Attribution of Costs https://old.zimlii.org/taxonomy/term/6952/all en K&G Mining Syndicate v Mugangavari & Others ( HB 131/17 HC 2031/15) [2017] ZWBHC 131 (01 June 2017); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2017/131 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1</p> <p>HB 131/17</p> <p>HC 2031/15</p> <p> </p> <p> </p> <p><strong>K &amp; G MINING SYNDICATE</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>RONALD MUGANGAVARI</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>PROVINCIAL MINING DIRECTOR – MIDLANDS</strong></p> <p><strong>And</strong></p> <p> </p> <p><strong>MINISTRY OF MINES &amp; MINING DEVELOPMENT N.O.</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>TAKUVA J</p> <p>BULAWAYO 1 FEBRUARY &amp; 1 JUNE 2017</p> <p> </p> <p><strong>Opposed Matter</strong></p> <p> </p> <p><em>T. Zishiri</em> for the applicant</p> <p><em>A. Chinamatira</em> for 1st respondent</p> <p>No appearance for the 2nd and 3rd respondents</p> <p> </p> <p>            <strong>TAKUVA J:</strong>  This is an application for review in which the applicant seeks the following relief:</p> <p>“(a)      The determination by the 3rd respondent dated 17 July 2015 cancelling Midway 21 Mining registration certificate held by applicant be and is hereby set aside.</p> <p>(b)        The respondent to pay costs of suit only in the event of opposition.”</p> <p>            The facts are that a dispute arose between applicant and 1st respondent in connection with boundaries of a mining claim.  First respondent had overlapped onto existing boundaries of applicant’s claim.  The mining dispute was determined by the 2nd respondent after visiting the claim in Zvishavane.  The determination was delivered on the 2nd of October 2014.  This outcome was in favour of the applicant.  In arriving at this determination 2nd respondent stated that:</p> <p> </p> <p> </p> <p>            “1.       Midway 21 Mine registration number 9871</p> <p> </p> <ul> <li>Midway Mine registration number 9871 is owned by K and G Syndicate</li> <li>Registered on 19 October 2006 by Herbet Kwenzani</li> <li>Transferred under TR number 9070 to K and G Syndicate on 16 July 2007</li> <li>The block measures 8 hectares and was registered for gold reef</li> <li>Inspected up to 19 October 2015.</li> </ul> <p> </p> <p>2.         Clifton 15 Mine registration number 12578</p> <p> </p> <ul> <li>Clifton 15 registration number 12598 was registered by Ronald D. Mugangavari</li> <li>First registered on 20 February 2012</li> <li>Measures 10.3 hectares on registration papers</li> <li>Inspected up to 20 August 2012 and is long overdue for inspection</li> </ul> <p> </p> <p>2.0       Findings and observations</p> <p> </p> <ul> <li>The registration documents reveal that Clifton 15 Mine and Midway 21 Mine share the same position on the Master Plan and dockets as indicated by Beacons B, C and D except for Beacon A.</li> <li>On the ground, both surveyed blocks have the same hectrage of 6.79ha</li> <li>The blocks also share on the ground the same beacon positions and coordinates</li> <li>Both blocks did not have any permanent beacons on the ground but beacon positions were marked by cairns of stones.</li> </ul> <p> </p> <p>3.0       Determination</p> <p>           </p> <ul> <li>Clifton 15 Mine was pegged 6 years after Midway 21 Mine had already been pegged</li> <li>Registration cards confirm that Midway 21 Mine was inspected since 2007 up to 2015</li> <li>Clifton 15 Mine is due for inspection and was according to its registration card, last inspected up to 20 August 2012</li> <li>When Clifton 15 Mine was pegged Midway 21 Mine was still current thus in terms of section 31 and 177, of the Mines and Minerals Act (Chapter 21:05) Clifton 15 Mine was pegged on a ground not open to prospecting and pegging</li> <li>In terms of s177 of the Mines and Minerals Act (Chapter 21:05) Midway 21 Mine enjoys priority of rights</li> <li>In terms of section 50 of the Mines and Minerals Act (Chapter 21:05) Clifton 15 Mine is liable for cancellation</li> <li>In terms of section 375 and 51 of the mines and Minerals Act (Chapter 21:05) Midway 21 Mine should maintain and erect permanent beacons and resume mining operations as per coordinates submitted during registration (documents)”</li> </ul> <p>The Mining Commissioner then cancelled the Clifton 15 Mine registration.  The 1st respondent was dissatisfied and noted an appeal to the Minister of Mines and Mining Development who reversed the earlier determination and allowed the 1st respondent to resume his mining operations on Clifton 15 Mine.  The reasons for nullifying the 2nd respondent’s decision are contained in a letter signed by one K. Mlangeni the Acting Provincial Mining Director – Midlands Province for and on behalf of the Permanent Secretary for Mines and Mining Development.  This was on 17 July 2015.  Aggrieved, applicant filed this application on the following grounds:</p> <ol> <li>The 3rd respondent arrived at his decision irrationally and that the decision thereof is grossly unreasonable in that the 3rd respondent’s decision was not a product of the contents of the record of proceedings by the 2nd respondent.  Instead of basing its decision on the records, the 3rd respondent relied heavily on new evidence.  It was contended, relying on <em>Chevron Investments (Pvt) Ltd</em> v <em>Chihuri &amp; Anor</em> 2006 (2) 188 (S) that it is undesirable to allow parties to lead new evidence outside of the record of proceedings as this would effectively lead parties to argue their cases differently.</li> <li>The 3rd respondent’s decision is clouded with illegality in that it did not follow provisions of the Mines and Minerals Act (Chapter 21:05) [The Act].  After making a finding that the applicant was the first pegger, 3rd respondent came to a surprising irregular decision in that he did not invoke the provisions of section 177 (3) of the Act which grants the 1st pegger rights of priority.  It was submitted that because of this, 3rd respondent’s decision is null and void due to its unreasonableness.  Reliance was placed on <em>Macheza</em> v <em>Chaumbezvo</em> HC 5157/14; <em>Zambezi Proteins</em> v <em>Minister of Environment and Tourism</em> 1996 (1) ZLR 378 (H) and <em>Minister of Home Affairs</em> vs <em>Austin</em> 1986 (1) ZLR 240 (S).</li> </ol> <p>Relying on <em>Affretair (Pvt) Ltd and Anor</em> vs <em>M K Airlines (Pvt) Ltd</em> 1996 (2) ZLR 15 (SC), applicant argued that the decision arrived at by the 3rd respondent is irrational, irregular and outrageous in its defiance of logic that no sensible person who had applied his mind to the question could have arrived at it.</p> <p>            Finally, applicant applied to amend its grounds of appeal by adding a further ground, namely that the 3rd respondent lacked jurisdiction to hear the appeal in that in terms of s361 of the Act, an appeal from the Mining Commissioner shall only lie to the High Court.  The 1st respondent was not averse to the amendment and I duly granted it.</p> <p>            A review may be brought to this court in terms of section 27 of the High Court Act (Chapter 7:06) on the following grounds:</p> <ol> <li>absence of jurisdiction on the part of the court tribunal or authority concerned</li> <li>interest in the cause, bias, malice or corruption on the part of a person presiding over the Court or Tribunal concerned or on the part of the authority concerned as the case may be</li> <li>gross irregularity in the proceedings or the decision</li> </ol> <p><em>In casu</em>, the applicant raised the lack of jurisdiction together with gross irregularity in the proceedings or the decision as grounds for review.  In my view, the 1st ground relating to lack of jurisdiction is decisive.  I therefore consider it first.  It is noteworthy that the 1st respondent conceded that this ground has merit.  Section 361 of the Act provides:</p> <p>“Any party who is aggrieved by any decision of a Mining Commissioner’s court under this Act may appeal against such decision to the High Court, and that court may make such order as it deems fit on such appeal.”</p> <p>            In the present case, it is common cause that the appeal was noted by 1st respondent against 2nd respondent’s decision to the 3rd respondent.  Quite clearly this appeal is a nullity and so is the decision flowing from it.  See MATHONSI J’s comments in <em>Mazuva</em> v <em>Simbi;</em> <em>Simbi</em> v <em>Mazuva</em> 2011 (2) ZLR 319 (H) and <em>Stanely Masumba</em> v <em>Collen Tshayana and 2 Others</em> HB-172-16.</p> <p>            The 1st respondent argued quite strongly that this court should also simultaneously review 2nd respondent’s decision which in his view, is anomalous in that Clifton 15 and Midway 21 are two different and distinct mining sites, which do not even share the same boundary.  First respondent urged this court to “take a judicial notice of the anomaly highlighted above and proceed to make a substantive judgment that would put to rest the entire dispute between the two parties.</p> <p>            I am not persuaded by this invitation.  In my view, it would be improper to review proceedings in respect of the 2nd respondent as they are not properly before me.  In any event, there is no basis to review these proceedings.  If 1st respondent wanted proceedings by the 2nd respondent reviewed, he should have done so before appealing to the Minister.</p> <p>            I take the view therefore that the Minister’s decision is null and void for want of jurisdiction.  Assuming I am wrong, I entertain no doubt that the decision is grossly irregular and unreasonable in that it ignored the clear provisions of section 177 (3) of the Act.</p> <p>            In the result, it is ordered that:</p> <ol> <li>The determination by the 3rd respondent dated 17th July 2015 cancelling Midway 21 Mining registration certificate held by applicant be and is hereby set aside.</li> <li>The 1st respondent to pay costs of suit.</li> </ol> <p> </p> <p> </p> <p><em>Garikayi &amp; Company</em>, applicant’s legal practitioners</p> <p><em>Mkusha, Foroma &amp; Maupa</em>, 1st respondent’s legal practitioners</p> <p> </p> <p>           </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2017/131/2017-zwbhc-131.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20717">2017-zwbhc-131.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2017/131/2017-zwbhc-131.pdf" type="application/pdf; length=415776">2017-zwbhc-131.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/judicial-review">Judicial Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags/procedural-fairness">Procedural Fairness</a></li><li class="vocabulary-links field-item even"><a href="/tags/attribution-costs">Attribution of Costs</a></li><li class="vocabulary-links field-item odd"><a href="/tags/role-state-relation-environment">Role of state in relation to environment</a></li><li class="vocabulary-links field-item even"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li><li class="vocabulary-links field-item odd"><a href="/tags/el">EL</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>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. </p> <p>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.</p> <p>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.</p> <p>As such, the determination by the third respondent cancelling the applicantÕs Mining registration certificate held by the applicant was set aside with cost.</p> </div></div></div><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/259">Macheza v Chaumbezvo (HC 4157/14) [2015] ZWHHC 259 (17 April 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/bulawayo-high-court/2011/155">Mazuva v Simbi and Others, Simbi v Mazuva (Case No. HC 1310/10 &amp; 1349/10) [2011] ZWBHC 155 (19 October 2011);</a></div><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2016/172">Masumba v Tshayana &amp; Others (HB 172-16 HC 1283-16 XREF HC 1450-16) [2016] ZWBHC 172 (23 June 2016);</a></div></div></div> Sun, 23 Jul 2017 08:15:09 +0000 admin 8379 at https://old.zimlii.org Mapanga v Mupepe & Another (HH 157-17 , HC 12451/12) [2017] ZWHHC 157 (08 March 2017); https://old.zimlii.org/zw/judgment/harare-high-court/2017/157 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1</p> <p>HH 157-17</p> <p>HC 12451/12</p> <p> </p> <p>NOREST MAPANGA</p> <p>versus</p> <p>WILLIAM MUPEPE</p> <p>and</p> <p>HOMESTAKE MINING &amp; TECHNICAL</p> <p>SERVICES (PVT) LTD</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUREMBA J</p> <p>HARARE, 16-17 May 2016, 17 January 2017 &amp; 8 March 2017</p> <p> </p> <p> </p> <p> </p> <p><strong>Civil Trial</strong></p> <p> </p> <p> </p> <p><em>E Samundombe, </em>for the plaintiff</p> <p><em>S Mahuni</em>, for the defendant</p> <p> </p> <p> </p> <p>            MUREMBA J: The plaintiff issued summons claiming US$250 000-00 being damages for malicious arrest, detention and prosecution as a result of the first defendant’s conduct during the course and scope of his employment with the second defendant.</p> <p>            The second defendant is a duly registered company which owns Primrose Mine in Kwekwe. The first defendant was employed by the second defendant as a security manager. In his declaration the plaintiff averred that on 21 September 2010 the first defendant laid false charges to the effect that the plaintiff had stolen gold slime from Primrose Mine. This resulted in the arrest, detention and prosecution for theft in contravention of s 379 of the Mines and Minerals Act [<em>Chapter 21:05</em>] at Kwekwe Magistrates Court. The plaintiff averred that he was acquitted on 7 March 2012.</p> <p>            The plaintiff averred that when the first defendant laid the charges of theft against him he had no reasonable cause for doing so and neither did he have any reasonable belief in the truth of the allegation. The plaintiff said that as a result of the first defendant’s conduct he was dismissed from employment as a General Manager. He said that he suffered damages for contumelia, deprivation of freedom and discomfort. The plaintiff averred that the first defendant’s malicious conduct entitles him to the amount of damages that he is claiming. He averred that the second defendant being the employer of the first defendant is vicariously liable for the conduct of its employee who was acting in the course and scope of his employment when he laid the false allegations.</p> <p>            In their plea the defendants averred that on 19 September 2010 the first defendant discovered that 75 000 tonnes of gold slime had been stolen from the second defendant’s mine. He made a report to the police and the plaintiff was arrested pursuant to the investigations that were made by the police. Police investigations established that the plaintiff instructed his two employees Innocent Mwaisowa and Clive Moyo to collect 75 000 tonnes of gold slime from the second defendant’s mine. Statements to this effect were recorded by the police. The defendants averred that the fact that these two witnesses turned hostile in the criminal trial does not mean that the plaintiff is innocent. They said that he is not entitled to any damages at all. They further averred that they were not aware that the plaintiff was dismissed from employment, but if he was as he says, they are not liable for his loss. They said that the plaintiff should pursue his case with his former employer in terms of the Labour Act [<em>Chapter</em> 28:01]. The second defendant went on to make a counter claim for damages in the sum of US$ 1002 700-00 being the value of the stolen 75 000 tonnes of gold slime. However, it withdrew the counter claim at the start of the trial.</p> <p>At the pre-trial conference the parties agreed that the following issues determine the matter.</p> <ol> <li>Whether the defendants maliciously and wrongfully caused the arrest of the plaintiff.</li> <li>Whether the plaintiff suffered damages as a result of the arrest, detention and prosecution.</li> <li>Quantum of damages.</li> </ol> <p>When parties led evidence during trial it emerged that the following was common cause. The plaintiff was employed as a General Manager at Good Hope Mine in Kwekwe. Good Hope Mine is owned by the plaintiff’s brother one Armstrong Mapanga. Good Hope Mine and Primrose Mine where the first defendant worked as a Security Manager are adjacent to each other. It is the first defendant who reported the theft case to the police. After reporting the matter to the police he accompanied them to Good Hope Mine on the very day he reported the matter. The report resulted in the arrest of the plaintiff. Resultantly, the plaintiff was detained and prosecuted. He was acquitted at the close of the State case after his subordinates Innocent Mwaisowa and Clive Moyo turned hostile. This caused the State to withdraw charges after plea.</p> <p> </p> <p> </p> <p><strong>The law in respect of actions for malicious arrest, detention and prosecution</strong></p> <p>It is an actionable wrong to procure the imprisonment or arrest of anyone by setting the law in motion against him maliciously and without reasonable cause<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>.  In the case of <em>Thompson &amp; Anor </em>v <em>Minister of Police<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2"><strong>[2]</strong></a> </em>the court stated that an arrest is malicious where the defendant makes improper use of the legal process to deprive the plaintiff of his liberty. The court went on to lay down the factors that should be considered in a case for claim for damages for wrongful arrest and detention. The factors are as follows:</p> <ol> <li>That the defendant set the law in motion.</li> <li> That the defendant acted maliciously and;</li> <li>Without reasonable and probable cause and;</li> <li>He acted without a duty of care towards the plaintiff.</li> </ol> <p>What this means is that the defendant should have made a report to the police which resulted in the arrest of the plaintiff. The plaintiff is supposed to place before the court sufficient evidence to show malice on the part of the defendant in reporting the matter to the police which led to the prosecution and subsequent acquittal of the plaintiff<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a>.</p> <p>Malicious prosecution concerns misuse and abuse of the criminal process. It is not every prosecution that is concluded in favour of the accused person that necessarily leads to a successful claim for malicious prosecution. The subsequent acquittal of the plaintiff <em>per se</em> does not demonstrate malice on the part of the defendant<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4">[4]</a>. So much depends on the absence of a reasonable and probable cause, and the <em>animus iniuriandi</em> of the defendant in instigating, initiating or continuing the prosecution.</p> <p>            For the plaintiff to succeed in an action for malicious prosecution he must prove the following<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5">[5]</a>.</p> <ol> <li>That the prosecution was instigated by the defendant;</li> <li>It was concluded in favour of the plaintiff;</li> <li>That there was no reasonable and probable cause for the prosecution</li> <li>That the prosecution was actuated by malice. See also Neethling, Potgieter and Visser <em>Law of Delict</em> 343. <em>Rudolf </em>v <em>Minister of Safety and Security</em> 2009 (5) SA 94 (SCA).</li> </ol> <p>Reasonable and probable cause means an honest belief founded on reasonable grounds that the institution of proceedings is justified<a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6">[6]</a>.  It is about the honest belief of the defendant that the facts available at the time constituted an offence and that a reasonable person could have concluded that the plaintiff was guilty of such an offence. In<em> Hicks</em> v <em>Faulkner </em>1878 8 QBD 167 171 reasonable and probable cause was defined as,</p> <p>“an honest belief in the guilt of the accused based upon a full conviction founded on reasonable of the existence of a state of circumstances which assuming them to be true, would reasonable lead to any ordinary prudent and cautious man, placed in the position of the accuser, the conclusion that the person charged was probably guilty of the crime imputed.”</p> <p> </p> <p>In that case it was stated that the test contains both a subjective and an objective element. There must be both actual belief on the part of the prosecutor and the belief must be reasonable in the circumstances. The defendant must have subjectively had an honest belief in the guilt of the plaintiff and such belief must also have been objectively reasonable. A defendant will not be liable if he held a genuine belief in the plaintiff’s guilt based or founded on reasonable grounds.</p> <p>            Reasonable and probable cause and malice are two distinct grounds, but they are often difficult to distinguish as they tend to overlap. It is improbable to find that a person acted maliciously where there is reasonable and probable cause to prosecute or to find that the defendant who was motivated by malice had reasonable and probable cause to prosecute. The finding that there was reasonable and probable cause to prosecute invariably neutralizes the existence of malice in the circumstances. The two requirements appear inseparable in most cases<a href="#_ftn7" name="_ftnref7" title="" id="_ftnref7">[7]</a>.</p> <p>The test for “absence of reasonable and probable cause” is when the defendant did not have such information as would lead a reasonable man to conclude that the plaintiff had probably been guilty of the offence charged<a href="#_ftn8" name="_ftnref8" title="" id="_ftnref8">[8]</a>. The test contains both the subjective and objective element which means that there must be both actual belief on the part of the defendant and also that belief is reasonable in the circumstances<a href="#_ftn9" name="_ftnref9" title="" id="_ftnref9">[9]</a>.</p> <p>            In <em>Maoki </em>v<em> Reckitt and Colman (Africa) Ltd and Anor<a href="#_ftn10" name="_ftnref10" title="" id="_ftnref10"><strong>[10]</strong></a></em> a case involving a claim of malicious prosecution malice was defined as follows;</p> <p>“The defendant must thus not only have been aware of what he or she was doing in instituting or initiating the prosecution, but must at least have foreseen the possibility that he or she was acting wrongfully, but nevertheless continued to act, reckless as to the consequences of his or her conduct (<em>dolus eventualis</em>). Negligence on the part of the defendant (or I would say, even gross negligence) will not suffice.”</p> <p> </p> <p>            In <em>Bande </em>v<em> Muchinguri</em> 1999 (1) ZLR 476 (HC) in a claim for damages for malicious prosecution it was held that the term ‘malice’ did not mean spite or ill-will or a spirit of vengeance but had a wider connotation. It was said to include any motive different from that which is proper for the institution of criminal proceedings, which is to bring an offender to justice and thereby aid in the enforcement of the law.</p> <p>Having outlined the law I will now turn to deal with the factors that the court should consider in determining whether or not the plaintiff is entitled to the damages that he is claiming.</p> <ol> <li><strong>Whether the defendants set the law in motion.</strong></li> </ol> <p>It is common cause that the first defendant is the one who made the report to the</p> <p>police resulting in the arrest of the plaintiff on 21 September 2010. Evidence which was led by the plaintiff shows that when the police came to arrest him they came in the company of the first defendant. So, yes, the first defendant set the law in motion but only in so far as he is the one who made the complaint but he did not identify the plaintiff as the suspect.</p> <p> </p> <ol> <li><strong>Whether the first defendant acted maliciously and without reasonable and probable cause.</strong></li> </ol> <p>In alleging malice, the plaintiff in his testimony stated that when the police came to arrest him on 21 September 2010, they came in the company of the first defendant who had told them that he suspected him (the plaintiff). The plaintiff said that the first defendant even explained to him why he was having him arrested. He said that the plaintiff said that it was because Good Hope Mine was adjacent, just 5 minutes’ walk away. He said that it was therefore only logical that people from Good Hope Mine are the only people who could have stolen the slime. The plaintiff further said that when the police came to arrest him they also told him that apart from the first defendant who was suspecting him, they also had two of his subordinates at work who were implicating him, i.e. Clive Moyo and Innocent Mwaisowa.</p> <p>The plaintiff said that he was arrested for stealing 75 000 tonnes of slime which is just impossible because such slime is as huge as the whole High Court building including the height thereof. He said that for such a tonnage one needs to do 2500 trips using a 30 tonne vehicle. He said this cannot be done in a month. He said that at his work place he only had two 7 tonne trucks. He said that these could not have ferried such a huge amount of slime in one day since he was alleged to have stolen the slime on 20 September 2010, the day before he was arrested. He said that furthermore this slime was not even found at Good Hope Mine. He said that you cannot hide 75 000 tonnes of slime. He said that it is not true that the second defendant’s mine can only be accessed through Good Hope Mine. The plaintiff stated that the statements that were recorded from Clive Moyo and Innocent Mwaisowa were recorded well after his arrest and detention and as such the authenticity of the statements is doubtful. He said that these statements must have been drafted to justify his arrest. He said that in court Clive Moyo and Innocent Mwaisowa denied having made those statements to the police. The plaintiff further stated that the first defendant in his statement to the police he did not say that he suspected him (the plaintiff) because he had been implicated by the two witnesses Clive Moyo and Innocent Mwaisowa. The plaintiff further said that the second defendant’s slime dump is manned 24 hours a day by two armed security guards at any given time such that it is impossible for anyone to steal the slime. The plaintiff stated that in light of the foregoing it was clear that the first defendant maliciously caused his arrest as he was acquitted at the close of the State case after Clive Moyo and Innocent had testified as State witnesses. The plaintiff stated that when these two witnesses testified in court they said that they had been coerced into making false statements to the police and to frame him by the first defendant. The plaintiff said that for these reasons he decided not to sue Clive Moyo and Innocent Mwaisowa, but the defendants only. The plaintiff said that he was arrested without reasonable cause.</p> <p>When the first defendant testified on 17 January 2017 he had since retired from working for the second defendant as a Security Manager. His evidence was as follows. At the time material to this case he was working for the second defendant as a security manager and he had been working in that capacity for 15 years. His duties involved guarding the second defendant’s property against being stolen and to report to the police when theft occurred. He said that because of the passage of time he could not remember the dates very well, but sometime in August or September 2010 he noticed that about 75 000 tonnes of slime had been stolen from the second defendant’s dump site which is about 50-70m away from the mine. He said that the slime must have been stolen over a long period of time without anyone noticing it. He said that when he noticed it he suspected Armstrong Mapanga, the owner of Good Hope Mine. He said that he never suspected the plaintiff because he did not even know him at that time. He said that he only got to know him about a week before he went to make a police report about the theft. The first defendant said that when he discovered the theft he suspected Armstrong because the mine dump from where the slime was stolen is close to where Good Hope Mine is. Besides, for anyone to access that dump site from outside Primrose Mine they have to go through Good Hope Mine which is fenced and gated and the gate is always manned. He said that each time he visited Good Hope Mine he found the gate locked and manned and someone would open it for him. The first defendant further said that he had also observed some tractor tyre marks from the dump site leading to Good Hope Milling Plant. He said that before he went to report the matter to the police he decided to go and ask Armstrong Mapanga about his suspicions because he was a friend. He said that that is when he met the plaintiff for the first time. He said that he asked him about the whereabouts of Armstrong and he said that Armstrong had gone to church in Mutare. He said that he asked the plaintiff about the stolen slime and he denied any knowledge about it. He said that he eventually went to report the matter to the police without having seen Armstrong. The first defendant said that when he reported the matter he told the police that he suspected Mr. Mapanga meaning Armstrong Mapanga. He said that the police then asked him to accompany them to Good Hope Mine. He said that upon arrival the police then interviewed the tractor driver. They asked him if he had gone to collect some ore from Primrose Mine and the driver admitted saying that he had been sent by the plaintiff. The first defendant explained that what caused the police to interview the tractor driver was that at the time that he was inspecting the dump site before going to the police to make a report some illegal miners shouted to him that the slime had been collected by a tractor from Mapanga. He said that when he then went to report the matter to the police he gave them that information. The first defendant said that when the tractor driver made the admission of having collected the slime that is when they took the plaintiff and the driver to station. The first defendant said that there was also another employee of Good Hope Mine who was also saying that he was also involved in loading the ore. However, during trial the tractor driver and this other employee both turned hostile and denied that they had ever collected slime from Primrose Mine. He said that when this happened he was seated outside the court room waiting to give evidence. He said that he was then called by the prosecutor and informed of the developments. He said that the prosecutor told him that she had no choice but to withdraw charges against the plaintiff and she withdrew the charges.</p> <p>The first defendant disputed that the mine dump from where the ore was stolen is manned at all. He said that there are several mine dumps that are dotted around the mine, but they are not manned by security guards. He said that it is the mine alone that is manned. He said that mine dumps are checked and monitored randomly as the slime is meant to be processed at a later stage. He said that he put the tonnage of the stolen slime at 75 000 tonnes because he had asked the Mining Surveyor who told him that the last measurement of the slime at that particular dump site had been recorded as 150 000 tonnes. He said that from his observation half of it had been stolen. He said that the stealing had been possible because the dump site is situated on the eastern side of the mine and the slime was being stolen from the dump eastern side. He said that anyone who was viewing the dump site from the western side would think that it was intact. He said that even if the thieves would make noise or use noisy machinery like a front end loader in stealing the slime people from the second defendant might not have paid any attention because operations at Good Hope Mine are done at the back of the dump site in question. So normally no one pays attention to noise coming from that direction.</p> <p>             The first defendant said that he gave a statement to the police on 21 September 2010. The statement was produced during trial and he was cross examined extensively on it. In that statement he stated why he suspected Mr. Mapanga. He stated that 6 months before he reported the matter to the police, the second defendant’s mine dump which is adjacent to Good Hope Mine was in good order. It had slime which was about 5 metres high. He said that in the first week of August 2010, he visited the mine dump again only to discover that almost half of the slime had been stolen. He said that he strongly suspected Mr. Mapanga because no other person has access to the dump site except him. He said that any other person who might want to access that particular second defendant’s mine dump has to pass through Good Hope Mine of which Good Hope Mine is fenced and gated. The first defendant said that there was a clear indication that Mr. Mapanga whom he was referring to as the accused had used his tractor to ferry the slime from the mine dump because there were some tractor tyre prints. The first defendant further stated that he made enquiries from the accused’s manager by the name Norest and he (Norest) denied the allegations. He said that on 21 September 2010 he then made a report to the C.I.D department at Kwekwe Central Police Station and the police officers accompanied him to Good Hope Mine. He said that an enquiry was made with Mr. Mapanga’s driver who confessed that he would drive the ore to Mapanga’s mill on his instruction. In the statement the first defendant did not state the quantity of the ore that was stolen or the value thereof.</p> <p>            The statements of the two subordinates of the plaintiff were produced as exh(s) 1 and 2 by the defendants’ counsel during his cross examination of the plaintiff. The two statements belong to Clive Moyo and Innocent Mwaisowa who testified as State witnesses during the criminal trial of the plaintiff in the magistrates’ court. These two are former employees of Good Hope Mine who were working under the supervision of the plaintiff at the time material to this case. Clive Moyo in his statement stated that he was employed as an assistant tractor driver and knew the accused person, Norest Mapanga (the plaintiff) as the mine manager of Good Hope Mine. He said that on 19 September 2010 he knocked off duty at 1800 hours and went home. At about 1930 hours the plaintiff phoned him and told him to report back to work at the mine as a matter of urgency. On arrival he was told that Mr. Milanzi the mine driver was not around. He was therefore tasked to go and ferry 2 loads of slime dump from Primrose Mine using the Massesy Ferguson tractor belonging to Good Hope Mine. At 2000 hours he drove the tractor to Primrose Mine in the company of 5 loaders: 4 of whom were hired whilst the 5th was Innocent on employee of Good Hope Mine. Clive Moyo said that they ferried 2 loads of slime dump from Primrose Mine to Good Hope Mine and finished at 2200 hours.           </p> <p>Clive Moyo said that since it was now late he was driven by the plaintiff in his motor vehicle up to the Roasting Plant so that he would not be mugged by thugs.</p> <p>            Clive Moyo’s statement was recorded on 22 September 2010 at Minerals Unit Kwekwe by a police officer who did not state his name nor sign the statement. Only his Force Number 051380 X was stated. However, Clive Moyo’s signature was affixed.</p> <p>            Innocent Mwaisowa stated the following in his statement. He was employed by Good Hope Mine as a general hand. On 19 September 2010 at around 1900hours he was phoned by the plaintiff when he was already home from work. He was asked to report back at work. He went back to the mine. The plaintiff told him to wait for Clive Moyo whom he said was going to drive them to Primrose Mine where he said they were going to ferry some slime dump. At 2000 hours, Clive Moyo came and they went to Primrose Mine in a Massey Ferguson tractor. He said that all in all they were 5 people including the driver. They ferried 2 loads before the plaintiff dismissed them for the night at 2200hours.</p> <p>            Innocent Mwaisowa signed the statement. The statement shows that it was recorded on 15 October 2010 by Detective Sergeant Kasekete, but he did not sign the statement.</p> <p>What is clear from the foregoing is that the person who actually caused the arrest of the plaintiff is the tractor driver upon being interviewed by the police. I say this because what is pertinent from the <em>viva voce</em> evidence of the first defendant and his statement to the police which the plaintiff was not able to controvert is that the person that he suspected was Armstrong Mapanga, the brother to the plaintiff who happens to be the owner of Good Hope Mine, and not the plaintiff. In his statement to the police the first defendant said that he knew the accused, Mr. Mapanga as a miner in the area and in the same statement he actually referred to the plaintiff by his first name as the accused’s manager. From this it is clear that the person that he was referring to as the accused could not have been the plaintiff but his brother Armstrong. So the person that he reported to the police was Armstrong, not the plaintiff. The accused only ended up being arrested because of the tractor driver who upon being interviewed by the police said that he had been sent to collect the slime by the plaintiff. Had it not been for the tractor driver, the plaintiff would not have been arrested because the police were after Armstrong when they went to Good Hope Mine with the first defendant. So on the basis of this alone, I make a finding that the first defendant did not act maliciously against the plaintiff when he reported the matter to the police because he did not report him as the suspect. So the issue of whether or not he acted without reasonable cause does not even arise under the circumstances.</p> <p>The plaintiff took issue with the statements that were recorded from Clive Moyo and Innocent Mwaisowa which were produced as exhibits 1 and 2. He queried why the statements were recorded after he had already been arrested, why the recording police details did not sign the statements and why they omitted some important details like their names and force numbers. He said that for these reasons the statements were not authentic. However, considering that the plaintiff stated in his evidence that when Clive Moyo and Innocent Mwaisowa gave evidence in his criminal trial  they indicated that they had been coerced into making the statements, it means that the two admitted having made statements to the police. There being no other statements other than the ones that were produced as exhibit 1 and 2, I take it that these are the very statements that were recorded from the two. That there are omissions in the statements as enumerated by the plaintiff is neither here nor there because it is on the basis of these statements that the two were called upon by the State to give evidence against the plaintiff in the criminal trial.</p> <p>            It is not disputed that the two witnesses turned hostile when they testified. The plaintiff said that Clive Moyo and Innocent Mwaisowa said that they were coerced into making the false statements against him. The plaintiff said that he was suing the defendants because Clive Moyo and Innocent Mwaisowa proved that they had been coerced by the first defendant to frame him. However, in the absence of evidence from Clive Moyo and Innocent Mwaisowa I find it difficult to accept the plaintiff’s story because it is just the his word and nothing more. The plaintiff did not substantiate his version of events by leading evidence from Clive Moyo and Innocent Mwaisowa. They should have explained if indeed they were coerced by the first defendant as the plaintiff said. They also needed to explain the circumstances leading to their coercion. They should also have explained how the first defendant coerced them into giving false statements to the police. In the absence of evidence from the two, one cannot be faulted for concluding that in giving evidence the two turned hostile simply because they did not have the courage to testify against their boss face to face in an open court. This behaviour by witnesses who have a close relationship with an accused person is not uncommon and it is very understandable. What even compounded the matter is the fact that the two were accomplice witnesses. Apart from being afraid of testifying against their superior, they could also have been afraid because of the role that they had played in the commission of the offence. Another possibility that cannot be ruled out is that of interference. These are people who were working for the plaintiff’s brother. Anything could have happened. Because of these possibilities, this is one case where I am tempted to say that the plaintiff’s acquittal in the criminal trial cannot really be taken to mean that he did not commit the offence. Put differently, his acquittal <em>per se</em> does not mean that he was innocent. This is a case where malice on the part of the first defendant could only have been proven by the plaintiff by leading evidence from Clive Moyo and Innocent Mwaisowa. In the absence of that I remain convinced that the person who caused the arrest of the plaintiff is Clive Moyo, the tractor driver although he later turned around during trial and distanced himself from the statement that he had made to the police.</p> <p>In the circumstances of this case, even if the first defendant had told the police that he suspected the plaintiff as the General Manager of Good Hope Mine, I would not say that he acted with malice and without probable cause. There was nothing wrongful about his conduct because a theft had occurred. It would not be said that he acted without reasonable and probable cause in having the plaintiff arrested because he gave valid reasons for suspecting him. The dump site from where the slime was stolen is close to Good Hope Mine. For anyone to access that dump site from that side, they have to go through Good Hope Mine which is fenced, gated and is always kept locked. Over and above this, the first defendant said that he observed some tractor tyre marks from the dump site leading to Good Hope Mine Milling Plant.</p> <p>In view of the foregoing, the plaintiff failed to prove that his arrest, detention and prosecution were malicious. The claim is therefore dismissed with costs.</p> <p>           </p> <p>           </p> <p>           </p> <p> </p> <p><em>Samundombe &amp; Partners</em>, plaintiff’s legal practitioners</p> <p><em>Mahuni &amp; Mutatu Attorneys</em>, defendants’ legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> Mc Kennon<em> Law</em><em> of Delict </em>7th Ed @ p 259.</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> 1971 (1) SA 371.</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> <em>Mushambi </em>v <em>Zimpapers </em>HH 150/11.</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> <em>Mushambi </em>v <em>Zimpapers </em>HH 150/11.</p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a> C Okpaluba  <em>Reasonable and probable cause in the law of malicious  prosecution: A review of South African and Commonwealth Decisions</em> 155N1427- 3781 at p 4</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a><em>Newman</em> v <em>Prinsloo</em> 1973 SA 125 (T) 149(H).</p> <p><a href="#_ftnref7" name="_ftn7" title="" id="_ftn7">[7]</a> C Okpaluba  <em>Reasonable and probable cause in the law of malicious  prosecution: A review of South African and Commonwealth Decisions</em> 155N1427- 3781 at p 4</p> <p><a href="#_ftnref8" name="_ftn8" title="" id="_ftn8">[8]</a> <em>Beckenstrater </em>v<em> Rottcher and Thevissen</em> 1955 (1) SA 129 (AD) at 136 A – B.</p> <p> </p> <p><a href="#_ftnref9" name="_ftn9" title="" id="_ftn9">[9]</a> J Neethling, JM Potgieter and P J Visser Neething’s <em>Law of personality </em>2 ed (2005) at 176.</p> <p> </p> <p><a href="#_ftnref10" name="_ftn10" title="" id="_ftn10">[10]</a> 1968 (3) SA 98A 2 103 – G – 104E.</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2017/157/2017-zwhhc-157.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=44186">2017-zwhhc-157.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2017/157/2017-zwhhc-157.pdf" type="application/pdf; length=666519">2017-zwhhc-157.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li><li class="vocabulary-links field-item odd"><a href="/tags/attribution-costs">Attribution of Costs</a></li><li class="vocabulary-links field-item even"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li></ul></span><div class="field field-name-field-search-summary field-type-text-long field-label-above"><div class="field-label">Search Summary:&nbsp;</div><div class="field-items"><div class="field-item even">The plaintiff issued summons claiming damages for malicious arrest, detention and prosecution due to the first defendant’s conduct during his employment with the second respondent. The second defendant owned a mine and employed the first defendant as a security manager. The plaintiff alleged that the first defendant laid false charges to the effect that the plaintiff had stolen gold slime from the mine, which resulted in his arrest, detention and prosecution for theft of the gold slime. The defendants averred that the first defendant discovered that 75&nbsp;000 tonnes of gold slime had been stolen from the mine and he made a report to the police. After making investigations it was established that the plaintiff had instructed two of the employees of the second defendant to collect gold slime from the second defendant’s mine, which resulted in the plaintiff being arrested. At the pre-trial conference it was agreed that the issues were whether the defendants maliciously and wrongfully caused the arrest of the plaintiff and whether the plaintiff suffered damages as a result. Held: (1) it is an actionable wrong to procure the imprisonment or arrest of anyone by setting the law in motion against him maliciously and without reasonable cause. (2) For the plaintiff to succeed in an action for malicious prosecution he must prove that the prosecution was instigated by the defendants and that it was concluded in favour of the plaintiff and that there was no reasonable and probable cause for the prosecution and that the prosecution was actioned by malice. For malice to be present, the defendant must thus not only have been aware of what he was doing in instituting or initiating the prosecution but must at least have foreseen the possibility that he was acting wrongfully, but nevertheless continued to act, reckless as to the consequences of his conduct (doluseventualis). Negligence on the part of the defendant (or even gross negligence) will not suffice. (3) The plaintiff failed to prove that his arrest, detention and prosecution were malicious and so the claim would be dismissed with costs. </div></div></div><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>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.</p> <p>The main issue before the court was whether the respondent maliciously caused the arrest of the plaintiff and whether the plaintiff suffered damages.</p> <p>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.</p> <p>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.</p> <p>The claim was dismissed with costs.</p> </div></div></div> Tue, 16 May 2017 07:25:01 +0000 admin 8166 at https://old.zimlii.org Mabwe Minerals (Pvt) Ltd. & Others v Valentine & Another (HH 793/16 HC 1514/16) [2016] ZWHHC 793 (08 December 2016); https://old.zimlii.org/node/7941 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1</p> <p>HH 793/16</p> <p>HC 1514/16</p> <p> </p> <p>MABWE MINERALS (PRIVATE) LIMITED</p> <p>and</p> <p>TAPIWA GURUPIRA</p> <p>and</p> <p>TAG MINERALS ZIMBABWE (PVT) LTD</p> <p>and</p> <p>JOHN RICHARD NEEDHAM GROVES</p> <p>versus</p> <p>PETER VALENTINE</p> <p>and</p> <p>BASE MINERAL ZIMBABWE (PRIVATE) LIMITED</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANGOTA J</p> <p>HARARE, 10 October AND 8 December 2016</p> <p> </p> <p> </p> <p> </p> <p><strong>Opposed Matter </strong></p> <p> </p> <p> </p> <p> </p> <p><em>R. F Mushoriwa</em>, for the applicants</p> <p><em>S. T Mutema</em>, for the respondents</p> <p> </p> <p> </p> <p>            MANGOTA J: The applicants applied for a decree of perpetual silence against the respondents. They submitted that these constituted a nuisance to them. The respondents, they said, took them to the magistrates’ courts, this court and the Supreme Court with no end in sight. They stated that the respondents took them to court on not less than forty (40) occasions. They averred that they have been subjected to a series of abusive criminal and civil proceedings. They said, despite repeated dismissal of their claims by the courts, the respondents maintained the position that the judgments which were entered against them were ineffectual. They complained that the respondents were harassing and vexing them. They insisted that the court should protect them as well as itself from the abusive conduct of the respondents. They moved the court to grant them the decree.</p> <p>            The respondents opposed the application. They moved the court to examine the cases which formed the basis of the application in relation to their cause.  They denied that they were always in the driving seat when the cases which the applicants made reference to found their way to the court(s). They stated that the applicants filed some of the cases with the court(s). They said all the cases upon which the current application rests had a bearing on a mine tribute agreement which the fourth applicant concluded with the second respondent. The fourth applicant, they said, concluded the tribute agreement with them through his Chiroswa Minerals (Pvt) Ltd [“the company”]. They submitted that they should not be silenced for their effort to assert their right in the tribute agreement. They moved the court to dismiss the application with costs.</p> <p>            At the centre of the parties’ dispute is Dodge Mine [“the mine”]. It lies in Shamva District under Mashonaland Central Province. It has six claims. These are lucrative, according to the evidence filed of record.</p> <p>The fourth applicant and his partner used to own and work the mine. They worked it under the name Chiroswa Syndicate. The fourth applicant later sold the mine to the first applicant. This was after his partner had left the syndicate. The first applicant is currently the owner of the mine.</p> <p>            The issue of the mine has seen the parties take each other to court on thirty (30), and not forty (40), occasions. The applicants filed actions and/or applications against the respondents on nine (9) occasions. The respondents filed actions and/or applications on sixteen (16) occasions. The following five (5) cases were not accounted for: HC 233/13, HC 5669/13, HC 5460/13, HC 6842/14 and HC 308/12. The court could not tell which party filed what action or application in respect of the mentioned five (5) cases. What it could tell, however, was that the parties have been in and out of courts on thirty (30) occasions.</p> <p>            The relief which the applicants moved the court to grant to them is not new to the jurisdiction of this court. In <em>Mhini</em> v <em>Mupedzamombe</em>, 1999 (1) ZLR 561, 566 E Garwe J (as he then was) had the occasion to deal with an issue which was similar to the present one. The learned judge quoted with approval what Curlewis J said in <em>Brown </em>v <em>Simon</em>, 1905 TS 311, 322 wherein he remarked that the procedure:</p> <p>“… affords a useful means of bringing to a conclusion all threatened actions, and in our opinion, it is applicable under due safeguards not only to cases where a claim has been made or an action threatened publicly, but to every case where by demand or threatened action there has been a disturbance of, or interference with, the quiet enjoyment of another’s rights. [emphasis added].  </p> <p> </p> <p>            In <em>Corderoy</em> v <em>Union Government </em>[<em>Minister of Finance</em>] 1918 AD 512 which Garwe J was pleased to make reference to in <em>Mhini</em> v <em>Mupedzamombe</em> (<em>supra</em>) the South African Appellate Division held that when there has been repeated and persistent litigation between the same parties, in the same cause of action and in respect of the same subject – matter, the court can make a general order prohibiting the institution of such litigation without the leave of the court but that power extended only to prevent abuse of its own process without being concerned with the process of other courts.</p> <p>The paucity of case authorities on the current subject is ample evidence of the fact that the relief, whilst recognised at law, is seldom resorted to. It is only granted where a party succeeds in showing the court that the defendant or respondent is a serial litigator who has the tendency to abuse not only the court but also its process and his adversary.</p> <p>            It is important for the court to examine and establish the fact of whether or not the respondents fall into the category of serial litigators who abuse the applicants, the court(s) and their processes.</p> <p>            The dispute of the parties has its origin in the Judgment of Patel J (as he then was). The learned judge had the occasion to hear and determine the matter in which Chiroswa Minerals (Pvt) Ltd [“the company”] and the second respondent brought before him under case number HH 2612/11. The company and the second respondent had sued the following three parties – the Minister of Mines, one Morris Tendayi Nyakudya and the latter’s company, Vambo Mills (Pvt) Ltd. They succeeded in having Mr Nyakudya and Vambo Mills (Pvt) Ltd evicted from the mine where they were operating in terms of an expired tribute agreement. They successfully moved the court to order the Minister of Mines to refer the tribute agreement which they had concluded between them to the commissioner of mines for approval and registration.</p> <p>            A reading of Patel J’s judgment under HH 261/11 tends to suggest that it was Chiroswa Minerals (Pvt) Ltd which entered into the tribute agreement with Morris Tendayi Nyakudya and his Vambo Mills (Pvt) Ltd. It is also not a far-fetched suggestion that Chiroswa Mills (Pvt) Ltd moved to enter into the second tribute agreement of the mine with the second respondent.</p> <p>            The abovementioned observations find support from the fact that it is Chiroswa Minerals (Pvt) Ltd, and not Chiroswa Syndicate, which moved for the eviction of Mr. Nyakudya and his Vambo Mills (Pvt) Ltd from the mine. The company worked hand-in-glove with the second respondent to achieve its desired end-in-view.</p> <p>The impression which the company created in the mind of the respondents, at the time, was that it owned the mine. It could not successfully evict those from the same if it was not the owner of the mine. It would have had no <em>locus standi</em> to do so.</p> <p>            It is common cause that the fourth applicant owned Chiroswa Minerals (Pvt) Ltd. He, in appreciation of his good working relationship with the first respondent, donated 50% of his shares in the company to the first respondent. The first respondent, it is not in dispute, was or is the managing director of the second respondent.</p> <p>            The above observed matters do, in the court’s view, account for the misunderstanding which later ensued between the fourth applicant and the respondents. These, the first respondent in particular, must have laboured under the genuine but mistaken belief that they, or he, as a 50% holder of shares in Chiroswa Minerals (Pvt) Ltd, had a substantial interest not only in the company but also in the mine which the company owned.</p> <p>            The first respondent’s belief in the mentioned regard finds support from a reading of Matanda-Moyo J’s judgment under case number HH 557/14. The first respondent had, in the case, sued the first, second and fourth applicants. He moved the court to set aside the agreement of sale of the mine which the fourth applicant had concluded with the first and the second applicants. He claimed that he owned 50% of the mine. He challenged his omission from participating in the sale of the mine. He insisted that the sale was, on the mentioned basis, null and void and had, therefore, to be set aside.</p> <p>            It is such belief as has been stated in the foregoing paragraphs which caused the respondents to file one suit after another with the courts. They worked on the impression which had been created. They believed that they, or one of them, owned 50% of the shares in the company which owned the mine. They, therefore, made every effort to assert what they believed belonged to them.</p> <p>            The respondents’ belief was shattered when Matanda-Moyo J ruled, to their disappointment, that Chiroswa Syndicate, and not Chiroswa Minerals (Pvt) Ltd, owned the mine. The respondents could not, under the stated circumstances, be said to have engaged themselves in a wild goose chase, as it were. They honestly believed, in the court’s view, that they were pursuing a genuine cause. They believed, further, that the fourth applicant and the company were treating them unfairly. They, therefore, made effort to have their case determined by the courts.</p> <p>            The respondents’ unrelenting effort to assert their right in what they believed belonged to them took their case to a higher level in 2013. In a matter which Chiroswa Minerals (Pvt) Ltd and the second respondent filed under case number HC 5208/13, Takuva J remained alive to the judgment which Patel J delivered under HH 261/11. The learned judge ordered the Minister of Mines, one Obert Mpofu, and the Commissioner of Mines, a Mrs E Kahonde, to process the tribute agreement which Chiroswa Minerals (Pvt) Ltd and the second respondent concluded as at the time of Patel J’s judgment and to have the same registered at the offices of the mining commissioner. The order contained a stiff sanction which the minister and the commissioner would suffer if they did not comply with it. They would each be held to have been in contempt of court and be committed to thirty (30) days imprisonment.</p> <p>            It was as a result of Takuva J’s order that the mining commissioner did, on 13 February 2014, register a tribute agreement in favour of the second respondent. The fourth applicant represented the company and Chiroswa Syndicate in the tribute agreement which the parties registered with the mining commissioner. The first respondent represented the second in the same. The tribute was or is to endure for a period of three years. It would, therefore, expire       on 13 February, 2017.</p> <p>            Given the above described set of circumstances, it would be difficult, if not impossible, for one to suggest, as the applicants did, that the respondents were or are a nuisance to them. The applicants, the fourth applicant in particular, conveyed an impression to the respondents. These believed him only to discover, at a later stage, that he was hunting with the hounds and running with the hares, so to speak. He dined and wined with them, as it were. He later switched his allegiance from them and proceeded to work with the applicants against them.</p> <p>            The fourth applicant was undoubtedly the main cause of the parties’ misunderstanding. He, through his Chiroswa Minerals (Pvt) Ltd, worked with the second respondent to evict persons who were at the mine from the same. He agreed to enter into a tribute agreement of the mine with the second respondent. He sold the mine to the first applicant. He sold his 50% shareholding in Chiroswa Minerals (Pvt) Ltd to the third applicant. He consulted no one in this complicated matrix which he created not for himself but for the respondents.</p> <p>            The court was not amused by the fourth applicant’s manner of dealing with his business partners. It viewed the applicants’ effort to conceal certain matters from it with serious disquiet. They attached to the application a wrong tribute agreement. The agreement showed its life span as commencing on 14 December 2011 and expiring on 14 December, 2014. They did not make any reference to the correct tribute agreement which was registered at the mining commissioner’s offices on 13 February, 2014. They plucked off the last page of Patel J’s judgment i.e. the page on which the learned judge’s order was recorded. They made an effort not to disclose the existence of Takuva J’s order under HC 5208/13.</p> <p>            In acting as they did, the applicants’ aim and object were to paint the picture which showed that the respondents were a rogue element which must be placed under leash all the time, so to speak. They, unfortunately for themselves, over-did their trick to a point where their story remained difficult, if not impossible, to believe. They were ably legally represented in this and other actions or applications. Their legal practitioner should have been more candid with the court than he did. The court, therefore, viewed the conduct of the applicants and their legal practitioner with displeasure.</p> <p>            The respondents could not be faulted for having made an effort to assert their right in what they believed belonged to them. They cannot be blamed for asserting their right in the tribute agreement which was registered in the second respondent’s favour on 13 February 2014. That agreement is still extant. It will only expire on 13 February, 2017.</p> <p>            The application cannot, on the basis of the foregoing, be allowed to stand. A decree of perpetual silence, as I understand it from the papers which were placed before me, is a very extra-ordinary remedy. It seeks to make a person not deaf but dump before the court which perpetually silenced him. Its aim and object are to bar him from instituting any criminal or civil proceedings against the party in whose favour the bar operates. It bars him from litigating or prosecuting except with the leave of a judge or the court and for good cause shown as well as on notice to his adversary. It sees him as a serial litigator who abuses the court, its process and his adversary with no end which is of any benefit to him being ever in sight. Its extra-ordinary character lies in that, once it is granted, it deprives a person of his constitutional right to litigate or to prosecute. It can, for the mentioned reasons, be granted only in exceptional circumstances.</p> <p>            The respondents <em>in casu</em> were not shown to be a set of serial litigators. They were not shown to have been suing or prosecuting the applicants with no end in sight which was not of benefit to them. They had, and still have, a clearly defined cause which they were, and are, enforcing. They took the long road to realise their intended benefit because of unsound advice which their esterwhile legal practitioner continued to dish out to them. He made them use the wrong method to achieve their lawfully acquired right. They should not, therefore, be made to suffer for the sins of their legal practitioner. Indeed, the courts expressed their displeasure against the legal practitioner when they ordered him to pay costs on two separate occasions. Such was the height of the courts’ lack of amusement on the work of the respondents’ legal practitioner. If he had sat down to reflect as he should have, he would have realised that something was not sticking in the manner that he approached the case of his clients.</p> <p>            The court has considered all the circumstanced of this case. It is satisfied that the applicants were not able to discharge the <em>onus</em> which rested upon them. Their application stood on nothing. They made their case less credible by concealing vital evidence which related to the application. The application is, accordingly, dismissed with costs on a higher scale.</p> <p> </p> <p> </p> <p> </p> <p><em>Mushoriwa Pasi Corporate Attorneys</em>, 1st and 2nd applicants’’ legal practitioners</p> <p><em>Stanslous &amp; Associates</em>, respondents’ legal practitioners</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2016/793/2016-zwhhc-793.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=31106">2016-zwhhc-793.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2016/793/2016-zwhhc-793.pdf" type="application/pdf; length=298529">2016-zwhhc-793.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li><li class="vocabulary-links field-item odd"><a href="/tags/abuse-process">Abuse of Process</a></li><li class="vocabulary-links field-item even"><a href="/tags/attribution-costs">Attribution of Costs</a></li><li class="vocabulary-links field-item odd"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>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.</p> <p>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.</p> <p>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. </p> <p>The court dismissed the application with costs on a higher scale.</p> </div></div></div> Sun, 19 Mar 2017 22:19:08 +0000 admin 7941 at https://old.zimlii.org Nkomo v Moyo & Others (HH 798-16 HC 9130/16) [2016] ZWHHC 798 (14 September 2016); https://old.zimlii.org/node/7937 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1</p> <p>HH 798-16</p> <p>HC 9130/16</p> <p> </p> <p>TRYNOS NKOMO</p> <p>versus</p> <p>SIFA NJANI MOYO</p> <p>and</p> <p>THE OFFICER IN CHARGE WEST NICHOLSON</p> <p>POLICE STATION NO.</p> <p>and</p> <p>OFFICER COMMANDING  BORDER CONTROL</p> <p>AND MINERALS UNIT N.O</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA J</p> <p>HARARE, 13 &amp; 14   September 2016</p> <p> </p> <p> </p> <p> </p> <p><strong>Urgent chamber application</strong></p> <p> </p> <p> </p> <p> </p> <p>Ms <em>R Zvimba</em>, for the applicant</p> <p><em>B Diza</em>, for the first respondent</p> <p><em>L. T Muradzikwa</em>, for the 2nd &amp; 3rd respondent</p> <p> </p> <p>            MWAYERA J: The applicant approached the court through the urgent chamber book seeking to stop the first respondent and his companions from mining gold ore from an area in Olympus Block in West Nicholson for which the applicant claims to have a prospecting licence. The applicant sought to have the matter heard an urgent basis since he argued that the continued actions of the respondent and other unknown panners would occasion commercial or economic loss culminating in irreparable harm.</p> <p>            TERMS OF THE FINAL ORDER SOUGHT</p> <p>            That you should show cause to this Honourable Court why a final order should not be made on the following terms:</p> <ol> <li>The 1st respondent be and is hereby ordered not visit applicants mining location at Olympus Block in West Nicholson, Gwanda unless in terms of the law.</li> <li>The respondent be and is hereby barred from mining gold ores at applicant’s mining location Olympus Block in West Nicholson Gwanda.</li> <li>The 1st respondent to pay costs of suit on attorney client.</li> </ol> <p>INTERIM RELIEF GRANTED</p> <p>Pending the return date of this matter, the applicant be and is hereby granted the following interim relief:</p> <ol> <li>The 1st respondent be and is hereby ordered not to remove the three truckloads of gold order that he illegally mined at applicant’s mining location, Olympus block at west Nicholson, Gwanda. In the event that the 1st respondent has already removed the three truckloads of gold ore from Olympus Block he and is hereby ordered to return the said three truck loads to Olympus block forthwith and offload them.</li> <li>The 2nd respondent be and is hereby ordered to release to the applicant the one gold ore truck load that was removed from applicant’s mining location, Olympus block by the Police.</li> <li>The first respondent be and is hereby ordered to offload all the 4 truckloads of gold ore that he illegally mined at Olympus block and leave the gold ore at the applicant’s mining location.</li> <li>The 1st respondent be and is hereby ordered not to interfere with applicant’s mining location at Olympus block in Nicholson Gwanda unless in terms of the law.</li> <li>The 1st respondent be and is hereby ordered to pay costs of suit on the attorney client scale.</li> </ol> <p>            The respondents opposed the application citing that the application was not urgent and that there was a material misjoinder of the second and third respondents who have no mandate to enforce the court orders in place of the Sheriff. Further the second and third respondent argued that the relief sought for release of gold ore held by the police in a pending criminal matter was incompetent. The applicant had lodged a report of theft of gold ore leading to recovery of the trucks of gold ore held as exhibits in criminal matters. Further it was conceded that s 219 on Police Service functions did not seek to usurp the power of the Sheriff in enforcement of orders.</p> <p>            Worth noting from these concessions is the fact that the applicant already had a remedy to the issue of allegedly stolen gold ore which was now held by the police as an exhibit. To that extend therefore the requirements of urgency cannot be met given the circumstances of this case. The urgency is clearly self-created given the history of the matter involving the applicant and the first respondent and or Sixo syndicate. It is evident from the papers that the first respondent has links with Sixo syndicate, which syndicate claims same interests as applicant at the Olympus Mining claim. At the time of lodging the application both the applicants and the Sixo syndicate had lodged prospecting and licensing documents with the relevant Ministry of Mining which was glaring not a part to the proceedings. Given the lack of clarity on which area the applicant had claim and the first respondent, and Sixo which was not part to the proceedings there are clearly material disputes of facts which cannot be resolved on paper let alone on urgent basis. The applicant and Sixo have coexisted at the area since 2014 and now to then turn round and claim urgent relief on self-created urgency  is not the urgency contemplated by the rules if this court. The availability of other remedies like resort to the regularizing authority the Ministry of Mines for demarcation of the area for the respective parties and also that the ore claimed is held as an exhibit in criminal matter by the police is another indicator and pointer of lack of urgency. The truck loads of gold ore are in police custody thus the danger of financial loss at the hands of the respondent is already eliminated.</p> <p>            The requirements of a prohibitory interdict are settled and can be summarised as follows:</p> <p>1. Existence of a <em>prima facie </em>right though subject to doubt.</p> <p>2. There is an injury actually committed or reasonably apprehended.</p> <p>3. That there is absence of a similar or adequate remedy.</p> <p>4. That the balance of convenience favours granting of the relief.</p> <p>See <em>Fairprop Trading (Pvt) Limited</em> v <em>Zimbabwe Revenue Authority</em> HH 68-14.</p> <p>In the absence of a threat or infringement of the right and in the absence of danger of irreparable harm occurring there is no basis for granting the relief sought.  Moreso in the face of other readily available remedies.</p> <p>It is apparent as conceded by the applicant that the second and third respondents, were unnecessarily dragged to court. The circumstances of the case do not disclose the type of urgency contemplated by the rules of this court. This is more so when one considers the requirements of urgency, as pronounced in a number of cases before this court. See <em>Kuvarega</em> v <em>Registrar General and Anor </em>1998 (1) ZLR 188. <em>Tripple C Pigs and Anor</em> v <em>Commissioner General, ZIMRA</em> HH 7/07,</p> <p><em>Document Support Centres (Pvt) Ltd</em> v<em> Mapuvire</em> 2006 (2) ZLR 140 and <em>Madzivanzira and 2 Others</em> v <em>Dexprint Investments (Pvt) Ltd and Another</em> HH 245-02.</p> <p>In <em>Mapuvire</em> case <em>supra</em> Makarau JP as she then was made pertinent observations when she highlighted the importance of the cause of action and nature of relief sought in determining whether or not a matter is urgent. She stated</p> <p>“….. It appears to me that the nature or the cause of action and the relief sought are important         considerations in granting or denying urgent applications …. Some actions, by their very          nature, demand urgent attention and the law appears to have recognised that position.”</p> <p> </p> <p>In this case the applicant and the respondent and Sixo syndicate appear to have co- existed over years and in the absence of a clear map of demarcations the cause of action and relief sought is not one which ought to be redressed on urgent basis given the obvious material disputes of facts. The rights of the parties from papers appear uncertain.</p> <p>            A matter is viewed as urgent if it is of such a nature that it cannot wait, for waiting would occasion irreparable harm. Further a matter is viewed as urgent if a party springs to action when the need to act arises and not wait for the day of reckoning as happened in this case. Self-created urgency is not the urgency contemplated by the rules of this court. The applicant has clearly displayed she has other remedies from the regulatory authority the Ministry of Mines and also the criminal court where she lodged a report. In the absence of any irreparable harm being occasioned and requirements of urgency not having been met there is no justification in allowing the matter preferential treatment of being heard on urgent basis.</p> <p>            I decline to deal with the matter on urgent basis and make the following order:</p> <ol> <li>The application is dismissed.</li> <li>The applicant shall pay the respondents’ costs on an ordinary scale.</li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Zvimba legal practitioners</em>, applicant’s legal practitioners</p> <p><em>Mhishi Legal Practice</em>, 1st respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s office</em>, 2nd &amp; 3rd respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2016/798/2016-zwhhc-798.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25581">2016-zwhhc-798.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2016/798/2016-zwhhc-798.pdf" type="application/pdf; length=377980">2016-zwhhc-798.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li><li class="vocabulary-links field-item odd"><a href="/tags/injunction">Injunction</a></li><li class="vocabulary-links field-item even"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li><li class="vocabulary-links field-item odd"><a href="/tags/attribution-costs">Attribution of Costs</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> </div></div></div> Fri, 17 Mar 2017 15:40:58 +0000 admin 7937 at https://old.zimlii.org Mugomba v Rimbo & Others (HH380-16 HC 8811/13) [2016] ZWHHC 380 (29 June 2016); https://old.zimlii.org/node/7510 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1</p> <p>HH380-16</p> <p>HC 8811/13</p> <p> </p> <p>FRANCIS MUGOMBA</p> <p>versus</p> <p>MAYOR RIMBO</p> <p>and</p> <p>RIMBO MINERALS (PVT) LTD</p> <p>and</p> <p>MINING COMMISSIONER</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MATANDA-MOYO J</p> <p>HARARE, 30 September 2015 &amp; 29 June 2016</p> <p> </p> <p> </p> <p> </p> <p><strong>Trial </strong></p> <p> </p> <p> </p> <p> </p> <p><em>F Chauke</em>, for the plaintiff</p> <p><em>F Musihairambwe</em>, for the 1st &amp; 2nd defendants</p> <p> </p> <p> </p> <p>            MATANDA-MOYO J: This matter commenced as a court application wherein the plaintiff sought the following relief;</p> <ol> <li>That the erection of a milling plant, workers compound and the carrying on of prospecting and mining at or near the area cleared for agricultural purposes by the first and second defendants be declared unlawful.</li> <li>That the applicant should carry on his agricultural activities without hindrance or interference by the defendants.</li> <li>That the defendants be precluded from leaving any bricks, sand or any other building materials on such land.</li> </ol> <p>The first defendant opposed the granting of the above relief on the basis that he was the owner of certain mining blocks on the plaintiff’s farm. Initially he submitted that the land was pegged as a milling station then later as mining blocks. Such conversion was done on 14 March 2012. He submitted that as the lawful owner of such mining blocks the court could not grant the relief sought.</p> <p>At the hearing of the application the court found that there were material disputes of facts and referred the matter to trial. In its declaration the plaintiff alleged that the first and second defendants were occupying his land illegally. They had also failed to follow the law with regard to prospecting as such prospecting was done without his consent as the owner of the land in violation of the law. The first and second defendant countered that by alleging that consent was given by plaintiff’s father who used to own the farm at the time. The first and second defendants claimed that it is infact the plaintiff who is disturbing their lawful mining activities. The defendants alleged that the clearing of land by the plaintiff for agricultural purposes on a site pegged for mining activities was clearly illegal. The first and second defendants prayed for the dismissal of the plaintiff’s claim.</p> <p>In terms of the joint pre-trial conference memorandum filed with this court on 11 March 2015 the following issues were referred for trial;</p> <ol> <li>Whether or not the defendants followed all the necessary procedures for the registration of the claims and the subsequent conversion into blocks.</li> <li>Whether or not the land was cleared before or after the registration of the blocks.</li> <li>Whether or not the third defendant followed the procedures on receipt of a plan from the first two defendants in terms of the Mines and Minerals Act [<em>Chapter 21:05</em>] and</li> <li>Whether or not the portion of land cleared by plaintiff is the only portion suitable for farming.</li> </ol> <p>The plaintiff was the first to give evidence on his own behalf. His evidence was that he was the executor to the estate of the late Elias Mugomba. He testified that they bought the farm in 2005 and moved onto the farm that same year. He first came into contact with the defendants in 2008 when their workers started cutting down trees on their farm. He reported them to the third defendant who stopped the operations. This witness said he was concerned because no proper procedures were followed by the defendants before carrying on mining activities on the farm. In particular the plaintiff was supposed to be shown a siting of works plan as the occupier or owner of land so that should he had any concerns, they would be dealt with. To date no such plan was ever shown to him. This witness testified that it could not be true that his late father consented to the carrying on of running activities as it was this witness who was mining the farm from as far back as 2007. His late father did not inform him of that during his lifetime. This witness testified that he never participated in any Environmental Assessment report. He testified that the defendants are digging everywhere leaving the dug area uncovered thereby posing a risk to humans and livestock. He testified that currently he has about 45-50 herd of cattle. Nobody is staying on the farm as it is no longer safe to stay there due to the illegal mining activities of the defendants. This witness produced a letter from the third defendant written on 4 October 2010. Its contents are as follows;</p> <p>“REQUEST OR PROOF OF LEGALITY OF MINING ATIVITIES BY RIMBO ---</p> <p> </p> <p>Reference is made to your letter dated 21 September 2010 on the issue captured above. … be advised that my records indicate that Rimbo Minerals registered a site for purposes of a setting up of a mill and a compound on 10 December 2007. The registration number of the site is 112. We however note that to date Rimbo Minerals P/L have not yet submitted a Siting Works Plan which will be passed to you for comment, nor have they obtained an EIA, a process that would involve you being consulted … Rimbo Minerals P/L have therefore no right to be constructing anything on your farm until the processes mentioned above have been successfully complied with.</p> <p> </p> <p>….. Notification of registration of the site had erroneously been sent to your neighboring farm Mayflower Farm. …. The site is strictly for setting up a mill and compound only and no mining.”</p> <p> </p> <p>            This witness testified that should the defendants be allowed to carry on mining activities he would be unable to carry out his farming activities on the farm and that would destroy their source of livelihood. Under crosss-examination this witness insisted the first and second defendants are illegal miners as he has never been shown any registration papers. He also said land was cleared in 2005. Asked why he was now contradicting para 11 of his declaration he answered that land clearance started in 2005 and is continuing. Under re-examination he said the milling plant was situate in the land cleared for cultivation.</p> <p>            Irene Chenai Mugomba gave evidence on behalf of the plaintiff. She stays in Mt Pleasant Harare and is wife to the plaintiff. She testified that the plaintiff rents a room in Kadoma where where he stays. She said they could not stay on the farm due to problems with the first and second defendants. She confirmed that the land was cleared in 2005 for agricultural purposes. They do have cattle and goats on the farm. Asked whether this claim is not motivated by the desire by the plaintiff to go into mining, the witness conceded.</p> <p>            The first defendant gave evidence on behalf of the first two defendants. He testified that he is a director of the second defendant. He testified that his relationship with the plaintiff is bad. It was his testimony that he registered a mine which is located in the plaintiff’s farm in 2007 and was given a go ahead to peg. At the time there were cyanidation tanks on the site that were vandalised. There were previous beacons showing previous mine and dug pits. When they got onto the farm they dealt with the plaintiff’s father and the plaintiff’s elder brother. This witness testified that he submitted Siting Works Plan to the Ministry of Mines, Kadoma and did the environmental impact assessment report in 2008. He submitted such receipt for the EIA report. It was this witness’ testimony that problems started when the plaintiff was appointed executor of his late father’s estate. The plaintiff tried to register the mine into his name and failed. The plaintiff disrupted his operations and even beat up his workers. The plaintiff accused him of killing his dogs. This witness testified he was not even aware that the plaintiff owned dogs on the farm. Nobody has been staying on the farm house for almost over ten years and the farmhouse is dilapidated. The first defendant testified that it was in fact the plaintiff who was cutting trees on the farm and selling firewood. As he was approaching the defendants’ mine, they reported him to the Commissioner of Mines who ordered a stop to the cutting down of the trees. When the plaintiff assaulted the defendants’ workers and was arrested, that is when he (defendant) made a false report to Forestry Commission that the defendants were cutting down trees on his farm. Investigations were done by Forestry Commission and the defendants were exonerated of any wrongdoing. Under cross examination this witness admitted that he registered a mill and compound site in 2007. He also admitted that he is carrying out mining activities on the farm. He said such activities are lawful. He also said they converted the sites to blocks in March 2012. The milling plant could not be completed as EMA stopped the construction and ordered that they redo the process.</p> <p>            Elias Rimbo also gave evidence before the court. He testified that there was no cleared field when they went on to the site. He confirmed he was once assaulted by the plaintiff and others and he reported the matter to police. The plaintiff was subsequently prosecuted.</p> <p>            It is common cause that the plaintiff is the executor of his late father’s estate and has taken over the farm in question.  Currently the plaintiff resides in Kadoma. No cropping is being done on the farm. There is some cattle on the farm and a herdboy looking after the farm. The first and second defendants moved onto the farm in 2008 for purposes of establishing a milling plant and constructing a compound. The construction of the milling plant has currently been stopped by EMA for purposes of the defendants complying with EMA requirements. The plaintiff’s story is believable in certain respects and of course there are obvious exaggerations in other areas. What came out from the plaintiff’s testimony is that he is against the defendants carrying out mining activities on their farm. The plaintiff himself has taken an interest in mining on the farm as evidenced by his attempt to register the mine into his name. It is not very clear when the plaintiff came onto the farm. Initially his late father and elder brother were running the farm before he came onto the farm. The plaintiff did not give a satisfactory response when confronted with the question that his late father had allowed the defendants to prospect and register the mine on the farm. It became probable that the initial engagements were between the plaintiff’s late father and the defendants. Without any contrary evidence the plaintiff failed to discharge the onus on him that the defendants came onto the farm illegally. I am of the view that the plaintiff’s father indeed authorised prospecting by the defendants on the farm. However the defendants had to satisfy other requirements thereafter. The defendants were to prepare and submit a siting works plan which plan would be passed on to the landowner for comment. No such plan was submitted in court. The defendants had the onus to do so but failed to do so especially in the face of a letter from the Mining Commissioner which pointed out that the defendants had not submitted the siting of works plan nor had they obtained and (EIA) Environment Impact Assessment Report. The defendants only managed to submit a receipt showing they paid fifty four billion dollars for EIA review. Such receipt did not take the matter any further as it can never be used to prove that the process was done. The receipt only shows that monies were paid but is no proof that the assessment was carried out. The defendants also conceded that the Environmental Management Agency ordered them to stop operations as from 2013 for failure to comply with their regulations.</p> <p>            I am satisfied that from the evidence adduced it is clear that the defendants failed to follow all the necessary procedures for the registration of the claims and the subsequent conversion into blocks.</p> <p>            The plaintiff testified that the defendants failed to follow the procedure in registering the blocks. Section 37 of the Mines and Minerals Act requires the defendants to have given notice to the plaintiff as the owner of the farm. See s 38 (2) (b) which provides:</p> <p>“Every person, before exercising any of his rights under a prospecting licence, special grant to carry out prospecting operations issued under subs (1) of section two hundred and ninety-one or exclusive prospecting order on any land to which this section applies shall give notice of his intention to do so in whichever one or more of the following forms is applicable to the case –</p> <ol> <li>….</li> <li>If the land is occupied private land, he shall give notice in writing to the occupier of the land in person or by registered letter addressed to the occupier at his ordinary postal address, …..”.</li> </ol> <p> </p> <p>The plaintiff testified that he received no such notice. The defendants claimed they</p> <p>sent notices to the farm. However the defendants argued that from his own evidence, the plaintiff was of no fixed abode and it was difficult if not impossible to serve any notices on him. I do not agree. The plaintiff’s family resides in Harare and notices could have only been sent to the Harare address or even left on the farm with the herdboy. The defendants failed to produce copies of such notices sent to the plaintiff. However in terms of s 38 (7) of the Mines and Minerals Act, such failure to give notice does not invalidate the pegging of such mining location.</p> <p>            It is important to note that in terms of prospecting the farmer has no right to refuse prospecting. All mineral rights are vested in the state and the farmer does not therefore own what is underneath. Without such ownership it follows that the farmer cannot give  permission. The farmer is only notified.</p> <p>            Section 45 (4) provides:</p> <p>“When application is made for a certificate of registration of a block which has been previously registered and abandoned or forfeited the applicant shall furnish, if possible, the previous name and registered number of the block and so far as is possible only re-pegging of any location shall perpetuate the original name of such location”.</p> <p> </p> <p>Section 45 (5) provides:</p> <p> </p> <p>“If the holder of any location fails to apply for a certificate of registration in the manner prescribed within the period of thirty-one days he shall be deemed to have abandoned such block”.</p> <p> </p> <p>The mining commissioner can extend that period for a further period not exceeding</p> <p>sixty-two days.  </p> <p>            The plaintiff argued that by failing to convert the milling site/plant into blocks within the 31 day period provided above such conversion by the defendant is invalid. On the other hand the defendants argued that they took over an existing mining location which had previous approved plans. The plaintiff conceded that lawful mining used to take place on the site. The defendants argued that because the block was already in existence when they took over they were not obligated to produce siting plans in terms of s 234 but could use the existing plans. The defendants referred me to s 242 for that proposition. Section 242 provides:</p> <p>            “242 Approved plan to be binding on successors in title</p> <p> </p> <p>            A plan approved under section two hundred and thirty-seven shall, subject to section two      hundred and thirty-eight, be binding upon any holder or miner of the mining location upon    any owner or occupier of the land.”</p> <p> </p> <p>            Whilst I do appreciate that there is a site plan by previous owners, such plans have not been produced in court and I am not privy to what is on the approved plan. The defendants’ case was not that they took over an existing mine but that they complied with the law in registering the blocks. It is my view that in the face of the letter from the Mining Commissioner that such plans were required, I cannot find otherwise; moreso without having had sight of previous plans.</p> <p>            The defendants also argued that in terms of s 239 they are permitted to carry out certain activities without approved plans. I agree with that submission. As long as whatever is constructed fall under the above section. For example dumps other than tailing and residences to house not more than thirty-two workers employed by the mining operations can be done without approved plan in terms of s 239. Section 239 (3) is very clear;</p> <p>            “For the removal of doubt it is hereby declared that a miner mentioned in subsection (2) may            prior to the erection or construction of the works mentioned in that subsection lodge with the mining Commissioner for his approval in respect of such works the plan referred to in     paragraph (a) of subsection (2) of section two hundred and thirty four.”</p> <p> </p> <p>            The defendants failed to show that they had lodged a plan with the Mining Commissioner and cannot therefore rely upon s 239. Section 239 is not applicable where no plan has been lodged with the Mining Commissioner.</p> <p>            Before me there is no proof that a plan was ever lodged by the first and second respondents to the Commissioner of Mines. The issue of whether the Mining Commissioner followed procedures on receipt of such plan therefore does not arise.</p> <p>            This leads me to the issue of the land in dispute, whether such land was cleared on or before the registration of the blocks and whether or not such land is the only portion suitable for farming.</p> <p>            From evidence from both parties it is common cause there is land which was cleared for farming purposes which land is inside the pegged area. The parties differ when such land was cleared. The plaintiff testified that such land was cleared in 2005 whilst the defendants testified that, such land was cleared just before Pre-Trial Conference. The defendants testified that the field was being cleared in an existing claims block.</p> <p>            It is common cause that the farm in question was bought by the plaintiff’s father in 2005. During that period it was the plaintiff’s father who was in charge and later the plaintiff’s brother. The plaintiff’s evidence in respect to the clearance of land was fraught with inconsistencies. Under cross-examination he said land clearance is done over a period of time, suggesting that as late as during Pre-Trial Conference such land was still being cleared. I am of the view that such land was only cleared for purposes of clouding issues at trial. Such land fall under the land pegged for mining and the plaintiff has no right clearing such land. It has generally been conceded by the parties that the farm is for ranching and not cropping. The plaintiff can carry on farming activities in the way of cattle ranching.    </p> <p>            Section 180 (12) gives the landowner or land occupier the right to graze stock or cultivate the surface provided it does not interfere with proper working of the mine.  The clearing of land on land pegged for mining in so far as it was interfers with proper mining activities was unlawful. As I indicated above the defendants have failed to discharge the onus on them to show that such mining activities were proper</p> <p>            What did not come out clearly in the evidence is the distance between the cleared field and the homestead. The law is quite clear that the prospecting operations are not to interfere with the landowner’s business activities hence the spelling out of land subject to prospecting. Prospecting cannot be done within 450 metres of the principal homestead, prospecting cannot be done on land under cultivation or within 15 metres thereof; See s 31 of the Act.</p> <p>            However the plaintiff had the onus to show that such land is located within 450 metres from the principal homestead. Without such evidence the plaintiff failed to discharge that onus. However this is a matter that the Mining Commissioner of the area should look into. The Mining Commissioner can visit the farm and ascertain the correct facts on the ground. I cannot over emphasize the need for the landowner and farmer to co-exist peaceful and to have good relations so that both business activities can thrive. Section 345 of the Mines and Mineral Act gives this court powers to refer any matter to a Mining Commissioner for investigation and report. It provides;</p> <p>            “(1) Except where otherwise provided in this Act, or …… the High Court shall have and       exercise original jurisdiction in every civil matter, complaint, or dispute arising under this Act            and it in the course of any proceedings and if it appears expedient and necessary to the Court      to refer any matter to a Mining Commissioner for investigation and report, the Court may        make an order to that effect.”</p> <p>           </p> <p>            I am of the view that despite my ruling this is a proper matter for such referral.</p> <p>            In the result I order as follows;</p> <ol> <li>That the defendants are precluded from carrying out any mining operations without complying with the law</li> <li>The 3rd defendant is directed to ensure that all legal processes are carried out before the defendants can resume operations.</li> <li>That the defendants pay costs of suit.</li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Uriri Attorneys at law</em>, plaintiff’s legal practitioners</p> <p><em>Lawman Chimuriwo Attorney at Law</em>, 1st &amp; 2nd defendants’ legal practitioners</p> <p>              </p> <p> </p> <p>  </p> <p> </p> <p> </p> <p>  </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2016/380/2016-zwhhc-380.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32484">2016-zwhhc-380.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2016/380/2016-zwhhc-380.pdf" type="application/pdf; length=255039">2016-zwhhc-380.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li><li class="vocabulary-links field-item odd"><a href="/tags/agriculture">Agriculture</a></li><li class="vocabulary-links field-item even"><a href="/tags/attribution-costs">Attribution of Costs</a></li><li class="vocabulary-links field-item odd"><a href="/tags/declaratory-relief">Declaratory Relief</a></li><li class="vocabulary-links field-item even"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>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. </p> <p>The first defendant opposed the reliefs sought, on grounds that he was the lawful owner of the mining blocks.</p> <p>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. </p> <p>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<br /> 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.</p> <p>The court ordered the defendants to stop mining operations without complying with the law and to pay costs.</p> </div></div></div> Tue, 06 Sep 2016 10:40:49 +0000 admin 7510 at https://old.zimlii.org