1

HH 565/15

HC 9059/14

 

FRIDAY MARASHA

versus

DAVIDZO ETHEL SHIRIHURU

and

THE SECRETARY FOR MINES AND MINING DEVELOPMENT

and

THE CHIEF MINING COMMISSIONER

and

THE MINISTER OF MINES AND MINING DEVELOPMENT

 

 

 

HIGH COURT OF ZIMBABWE

MTSHIYA J

HARARE, 2 June 2015 and 24 June 2015

 

 

 

Opposed Matter

 

 

 

E. Matinenga, for the applicant

T. W. Nyamakura, for the 1^st respondent

In default, 2^nd, 3^rd & 4^th respondents

 

 

            MTSHIYA J: This is an application for execution pending appeal.

            On 3 September 2014, in a review application Mafusire J granted the following order in favour of the applicant:

            “1.       The decision of the fourth respondent on 27 April purporting to approve the cancellation                             of Avoca 9 mining claims registered in favour of the applicant on 27 July 2004 under                                  transfer number 27439, registered number 22963, situate on Lot I of Barassie Farm, is                                  hereby set aside.

              2.       The cost of this application shall be borne by the second respondent.”

 

            Dissatisfied with the above decision, on 23 September 2014, the respondent, filed a notice of appeal in the Supreme Court (SC 474/14). The grounds of appeal were given as follows:

 

            “D.       The learned judge aquo erred in failing to considers the point taken on behalf of the                                     Appellant that the Respondent’s application for view did not comply with Rule 257 of the                High Court Rules.

 

            2.         In failing to consider that point, the learned judge effectively made a finding erroneously                             that the application for review filed by the Applicant complied with Rule 257 of the High                             Court Rules in that it sufficiently stated the grounds upon which it was made and the                                    exact relief sought exfacie.

 

            3.         In failing to find that the application did not comply with the peremptory provisions of                                 court and should therefore have been dismissed, the learned judge erred in allowing the                                application to proceed to be determined on the merits.

 

            4.         The learned judge erred in making a finding as he did that the Minister of Mines and                                     Mining Development had been functus officio when he made the decision to revoke the                                Respondent’s mining rights when it was clear that the Minister had prior to that not made                              any decision on the matter and therefore could not possibly have been functus officio.”

 

            During the hearing of this application, Advocate Matinenga, for the applicant, indicated that the respondent’s appeal had since lapsed but efforts were being made to revive it in the Supreme Court.

            On 14 October 2014, reacting to the appeal, the applicant filed this application for execution pending appeal. He contended that :

            “The appeal is a locus classicus of an abuse of the justice system as it is devoid of any merit            and one meant to frustrate me as I will demonstrate in the following paragraphs.”

 

            I can only semise that the above means the appeal is frivolous, vexatious and lacks merit.

            The review application had been necessitated by the fact that the fourth respondent had on 27 April 2011 reversed an earlier decision he had made on 4 March 23011 on an appeal that had been placed before him by the applicant. The reversal of the earlier decision was made when the applicant had already been made aware of it. According to the dates, the reversal came after a month.

             The two decisions that led to the review application, as uplifted from the judgment being appealed against, are:-

            a)         4 March 2011

           

                        “RE APPEAL AGAINST CANCELLATION OF CERTIFICATE OF REGISTRATION                                   : AVOCA 9-22963 VS MRS D.E. SHIRIHURU

 

                        The above matter refers.

                        Avoca 9 block of claims, registration no. 22963 which was originally registered on 13^th                                (sic) December, 1994, cannot be cancelled in view of the provisions of section 58 on the                             block of claims namely Avoca 9 has been in existence for a period of more than two                                   years.

 

                        Mr Marasha, owner of Avoca 9 claims and Mrs Shirihuru should co-exist. Mr Marasha                                 should comply with the appropriate legislation.”

 

            b)         27 April 2011

                        “FARMER/MINER DISPUTE: AVOCA 9 MINE – BARASSIE FARM

                        The above mentioned matter refers.

                        The Honourable Minister of Mines and Mining development has approved the                                              cancellation of Avoca 9 claims registered by Mr. Marasha and turns down his                                               appeal against the cancellation.”

 

            Both letters were signed by I. N. Chihota (Chihota),an official in the Ministry of Mines and Mining Development (the Ministry).

            As can be seen the first letter, unlike the second one, did not make reference to the fourth respondent (The Minister of Mines and Mining Development) (the Minister). Given that fact, the first respondent argues that there is no evidence that the fourth respondent (The Minister) was therefore ever involved in the first decision. If her argument were correct, then there could have been no need for a review application. To that end it will be noted that in her appeal to the Supreme Court, apart from the preliminary issues she raises in her grounds of appeal, the thrust of her argument is :

           

            “4.       The learned judge erred in making a finding as he did that the Minister of Mines and                                     Mining Development had been functus officio when he made the decision to revoke the                                Respondent’s mining rights when it was clear that the Minister had prior to that not made                              any decision on the matter and therefore could not possibly have been functus officio.”

 

            I want to note that there was only one appeal placed before the Minister by the applicant. The letters quoted at p(p) 2 and 3 of this judgment can only refer to that single appeal. I also want to note that, generally, the decisions of the Minister are transmitted through the Secretary (i.e. the second respondent) who is responsible for the administration of the Ministry. Section 341 of the Mines and Minerals Act [Chapter 21:05] provides as follows:

            “341 Administration of Ministry

            (1)        The Secretary shall be and is hereby vested with authority generally be supervise and                                   regulate the proper and effectual carrying out of this Act by mining commissioners or                                   other officers of the Public Service duly appointed thereto, and to give all such orders,                                 directions or instructions as may be necessary.

            (2)        The Secretary may at his discretion assume all or any of the powers, duties and functions                             by this Act vested in any mining commissioner, and may lawfully perform all such acts                                and do all such things an a mining commissioner may perform or do, and is further                          empowered in his discretion to authorize the correction of any error in the administration                             or in the carrying out of the provisions of this Act, or to perform any other lawful act                                   which may be necessary to give due effect to its provisions.

            (3)        the Secretary may exercise such of the powers by this Act vested in the Minister as may                               be delegated to him by the Minister.”

 

            Given the above, there is, in my view, nothing to suggest that Chihota could not have written on behalf of the Minister and the Secretary (the second respondent) or that the Secretary could not have written on behalf of the Minister (the fourth respondent). The above quoted law allows for delegation either from the Minister or from the Secretary. The letters relate to the appeal that was placed before the Minister.

            I am, in casu, not seized with the first respondent’s appeal, but I can only comment on the prospects of success through making the above brief observations, which, in my mind, leave me in no doubt that the prospects of success in the appeal are remote, if not nil.

             I find great comfort from the fact that the parties are agreed on the principles of law that regulate matters of this nature. The applicant has relied on the principles spelt out in Mateko v Banda HH 30/12, which principles also appear in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 545 D – F, a case also relied upon by the first respondent.

            In her heads of argument the first respondent states:

            “7.       The requirements for an application of this nature are settled in our law. In South Cape                                Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534(A)                at 545D-F, which was cited with approval in Zimbabwe Distance (Correspondent)                            Education College (Pvt) Ltd v Commercial Careers College (1980) (Pvt) Ltd 1991 (2)                                  ZLR 61(H), Corbett JA enunciated the factors to which a court would have regard in                                    exercising its discretion in considering an application for leave to execute. After stating                                that the court had a wide general discretion to grant or refuse leave and, if leave were                                   granted, to determine the condition upon which the right to execute should be granted, he                             said the following:

 

                        ‘In exercising this discretion the Court should, in my view, determine what is just                                     and equitable in all the circumstances, and, in doing so, would normally have                                regard, inter alia, to the following factors:

 

                        (1)        the potentiality of irreparable harm or prejudice being sustained by the                                        appellant on appeal (respondent in the application) if leave to execute were                                               to be granted;

 

                        (2)        the potentiality of irreparable harm or prejudice being sustained by the                                        respondent on appeal (applicant in the application) if leave to execute were                                               to be refused;

 

                        (3)        the prospects of success on appeal, including more particularly the question                                              as to whether the appeal is frivolous or vexatious or has been noted not with                                            the bona fide intention of seeking to reverse the judgment but for some                                         indirect purpose, e g, to gain time or harass the other party; and

 

                        (4)        where there is the potentiality of irreparable harm or prejudice to both A                                                 appellant and respondent, the balance of hardship or convenience, as                                            the case may be.”

 

            An application of the above principles of law to this case, favours the granting of the relief sought by the applicant. Apart from the absence of prospects of success in the appeal before the Supreme Court, (currently being revived), the mining operations on the claims  remain approved and there is therefore no environmental danger or threat ensuing. It is the applicant who stands to lose his investment, the existence of which has not been disputed. The applicant and the first respondent were allowed to co-exist. The Environmental Management Agency would not have granted its certificate if the mining claims could not be exploited.

            Accepting that the procedural points in limine raised by the first respondent are points of law which can be raised at any point, I still maintain that the review application was in substantial compliance with the rules of this court. Furthermore, it would not be in the interests of justice to deny litigants justice on the basis of technicalities, which the court in the interests of justice, can, using its discretion, condone.

             The issue in the review application was that the fourth respondent could not legally reverse his decision of 4 March 2011 because he was already functus officio. The first decision had already been communicated to the applicant. My finding therefore is that, given the unassailable findings in the judgment being appealed against, there are no prospects of success in the appeal.

            In view of the foregoing, I find merit in the application for execution pending appeal. Furthermore, given the circumstances of this case, I find no compelling reason to order costs on a higher scale.

            I therefore order as follows:

            1.         The applicant be and is hereby granted leave to execute the judgment of this                                  court HH 452/14, and

            2.         The first respondent shall pay costs of suit on the ordinary scale.

 

 

 

 

Messrs Musunga and Associates, applicant’s legal practitioners

Messrs Mtetwa & Nyambirai, 1^st respondent’s legal practitioners

The Attorney General, 2^nd – 4^th respondent’s legal practitioners