Dwayne Mining (Private) Limited vs Sheilla Maphosa and others

### Preamble
1
HB 52/21
HC 2616/19
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DWAYNE MINING (PRIVATE) LIMITED

Versus

SHEILLA MAPHOSA

And

PROVINCIAL MINING DIRECTOR MATEBELELAND SOUTH PROVINCE N.O.

And

SHERIFF OF THE HIGH COURT, ZIMBABWE N.O.

And

SECRETARY FOR MINES AND MINING DEVELOPMENT N.O.

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 18 MARCH 2021& 25 MARCH 2021

Rei vindication

A.S. Ndlovu, for the applicant

S. Mawere, for the respondent

DUBE-BANDA J: The Applicant seeks the eviction of the first respondent and all those claiming the right of occupation through her from an immovable property located on registered Site number 740, which is said to be a site for housing containing no more than 12ha held in connection with the Mining Location, named Big Ben under registration number 32538 (the housing site). The application is opposed by the first respondent.

The factual basis on which this matter turns is this: one Andrew Wayne Thompson was the owner of Big Ban Farm and Big Ban mining claims located on the farm. These mining claims were initially registered under Forbes and Thompson (Private) Limited and later transferred to Andrew Wayne Thompson – transfer number GA 1399 / 1400. A housing site known as Housing Site 740 was registered on the 3rd April 1998, in the name of Forbes and Thompson (Private) Limited under registration number GA 1400. It was later transferred to Andrew Wayne Thompson on the 24 June 2011 under transfer number TR 36671. During the land reform program, sometime in 2020, Big Ban Farm was gazetted for resettlement in terms of the law. The Minister of Lands and Rural Resettlement allocated the farm to one Tariro Maphosa under lease number GL 1655.  Tariro Maphosa is now late, and the 1st respondent is his surviving spouse.

On the 20th September 2021, applicant took transfer of the following: Big Ban 1 mining claims, transfer numbers TR 36671; TR 36672 and a Housing Site 740 registration number 32538. Applicant contends that after it purchased the claims, it discovered that first respondent was occupying housing structures within Site 740. Applicant avers that the housing structures occupied by the first respondent are on Site 740, while she contends that she is occupying the houses on the farm. Applicant referred the dispute to the Provincial Mining Director of Matabeleland South (Director) - second respondent. On the 8th October 2021, a surveyor from the Ministry of Mines visited the area in the presence of both parties; the representatives of the Ministry of Lands and the members of the Zimbabwe Republic Police (ZRP), so that the parties could physically indicate their structures and boundaries.

The Director made the following findings: Housing Site 740 was registered on 3 April 1998 under Forbes and Thompson (Private) Limited, transferred (Transfer number GA 1400) to Andrew Wayne Thompson on 24 June 2011, and, transferred (Transfer number TR 36671) to Dwayne Mining (Private) Limited on 20 September 2019 as attached to Big Ban registration number 32538. The buildings under contention fall within the boundaries of Site 740 as per ground indications and docket position. The Director attached to the determination a Site Plan, which shows that the buildings in contention in dispute are in Site 740. As a result the Director determined as follows:

Housing Site 740 title, registered on 3rd April 1998, is currently held by Dwayne Mining (Private) Limited, according to the records held at this office.

Dwayne Mining (Private) Limited is hereby ordered to erect beacons for Site 740 as per original (docket) position as at registration.

The lands authority could have gazetted land for resettlement over existing mine titles without seeking redress over such with relevant authority or courts prior to acquisition.

Any party not content with the outcome of this determination is hereby advised to appeal to the High Court or any higher jurisdiction than this office.

In her opposing affidavit, first respondent attacks this Site Plan issued by the Mines Office. She contends that this Site Plan was not juxtaposed with other workings during the meeting and does not feature anywhere in the determination of the Director. The Site Plan is clear, it is about the dispute between Dywane Mining v S Maphosa; it is attached to the determination made by the Director. This Site Plan was produced by experts in the Mines Office. It puts into diagram form the findings of the Director. Again, in her opposing affidavit first respondent avers that there was no determination that the housing structures fall within the Housing Site 740. When in fact the Director made a clear finding that the buildings under contention fall within the boundaries of Site 740 as per ground indications and docket position. The first respondent has not appealed the determination of the Director. She answers the failure to appeal, by merely alleging that this application was filed before the time within which to lodge an appeal had expired. She does not say whether she subsequently filed such an appeal. Therefore, the determination of the Director is extant.

Further in her opposing affidavit, first respondent avers that: she is the surviving spouse of the late Tariro Maphosa who had a lease agreement with the Minister of Lands and Rural Resettlement under lease GL 1655. The estate of the late Tariro Maphosa is being administered by Norman James Pattison, the senior partner of Webb, Low and Barry Legal Practitioners. She avers that the executor should have been joined in these proceedings, as she is merely a beneficiary of the estate. She says she is perturbed by the fact that the same law firm which is administering her husband’s estate is representing the applicant in this matter. It its answering affidavit, applicant avers that there is no need to join the estate in this matter, and that there is no conflict of interest as this matter has nothing to do with the estate. What is sought in this case is an eviction of the 1st respondent on the basis that she is in occupation of immovable property owned by the applicant. I do not see what interest the estate of the late Tariro Maphosa has in this matter. On the issue of conflict of interest, I am somehow concerned about the involvement of Webb, Low and Barry Legal Practitioners in the administration of the estate of Tariro Maphosa, and also in this matter. However apart from this issue having being mentioned in a passing mode in the opposing and answering affidavits, it was not argued before me, and in the result I will not take it beyond this point, and no further reference will be made to it.

Applicant’s case is anchored on rei vindicatio. An action based on the rei vindicatio is available to an owner who has been deprived of his or her property without consent and who wishes to recover it from the one who retains possession. The remedy is available to the owner in respect to both moveable and immoveable property. It derives from the principle that an owner cannot be deprived of his property without his consent. An applicant must prove that he or she was the owner of the thing and that the defendant was in possession of the property when the action was instituted and that the property in question is still in existence and is clearly identifiable. See: Tendai Savanhu v Hwange Colliery Company; Beqfin (Pty) Ltd v Ntane (02662/2013) [2013] ZAGPJHC 202 (12 August 2013); Van Der Merwe and Another v Taylor NO and Others (CCT 45/06) [2007] ZACC 16; 2007 (11) BCLR 1167 (CC); 2008 (1) SA 1 (CC) (14 September 2007). Once ownership has been proved its continuation is presumed. The onus is on the defendant to prove a right of retention. It follows that the action is based on the factual situation that prevailed at the time of the commencement of the legal proceedings. See: Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H);

On the uncontroverted facts of this case, first respondent is in occupation of an immovable property situate in Housing Site 740 registration number 32538. The exact description of the occupied immovable property has not been furnished to the court. The immovable property occupied by the first respondent is owned by applicant. Such occupation is without the consent of the applicant. It is on this factual basis that this application must be considered. The only defenses available to the first respondent are the following; that she had a right to occupy the immovable property; that she was not in occupation of the property or that the applicant is not the owner. See: Indium Investments (Private) Limited v Kingshaven (Private) Limited; Daniel Shumb and Linda Shumba SC. 40/2015.

First respondent contends that she is in occupation of the property by virtue of being the surviving spouse of the late Tariro Maphosa. She avers that she does not require the consent of the applicant to occupy the housing structure, because her occupation is legal on the basis of a lease agreement between Tariro Maphosa and the Ministry of Lands and Rural Resettlement. She contends that such lease has not been held invalid by any court of law. This argument is repeated in the head of argument. What this argument negates is simple that the lease between the late Tariro Maphosa and the Minister of Lands and Rural Resettlement is in respect of the farm and not the mining claims. Clause 12 of the lease agreement nails this point, it says “This agreement is subject to any existing mining rights in the area and Government does not accept responsibility for claims for loses or damage or future mining rights in the area.” This defense of trying to conflate the farm and the mining claims has no substance.

Further, first respondent contends in her opposing affidavit and heads of argument that applicant fails to identify the asset that first respondent is in occupation of, and the application should fail on that basis. It is contended that a Housing Site remains a Housing Site, and not a house itself. It could be vacant but still classified as a Housing Site. It is argued that the position would have been different if the Director had stated categorically that the house in question is located on the Housing Site. The contention is that applicant has failed to identify the asset.

The Director made a clear finding that the buildings under contention fall within the boundaries of Site 740 as per ground indications and docket position. Site 740 is the property of the applicant as per registration number 32538. First respondent has no right to occupy any immovable property in Site 740, without the consent of the applicant.  Ms Ndlovu, for the applicant contends that Site 740, for the purposes of this case, is akin to a stand number. I agree. The property in question is still in existence and is clearly identifiable. The defense that applicant has failed to identify the property in issue has no merit.

It is argued for the first respondent that what is sought from this court is an eviction from a home, therefore section 74 of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013, is applicable, and it requires a court to consider all the relevant circumstances before it can order an eviction. It is contended that the papers before court leave a number of questions unanswered for a court to say it has considered all the relevant facts. I take the view that section 74 aims to prohibit arbitrary evictions and to ensure that evictions takes place in a manner consistent with the values of the new constitution. It does not sanction unlawful occupation.  There is sufficient material placed before this court, for this court to decide whether the first respondent is an unlawful occupier of Housing Site 740.

Again, it is contended for the first respondent, that she and her husband occupied the said property peacefully and undisturbed for a period of five years after the land was acquired by the State and leased to them. This created an impression in them that the (previous) owner had consented to the acquisition and therefore no longer had rights of ownership, and could not pass to applicant rights it did not have. It is argued that estoppel is a defense against rei vindicatio. No authority was cited for this proposition, and I found none.

In any event, the essential requisites of estoppel are not present in this case. These are: (a) a representation, by words or conduct, which might reasonably be expected to mislead; (b) the misleading of the represented; (c) inducing him to alter his position on the faith of such representation. See: Andrew Phillips (Private) Limited v G.D.R. Pneumatics (Pvt) Ltd S.C. 96/86; Strachan v Blackbeard 1910 AD 282 at 288 in fine-289. There is no evidence or any suggestion that the applicant made any representation, by word or conduct which might reasonably be expected to have mislead the first respondent, in thinking that she had a right to occupy the premises in Housing Site 740. In fact applicant underscores the point that after it purchased the mining claims, and upon a visit to the claims, it found first respondent in occupation of the housing structures in Site 740. Applicant requested first respondent to vacate. These averments are not contradicted. Whatever happened prior to applicant acquiring the mining claims, cannot be used against it. On the factual matrix of this case, the defense of estoppel does not arise, it is just an attempt to hold on to straws.

It is further argued that applicant has not suggested that the lease between the late Tariro Maphosa and the Ministry of Lands was illegal, it was therefore important to join the Ministry of Lands in this matter. I do not see what interests the Ministry of Lands has in this matter. This is an eviction from a registered mining claim. In any event, the very lease agreement first respondent anchors her argument on is clear, it says in clause 12 that the agreement is subject to any existing mining rights in the area and Government does not accept responsibility for claims for loses or damage or future mining rights in the area. There is no rational basis of joining the Ministry of Lands in this matter.

In oral argument, Mr Mawere submitted that there is a disconnect between the determination of the Director and the draft order filed by the applicant in this court. It is contended that the draft order refers to an immovable property, while the determination refers to a Site. The answer to this submission is simply that, the evidence shows that the immovable property is on Site 740. That is where the eviction of the first respondent is sought.

Further at the end of his oral submissions, Mr Mawere alluded to some dispute of fact. No factual basis of the dispute was alluded to, nor was the alleged dispute categorized as material. This was a submission just made in passing, with no measure of seriousness. Anywhere, it is settled law that in motion proceedings a real, genuine and bona fide dispute of fact can only exist where the court is satisfied, that the party who purports to raise the dispute has in his or her affidavit seriously and unambiguously addressed the fact said to be in dispute. If that does not happen it should come as no surprise that the court takes a robust view of the matter. On the factual allegations on which this matter turns, there is no dispute of fact, let alone a real, genuine and bona fide one. The opposing affidavit does not raise a dispute of fact. The determination of the Director and the lease agreement between the late Tariro Maphosa and the Minister of Lands and Rural Resettlement dispel whatever dispute might have been perceived.

In conclusion, applicant has proved that it is the owner of Housing Site 740, registered under number 32538; it has been deprived of its property without its consent and it wishes to recover it from the first respondent. First respondent is in occupation of Housing Site 740; and has not shown that she has a right to occupy such property; she has not shown that the applicant is not the owner of the property.

The applicant has succeeded to obtain the relief it sought from this court. There are no special reasons warranting a departure from the general rule that costs should follow the result. The applicant is therefore entitled to its costs of suit.

Disposition

In the result, I order as follows:-

The first respondent and all those claiming occupation under or through her, are hereby directed to vacate the immovable property or properties located on Registered Site number 740, registration number 32538, within fourteen days of service of this order.

In the event first respondent, and all those claiming under or through her fail to vacate the immovable property located on Registered Site number 740, registration number 32538, within fourteen days of service of this order, the Sheriff of this Court is and hereby directed to eject and remove first respondent, and all those claiming under or through from the immovable property or properties located on Registered Site number 740, registration number 32538.

First respondent to pay the costs of suit.

Webb, Low & Barry INC. Ben Baron & Partners, applicant’s legal practitioners

Morris-Davies & Co, 1st respondent’s legal practitioners