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Chamu Mining Syndicate v Mpindiwa N.O. & Another (HMA 31-17 , HC 44/16) [2017] ZWMSVHC 31 (21 June 2017);

 

HMA 31-17

HC 44/16

 

CHAMU MINING SYNDICATE

versus

SIBONGILE MPINDIWA N.O.

and

CHAMWANDOITA SYNDICATE

 

 

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 30 May 2017 & 21 June 2017

 

                                        

Opposed application

 

G. Dzitiro, for the applicant

T. Mutomba, for the first respondent

C. Ndlovu, for the second respondent

 

The applicant (a mining syndicate) sought several remedies, concerning gold mining and prospecting, against the first respondent, which would materially affect the second respondent (a mining syndicate). 

Among the remedies were, that the first respondent should issue the applicant with a certificate of registration over a mining block and that the second respondent, and all those claiming occupation through it, should vacate that site.

The issue facing the court was whether these so-called syndicates were corporate bodies whose corporate status would ordinarily remain unaffected by changes in their membership. The rule applied was the Mines and Minerals Act.

The court held that the applicant described itself as a body corporate, but no incorporation document was produced, thus, the mere coming together of a group of people, or gang, for some commercial purpose such as mining, did not automatically transform it into a body corporate.

The court held that in terms of s 45, which provided for the registration of a mining location, when one applies to the mining commissioner, there was nowhere in that provision, or any other, that said 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 had not yet acquired any sort of right to enforce, the first respondent’s reason for not having proceeded with issuing a registration certificate was quite reasonable under the circumstances. 

The court concluded that the application lacked merit, consequently it was dismissed with costs.

S v Seughyun (HH 409-17 , CA 656/16) [2017] ZWHHC 409 (29 June 2017);

1

HH 409-17

CA 656/16

 

LEE SEUGHYUN

versus

THE STATE

 

 

 

HIGH COURT OF ZIMBABWE

CHATUKUTA, MUSAKWA JJ

HARARE, 20 March & 29 June 2017                                                                          

 

 

 

CRIMINAL APPEAL

 

 

 

T Mpofu & E Jera, for the appellant

E Mavuto, for the respondent

 

 

The court considered an appeal against the decision of the court below. The appellant was found in possession of gold and arrested because he failed to produce a licence. He was charged with contravening s3 of the Gold Trade Act and convicted following his plea of guilty. He was sentenced to the mandatory five years imprisonment. 

The appellant filed a late appeal against his sentence, which the court condoned. In the notice of appeal, the appellant introduced grounds of appeal against the conviction. Thus, the court first had to consider whether the appellants appeal against the conviction was admissible and had merit.

Given that the appellant only filed an appeal against his sentence and not his conviction, and that only the lateness of that appeal was condoned, the court found that the appeal against the conviction was filed out of time and had no merit. 

The court then considered the appeal against the sentence. The appellant argued that he did not know he had to have a permit to carry the gold in Zimbabwe, and that he operated under a bona fide mistake of law, that amounted to a special circumstance. The court found that the appellant would not have expected Zimbabwe to have regulations on the possession of gold and his failure to declare the gold upon entry into Zimbabwe reflected his mala fides.

Accordingly, the appeal was dismissed. 

K&G Mining Syndicate v Mugangavari & Others ( HB 131/17 HC 2031/15) [2017] ZWBHC 131 (01 June 2017);

1

HB 131/17

HC 2031/15

 

 

K & G MINING SYNDICATE

 

Versus

 

RONALD MUGANGAVARI

 

And

 

PROVINCIAL MINING DIRECTOR – MIDLANDS

And

 

MINISTRY OF MINES & MINING DEVELOPMENT N.O.

 

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 1 FEBRUARY & 1 JUNE 2017

 

Opposed Matter

 

This High Court case concerned an application for review in which the applicant sought an order that the third respondentÕs decision cancelling the applicants mining registration be set aside. 

The dispute arose between the applicant and the second respondent allegedly due to a double allocation of the same mining area to the applicant and the first respondent. The third respondent convinced that there was a double allocation cancelled the applicants mining rights to the extent that their boundaries were overlapping. His reasoning was that the first respondent was the first to be allocated the disputed area. The applicant was dissatisfied with the decision and hence applied for a review to the High Court.

The issue for determination by the Court was thus whether the third respondentÕs decision was justified. The Court held that since the matter was first decided in the Mining CommissionerÕs Court, the appeal was supposed to be directed to the High Court per s361 of the Mines and Minerals Act of 1961 and not to the Minister. The High Court thus held that the entire proceeding, and the decision that followed it, was a nullity.

As such, the determination by the third respondent cancelling the applicantÕs Mining registration certificate held by the applicant was set aside with cost.

Mapanga v Mupepe & Another (HH 157-17 , HC 12451/12) [2017] ZWHHC 157 (08 March 2017);

1

HH 157-17

HC 12451/12

 

NOREST MAPANGA

versus

WILLIAM MUPEPE

and

HOMESTAKE MINING & TECHNICAL

SERVICES (PVT) LTD

 

 

 

HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE, 16-17 May 2016, 17 January 2017 & 8 March 2017

 

 

 

Civil Trial

 

 

E Samundombe, for the plaintiff

S Mahuni, for the defendant

 

 

The plaintiff issued summons, claiming damages for malicious arrest, detention and prosecution emanating from the course of employment with the respondent. The plaintiff was employed by the respondent as a security manager at the mine where the respondent lost slime gold due to theft.

The main issue before the court was whether the respondent maliciously caused the arrest of the plaintiff and whether the plaintiff suffered damages.

The court pointed out that an arrest is malicious in cases where the defendant makes improper use of the legal process to deprive the plaintiff of his liberty. The court held that a plaintiff suing for damages for malicious arrest must prove that the prosecution was instigated by the defendant and it was concluded in favour of the plaintiff. The plaintiff must further prove that there was no reasonable cause for the prosecution and the defendant acted maliciously. The court pointed out that a malicious prosecution concerns a misuse or abuse of power.

In dismissing the matter, the court noted that the defendant had lost gold slime from theft, hence there was nothing wrong with his conduct. Furthermore, access to the dumpsite with gold slime was through the locked gate to which the plaintiffs were in charge. The court held that the plaintiff had failed to prove that his arrest, detention and prosecution were malicious.

The claim was dismissed with costs.

S v Matura (HB 78-17 HC (CRB) 33-16) [2017] ZWBHC 78 (09 April 2017);

1

 

HB 78-17

HC (CRB) 33-16

 

THE STATE

versus

FISHER MATURA

 

 

HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 10 OCTOBER 2016 AND 9 MAY 2017

 

 

Criminal Trial

 

 

W Mabhaudhi for the state

A Rubaya for the accused

 

 

The accused was charged on several counts for the unlawful possession of gold without a licence, smuggling and the use of a vehicle with secret or disguised places for concealing goods. In his defence, the accused stated that he was not aware of the presence of gold on the vehicle having borrowed it from another person who was a gold dealer.

The main issue for the court’s consideration was whether the accused person had knowledge of the existence of the gold. The court noted that the burden of proof in criminal matters rests on the state and that the state is required to prove its case beyond reasonable doubt. The court found that the state failed to adduce sufficient evidence to prove that the accused indeed had knowledge of the existence of the gold and the compartments. 

Given these circumstances the court gave the accused person the benefit of the doubt and he was acquitted on all three counts.

Turfwall Mining (Pvt) Ltd. v Dube & Others (HB 102/17 HC 291/17 X REF HC 269/17) [2017] ZWBHC 102 (27 April 2017);

1

HB 102/17

HC 291/17

X REF HC 269/17

 

TURFWALL MINING (PVT) LTD

t/a BEENSET INVESTMENTS

 

versus

 

SIPHIWE DUBE

 

And

 

PROVINCIAL MINING DIRECTOR

MATABELELAND SOUTH (NO)

 

And

 

THE ZIMBABWE REPUBLIC POLICE OFFICER

In this High Court case, the applicant sought interim and final orders to the effect that the first respondent be stopped from carrying out mining activities on the disputed area. 

The applicant was a registered holder of Legion Mine in Gwanda (“mine”).  The respondents then entered into a three years’ tribute agreement with the first respondent. Terms of the agreement required the first respondent to pay royalties to the applicant.  However, after the three years expired, the first respondent refused to sign the new contract and to pay royalties to the applicant.

The issue for determination was whether the final order and an interim injunction could be issued against the first respondent, as sought by the applicant.

The respondent argued (1) that the damages suffered were reparable, and thus, a stop order could not be issued; (2) the affidavit was defective for failing (a) to indicate that the matter was urgent and (b) to make a distinction between payers that needed a final order and interim order. In response, the court held that (1) an interdict could be issued if the damages suffered are difficult to assess; (2) failure to title an affidavit as urgent does not make it defective if that could be read from the content of the affidavit; and (3)  the applicant's affidavit was clear that she wanted an interim injunction stopping the first respondent from carrying out mining operations and the final orders for a complete cessation of mining activities. 

Accordingly, the Court ordered the applicants prayers as sought. 

Mixnote Inv. (Pvt) Ltd. v Majola & Others (HB 40/17 , HC 401/17 X REF 3062/16 ) [2017] ZWBHC 40 (02 March 2017);

1

 HB 40/17

HC 401/17

X REF 3062/16 

 

MIXNOTE INVESTMENTS (PVT) LTD

 

Versus

 

EVANS MAJOLA

 

And

 

PROVINCIAL MINING DIRECTOR –

MATABELELAND NORTH N.O.

 

And

 

MINES AND MINING DEVELOPMENT MINISTER

 

IN THE HIGH COURT OF ZIMBABWE

MATHONSI J

BULAWAYO 22 FEBRUARY & 2 MARCH 2017

 

The applicant and first respondent were the registered holders of two respective mining claims when it became apparent that the first respondent had been mining on the applicant’s property under the mistaken belief that it was hers. The dispute was referred to the second respondent who made a determination and advised the parties of the right to appeal to the Secretary for Mines and Mining Development. On appeal, the Secretary made another determination on the dispute which prompted an application for review. 

The applicant contested the validity of the secretary’s decision and prayed for an interdict to restrain the first respondent from carrying on her mining activities pending the review.

The court considered whether the application to the second respondent and subsequently to the Secretary were procedurally proper under the Mines and Minerals Act; in order to determine whether the applicant had an arguable claim for review. 

The court interpreted ss 341, 346 and 362 of the Act, and found that the second respondent heard and determined the dispute as a mining commissioner acting under delegated powers. It was also found that an appeal against the decision of the mining commissioner should lie to the High Court and not to the office of the Secretary. The court therefore held that the appeal to the Secretary was a nullity and that the applicant had established an arguable claim.

Accordingly, the court granted the interim interdict pending determination of the matter.

Mabwe Minerals (Pvt) Ltd. & Others v Valentine & Another (HH 793/16 HC 1514/16) [2016] ZWHHC 793 (08 December 2016);

1

HH 793/16

HC 1514/16

 

MABWE MINERALS (PRIVATE) LIMITED

and

TAPIWA GURUPIRA

and

TAG MINERALS ZIMBABWE (PVT) LTD

and

JOHN RICHARD NEEDHAM GROVES

versus

PETER VALENTINE

and

BASE MINERAL ZIMBABWE (PRIVATE) LIMITED

 

 

 

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 10 October AND 8 December 2016

 

 

 

Opposed Matter

 

 

 

R. F Mushoriwa, for the applicants

This was an application for a decree of perpetual silence against the respondents for engaging in lawsuits aimed at harassing the applicants. The dispute between the parties emanated from certain claims in a mine, which resulted in over 30 court applications between the parties.

The court first dealt with the nature of the relief sought by the applicants. The court after citing authorities pointed out that the relief is recognised in the jurisdiction of the court. The court pointed out that in cases where repeated and persistent litigation between parties, in the the same cause of action, the court can make a general order prohibiting the institution of such litigation without the leave of the court. It was noted that such a remedy is extraordinary as it makes a person deaf before the court. The court also pointed out that the remedy is only granted where a party demonstrates to the court that the defendant or respondent is a serial litigator, with a tendency to abuse the court, the court process and the other party.

In dismissing the application, the court dealt with the history of the litigants and concluded that the respondents had a defined cause and were not serial litigators. 

The court dismissed the application with costs on a higher scale.

Nkomo v Moyo & Others (HH 798-16 HC 9130/16) [2016] ZWHHC 798 (14 September 2016);

1

HH 798-16

HC 9130/16

 

TRYNOS NKOMO

versus

SIFA NJANI MOYO

and

THE OFFICER IN CHARGE WEST NICHOLSON

POLICE STATION NO.

and

OFFICER COMMANDING  BORDER CONTROL

AND MINERALS UNIT N.O

 

 

HIGH COURT OF ZIMBABWE

MWAYERA J

HARARE, 13 & 14   September 2016

 

 

 

Urgent chamber application

 

 

 

Ms R Zvimba, for the applicant

B Diza, for the first respondent

This was an urgent application by the applicant, seeking an order to stop the respondents from mining gold ore from an area which the applicant had a prospecting licence.

The court set out the requirements of an interdict and held that the applicant was required to prove the existence of a prima facie right. Secondly, that there was an injury actually committed or reasonably apprehended. Thirdly, that there was  an absence of a similar or adequate remedy. Lastly, that the balance of convenience favoured the grant of the relief.

The court pointed out that the applicant had other remedies available. Such remedies included using the Ministry of Mines to demarcate the area between the parties. Secondly, ore claimed by the applicants was held as an exhibit in a criminal case, thereby removing urgency in the application and any irreparable harm that could be occasioned by waiting.

Accordingly, the court declined to deal with the matter on urgent basis, dismissed the application and ordered the applicants to pay the respondents’ costs on an ordinary scale.

S v Chikukwa (HH 813/16 CRB NO. 146/16) [2016] ZWHHC 813 (03 October 2016);

1

HH 813/16

CRB NO. 146/16

 

THE STATE

versus

ARTHUR CHIKUKWA

 

 

 

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 3 October 2016

 

 

 

Criminal Trial

 

 

 

T Kasema, for the State

Mrs V Chikomo, for the defence

 

 

This was a criminal trial in which the accused was charged with two counts for contravening the Mines and Minerals Act and the Money Laundering and Proceeds of Crime Act.

The court determined whether the accused misrepresented that he had the mandate to sell a special grant which prejudiced the buyers. In finding the accused guilty of fraud, the court pointed out that the accused mispresented that he had the authority to deal with a coal mining concession held under a  special grant. Through the misrepresentation, the accused personally benefitted from the proceeds. The court further pointed out that the moment the accused benefitted from the criminal activity, the property became proceeds of crime. The accused further received occupation of the immovable property which he was not entitled.

On the criminal charge against the accused for ceding a mining right to a third person without the consent of the president, the court held that the section does not create a criminal offence. It merely sets out the characteristics of the special right and how it can be assigned.

The accused was found guilty on both counts and sentenced to 10 years imprisonment, with 2 years suspended for 5 years. Further 4 years were suspended on condition that the accused paid restitution to the complainant. Effectively, the accused was sentenced to 4 years imprisonment. 

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