Chengbao Mining (Private) Limited V Anesu GOLD (Private) Limited & 2 ORS

### Preamble
1
HB 125/25
R-HCBC 205/25
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CHENGBAO MINING (PRIVATE) LIMITED

Versus

ANESU GOLD (PRIVATE) LIMITED

And

ALLEN SIBANDA

And

PROVINCIAL MINING DIRECTOR- MIDLANDS PROVINCE N.O

IN THE HIGH COURT OF ZIMBABWE

NDLOVU J

BULAWAYO 10 & 22 JULY 2025.

T.G. Chigudugudze, for the applicant.

Adv M. Ndlovu, for the 1st and 2nd respondents.

No Appearance for the 3rd Respondent.

Court Application

NDLOVU J: This is an opposed application for an interdict wherein the applicant prays for an order couched in the following terms:-

“1. 	It is declared that the Tribute Agreement made and entered into by and between the 1st Respondent and the Applicant on the 17th of October 2024 and approved by the Mining Commissioner on the 1st of November 2024 as Standard Tribute Number UR Tribute 26 of 2024 is still valid and effectual and binding on the 1st Respondent and the Applicant.

2. 	Consequently, it is ordered that: -

2.1. 	The Respondents be and are hereby interdicted and restrained from dealing with the mine called C Mine situate in the District of Mberengwa with the following mining blocks CA3, CA7, CA, Jumbo 24, Jumbo 25, Jumbo 26, Jumbo 27, Jumbo 19, CA, C5, C8, C7, C10, C, C1, C2 and Site with registration numbers 6061BM, G7654, 5833BM, 7694, 7417, 7418, 7419, 7691, 7234BM, 7235BM, 7342, 7237BM, 7244, 16420, 16421, 16422 and 156 respectively in any manner which may be prejudicial to the Applicant’s interests therein during duration of the tribute agreement aforesaid and for as long as it remains valid and effectual;

2.2. 	The 2nd Respondent and all those claiming authority through him be and are hereby ordered to remove all their equipment from any of the above-mentioned mining site failing which the Applicant or the Sheriff of the High Court, with the assistance of the members of the Zimbabwe Republic Police, shall remove any and all equipment belonging to the 2nd Respondent and all those claiming authority through him from the mining location;

2.3. 	The 1st and 2nd Respondents shall, within fourteen (14) days of this order, account to the Applicant for any and all minerals disposed by 2nd Respondent from the mining location since the coming into effect of Standard Tribute Number UR Tribute 26 of 2024 on the 1st of November 2024 and account for all gross income or other moneys received or ought to be received arising out such disposal;

2.4. 	There shall be debatement of such account before a Chartered Accountant of over 15 years’ experience as such appointed by the Chairman for the time being of the Commercial Arbitration Centre, Harare, such Accountant’s usual fees for the exercise of his duties being fully remunerated by 1st and 2nd Respondents failing which Applicant will do so and have the right to immediately to recover its reimbursement from the 1st and 2nd Respondents; and

2.5.	1st and 2nd Respondents shall immediately pay all such moneys as are shown to be due to Applicant in terms of such debated account.

3. 	1st and 2nd Respondent shall pay Applicant’s costs of suit on an attorney-client scale.”

BACKGROUND

The applicant is CHENGBAO MINING (PRIVATE) LIMITED, a company incorporated in Zimbabwe. It carries on business as, amongst other things, a mining concern. The 1st respondent is ANESU GOLD MINE (PVT) LTD. It is a company incorporated in Zimbabwe, and the 2nd respondent is ALLEN SIBANDA, an adult male. The 3rd respondent is the Provincial Mining Director of Midlands Province. The 1st respondent is the registered owner of a certain mining location called C -Mine situate in the District of Mberengwa with the following mining blocks CA3, CA7, CA, Jumbo 24, Jumbo 25, Jumbo 26, Jumbo 27, Jumbo 19, CA, C5, C8, C7, C10, C, C1, C2 and Site with registration numbers 6061BM, G7654, 5833BM, 7694, 7417, 7418, 7419, 7691, 7234BM, 7235BM, 7342, 7237BM, 7244, 16420, 16421, 16422 and 156 respectively (hereinafter "C - Mine").

The applicant and the 1st respondent entered into tribute agreements, based on which the applicant occupies C-Mine. However, the 2nd respondent has since occupied the mine on the basis that he has a tribute agreement in respect of the same mine with the 1st respondent, under a purported cancellation of the tribute agreement between the applicant and the 1st respondent. The applicant filed an urgent chamber application with this court on March 7, 2025. It was struck off the roll of urgent matters, leading to it being subsequently dealt with as an opposed court application.

APPLICANT’S CASE

The applicant averred that it is the tribute holder presently occupying C-Mine under a tribute agreement executed by the 1st respondent, as Grantor, and the applicant, as Tributor, on the 17th of October 2024 and approved by and registered with the Mining Commissioner as a Standard Tribute Agreement Number UR Tribute 26 of 2024.

According to the applicant, the parties concluded two tribute agreements, the first which was signed by the parties before the subsisting tribute and this was signed on the 3rd of May 2024 and approved as a Non-Standard Tribute Agreement Number UR Tribute 4 of 2024 (hereinafter referred to as "the first agreement") and the one executed on the 17th of October 2024 already referred to above “the second agreement”. The applicant averred that despite both agreements (the May 2024 non-standard agreement and the October 2024 standard agreement) having been executed by and between the applicant and the 1st respondent in respect of the same C-Mine, the 2nd agreement superseded and invalidated the 1st agreement as the latter did not make any reference to the former.

Pursuant to the second agreement, the applicant indicates that it then obtained an Environmental Impact Assessment Certificate ("EIA Certificate") in respect of C-Mine issued by the Environmental Management Agency ("EMA") on the 2nd of January 2025 in terms of Section 100 of the Environmental Management Act [Chapter 20:27]. However, on the 23rd of December 2024, the 1st respondent purported to give the applicant notice of intention to cancel the first agreement on some spurious basis that it was “proving to be a non-going concern and the delay in the first agreement reckoning of the commencement date (was) not making any business sense". The notice gave the applicant fourteen (14) days to rectify "the breach", which was identified as the delay in the commissioning of electricity, failing which the applicant was advised that the first agreement would terminate and it would have to vacate the mine immediately.

At a meeting attended by Mr Changbao, director and representative of the applicant, which was held at the offices of the 1st respondent’s legal practitioners, the applicant contested the proposed cancellation of the first agreement as it had been overtaken by events and replaced by the second agreement in respect of which the applicant had already obtained full licensing to implement the mining works by EMA in terms of the law. At the meeting, the applicant did not agree to the proposed cancellation. The applicant was shocked that on January 28, 2025, the 1st respondent, through its legal practitioners, wrote to the 3rd respondent suggesting that both the first and the second agreements between the parties had been cancelled. The letter referenced and attached what it identified as minutes of the parties' meeting of the 8th of January 2025 which were however not signed by the applicant’s representative for the simple reason that they are not an accurate representation of the meeting they purport to relate to as at the meeting it had been traversed that the December 2024 notice/intention to terminate did not cover the second agreement. The applicant argues that there cannot be a valid tribute agreement between the 1st and 2nd respondents in respect of C-Mine, as the agreements between it and the 1st respondent still subsist.

1st RESPONDENT’S CASE.

The 1st respondent argues that, while they do not dispute that a tribute agreement was signed by the parties on October 17, 2024, they dispute that the said agreement is valid and still subsists. It was further argued that the only reason the agreement was entered into was that the applicant intended to obtain an Environmental Impact Assessment from the Environmental Management Agency, and to do so, they required a Standard Tribute Agreement, not a Non-Standard Tribute Agreement, which the parties had earlier entered into. The 1st respondent insisted that it was communicated to the applicant that both agreements were cancelled. The 1st respondent further argued that the second agreement did not supersede the first agreement, and contended that the applicant was aware that the second agreement was entered into solely to obtain an EIA certificate.

2nd RESPONDNT’S CASE

The 2nd respondent’s case is that he holds a valid tribute agreement with the 1st respondent. He also avers that, as part of the agreement, he must co-exist with the applicant.

PRELIMINARY POINTS.

The 1st and 2nd respondents raised 3 points in limine.

Absence of service.

The applicant is improperly before the court.

There are material disputes of fact.

SERVICE

The 1st and 2nd respondents argued that the present application originated as an urgent chamber application, but was struck off the roll of urgent matters due to a lack of urgency. As a result, it became a court application under Rule 60(19) of the High Court Rules, 2021. When the matter was initially filed, the applicant sought interim relief. This present court application seeks final relief. There was, therefore, a need for the applicant to serve the respondents with this application per Rule 59(2), as it is a court application. They argued that, by virtue of Rule 60(19), the provisions of Rule 59 shall apply to a court application that originated as an urgent chamber application. The respondents argued that the proceedings before the court are therefore not proper, and the consequences of failure to serve ought to be invoked.

Mr Chigudugudze, for the applicant, argued that the rules of service, as outlined in Rule 59(2), would not be applicable in this matter. He referred the court to the High Court (Amendment) Rules 2023 (No. 1), rule 4, sub-rule 15, and argued that this rule specifies that the process is to be served electronically. He further argued that the same respondents who claimed they were not properly served filed their opposing papers after the matter was struck off the urgent roll and all the pleadings related to the final order sought. He further argued that it appears the respondents are basing their arguments on Rule 43 of the rules, which relates to irregular proceedings; however, he stressed that the respondents responded to the application by filing opposing papers, as well as heads of argument, and can no longer complain of irregular proceedings.

Counsel for the applicant also argued that, in terms of rule 43 (2) (a) of the rules, once a party deems a process by the other party irregular, they cannot seek to complain about it if they have taken a further step on the cause. In that vein, the applicant argued that the respondents had been estopped from complaining about the lack of service because they filed opposing papers and heads of arguments relating to the final order sought. Counsel further argued that, in the alternative, while stressing that the rules have not been violated, the court may condone a departure from the rules in terms of Rule 7 of the rules of this court.

I agree with the contention by counsel for the applicant in this regard because the principal thing that changes after a matter has been struck off the agent roll is simply that it will no longer be allowed to skip the ordinary roll. Further, as rightfully argued by counsel for the applicant, rule 43 (2) (a) of the High Court Rules provides as follows;

“(2) An application in terms of subrule (1) shall be on notice to all parties specifying particulars of the irregularity or impropriety alleged, and may be made only if-

the applicant has not himself or herself taken a further step in the cause with knowledge of the irregularity;” (underlined for emphasis)

The respondents, therefore, have no legal basis for complaining of an alleged failure to serve because they filed opposing papers relating to the final relief sought by the applicant. Nonetheless, their complaint itself is unwarranted because it is self-evident that they became aware of the present matter when the applicant served them with the urgent chamber application on March 10th and 11th, 2025, respectively, on the 1st and 2nd respondents. They were quickly linked to the matter on the IECMS platform, and Mr Mudisi, their legal practitioner, filed an assumption of agency on March 12, 2025. The High Court (Amendment) Rules 2023 (No.1) amended rule 15 of the principal High Court Rules, 2021, in rule 4. It is clear from these rules that only the initial process should be served physically, on the appreciation that one can only be linked to a matter on the electronic portal once they are aware of the case. In rule 4 (7), the legislature further provides that;

“In addition to the methods of service provided for in these rules, service may be effected electronically by way of e-mail, web-portal or other electronic means designated by the Chief Justice in a Practice Direction, in which case-…”

I am, without any doubt, convinced that an application of this nature qualifies for matters that can be served electronically, thereby eliminating the need for the applicant to serve the respondents physically with the court application. Having said this, I am of the view that this point in limine relating to service lacks merit, and it is dismissed.

IMPROPERLY BEFORE THE COURT

The respondents argued that Clause 13 of the first agreement, which, in their view, was the binding agreement between the parties, stipulates how the parties should resolve disputes between themselves. Under the clause mentioned above, in the event of a dispute, the parties are to mutually agree on and elect an impartial third party to assist in mediating the dispute. In the event of failure of mediation, parties consented to the jurisdiction of the Magistrates' Court. They further argue that whether the applicant was given adequate notice or not is of no consequence in the present matter.

The applicant, on the other hand, argued that this point in limine ought to be dismissed on the basis that the 1st agreement, which the respondents seek to rely on, is invalid because the 2nd agreement superseded it. It is through this 2nd agreement which the applicant seeks to vindicate its rights in this court.

I must point out that this 2nd preliminary issue ought not to have been raised in limine in that it touches on the merits of the matter. At the risk of sounding like I am delving into the merits, the respondents themselves do not dispute the existence of two agreements between the parties. I am of the contention that this point cannot be deliberated appropriately on in this regard without hearing the matter on the merits. I must also point out that a point in limine must be taken where it is not only meritorious but is also capable of disposing of the matter. See Telecel Zimbabwe (Pvt) Ltd vs Potraz & Otrs HH446-15. This point lacks either of the requirements mentioned above. For this reason, I dismiss it.

MATERIAL DISPUTE OF FACT.

The 1st respondent argued that there is a material dispute of fact, as it disputes that the 2nd agreement superseded the 1st agreement. The 1st respondent, therefore, argues that this matter cannot be dealt with as an application due to the material dispute of facts.

On the other hand, the applicant insisted that there is no material dispute of fact because two tribute agreements existed, with the second one superseding the first. The applicant further argued that the point in limine lacked merit, citing the case of Chitoro v Payne & 6 Others HH-345-23 wherein the court held that a mere allegation of a possible dispute of fact is not conclusive unless the pleadings do show the existence of a bona fide dispute of fact which is incapable of resolution on the papers without recourse to oral evidence.

Correctly cited by the respondents, in the case of Matukutire v Madenga & Anor HH741/22, MAKARAU J (as she then was) quoted with approval the case of Supa Plant Investments (Pvt) Limited v Edgar Chidavaenzi HH 92/09 at p 4, wherein it was held that;

“A material dispute of fact arises when such material facts put by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”

From the above, it is apparent that a material dispute of fact exists in a case where conflicting accounts or versions of events cannot be resolved without further evidence, particularly oral evidence, leaving the court without a clear answer to the dispute. This would be in a situation where the respondents have traversed the applicant’s version in a way that creates a significant factual uncertainty about the truth. However, I am not convinced in casu that the respondents have left me uncertain of the truth. They have not disputed the existence of the two tribute agreements, and that the 2nd tribute agreement was signed after the first. The only contention that the respondents have is with the purpose of the second agreement. I am not convinced that the issues raised by the respondents are so peculiar that there will be a need to adduce viva voce evidence to determine which agreement was operational between the parties, because the discrepancies can be resolved by reading both agreements filed of record. For this reason, I conclude that the point in limine raised lacks merit. I therefore dismiss it.

I now turn to the merits.

THE MERITS

Issues for determination.

Whether or not there is a valid tribute agreement between the applicant and the 1st respondent about C-Mine?

Whether the 1st and 2nd respondents must be interdicted and restrained from any dealings in C-Mine?

THE LAW

The dispute in this matter arises from a purported cancellation of a tribute agreement by the 1st respondent, whose validity is highly disputed by the applicant. The applicant argues that the agreement purportedly cancelled had long been superseded and invalidated by the 2nd agreement, which was signed and entered into by the applicant and the 1st respondent.

The court in Shamunyarira v Goredema & Anor HC4412-14 had the occasion to discuss the requirements of a valid contract and had the following to say;

“It is trite law that a contract is an agreement by two or more parties entered into with the serious intention of creating a legal obligation. In order for a contract to be binding, it must meet the following criteria: it should be lawful, possible to perform, between parties with contractual capacity, made with the serious intention to contract, the parties must be ad idem, and the agreement must not be vague.”

The doctrine of the sanctity of contracts in our jurisdiction provides that where parties have freely and voluntarily entered into an agreement, that agreement is sacrosanct. Generally, courts will give effect to it. See Legacy Hospitality Management Services Ltd v African Sun Limited and another SC43-22, citing with approval the locus classicus case of Barkhuizen v Napier 2007 (5) SA 323 (CC).

It is also the law that where parties have entered into a written agreement, courts shouldn't read into the agreement terms that contradict what has been expressly said in that agreement. This has been aptly explained in Magodora and others v Care International Zimbabwe SC24-14, where it was held that;

“In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is… a matter of public policy. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms.”

It is also law that where a party to a contract freely and voluntarily signs that contract, it is bound by the caveat subscriptor rule. The learned scholar R.H. Christie in Business Law in Zimbabwe at p. 67 describes the meaning and import of the above-mentioned rule clearly and succinctly and states that;

“The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract and, if the principle were not upheld, any business enterprises would become hazardous in the extreme.”

Parties to agreements are expected to adhere to their end of the bargain in any agreement, and courts compel the offending party to fulfil the terms of their contracts when approached by an aggrieved party. See Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 2 (H).

Insofar as the law relating to cancellation of contracts is concerned, the Supreme Court had the following to say in Rolen Trading (Private) Limited v Parkside Holdings (Private) Limited SC106-22;

“Where the parties to a contract have settled a procedure for the termination of the agreement, they are bound by that procedure. This was the dictum in Minister of Public Construction v Zescon (Pvt) Ltd 1989(2) ZLR 311(S), wherein this Court said:

‘I do not understand the above quotation to mean that the appellant was not entitled to terminate the contract. The appellant may well have been entitled to do so. Still, where parties to a contract have agreed upon procedures for terminating an agreement, they are bound by the provisions spelling out those procedures as if they had been imposed upon them by law. A departure from the agreement procedures will not result in an effective termination of the contract. All that was required of the appellant was, if there was justification for terminating the contracts, to terminate them in compliance with the procedures spelt out in clause 20(a)’”.

APPLICATION OF THE LAW

Whether or not there is a valid tribute agreement between the applicant and the 1st respondent concerning C-Mine?

The applicant and 1st respondent entered into two tribute agreements, with the first agreement which was signed on the 3rd of May 2024 and approved as a Non-Standard Tribute Agreement Number UR Tribute 4 of 2024 and the second one executed on the 17th of October 2024 and approved as a Standard and approved by the Mining Commissioner on the 1st of November 2024 as Standard Tribute Number UR Tribute 26 of 2024. The applicant argued that the first agreement was stated, in one breath, to come into force upon its signing, but in another breath, it was stated to commence six months from the date of electricity commissioning and be valid for a duration of three years. The second agreement was said to be valid for three years, extending from October 17, 2024, to October 16, 2027. Since the second agreement did not refer to the first agreement, the first agreement was accordingly superseded, novated, abrogated, or amended by the second agreement, rendering the former null and of no force or effect.

On the other hand, the 1st respondent argued that the 2nd agreement was only entered into for the purpose of enabling the applicant to obtain an EIA certificate. They further stated that they were of the view that the applicant was aware of this. However, this is not stipulated anywhere in the 2nd agreement. It is trite that courts do not make contracts for the parties, and neither should they assist a party in evading a contract written in clear language that it entered into freely and voluntarily. I find no basis to accept the 1st respondent’s version that the 2nd agreement was entered into only for the purpose of obtaining an EIA certificate. Had that been the intention of the parties, it would have been included in the agreement. I borrow with approval the authority in Magodora and others v Care International Zimbabwe (supra) that this court will not rewrite the agreement for the parties, but will give effect to the agreement, adhering to the cardinal rule of pacta sunt servanda.

Furthermore, the 1st respondent argued that, since the 2nd agreement was not binding on the parties in the strictest sense, it cancelled the 1st agreement. Upon cancellation, there is no valid agreement between the parties.  However, the applicant disputed this, stating that at the meeting where the 1st respondent expressed its intention to cancel the 1st agreement, the applicant did not agree to the same. The applicant did not stop there; it referred this court to the minutes from the meeting, which were attached to the letter sent by the 1st respondent, instructing the 3rd respondent that the agreement had been cancelled. The minutes were only signed by Mr Mudisi on behalf of the 1st respondent. The same was not signed by the applicant’s representative.  According to the applicant, the minutes were not signed because they do not accurately reflect what transpired at the meeting. I am, without a doubt, convinced that if the minutes were correctly recorded at the meeting, they would have been signed by both parties upon agreeing to cancel the agreement.

Even if one were to be convinced by the 1st respondent that the parties agreed to cancel the first agreement at the meeting, that would be of no moment, because the first agreement became invalid upon the parties' signing of the second agreement. The cancellation of the 1st agreement would not have any effect on the applicant’s status is so far as its rights to the mine are concerned because even if the applicant had committed a material breach then the 1st respondent as the aggrieved party would have been obliged to give the applicant written notice to remedy such breach in terms of Clause 10 as read with Clause 12 of the 2nd agreement before cancelling it on one month's notice. No such notice was given to the applicant by the 1st respondent. The only notice of intention to cancel the mining agreement given to the applicant, on 24 December 2024, only related to the 1st agreement, which became null and of no force or effect upon the execution of the 2nd agreement. The 1st respondent failed to provide adequate notice of intention to cancel the agreement to the applicant. Therefore, the purported cancellation cannot stand, as held by the Supreme Court in Rolen Trading (Private) Limited v Parkside Holdings (Private) Limited (supra), that the parties are bound by the procedure they elected under their agreement. There exists an agreement entered into by the parties on October 17, 2024, lawfully, without any bar to the possibility of performance, both parties having the capacity to contract, both with the same serious intention, and both parties being ad idem, which requirements were prescribed in the Shamuyama case (supra). I cannot find otherwise.

Whether the 1st and 2nd respondents must be interdicted and restrained from any dealings in C-Mine?

Having found that there is a valid tribute agreement between the 1st and 2nd respondent which still subsists, I will proceed and determine whether it would be justified that the 1st and 2nd respondents be interdicted from conducting any mining dealings in C-Mine.

It is the law that an applicant who is moving the court to grant him a final interdict must allege and prove that he has a clear right which he seeks to protect. A clear right is not open to doubt. (see Wildsearch Safaris and Tours (Pvt) Limited vs Requite (Pvt) Limited and two others, HH 375-23 and Hebstein and van Winsen, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, 5th edition, 2009, pp 1459 -60.)

These requirements for a final interdict were also succinctly discussed in Movement for Democratic Change (Tsvangirai) and Others v Lilian Timveos and Others, SC 9/2022, in which the court stated that:

“The requirements for a final interdict, on the other hand, are:

A clear right;

Irreparable harm actually committed or reasonably apprehended; and

The absence of an alternative remedy”

In this case, it has been established that the applicant has clear rights to C-Mine, which rights it derives from the 2nd tribute agreement. In terms of Clause 6 (d) of the Tribute Agreement, the applicant assumed all responsibility in connection with the mining claims as if it were the owner thereof. In terms of Clause 6 (e), the 1st respondent undertook not to hinder the applicant in the exercise of its rights under the agreement. It has also been established that the applicant has since obtained an EIA certificate and facilitated the commissioning of electricity at the mine; therefore, they are now able to pursue the intended projects. However, it is suffering irreparable harm in that the 2nd respondent has since deployed illegal miners there, thereby prejudicing the applicant.

I entertain no doubt that the purported tribute agreement between the 1st and 2nd respondents is void because the 1st respondent did not properly terminate its tribute agreement with the applicant. As a result, the agreement remains in effect. The 1st respondent cannot grant another tribute agreement to the 2nd respondent or another person, as its right of enjoyment is limited by the subsisting tribute agreement to the royalty payable to it by the applicant under Clause 4 of the agreement. Furthermore, the purported tribute agreement between the 1st and 2nd respondents has not been approved by the 3rd respondent, thereby rendering it null and void.

The applicant further prayed that the 1st and 2nd respondents be ordered to account for all the minerals disposed of by the 2nd respondent from the mining location, as well as to provide a debatement of the same before a Chartered accountant. The respondents argued that this is not justified; however, I borrow with approval the words of MANGOTA J (Rtd) in Petromocexor (Private) Limited vs Energy Park (Private) Limited and 4 others, HH 735-22, wherein he held the following;

“Going by the premise that the equipment which the first and fourth respondents were using at the property was/is that of the applicant, both had to be interdicted from continuing to use the same.  Because both of them had no legal title or right to be at the property, their eviction from the same was not without merit.  Because they occupied the property and used the assets of the applicant against the latter’s will, the order which directs them to account to the latter all the money which they received, or would receive, is not out of place.”

I find that the applicant’s claim in this regard is justified in that it has rights, which rights were abruptly interfered with by the 1st respondent to the benefit of the 2nd respondent. What the applicant would have managed to gain from the mining activities at C-Mine at the time that the 2nd respondent was unlawfully conducting the mining activities ought to be accounted for and returned to the applicant.

DISPOSITION

I find that the applicant proved its case on a balance of probabilities. As a result, I grant the order as prayed for by the applicant and I accordingly order as follows;

ORDER

It is declared that the Tribute Agreement made and entered into by and between the 1st Respondent and the Applicant on the 17th of October 2024 and approved by the Mining Commissioner on the 1st of November 2024 as Standard Tribute Number UR Tribute 26 of 2024 is still valid and effective, and binding on the 1st Respondent and the Applicant.

Consequently, it is ordered that: -

The Respondents be and are hereby interdicted and restrained from dealing with the mine called C — Mine situate in the District of Mberengwa with the following mining blocks CA3, CA7, CA, Jumbo 24, Jumbo 25, Jumbo 26, Jumbo 27, Jumbo 19, CA, C5, C8, C7, C10, C, C1, C2 and Site with registration numbers 6061BM, G7654, 5833BM, 7694, 7417, 7418, 7419, 7691, 7234BM, 7235BM, 7342, 7237BM, 7244, 16420, 16421, 16422 and 156 respectively in any manner which may be prejudicial to the Applicant’s interests therein during duration of the tribute agreement aforesaid and for as long as it remains valid and effectual;

2.2 The 2nd Respondent and all those claiming authority through him be and are hereby ordered to remove all their equipment from any of the above mentioned mining site failing which the Applicant or the Sheriff of the High Court, with the assistance of the members of the Zimbabwe Republic Police, shall remove all equipment belonging to the 2nd Respondent and all those claiming authority through him from the mining location;

2.3 The 1st and 2nd Respondents shall, within fourteen (14) days of this order, account to the Applicant for any and all minerals disposed by 2nd Respondent from the mining location since the coming into effect of Standard Tribute Number UR Tribute 26 of 2024 on the 1st of November 2024 and account for all gross income or other moneys received or ought to be received arising out such disposal;

2.4 There shall be debatement of such account before a Chartered Accountant of over 15 years’ experience as such appointed by the Chairman for the time being of the Commercial Arbitration Centre, Harare, such Accountant’s usual fees for the exercise of his duties being fully remunerated by 1st and 2nd Respondents failing which Applicant will do so and have the right to immediately to recover its reimbursement from the 1st and 2nd Respondents; and

2.5 The 1st and 2nd Respondents shall immediately pay all such moneys as are shown to be due to Applicant in terms of such debated account.

3. The 1st and 2nd Respondents shall pay Applicant’s costs of suit jointly and severally, one paying, the other to be absolved.

NDLOVU J.

Messrs Madanhe and Chigudugudze, applicant’s legal practitioners

Messrs Mutendi, Mudisi and Shumba, 1st respondent’s legal practitioners