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Debshan (Pvt) Ltd. v Provincial Mining Director, Mat. South Province & Others (HB 11-17 , HC 538-16) [2017] ZWBHC 11 (26 January 2017);

1

 

                                                                                                                                                                HB 11-17

                                                                                                                                                              HC 538-16

 

DEBSHAN (PRIVATE) LIMITED

versus

THE PROVINCIAL MINING DIRECTOR,

MATABELELAND SOUTH PROVINCE

and

THE PROVINCIAL MINING DIRECTOR,

MATABELELAND NORTH PROVINCE

In this High Court case, the applicant owned a ranch where it was engaged in cattle ranching and wildlife safari operations. Many people desired to conduct mining activities on the ranch-land. The applicant sought a declaratory order against the mining authorities that any mining rights issued targeting the ranch, without conducting an environmental impact assessment, would be void. The first and second respondents opposed the application on the basis that an environmental impact assessment certificate was not a prerequisite for the issuance of a mining certificate but only for the commencement of mining operations. 

In court, the first issue for determination was whether the applicant had the legal capacity to challenge the issuing of the licenses; the second whether the permits were properly issued to the holders.

The court held that for the applicant to obtain the declaratory order sought it needed to establish that it had a direct and substantial interest in the subject matter. Since the licenses affected the applicant rights over the ranch, he had the legal capacity to seek the orders. On whether the first and the second respondents were discharging their duties lawfully in issuing the mining licenses, the court held that s3 and s97 of the Environmental Management Act of 2002 prohibit the issuing of mineral rights without conducting an environmental impact assessment. Since the environmental impact assessment report was not issued, the applicant was accordingly entitled to the declaratory order sought.

S v White (HB 07/17 HCA 84/15) [2017] ZWBHC 07 (26 January 2017);

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        HB 07/17

     HCA 84/15

 

TIMOTHY SEAN WHITE

 

Versus

 

THE STATE

 

IN THE HIGH COURT OF ZIMBABWE

MAKONESE & TAKUVA JJ

BULAWAYO 11 JULY 2016 & 26 JANUARY 2017

 

Criminal Appeal

 

S. Collier for the appellant

Ms S. Ndlovu for the respondent

This was an appeal against the decision of a magistrate to evict the appellant from land which he had occupied for several years. The appellant was convicted of contravening s 3(2) (a) as read with s 3(3) of the Gazetted Lands (Consequential Provisions) Act, for continuing to occupy state land without lawful authority. 

The appellant contended that the trial magistrate failed to take into account that he had established a lawful right to remain on the property through the authority of the Ministry of Lands and Rural Resettlement and by being in possession of mining rights over the land.

The High Court considered whether the magistrate erred by failing to consider the appellant’s arguments. The court applied s 236 of the Criminal Law Code that provides that ignorance of law is a defence but where such ignorance was brought about by the advice of an administrative officer and the advice is acted upon, this was a proper defence. The court noted that that the Chief Lands Officer had instructed the appellant to remain in occupation of the farm and he acted on these representations.

The court also found that the appellant’s mining rights gave him a right of occupation of the land and the right to the use of any surface within the boundaries of land. 

The appellant’s eviction and sentence was therefore held to be unlawful and the court set aside the appellant’s conviction and sentence. 

S v Chasweka (HH 48-17 CA 1031/13) [2017] ZWHHC 48 (23 January 2017);

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HH 48-17

CA 1031/13

 

LUKE CHASWEKA

versus

THE STATE

 

 

 

HIGH COURT OF ZIMBABWE

CHATUKUTA & MUSAKWA JJ

HARARE, 11 July 2016 & 23 January 2017

 

 

 

Chamber Application

 

 

 

T Manashe, for the appellant

E Makoto, for the respondent

 

 

This case concerned an appeal against the appellant’s conviction and the decision to sentence him to six months imprisonment, of which 3 months were suspended for a period of 5 years on condition of future good behaviour.

The appellant, a self-admitted illegal gold dealer, approached three men to buy gold. After paying, he discovered that he bought fake gold. To recover his money, he lied to the police, indicating that he was robbed by the three men. The police arrested them and during their interrogation realized that the appellant had lied to them. The appellant was then arrested and admitted that he made a false report.

While the appellant pleaded guilty, he appealed against the sentence imposed arguing that it did not take into account mitigating factors. He also submitted that the court should have considered a fine as an alternative sentence.

The appeal court found that it should not lightly interfere with the lower court’s sentencing discretion. Further, that the lower court did take into account mitigating factors, such as the fact that the appellant pleaded guilty and was a first offender. It further noted that the court had to also consider aggravating factors, especially the fact that the appellant was an illegal gold dealer trying to use the police as debt collector.

The appeal court held that the lower court adequately took into account all relevant factors and imposed a fair sentence. 

Accordingly, the appeal was dismissed.

S v Makanda (S.C. 119/83 Crim. Appeal No. 305/83) [1983] ZWSC 119 (01 November 1983);

Judgment No. S.C. 119/83    Crim. Appeal No. 305/83

ROUND MAKANDA v THE STATE

SUPREME COURT OP ZIMBABWE,

GEORGES, CJ, BECK, JA & GUBBAY, JA,

HARARE, NOVEMBER 1, 1983.

A.P. de Bourbon, for the appellant

P.J. Batty, for the respondent

 

The court considered an appeal against the conviction and sentence of the appellant. The appellant had been convicted and sentenced for wrongfully, and unlawfully possessing 269 grains of concentrates containing gold, valued at $1 896,23 while not being the holder of a licence or permit, and not being the employee of any permit or licence holder, in contravention of s 3 of the Gold Trade Act. 

In considering the evidence, the court noted that a detective constable jumped over the fence towards the back of the house and saw the appellant (who had a smelting pot in his hand) and another person. The constable succeeded in grabbing a plastic bag protruding from the appellant's pocket as he ran through a gate, dropping two gold stones in the process. The appellant was later arrested, giving a warned and cautioned statement, in the presence of his legal practitioner. 

The court upheld that although the statement made it very clear that the appellant knew that gold was being smelted in his workshop, his defence was that he was unaware of that fact until the police were about to come on the scene. This explanation might have raised a modicum of doubt but since it had been confirmed some months later in the presence of the appellant's legal representative, it was inherently improbable. 

The court found that on that state of the evidence, it was quite clear that the conviction was fully justified on the facts and the appeal was thus dismissed.

Marange Resources (Pvt) Ltd. v Core Mining & Minerals (Pvt) Ltd. (IN LIQUIDATION) & Others (SC 37/16 Civil Appeal No. SC 208/13) [2016] ZWSC 37 (22 July 2016);

Judgment No. SC 37/16

Civil Appeal No. SC 208/13

1

 

REPORTABLE         (32)

 

MARANGE     RESOURCES     (PRIVATE)     LIMITED

v

The court considered an appeal against the High Court’s decision not to interdict arbitration proceedings. 

The facts leading to the appeal were that a joint venture was entered into by the appellant and two mining companies. A dispute subsequently arose which the appellant claimed rendered the contract void ab initio. The first respondent sought a declaration that the contract was valid and soon after, referred the dispute to arbitration. However, the parties failed to agree on an arbitrator and one was appointed by an arbitral institution. Although the appellant boycotted a pre-arbitration meeting, the arbitrator proceeded, identified preliminary issues, and ordered the parties to file submissions. This prompted the appellant to file an urgent application to prevent the arbitration proceedings. The High Court’s refusal grant the interdict is what the appellant appealed against.

Before considering the appeal, the court observed that it was strange that the there was no nexus between the relief sought in the court below and that sought on appeal. The court went on to point out that the appellant refused to correct an error in its citation of the respondent in the proceedings but instead sought to hold out the matter as undefended. This was an abuse of court process. On this basis alone the proceedings could not be sustained.

Accordingly, the appeal was dismissed. The court held that the wrong citation was compounded by the appellant’s refusal to rectify the error and made an order for exemplary costs. 

KAS Foods (Pvt) Ltd. v Moyo & Another (HB 135-16 HC 1281-16) [2016] ZWBHC 135 (02 June 2016);

1

 

HB 135-16

HC 1281-16

KAS FOODS (PVT) LTD

versus

GLADYS MOYO

and

ACTING PROVINCIAL MINING DIRECTOR – MIDLANDS

 

HIGH COURT OF ZIMBABWE

MATHONSI J

BULAWAYO 26 MAY 2016 AND 2 JUNE 2016

 

 

Urgent Chamber Application

 

V. Masvaya for the applicant

J. Magodora for the 1st respondent

Ms R. Hove for the 2nd respondent

 

 

This was an urgent chamber application by the applicant in the High Court 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 uncontrolled violence they had unleashed at the site.

The issue before the court was to determine whether the Mining Commissioner should revisit the same dispute. The first respondent contended that the matter was not urgent since the dispute between the parties had been resolved in favour of the first respondent by the Mining Commissioner. However, it was found that the respondent had been ordered to stop but had allegedly resumed illegal activity.

The court held that in terms of s345(1) of the Mines and Minerals Act [Chapter 21:05] where both parties have agreed in writing, the Mining Commissioner should resolve the dispute regardless of the original jurisdiction of the High Court. It was also found that s346 confers upon the Mining Commissioner judicial power to hold a court in order to determine a dispute in the simplest, speediest and cheapest manner possible. The court held that the Mining Commissioner exercised judicial power including the rules of natural justice and that once he pronounced himself on a matter, he became functus officio and so cannot revisit the same dispute in order to review his own decision.

The court held that the applicant had exhibited proof of lawful registration of the mining claims. Consequently, the appeal succeeded.

Forbes & Thompson (Byo) (Pvt) Ltd. v ZINWA & Another (HB 154-16 HC 1148-16) [2016] ZWBHC 154 (16 June 2016);

1

 

HB 154-16

HC 1148-16

 

FORBES & THOMPSON (BULAWAYO) (PVT) LTD

versus

THE ZIMBABWE NATIONAL WATER AUTHORITY

and

TIMOTHY KADYAMUSUMA

 

 

HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 11 MAY AND 16 JUNE 2016

 

 

Urgent Chamber Application

 

 

W. Ncube for the applicant

Adv. L. Nkomo for the respondent

 

 

The applicant in this High Court case was seeking interim orders that (1) the first and second respondent be ordered to restore the supply of water from Blanket Dam in Gwanda to the applicant’s mine; (2) the first and the second respondent be interdicted from interfering with the applicant’s possession of his water supply infrastructure without obtaining a court order to that effect. 

The facts were that the first and second respondent disconnected the water supply that fed the applicants mine and the neighbouring community. The applicants argued that the respondents infringed its right to water under s77 of the Constitution of Zimbabwe. The respondents, on the other side, argued that the matter was not urgent, and they were entitled to disconnect the water supply as the applicant failed to pay the water bills, thereby ending the contract between them.

Thus, the main issue for determination was whether the applicant had satisfied the requirement for an interim order to be issued; 

On the first issue, the Court held that the applicant had satisfied the requirements for an interim order which are, (i) prima facie right; (ii) reasonable apprehension of irreparable injury; (iii) no alternative relief available; (iv) and the balance of convenience favouring the granting of the interdict. 

As a result, the interim order was allowed pending the main trial and the hearing of the interdict.

Mugomba v Rimbo & Others (HH380-16 HC 8811/13) [2016] ZWHHC 380 (29 June 2016);

1

HH380-16

HC 8811/13

 

FRANCIS MUGOMBA

versus

MAYOR RIMBO

and

RIMBO MINERALS (PVT) LTD

and

MINING COMMISSIONER

 

 

 

HIGH COURT OF ZIMBABWE

MATANDA-MOYO J

HARARE, 30 September 2015 & 29 June 2016

 

 

 

Trial

 

 

 

F Chauke, for the plaintiff

F Musihairambwe, for the 1st & 2nd defendants

 

 

This was an application by the plaintiff seeking an order declaring the first and second defendants’ construction of a milling plant and prospecting activities as unlawful, for interfering with the plaintiff’s agricultural activities. 

The first defendant opposed the reliefs sought, on grounds that he was the lawful owner of the mining blocks.

The court first assessed the evidence and concluded that the defendants were not in compliance of the procedures set out under the Mines and Minerals Act, for registering the claims and the subsequent conversion into blocks. The court further held that the defendants failed to show any plan lodged with the Commissioner of Mines, as required under the Mines and Minerals Act. 

Lastly, the court determined whether the land in dispute was cleared on or before the registration of the blocks and whether such land is the only portion, suitable of for farming. After outlining the rights of various parties, the court concluded that the plaintiff had no right to clear the land pegged for mining. However, the court could not make a holding on whether the prospecting operations were interfering with the plaintiff’s agricultural activities. This is because the plaintiff failed to
clarify whether the cleared field was located 450 metres from the principal homestead. The court therefore referred this issue to the Mining Commissioner for investigation and report, according to s 345 of the Mines and Minerals Act.

The court ordered the defendants to stop mining operations without complying with the law and to pay costs.

S v Kurotwi & Another (HH 270-16 CRB 35-39/11) [2016] ZWHHC 270 (04 May 2016);

1

HH 270-16

CRB 35-39/11

 

THE STATE

versus

1. LOVEMORE KUROTWI

2. DOMINIC MUBAIWA

 

 

HIGH COURT OF ZIMBABWE

BHUNU J

HARARE, 15 February 2011, 13 February 2015 and 4 May 2016

 

Assessors:       1.         Mr Chidyausiku.       

                        2.         Mr Shenje.

 

Criminal trial

 

C. Mutangadura, for the State

Mrs B. Mtetwa, for the 1st accused

L. Uriri, for the 2nd accused

 

This was an application for the discharge of the accused persons for lack of evidence pursuant to s 198 (3) of the Criminal Procedure and Evidence Act. The state had alleged that the accused persons were acting in common purpose through a series of fraudulent misrepresentations to the Government of Zimbabwe, the Ministry of Mines and Mining Development and Zimbabwe Mining Development Corporation (ZMDC) and induced ZMDC to enter into a joint venture agreement of diamond mining with Core Mining (Pvt) Ltd. They fronted Benny Steinmeitz Group Resources (BSGR) as its guarantor and on that representation, the government approved a contract, it never would have otherwise approved. 

Relying on the parole evidence rule that posits that parties are strictly bound by the four corners of the contractual document and nothing outside it, the court held that both government and ZMDC cannot be heard to complain that they were duped into signing the contractual document under the mistaken belief that BSGR was standing as guarantor for Core Mining when the contractual document makes no mention of BSGR at all.

Court further held that the state closed its case without leading any evidence pertaining to the misrepresentations allegedly made by the accused concerning the due diligence exercise on Core Mining. That misrepresentation is a vital component of the crime of fraud without which the crime cannot be committed. The state having failed to establish a prima facie case against the accused, it was accordingly ordered that both accused be acquitted and discharged.

Moyo v Freda Rebecca Gold Mine Ltd. & Another (HH 280-16 HC 3736/16) [2016] ZWHHC 280 (11 May 2016);

1

HH 280-16

HC 3736/16

 

                                                                                                                                                                                                                                                                     

PATSON MOYO

versus

FREDA REBECCA GOLD MINE LIMITED

and

ZHOMBE COMMUNITY DEVELOPMENT TRUST

and

WEIGHT GWESELA

and

MAKOMBE

and

CHARLES PARADZA

and

DESIRE TSHUMA

and

The applicant instituted proceedings by urgent chamber applications seeking interim relief against the respondents relating to mining activities in Antelope 68 Mine.

The court ruled on three preliminary objections by the first and second respondents that opposed the validity of the certificate of urgency, the urgency of the matter and that domestic remedies provided in the Mines and Minerals Act were not exhausted.

Firstly, the court noted that a certificate of urgency differs from an affidavit. It was held that the rules allowed the execution of a certificate of urgency by a legal practitioner who is employed by the firm of attorneys which represents the applicant. It was further noted that the validity of the certificate urgency is a cause of concern only when a chamber application is not served to the respondent.

Secondly, the court found that a party must show good cause for preferential treatment that comes with certifying a matter as urgent. The court held that the applicant failed to account for his failure to seek relief on an urgent basis at the very latest soon after the early March invasion when the respondents continued to go to the mine.  Consequently, it was held that the matter lost its urgency when the applicant failed to treat it as urgent.

Accordingly, the court ordered that the matter be struck off the roll of urgent matters and did not find it necessary to deal with the third objection. The applicant was also ordered to pay costs.

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