to:
- order the applicant in casu and all those claiming title through him to stop mining operations at Marcona Mine, registration No. 18037, Kadoma District with immediate effect-and
- authorise the Deputy Sheriff, with the assistance of the police, to evict the applicant in casu and all those claiming title of Marcona Mine through him from Marcona Mine.
It having been an ex parte urgent chamber application, the High Court in Bulawayo granted the order which the first respondent in the case prayed for. It granted the order, it was said, on the same day that the application was filed with it. The order is dated 8 February, 2016. The applicant said the order was served upon him on 14 February, 2016.
It is pertinent that the history of this matter be traversed before the present application is considered.
During submissions, the applicant produced, with the consent of the respondents, exh(s) 1 and 2. The first exhibit was a letter which the applicant addressed to the learned judge who granted the ex parte urgent chamber application to the first respondent. The second exhibit was what he termed an “Urgent Chamber Application for Anticipation of a Return Date and Amendment of the Interim Relief”.
In exh 1, the applicant advised the learned judge that the respondents did not have locus standi to challenge his mining rights. He said they did not have any certificate of registration in respect of the mine. He stated, in the exhibit, that the interim relief was based on inaccurate facts and that the relief allowed the respondents to take over his mine illegally.
He raised concern on the interim relief which he said indirectly granted a final interdict to the respondents who, according to him, did not satisfy the requirements of such an interdict as outlined in Setlegelo v Setlegelo 1914 AD 221. He moved the learned judge not to reward the respondents’ double dipping or forum shopping. He craved the indulgence of the judge to revisit, on an urgent basis, the order of his eviction from the mine.
The applicant filed exh 2 with the court on 17 February, 2016. He filed it under case number HC 392/16. He served it on the respondents’ legal practitioners, Messrs Hore and Partners, on 19 February, 2016. He stated under para 9 of his founding affidavit as follows:
This is an application for direction from the judge in chambers, not only for anticipation of a return date but also for rescinding point 2 of the interim relief that gives an order for my eviction from my lawfully registered mine Marcona Mine registered number 18037. The order would purport to give my rights to 1st Respondent, 1st Respondent cannot take over both my claim and my names as the registration papers read”
He submitted, in the application, that he could not be evicted from his lawfully registered claim against someone who had not produced any registered title. He attached to the application his certificate of registration. He moved the court to grant him the earliest and most convenient return date and to strike out item two of the interim relief which the court granted to the respondents under case number 301/16.
It was the applicant’s statement that his urgent chamber application which he filed under case number HC 392/16 was still pending at the Bulawayo High Court. He, in casu, moved the court to grant him the following relief:
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:
- 1st and 3rd respondents and all those claiming title through them be and are hereby ordered to stop any forms of violence and misuse of firearms at Marcona Mine registered 18037.
- 1st and 3rd respondents and all those claiming tittle trough them be and are hereby ordered to leave applicant in peaceful possession of his duly registered claim Marcona Mine 18037.
- 1st and 3rd respondents to jointly and severally with one paying the other to be absolved pay costs of suit on a legal practitioner and client scale.
INTERIM RELIEF GRANTED
- 1st and 3rd respondent (sic) and all those claiming title through them be and are hereby ordered to stop mining at Marcona Mine Registered 18037.
- 1st and 3rd respondents and all those claiming title through them be and are hereby ordered to stop the misuse of firearms and deploy their employees in the area that they have always been operating from before the dispute.
- 1st and 3rd respondents and all those claiming title through them to stick to their duly registered claims as in line the Mines and Minerals Act. (sic). Till the court make a determination.
- The applicant be and is hereby allowed to fully exercise his farming rights as granted through his offer letter.
The interim order which the applicant moved the court to grant to him was premised on the applicant’s statement as contained in the current urgent chamber application. He stated that the first and third respondents in casu commenced working on his mining claims through violence. He said their employees shot one person with a gun in the eye aiming on the latter’s head. The shooting, he alleged, was with the intention to kill their victim. He stated that the gun wielding employees of the respondents constituted a real danger to villagers and miners who were /are in the area. He said villagers lived in fear and they could not search for their cattle which stray in the direction of the respondents’ employees as gun shots were fired randomly in an effort to protect the respondents’ illegal looting. He stated that the respondents were looting minerals in an indiscriminate manner. He said, if the respondents’ conduct remained unchecked, he stood to suffer irreparable financial harm as gold which they were mining was a non-renewable natural resource which the respondents were depleting at an accelerated speed. The respondents, he said, were destroying the pillars that held the mine shaft. He stated that the collapse of the shaft posed a real danger to some 40 or 50 persons who would be working in the shaft at any given time. These, he alleged, could be buried alive in the shaft. He stated that the respondents were undermining the authority of the court which ordered them not to carry out mining operations at his sites. He attached to his application the following annexures:
(a) medical affidavits and a hospital card, Annexures A 1-2
(b) his certificate of registration number 18037 – Annexure B
(c) the third respondent’s opposing affidavit to the application which he filed under case number HC 12588/15, – Annexure C – and
(d) a letter dated 1 October, 2013 which the Ministry of Lands and Rural Resettlement wrote showing that the applicant was allocated a 13.25 hectare, A 2 plot, No. 1 Kingchim in the Sanyati District, Mashonaland West Province for
Agricultural purposes, Annexure D.
The court will refer to the annexures in the course of this judgment. It will, for the interim, proceed to examine the respondents’ attitude as well as response to the application.
The first, second and third respondents put up a stiff opposition to the application. Mr Tabana who appeared for the fourth, fifth and sixth respondents submitted nothing for and on behalf of his clients. He stated that the sixth respondent instructed him to advise the court that he would abide by the decision of the court. He, therefore, was, to all intents and purposes, a spectator to the wrangle which the applicant and the first three respondents engaged themselves into.
Although Mr Ndomene appeared for the first three respondents, the opposing affidavit which was filed with the court related to the first and third respondents more than it did to the second respondent. The affidavit in fact said nothing about the second respondent.
One Zedias Nene, a director of the first and third respondents, was the deponent to the latter’s opposing affidavit. He stated, in limine and on behalf of the two respondents, that the applicant was granted the relief which he was seeking in casu when he successfully applied for the same relief at Kadoma Magistrates’ Court under case number CGK 1813/15. He stated, on the merits, that the current application was frivolous as the respondents were granted an interim relief by the court under case number HC 301/16. He said, in terms of the order which was granted to the respondents, the applicant and all those claiming title in Marcona Mine were ordered to stop mining and were evicted from the same. He stated that the applicant violated the court order. He said the applicant gathered thugs armed with machetes, catapults and stones to forcibly remove gold ore and takeover the mine. He stated that the security guards who were manning the mine, in execution of their duties, fired warning shots into the air at first but the thugs kept on advancing and were even determined to snatch the firearms. He alleged that the security guards fired shots into the ground and a few members of the group where (sic) grazed slightly by fragments and sustained minor scratches. He insisted that it was the applicant who was evicted and ordered to stop conducting any mining activities until the application for review was heard and finalised. He stated that the respondents were waiting patiently for the review of the matter to be finalised. He said the respondents were not conducting any mining operations at the mine. It was, according to him, the applicant and the latter’s employees who were violating the court order. He challenged the contents of annexure D. He said the annexure was not an offer letter as the applicant alleged. He said that the respondents put security measures in place to ensure that the applicant would not violate the court order and illegally extract gold ore from the mine. He denied that the respondents were conducting any mining operations at the mine. He stated that the application did not meet the requirements of an interdict. He said the applicant had a prima facie right only. He doubted whether the applicant had a real right over the disputed area. The applicant and his employees, he said, were violent towards the respondents. The violence, according to him, was the applicant’s protest against the interim order which the court granted to the respondents.
The dispute which caused the applicant, on the hand, and the first and third respondents, on the other, to engage each other in court centred on the ownership of Marcona Mine [“the Mine”]. The ruling of the Magistrate’s Court, Kadoma and that of this court under case number HC 301/16 confused matters further than they already had been. Each of the parties to the legal divide hinged his, or their, argument on a court order which was entered in his, or their, favour. He, or they, therefore, claimed lawful occupation of the mine and he, or they, insisted that the other party was ordered out of the mine by a court of competent jurisdiction.
The order of the magistrate is the subject of a pending review at this court. Whether or not the review suspended the operation of the order remains a matter for debate.
The Magistrate’s Court [Civil] Rules, 1980 are silent on the matter. Order 33 of the High Court Rules, 1971 tends to suggest that the decision of the magistrate’s court remains suspended pending the review of its proceedings. Part V of the High Court Act [Chapter 7:06] [“the Act”] makes reference to the powers of this court to review proceedings and decisions of all inferior courts, tribunals and administrative authorities which are in this country. The court has, indeed, the power, jurisdiction and authority to review all proceedings and decisions of those. Section 27 of the Act spells out the grounds which an aggrieved party may advance for a review. One such ground is absence of jurisdiction on the part of the court, tribunal or authority concerned. The first respondent advanced that ground when he filed his application for review under case number HC 211/16.
The fact that s 28 of the Act confers on the court the power to either set aside or correct the proceedings and/or decision of the inferior court, tribunal or administrative authority constitutes ample evidence which shows that the decision of the magistrate’s court under case number CGK 18131/15 cannot be implemented until this court has reviewed the same. The review which the first respondent lodged with the court, therefore, places the applicant in an invidious position vis-a-vis the order which the magistrate’s court granted to him. He cannot, under the circumstances, exercise the rights which the magistrates court conferred upon him until the review has been heard and determined in his favour, if such is the outcome of the review. He cannot, in short, remain in occupation of the mine. Nor can he have the respondents ejected from the mine as was his desire when the magistrate’s court entered judgment, albeit on an interim basis, in his favour.
The order which the court granted to the respondents under case number HC 301/16 placed the applicant in a very precarious position. It took away from him the right to remain, or to carry out mining operations, at Marcona Mine.
The applicant claimed that he is the registered owner of Marcona Mine. He, in support of his claim, attached to his application Annexure B. the annexure is a certificate of registration. It certifies that the applicant is the registered holder of 1 x 10 gold reef claims named Marcona and registered under number 18037. The claims are situated on King Chim Farm about 1.6 km South East of T/beacon 750/S, according to the certificate which the Acting Mining Commissioner issued.
Annexure D which the applicant attached to his application showed that the District Lands officer for Sanyati District confirmed that Plot A2, No1 King Chim which is in the District of Sanyati under Mashonaland West Province was allocated to the applicant.
A reading of Annexures B and D showed that the applicant has a prima facie right to Marcona Mine. The observed matter is in consonant with what the respondents stated in their opposing papers. They stated in para 20 of the same that the applicant has a prima facie right to the mine. They, however, challenged the contents of Annexure D. They stated and, correctly so, that the annexure was not an offer letter.
Whether or not the annexure is an offer letter is not the point. The real point is that the mine which is the subject of the parties’ dispute lies in the plot and that the applicant is, from a prima facie perspective, the registered owner of the same. The court’s observations in the mentioned regard find fortification from the contents of the supporting affidavit of one Chris Matemure. He said he was a resident of Last Mills which is adjacent to Marcona Mine, Pathway area. He stated that he lived in the area for fie (5) years and he has known Marcona Mine to be owned by the applicant. The respondents did not challenge his statement. The court, therefore, accepts it as a true reflection of the parties’ position on the matter which pertains to the applicant’s prima facie right to the mine.
Annexure C which the applicant attached to his application is the third respondent’s opposing affidavit to the applicant’s application under case number HC 12588/15. The third respondent stated, in those papers, that it was the registered owner of Marcona Mine. It made reference to Annexure C which it said was its certificate of registration. It, for reasons known to itself, did not produce the certificate which it referred to in case number HC 12588/15. It did not state, in casu, that it had a certificate of registration in respect of the mine. All it said was that Marcona Mine was not pegged over anyone’s farm.
The applicant’s statement was that the first and third respondents were violent at the mine. He, in support of his statement, attached Annexures A1 – 2 to his application. The annexures are a set of medical affidavits and a hospital card. The set showed that, on 28 April 2016, four or five people suffered injuries on their persons. The injuries, the applicant asserted, were at the hands of the respondents.
One of the persons who suffered injuries was Mr Matemure. He deposed to an affidavit in support of the present application. His affidavit reads, in part, as follows:
“I recall the 2th (sic) of April thereabout (sic) when I was walking on a path leading to the tarred road that (sic) I was shot in the eye, on the shoulder and chest by an employee of Techmate Engineering (Pvt) Ltd, as I went unconscious.
I was far from the shaft, the guard aimed for my head. I believe he wanted to kill me. I sustained injuries on the eyelid, shoulder and chest; I was admitted in Kadoma General Hospital. I was then discharged, but now I suffer a severe headache and loss of memory, doctors say I have to go to Harare for specialist treatment. I am trying to raise funds. I had a normal health (sic) and did not complain of any headaches and memory loss before the shootings………”
The medical affidavits showed that the remainder of the persons who were mentioned in them suffered moderate injuries which were caused by brunt instruments. The contents of the affidavits showed further that the injuries did not pose a danger to the victims’ lives. They stated that there was no potential danger, or the possibility of permanent disability, to each of the affected persons.
The first and third respondents stated that the persons who got injured were part of the group whom the applicant commandeered to attack security guards who were manning the mine with a view to violently taking over the mine from which the applicant had been lawfully evicted. They submitted that, when the group approached the guards, the latter fired warning shots into the air and, later, into the ground with a view to preventing the group from taking over the mine in a violent manner. They stated that, if the guards had not acted as they did, the latter persons could have been disarmed, robbed and possibly killed.
The above described circumstances showed that there was violence at or about the mine on 28 April, 2016. The cause of the violence remained unclear. The applicant stated that the respondents caused it. The respondents counter-argued and asserted that the applicant caused it.
Whoever was the cause of the violence is not the issue. The issue is that peace should be allowed to prevail at the mine until the parties’ dispute which is pending at court has been resolved.
The order which the court granted to the respondents is silent on whether or not the latter can carry out mining operations at the mine. The applicant stated that the respondents are mining gold from the mine. He said their conduct caused him to suffer irreparable harm financially as what they take out of the ground cannot be replaced. He, accordingly, moved the court to, among other things, interdict the respondents from mining at the mine.
The respondents denied that they were carrying out mining operations from the mine. They said they would only do so when the dispute between the applicant and them has been resolved in their favour by the court. The parties were, to the stated extent, on the same page.
It is imperative that the hands of both parties be removed from the mine pending the resolution of their dispute which pertains to the ownership of the mine. It is also important that peace be allowed to prevail at or about the mine pending the resolution of the parties’ dispute.
The applicant, in the court’s view, was able to show that:
(i) he has a prima facie right to the mine.
(ii) he would suffer irreparable harm if the respondents, as alleged, continued to carry out mining operations at the mine. A fartiori where the order which was granted to them under case number HC 301/16 did not, in specific terms, authorise them to mine as they were alleged to be doing.
(iii) he has no other remedy to which he can turn apart from the one which he is moving the court to grant to him. The respondents’ claim which was to the effect that he could claim damages did not hold. He would, for a start, incur costly legal expenses in his effort to assert his rights where the court grants him such. He is not guaranteed of the fact that, if judgment was to be entered in his favour, the respondents would have the means to pay damages to him whatever the quantum of the same may be.
(iv) there is no doubt that, for the above stated reasons, the balance of convenience favours the applicant who, effectively, was able to satisfy all the requirements of an interdict.
The applicant proved, on a balance of probabilities, his case against the respondents. The application is, accordingly, granted as prayed. It is, in addition, ordered that, pending the resolution of the parties’ dispute by the court as to the ownership of the mine, security guards of the applicant work with security guards of the first and third respondents to:
(a) guard Marcona Mine
(b) ensure that neither the applicant nor the first and third respondents or their respective agents carry out mining operations at Marcona Mine, Kadoma.
Lawman Chimuriwo Attorney at Law, applicant’s legal practitioners
Hore & Partners, 1st -3rd respondent’s legal practitioners
Civil Division of the Attorney General’s Office, 4th-6th respondents’ legal practitioners
