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Tarathula v Techmate Engineering (Lilly Mine) Mine Manager & Others (HH 312-16 HC 4673/16) [2016] ZWHHC 312 (20 May 2016);

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

 

 

The origin of the application is an interim interdict prohibiting the first, second and third respondents from carrying out mining activities and ordering the fourth and fifth respondents to clear illegals who were working at the mine. The first respondent sought a review of this order and got an interim interdict that ordered for the eviction of the applicant and prohibition from mining.

This application arose when the applicant sought direction from the judges in chambers for anticipation of a return date and also rescinding the eviction order.

The court applied Order 33 of the High Court Rules and held that the pending review suspended the operation of the order issued in the magistrate court. Consequently, the applicant could not exercise the rights conferred upon him unless the review was determined in his favor.
The court found that the mine lies in the applicant’s plot. However, the court found it important for peace to prevail at the mine and that both parties be removed from the mine pending resolution of their dispute.

The court held that the applicant was able to prove all the requirements of an interdict: he had a right to mine; he would suffer irreparable damage if the respondent continued with their mining operations; he had no alternative remedy and he proved his case on a balance of probabilities against the respondent.

Accordingly, the interdict was granted pending the resolution of the dispute and the security guards of both parties were ordered to guard the mine jointly. 

Yoramu and Others v PG (CCZ 245/12) [2016] ZWCC 2 (21 January 2016);

Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – right to protection of the law – prosecution of former farm employees for unlawfully remaining on farm after acquisition – legislation creating an offence to do so constitutional – no constitutional issue arising

Land – acquisition – former employees remaining on farm – no right to do so – employment ceased on acquisition of farm – liable to prosecution for occupying gazetted land without lawful authority

The applicants were former employees on a farm that had been expropriated for resettlement and had been allocated to other beneficiaries. They did not vacate the farm when it was expropriated and continued to live and work on it.
The respondent had ordered that they vacate the farm as they were occupying the land unlawfully. They refused to do as they held that as part of their conditions of employment with the previous owner, he gave them accommodation, food and facilities. They maintained that the acquisition of the farm had not meant the automatic termination of their contract of employment, rather that it had resulted in a transfer of the farming undertaking and consequently, the beneficiaries had assumed the position of employer, with the concomitant responsibility of maintaining terms and conditions similar to those they previously enjoyed.

The court first had to decide whether a constitutional issue arose before the Court, if not then there would be no need to hear the matter any further.  Secondly, whether the applicants were guilty of a criminal offence and if so, whether the applicants would remain employees of the new farm owners.
The court held that Section 3 of the Gazetted Lands Act had been scrutinized by the Supreme Court on numerous occasions and was found to be constitutional. Therefore, the court re-affirmed  the provision that criminalized their unlawful occupation and held that there was no constitutional issue to be referred.

The matter was dismissed.

L.S. Waters (Pvt) Ltd. & Another v Zimbabwe National Water Authority & Others (HH 153/16 HC 1401/16) [2016] ZWHHC 153 (24 February 2016);

1

HH 153/16

HC 1401/16

 

L.S WATERS (PVT) LTD

and

JOHANNES JAKOBUS LAUBSCHER

versus

ZIMBABWE NATIONAL WATER AUTHORITY

and

MANYAME CATCHMENT COUNCIL

and

A.H. KATSANDE – ACTING MANAGER

MANYAME CATCHMENT COUNCIL

and

CDE E. MHLANGA – CHAIRMAN UPPER MANYAME

SUB-CATCHMENT COUNCIL

and

UPPER-MANYAME SUB-CATCHMENT COUNCIL

and

WENSLEY MUCHINERI – THE COMPLIANCE

MANAGER OF UPPER MANYAME

SUB-CATCHMENT COUNCIL

and

This was an application for a spoliation order to summarily undo the wrongful deprivation of property without investigating the merits.

The applicants claimed that their immovable property (10 Metcalf Road, Greendale) and equipment for water abstraction were seized by the first to sixth respondents.

The first to the sixth respondents raised two preliminary objections: that the matter was not urgent and that there was need for police to join as co-respondents since they were the ones who had seized the applicants’ property. The first objection was abandoned while the second was dealt with in the merits of the case.

The court noted that the applicants were required to prove peaceful and undisturbed control before the disturbance and that the respondent took or destroyed the control unlawfully. However, the applicant would not succeed if the respondent proved valid defenses like they did not commit the spoliation or that they were not involved in the spoliation.

The court found that the applicants were in peaceful and undisturbed possession of the property and equipment although, illegally. However, the court noted that the applicants claimed that they were despoiled of their equipment by the first to sixth respondents who were not natural persons but failed to state who acted on their behalf. The court therefore held that the respondents were not involved in the despoiling.

Accordingly, the application was dismissed with costs.

ANJIN Inv. (Pvt) Ltd. v Minister, Mines and Mining Development & Others (HH 228-16 HC 2183/16) [2016] ZWHHC 228 (30 March 2016);

1

HH 228-16

HC 2183/16

ANJIN INVESTMENTS (PRIVATE) LIMITED

versus

THE MINISTER OF MINES & MINING DEVELOPMENT

and

THE MINISTER OF HOME AFFAIRS

and

THE COMMISSIONER-GENERAL

OF THE ZIMBABWE REPUBLIC POLICE

 

 

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 7 and 30 March 2016

 

 

Urgent Chamber Application

 

 

P Ranchhod, for the applicant

L Uriri, for the 1st respondent

This was an application for an interim relief of setting aside the first respondent’s directive that ordered the applicant to cease their diamond mining operations after the applicant’s rights in a ceded portion of a special grant 4765 expired.

The applicant argued that clause 8 of the grant allowed it to work the sites which were ceded to it for an indefinite period of time. The first respondent countered this on the basis of s 291 of the Mines and Minerals Act that requires special grants to be issued for a specified period of time.

Further, the first respondent argued that no real cession had occurred since the applicant as the holder of the ceded and ‘residual’ portions of the grant were operating outside the law.

The court noted that the first respondent gave the applicants a 5-year period to renew the grant when they allowed the grant to operate outside the law before declaring it invalid, and the applicants still failed to renew it. For this reason, the applicant was found to have approached the court with ‘dirty hands’ since it was in breach of the condition of the special grant and s 29 of the act.

The applicant failed to prove that the first respondent acted unlawfully, unreasonably or disproportionately for the court to apply its review discretion. The court, therefore, held that the first respondent was right in exercising its administrative discretion and pronouncing what the law said.

Accordingly, the application was dismissed with costs.

Hove v Harare City (HH 205/16 HC 1728/15) [2016] ZWHHC 205 (23 March 2016);

1

HH 205/16

HC 1728/15

 

TINOFARA KUDAKWASHE HOVE

versus

CITY OF HARARE

 

 

 

HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE, 19 January 2016 and 23 March 2016

 

 

 

Opposed Application

 

 

 

E Matsanura, for the applicant

C Kwaramba, for the respondent

 

 

This was an application to interdict the respondent from disconnecting water supplies from the applicant’s property without a court order and from charging commercial rates for the use of water from the said property.

The applicant submitted that the respondent was infringing on their right to water as provided in s 77(a) of the constitution. In interpreting the right to water, the court found that the right empowers local authorities to levy rates to raise revenue for service provision and does not prohibit disconnections of water services for non-payment. Additionally, the court held that the right to water contains the protection against arbitrary and illegal disconnections. Consequently, when a bill is genuinely disputed there should be recourse to the court before disconnection as per s 69 (3) of the constitution and the holding in Mushoriwa v City of Harare HH 195/14.

The court held that the applicant had proved his right to water but failed to prove the genuineness of his claim, since he did not provide proof letters of complaint disputing the bills. This also had a negative bearing on the grant of the interdict order.

The court also found that the applicant converted domestic premises for use as commercial premises and was not entitled to be charged domestic rates. 

The court also noted that the applicant failed to give adequate information which would show that the respondent did not follow the correct procedure in zoning and rating it.

Accordingly, the application was dismissed with costs.

Grandwell Holdings (Pvt) Ltd (HH 193-16 HC 1977/16) [2016] ZWHHC 193 (16 March 2016);

 

1

HH 193-16

HC 1977/16

GRANDWELL HOLDINGS [PRIVATE] LIMITED

versus

MINISTER OF MINES & MINING DEVELOPMENT

and

ZIMBABWE MINING DEVELOPMENT CORPORATION

and

MARANGE RESOURCES [PRIVATE] LIMITED

and

ZIMBABWE CONSOLIDATED DIAMOND COMPANY

and

MBADA DIAMONDS [PRIVATE] LIMITED

and

COMMISSIONER-GENERAL, ZIMBABWE REPUBLIC POLICE

 

 

 

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 29 February 2016; 2, 4, 8 & 16 March 2016

 

 

This was an application for an order of remedy of spoliation and an interdict.

The applicantĺs main argument was that the actions of the respondentsĺ occupation of the diamond mining site at the Chiadzwa Concession amounted to an act of spoliation against the fifth respondent.

Firstly, the court determined whether the applicant (a foreign company) was required to furnish security for the costs of the respondents before the application could proceed. The court noted that such orders are matters of its discretion and are only issued when there is a reason to believe that a company will be unable to pay the costs of the suit.

Secondly, the court found that the second to fourth respondents had come to court with Ĺdirty handsĺ but had cleansed themselves.

Thirdly, it was held that the applicant (a shareholder of the fifth respondent) had the locus standi to bring the derivative action as an exception to the rule in Foss v Harbottle [1843] 2 Hare 461, 67 ER 189.

Finally, the court found that the applicant had proved the elements of spoliation: peaceful and undisturbed possession and the act of spoliation on a balance of probabilities. However, the court held that allowing the fifth respondent to resume mining operations as before, when the right to do so expired, would be contrary to public policy. Nevertheless, the court noted that the applicant was entitled to a final order and ordered the restoration of its rights when the validity of the special grants was regularized.

S v Jamari (HH 131/16 CA 560/09 CRB NO. MUT 307/03) [2016] ZWHHC 131 (16 February 2016);

1

HH 131/16

CA 560/09

CRB NO. MUT 307/03

VHAU JAMARI

versus

THE STATE

 

 

 

HIGH COURT OF ZIMBABWE

CHATUKUTA J & MANGOTA J

HARARE, 18 May 2015 and 16 February 2016

 

 

 

Criminal Appeal

 

 

 

D. Halimani, for the applicant

T. Mapfuwa, for the respondent

 

 

The court considered a criminal appeal against the sentence imposed on the accused. 

The accused was convicted, on his own guilty plea, for contravening s 3(1)(a) of the Gold Trade Act by being in possession of 0.15 grams of gold without authorisation.

The evidence revealed that the accused was asked whether there were any special circumstances, which the court below established did not exist and sentenced him to the mandatory minimum sentence.

The accused argued that the trial judge did not explain in full what special circumstances meant and the inadequate explanation prejudiced him. The respondent agreed and stated that the explanation was “special or extraordinary mitigating factors” where it should have referred to special circumstances. 

The court found that the Act did not define special circumstances, and it was on a case by case basis. However, the court below took all necessary steps to explain the meaning and import of special circumstances, which was given in clear unambiguous terms. 

The court found that the accused was not an illiterate person and appreciated what was taking place and there was nothing preventing him from asking the magistrate for clarity. Further, that the accused’s conduct once arrested, in running away illustrated a guilty state of mind. 

The court found that the accused’s special circumstance of “being the only breadwinner” was clear that he was aware of the offence being committed. As such, the court found no merit in the appeal. 

Hopcik Investments (Pvt) Ltd. v Minister, Environment, Water & Climate & Another (HH 137-16, HC 1796/14) [2016] ZWHHC 137 (17 February 2016);

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to water (s 77) – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly

Human rights – right to water – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly

The applicant sought an order compelling the respondents to supply water to its premises which they had failed to supply for about three years.  The applicant contended that the respondents were not doing enough to ensure adequate supply of water to residents. 

The respondents averred that the situation was out of their hands as they faced various obstacles for effective service delivery and further that when s 183 of the Urban Councils Act (the empowering provision) was enacted, the legislature was mindful of the fact that the respondents may not be able to provide water to residents because of the use of the word “may’’ in the section and that their failure to provide water was justifiable.

The court had to decide on the interpretation of the empowering provision and whether the reasons for failure were justifiable. The court held that the word “may” in s 183 was recognised that there were instances when a council may fail to provide and supply adequate water. The legislature was alive to the possibility that the institution delegated to supply the water, may at some stage, have been unable to comply with the requirement.

However, if such failure was justifiable, the court held that the explanation given for the respondent’s failure to supply water was simply lack of resources. It did not appear that any effort was being made to ensure that the applicant got adequate supplies of water and as such fell short of the justifiable threshold. The application was successful. 

Rankin v Nyatsuro & Others (HC 12579/15) [2016] ZWHHC 09 (25 December 2015);

1

HH 9-16

HC 12579/15

 

PHILLIP S RANKIN                                                                       

versus

SYLVESTER NYATSURO

and

VERONICA NYATSURO

and

THE MINISTER OF LANDS AND LAND RESTTLEMENT N.O.

and

MAGISTRATE SINGANO

 

 

 

HIGH COURT OF ZIMBABWE

CHAREWA J

HARARE, 31 December 2015                                  

 

 

Urgent Chamber Application

 

 

S v Mupawaenda (CRB 200/15) [2016] ZWHHC 40 (04 November 2015);

 

 

1

HH 40-16

CRB 200/15

 

THE STATE

versus

SIMBARASHE LEONARD MUPAWAENDA

 

 

 

HIGH COURT OF ZIMBABWE

HUNGWE J

MUTARE, 27 October 2015; 2, 3 & 4 November 2015

 

 

 

Assessors         1. Mr Rajah

                        2. Mr Chipere

 

 

 

Criminal Trial

 

 

 

M Musarurwa, for the state

In this case, the High Court considered a murder charge and whether the defence of private defence and/or the defence of property was sufficient to warrant an acquittal. 

The accused was employed as a security guard by a private security company. While on duty he shot and killed an illegal diamond panner. Against the murder charge, the accused raised the defence of private defence and the defence of property. The facts were not disputed that the accused and his colleague were attacked by a mob of illegal panners who threatened to kill them. The accused fired a warning shot but the mob persisted until he fired the deadly shot which dispersed the mob. 

The court held that the accused was lawfully employed to protect the employer’s assets from theft and entitled by law to protect himself. The court found that in this case a warning shot had been given and the life of the accused was in danger. The court held further that the action in self-defence was not disproportionate or unreasonable. Accordingly, the court found the accused not guilty and he was acquitted.

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