DGL Investments Number Five (Pvt) Ltd v Innocent Makope & Ors

### Preamble
1
HB 140/25
HCBC 804/25
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DGL INVESTMENTS NUMBER FIVE (PVT) LTD

Versus

INNOCENT MAKOPE

And

WHEN WEST ONE

And

PROVINCIAL MINING DIRECTOR OF MAT. SOUTH N.O.

And

THE SHERIFF OF ZIMBABWE

And

OFFICER IN CHARGE INYATHI POLICE STATION N.O.

IN THE HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO 31 JULY 2026

Urgent Application

Mr P Sibanda for the Applicant

Mr S Nkomo for the first and Second Respondents

Ms M Takaedza for third and fifth Respondent

NDUNA J: This is an urgent application brought in by the applicant who is a miner in Matabeleland South Province against his fellow miner. The applicant alleges the following: that;

On 15 July 2025 there was mining which was being conducted by the first respondent and his assignee in his mine field and that he had approached the 3rd respondent over the issue.

The 3rd Respondent made an order suspending any mining activities in the said area

The first respondent continued to mine despite the suspension order

That he observed that a Chinese miner had been brought to the area and is conducting mining

As a result, he has approached this court for the relief he seeks in the following terms:

The first and second respondents or their agents or assignees or any person acting through them or their instructions be and are hereby interdicted from interfering or carrying out illegal mining activities at applicant’s mining claim being 150 Copper with registration certificate number LUI11998BM

The 3rd Respondent be and is hereby ordered to verify the co-ordinates of the disputed area within five (5) days of granting this provisional order

In the interim it is prayed;

The first and second respondents or their agents or assignees or any person acting through them or their instructions be and are hereby interdicted from interfering or carrying out illegal mining activities at Applicant’s mining claim being 150 Copper with certificate number LUI 11998BM

Failure to vacate 150 Copper Registration number LUI 11998BM, the 4th Respondent be and is hereby ordered to ensure strict compliance with clause (1) above by the 1st and 2nd Respondent or their agents or assignees or any person acting through them or their instructions with the assistance of the 5th Respondent

3rd Respondent adjusts the benefits of the 1st and 2nd Respondents in accordance with the plan in favour of the applicant as the prior pegger

The 1st Respondent pays costs of suit on a legal practitioner – client scale if the matter is opposed

On the hearing the matter the respondent does not take issue with the prayers as it were but takes issue with the manner the application has been made. He has raised several preliminary points against the application. He has thus said that:

That according to the applicant’s papers more particularly the certificate of registration, the mine in question is registered in the name of EMBOLDEN Enterprises Pvt Ltd an entity which is not party of the present proceedings.

There is no authority from the registered holder of the mine

The resolution which the deponent to the affidavit purportedly derives his authority, the said resolution which is annexure A of applicant’s papers, is dated 16 February 2024 and authorises the deponent expressly and specifically to deal with the provincial office for all mining issues. ‘We made the point that such resolution is blanket authority is not specific to the present litigation; the respondent has contented.’

What is sought in the interim relief is exactly what is sought in the final order. And secondly what is sought in the interim is final in nature.

The very same complain by applicant has been taken to the third respondent hearing whose is the provincial mining director and the said third respondent has issued a suspension order stopping operations. In other words, there is an already a pronouncement by an authority on the same dispute and the said suspension order is respect of both the registered owners of both mining claims. There is already an order and there is no need for this court to grant an interdict, particularly an interdict whose effect will be to stop one party when in fact both parties have been stopped

The respondent is therefore of two views; that the matter has already been decided by the Provincial Mining Director and therefore there is no need for the court to be involved and secondly, he attacks the format taken by the application so to speak. These averments which makes his case are disputed by the applicant. Firstly, the applicant avers that the applicant is the holder of the company named EBDEN Enterprises, which is the registered owner of the mining claim as it appears on the annexure filed with the Provincial Mining Director. He further avers that the allegations have been raised late and that he has no time to provide an answering affidavit that would assist the court to appreciate the right and substantial interest that the applicant has on the claim.

It is this court’s view that the matter can be resolved by looking at one of the five grounds raised by the respondent. It concerns the authority used to represent the applicant in this matter. As stated above, it is the general authority which was issued for the applicant to represent the company in issues to do with the Provincial Mining Director. It clearly spells out the cases in which the representative is authorised to act. They must be concerned with the Provincial Mining Director. In this case, the Provincial Mining Director is being sued jointly with the respondents. It cannot therefore be said the matter concerns the Provincial Director. It is suitable for him to represent the applicant if the applicant is engaged with the Provincial Director of Mines. Therefore, in this case it is not applicable for him to act on behalf of the applicant. That is not the only shortfall that he has. The authority was issued in November 2024.

The authority should have been given for his representation in this action. We will refer to the case of Beach Consultancy (Private) Limited v Makonya & Anor HH 696-21. In this case the held that;

“Unfortunately, this apparently convenient practice is in my view not supported by law. The current position of the law is that it must be shown that the corporate is aware of the proceedings that it is authorizing. The reason for insistence on the company being aware of the proceedings is to confirm that it is indeed the company that has taken the decision to participate in the court case and that it is not an unauthorized person who is dragging it to court without its knowledge.”

The organisation is required to show that it is aware of the proceedings for which it is authorising the person to act for it. It means the company must issue an order for its representative for representation in a specific cause of action. It is not acceptable that the company gives someone power to act at a point in time where there is no reason to so act.

Therefore, clearly there is no authority to represent the company which was given. It is the same conduct in which the court stated in Madzivire v Zvarivadza & Anor 2006 (1) ZLR 514 (S) that;

“It is clear from the above that a company, being a separate legal persona from its directors, cannot be represented in a legal suit by a person who has not been authorized to do so. This is a well-established legal principle, which the courts cannot ignore. It does not depend on the pleadings by either party.”

Reference can also be made to the case of Leechiz Investments (Pvt) Ltd v Central Africa Building Society HH 269-23 where it was stated that;

“…that a company may not grant general authority to a director or employee to represent it in future court cases that have not yet arisen at the time when the authority is granted.”

It is so because the company must be aware that the person representing it is fully authorised to represent it in the case such representation is concerned. This has the authority of Valentine & Anor v Blooming Lilly Investments (Private) Limited & Ors S 42-23 where it was held as follows:

“Therefore, a company resolution is required for two reasons, first, to prove that the entity is aware of the legal proceedings and has authorized them and, secondly, that the person representing it has been clothed with the requisite authority to represent it in the proceedings.”

It is not proper for one to go to the archives and withdraw a document for use in legal proceedings. It is appreciated the difficulty which may arise in this respect; but that is the legal position and it must be complied with. In this case there is a failure on the part of the applicant as is raised by the respondents.

It is therefore prudent to uphold the plea and it becomes unnecessary to deal with the matter any further.

The application is therefore struck off the roll with costs.

Dube Legal Practice, applicant’s legal practitioners

Nkomo & Sibanda Legal Practitioners, respondents’ legal practitioners