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S v Mungate and Others (B 666-71/10) [2010] ZWHHC 126 (28 June 2010);

ITAI MUNGATE

and

LOVERMORE MLAMBO

and

CHARLES ROVANI

and

EDMORE TARUVINGA

and

FELIX MARISA

and

EDMORE DAVID

versus

THE STATE

 

 

HIGH COURT OF ZIMBABWE

BHUNU J

HARARE, 29 June 2010

 

 

Mr Jena, for the appellant

Mr Chesa, for the State

 

Bail Appeal

 

This was a bail appeal against the decision of the magistrate that denied the appellants bail on grounds that they were likely to abscond trial.

The appellants were charged with unlawful prospecting for minerals, oil and natural gas without a valid license contrary to s 368 (1)(a) as read with s 4 of the Mines and Minerals Act 1 of 2006.

The court noted that the magistrate condemned the applicants to imprisonment where the state was not opposing bail, without evidence that the appellants were likely to abscond trial and without any defence from the appellants on the bail issue.

The court found that the state could not oppose the appeal since they had already conceded that the appellants were good candidates for bail.

It was held that the magistrate misdirected himself. Accordingly, bail was granted subject to conditions. The appellants were required to deposit US$20 with the clerk of Court Bindura Magistrate Court, to continue residing at their places of residence until finalization of the matter and to report to respective police stations as directed by the court.

Bubye Minerals (Pvt) Ltd v Registrar of the High Court and Others (HC 2939/07) [2008] ZWHHC 49 (17 June 2008);

BUBYE MINERALS (PVT) LTD                                                               

versus

THE REGISTRAR OF THE HIGH COURT

and

THE MINISTER OF MINES AND MINING DEVELOPMENT

and

THE MINING COMMISSIONER, MASVINGO

and

The matter at hand arose following a decision in the High Court which the applicant wanted to appeal. In compliance with rule 15 of the Rules of the Supreme Court, the registrar of the High Court prepared the record of appeal and, thereafter, invited the parties to inspect the record before forwarding it to the Supreme Court.

The applicant’s legal practitioner inspected the record and opined that the record was incomplete. An exchange of letters then followed between the registrar and the practitioner about the relevance of the alleged missing information. In the process, the prescribed ten days for inspection lapsed, prompting the registrar to inform the applicant that he had, therefore, abandoned the appeal.

The court had to determine the meaning of ‘inspection’ in terms of the rules and whether the applicant complied with the rules for inspection or not.

The court held that the word ‘inspect’ meant ‘to look at or examine carefully’ and where such examination has occurred, the examiner should certify this. To merely examine without such a seal would be of no relevancy to the process.

The court held that the applicant’s practitioner had done this as evidenced by opining after the fact for the inclusion of information, but failed to comply with the signing off requirement which he refused to do and, therefore, could not have been said to comply with the rules of the court in that aspect and as a result the time lapsed.

Accordingly, the appeal failed.

Jackson v Zimbabwe National Water Authority (HC 927/11) [2011] ZWHHC 240 (23 October 2011);

TIMOTHY CURTIS JACKSON

versus

ZIMBABWE NATIONAL WATER AUTHORITY

 

 

HIGH COURT OF ZIMBABWE

MAKONESE J

HARARE, 24 October 2011

 

 

D. Mwonzora, for plaintiff

J. Dondo,for defendant

 

 

This was an application for absolution from the instance by the defendant at the close of the plaintiffÕs case on grounds that there was no need to rebut the plaintiffÕs claims since there was a lack of sufficient evidence.
The plaintiff had instituted a claim for damages following the defendantÕs failure to avail water for irrigation purposes as was previously agreed.
The court determined whether the plaintiff had placed before the court sufficient evidence to warrant the defendant to be placed on its defence.
The court applied test of whether the plaintiff has established a prima facie case against the defendant and whether there is evidence that has been placed before the court upon which a reasonable court might give judgment against the defendant.
The court found that the plaintiff failed to establish a case against the defendant. Firstly, because the plaintiff was prevented by third parties from abstracting water from the dam because of low water levels. Secondly, in terms of the agreement between the parties the defendant did not guarantee the availability of water and was not liable for responsible for damages arising out of any failure to supply the water. Thirdly, the plaintiffÕs claim was wrongly premised since only 50 hectares of the land were under irrigation and not 90 hectares as contended.
Accordingly, the application for absolution from the instance at the close of the plaintiffÕs case was granted in favor of the defendant with costs.

MIDKWE Minerals Ltd v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Others (Civil Appeal No. SC 358/12) [2013] ZWSC 54 (01 September 2013);

Judgment No. SC 54/13

Civil Appeal No. SC 358/12

 

 

REPORTABLE (40)

 

 

 

MIDKWE     MINERALS     (PRIVATE)     LIMITED             

The first and second respondents, were parties to a contract in respect of a gold plant for three years with the option to renew. At the end of this period, the second respondent did not renew the contract but recommended the applicant to take over its operations. However, the second respondent continued to mine at the plant and refused to hand the plant over to the first respondent thereby prompting it to seek an interdict to stop the continued mining by the second respondent and applicant. This was granted by the High Court.

The appellant immediately, filed an urgent application to the High Court seeking a provisional order to stop the first and second respondents from disturbing its operations at the gold plant. The two matters went before the High Court for confirmation of the provisional orders. The first order, to stop the first respondent and associates mining, was confirmed. However, the second order, to stop the respondents’ disturbance in the mine, was discharged.  This appeal was against the judgment.

The court found that the first order included all business associates of the second respondent and the applicant was a business associate of the second respondent, as evidenced by the joint venture agreement concluded between the two. 

In conclusion, the court held that the appellant was mining in contravention of the contract when it approached the court for the second provisional order and as a result, the provisional order granted in that case was discharged. The appeal was accordingly dismissed.

Bubye Minerals (Pvt) Ltd v Min. of Mines & Mining Development & Others (350/06) [2011] ZWSC 3 (13 November 2011);

 

Judgment No. SC 3/11

Civil Appeal No. 350/06

REPORTABLE ZLR(13)

 

 

This Supreme Court case revolved around a compromise agreement between the fourth respondent and the appellant. The fourth respondent, a registered mining company, was going bankrupt and its management was entrusted to the liquidator. The liquidator then granted the appellant the right to treat stockpiles of ore at the mine to raise money to pay the creditors. The appellant then attempted to have all mining activities registered under its name. In doing so, the appellant misrepresented the facts to the third respondents without involving the fourth respondent stating that it paid the creditors their dues and as such, it was entitled to have mining activities registered under its name. However, the fourth respondent succeeded in establishing that the appellant was lying. This led the third respondent to cancel the appellant’s falsely obtained mineral rights. The High Court agreed with the respondents that the appellant's mineral rights over the plot in dispute were justifiably cancelled. The appellant felt aggrieved by the court’s judgement and appealed to the Supreme Court.

The issue for determination was whether the appellant was allowed to register mining rights under its name and whether the third respondent erred in cancelling its rights.

The Supreme Court held that agreements cannot be valid if consent was obtained through misrepresentation. Consequently, it found that the appellant was unjustified and supported the third respondent’s decision to cancel the falsely obtained rights.

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