Minerals, oil and gas

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. 

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.

S v Shumba (HCB 115-15) [2015] ZWBHC 207 (21 October 2015);

1

 

HB 207-15

 HCB 115-15

 

                                                                                                                                    

 

NEVER SHUMBA

versus

THE STATE

 

 

HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 23 SEPTEMBER AND 22 OCTOBER 2015

 

 

Bail pending appeal

 

 

J. T. Tsvangirai for applicant

S. Ndlovu for respondent

 

 

In the High Court, an appellant was applying for bail pending his appeal against both conviction and sentence by the trial court, having been convicted of contravening s368(2) as read with s368(4) of the Mines and Minerals Act [Chapter 21:01] that is, prospecting for gold without a licence. He had been sentenced to two years, being the mandatory minimum penalty for that offence after the magistrate failed to find any special circumstances.

The issue before the court was to exercise its discretion on whether to grant bail to the appellant. The court held that in exercising the discretion on whether or not to grant bail pending appeal, the court must be guided by the prospects of success on appeal and whether there is risk that the applicant would abscond. The judge held that from the court record there was a problem with the rebuttal of the applicant’s defence in the trial court. The applicant had argued that he was carrying a pot and a lid when the police pounced, but state witnesses alleged that he carried a shovel.

The judge was satisfied that the applicant had discharged the responsibility upon him and that the court should indeed exercise its discretion in the applicant’s favour. Accordingly, the judge granted the application on condition that he deposited a sum of $100.00 with the Clerk of Court, he resided at a particular village and to report at a police station twice a week on Mondays and Fridays between 6.00 am and 6.00 pm. 

S v Robinson (HB 21-08 ) [2008] ZWBHC 34 (14 May 2008);

THE STATE

 

Versus

 

MARK FREDERICK ROBINSON

 

IN THE HIGH COURT OF ZIMBABWE

NDOU J

BULAWAYO 15 MAY 2008

 

T Mkhwananzi,for the state

R M Smithwick,for the accused

 

Criminal Review

 

The court considered an application for review concerning the forfeiture of gold whereby the respondent was found guilty of contravening s 8(1) of the Gold Trade Act. The accused owned a jewelry shop whereby he traded gold. The Zimbabwe Republic Police Gold Squad regularly visited the accused’s shop to ensure that he was complying with the act. On one visit, it became clear that the accused had not registered 8.59g of gold into the register as required by the act. 

The court found that after the conviction of the accused, a review of the record revealed that the learned magistrate had not made an order for the forfeiture of the gold. Despite the accused attempting to secure the return of the gold, he was informed it had been forfeited to the state. Pursuant to the accused’s investigation, and obtaining the record again, the record appeared to make reference to the forfeiture of the gold. 

The court found that the only explanation was that the trial magistrate entered the forfeiture clause well after the sentence had been imposed and the accused started claiming the gold.  In conclusion, the court found that the conviction and sentence were adequate but held that the forfeiture clause contained in the record be set aside and the accused be sentenced afresh. 

Chase Minerals (Pvt) Ltd v Madzikita (HC 2867/2000) [2002] ZWBHC 44 (29 May 2002);

 

Judgment No. HB 44/2002

The court considered an application for the granting of an order to evict the respondent pending the hearing of an appeal. The applicant was the registered title holder of four mineral claims. It instituted action seeking an eviction of the respondent from its registered claims, which was subsequently granted. The dispute between the parties related to ownership and mining claims of the minerals. It was not disputed that the mineral claims were registered in the name of the applicant. 

The court considered the parties’ rights of ownership of the minerals. These rights were governed by s 172 of the Mines and Minerals Act, which stated that every holder of a registered block of claim would possess the exclusive right of mining or deposit of the mineral in respect of which the block was registered which occurred within the vertical limits of his block. The court found that the applicant had the exclusive right as the registered holder of the claim. 

The court found that to suspend the eviction pending the appeal would entitle the respondent to continue mining, which was an untenable situation and would create a judicial anomaly where the court became a party to the respondent’s unlawful conduct. Accordingly, the court granted the application. 

S v Ngoma and Another (CRB SHU 371-372/11) [2011] ZWBHC 116 (07 September 2011);

 

 

THE STATE

 

VERSUS

 

SARAH NGOMA

 

AND

 

LILLIAN NYONI

 

IN THE HIGH COURT OF ZIMBABWE

MATHONSI J

BULAWAYO 8 SEPTEMBER 2011

 

Review Judgment

 

This was a case in the High Court where two accused persons were convicted on their own pleas of guilty to contravening s 368 of the Mines and Minerals Act by the Provincial Magistrate.

Having found special circumstances as would entitle the trial court to impose a sentence other than the mandatory one provided in the act; the magistrate sentenced each of the accused persons to 24 months imprisonment of which 12 months imprisonment were suspended for 5 years on condition of good future behaviour. The remaining 12 months were suspended on condition they each complete 420 hours of community service.

The issue before the court was to determine the special circumstances as found by the trial court. The judge applied the rule of Judge J Ebrahim in S v Mbewe and others 1988 (1) ZLR 7(H) to make the determination. The judge’s view was that the trial court erred because the issues put up by the accused were mitigating factors of general application which clearly did not amount to special circumstances at all.

Consequently, the judge ordered that the conviction of the two accused persons stood, and set aside the finding of the trial magistrate that there were special circumstances; and the sentence. The judge also ordered the matter to be sent back to the trial court for it to recall the accused persons and impose the appropriate sentence according to law by deducting from it 53 days equivalent to 420 hours community service already served.

S v Shoko (Case No. HC 1702/10) [2010] ZWBHC 95 (24 August 2010);

THE STATE

 

Versus

 

EMMANUEL SHOKO

 

IN THE HIGH COURT OF ZIMBABWE

KAMOCHA J

BULAWAYO 25 AUGUST 2010

 

Criminal Review

 

The court considered an application to review a sentence imposed on the accused. The accused was charged with contravening s 3(1) of the Gold Trade Act by virtue of being found in possession of 0.62g of gold valued at $20.62. The accused pleaded guilty and was convicted. The lower court imposed a short sentence whereas as the act stipulated of not less than 5 years for persons found guilty of the offence, unless special circumstances existed showing cause why the mandatory sentence should not be imposed. The magistrate relied on special circumstances pleaded in mitigation.

The special circumstances referred to by the accused were that his wife was in hospital and was going to undergo surgery and that he committed the offence to raise hospital fees and money for the surgery 

The court found that these were not special circumstances as envisaged by the act but that what the accused relied on was a common occurrence and did not entail that persons in such situations ought to resort to crime. The court held further, that his illegal action was not a solution to this problem nor would $20 be enough to pay the hospital bills.  

The court held that there was no reason why the mandatory sentence should not be imposed. Accordingly, the court set aside the sentence imposed by the trial court and remitted it back to impose the mandatory sentence. 

S v Sibanda CRB G 440/10 and Another (CRB G 440-1/10) [2011] ZWBHC 79 (20 April 2011);

THE STATE

 

Versus

 

  1. ANGELINE SIBANDA CRB G 440/10
  2. KHETI MOYO CRB G 441/10

 

IN THE HIGH COURT OF ZIMBABWE

KAMOCHA J

BULAWAYO 21 APRIL 2011

 

Review Judgment

 

This was a review in the High Court concerning two accused persons who had been charged with and convicted for contravening s 368(2) as read with s 368 (4) of the Mines and Minerals Act [Chapter 21:05] for prospecting for minerals when they were not holders of licences or permits.

The issue facing the court was to determine whether the accused persons, being widows with minor children, were acting under special circumstances, as the trial magistrate had found. The court held that the learned trial magistrate completely misdirected himself in holding that the circumstances of the accused persons amounted to special circumstances, as there was nothing out of the ordinary about being a widow with minor children to look after. The court also held that the learned magistrate’s line of reasoning was faulty in calling that widows and widowers with minor children should be excused when they break the law so as to fend for the minor children, since it was a recipe for anarchy as there were so many widows and widowers in the country.

Consequently, the sentence imposed by the trial magistrate was not allowed to stand and, therefore, set aside. The matter was sent back to the trial court to recall the two accused persons and impose the sentence of two years imprisonment as mandated by law. Since both accused persons had already served four months imprisonment in the form of community service, they were to serve an effective term of 20 months imprisonment.

Pansikwe Minerals Co-operative v Hlabangana and Another (Case No. HC 987/10) [2010] ZWBHC 33 (02 June 2010);

PANSIKWE MINERALS CO-OPERATIVE

 

Versus

 

FOREMAN MAZITHULELA HLABANGANA

 

And

 

CONSOLIDATED PRE-CO-OPERATIVE

 

IN THE HIGH COURT OF ZIMBABWE

NDOU J

The court considered an application for a provisional order seeking an interim interdict restraining the respondents from interfering in the applicant’s mining operations.  A dispute arose between the parties concerning the boundary between their two claims. It was argued that the commissioner found that the respondent was working outside one of his claims and inside one claim belonging to the applicant. 

The court considered whether the interim relief sought should be granted. The court found that the respondent acknowledged that the claim belonged to the applicant but that the commissioner erred in determining that the boundary was within the applicant’s claim. The court held that the applicant had established a prima facie right which required legal protection and that the respondent was entitled to challenge the commissioner’s determination. 

The court found further that the respondent did not exercise their right to challenge the determination by the commissioner but rather chose to write letters of complaint which were not sufficient. The court stated that the respondent ought to have formally challenged the commissioner’s boundary determination and in the circumstances could not legally resist the interdict sought by the applicant. The court therefore granted the interdict.

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