Jane Hove v Berea Mining Syndicate & 5 Ors

### Preamble
1
HB 258/22
HC 1582/22
XREF 386/14
UCA 60/22
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JANE HOVE

versus

BEREA MINING SYNDICATE

And

CLIFTON 8 MINE

and

MO3 MINING SYNDICATE

and

OFFICER IN CHARGE MINERALS FLORA AND FAUNA UNIT – ZIMBABWE

and

THE PROVINCIAL MINING DIRECTOR (MIDLANDS) PROVINCE

and

M J MUNODAWAFA

HIGH COURT OF ZIMBABWE

NDLOVU J

BULAWAYO, 02 SEPTEMBER AND 20 OCTOBER 2022

Urgent Chamber Application

Ms N. Maguranyanga, for the Applicant

Mr W. T. Davira, for 1st and 3rs Respondents

Mr G. Nyoni, for 2nd Respondent

Mr B. Moyo, for 4th- 6th Respondent

NDLOVU J:  This is an urgent chamber application by the Applicant in which she is seeking the following relief.

“ORDER SOUGHT

1.	The applicant be and is hereby declared the legal owner of Berea 17, Berea 18 and site 232 under coordinates listed in Schedule “A”.

2.	The survey report issued by the 6th Respondent on the 31st January, 2022 be and is hereby declared null and void.

3.	The 5th Respondent be and hereby ordered to comply with the order under HC386/14 within 14 days of granting this order.

4.	The 1st Respondent to pay costs at any attorney-client scale.

INTERIM RELIEF GRANTED

That pending the determination of this matter, the Applicant is granted the following

Relief;

1.	1st, 2nd and 3rd Respondents and those acting at 1st, 2nd and 3rd Respondents’ behest be and are hereby interdicted from interfering with any mining activities at Berea 17, Berea 18 Mine and Site 232 under coordinates listed in Schedule “A” pending finalisation of this matter.

2.	1st, 2nd and 3rd Respondents and those acting at 1st, 2nd and 3rd Respondents’ behest be and are hereby interdicted from conducing mining activities at Berea 17, Berea 18 Mine and Site 232 under coordinates listed in Schedule “A” pending finalization of this matter.

3.	1st, 2nd and 3rd Respondents and those acting at 1st, 2nd and 3rd Respondents’ behest be and are hereby interdicted from removing gold ore deposits at Berea 17, Berea 18 Mine and Site 232 under coordinates listed in Schedule “A”.  If the 1st, 2nd and 3rd Respondents had removed any gold ore deposits before issuance of this order, The 1st, 2nd and 3rd Respondents be and hereby are ordered to return the gold ore deposits at deposits at Berea 17, Berea 18 Mine and Site 232 under coordinates listed in Schedule “A”

4.	Should the 1st, 2nd and 3rd Respondents and all those acting through him fail to comply with paragraph 1 above, the 4th Respondent be and is hereby empowered to arrest them for contempt of court”.

BACKGROUND FACTS

The parties have been in and out of Court since 2014 to date.  The controversy between them is centred on mining claims boundaries in the Midlands Province.  What has brought the parties back to court this time stems from a previous matter which was before my brother Judge, MAKONESE J, under case number HC 386/14.

In that matter, the Applicant in this matter was the Applicant.  She approached this court through an Urgent Chamber application as she has also done now and the parties were principally the same.  On 3 March 2014 this court granted an interim order on the following terms;

“IT IS ORDERED THAT: -

1.	The court orders and directs the 4th Respondent to engage the Regional Mining Surveyor to conduct and prepare a comprehensive report pertaining to the dispute under case No. 386/14”.

Almost 6 years later this court granted a Final order in the matter on the following terms;

“IT IS ORDERED THAT: -

The 4th Respondent be and is hereby directed to implement the findings and remove encroachments on the disputed claims in terms of the survey report dated the 14th August 2014 within 14 days of this Order”.

Between then and early this year 2022 certain developments took place in relation to the dispute between the parties and those developments have birthed the application on hand.

HEARING

At the commencement of the hearing, the Applicant withdrew her application against the 2nd Respondent and tendered costs.

The 1st, 5th, and 6th Respondents took points in limine in this matter.  The 5th Respondent associated himself with the points in limine taken by the 1st Respondent.  The 6th Respondent challenged his citation stating that there was no basis in citing him in his individual capacity.  The 6th Respondent however did not argue in detail his point in limine. However Applicant appreciated the folly in her citing him and did not argue to the contrary.  I uphold the point in limine.

The 4th Respondent indicated that he will abide by the court’s decision.

1ST & 5TH RESPODNENTS’ POINTS IN LIMINE

URGENCY

1st and 5th Respondents argued that this matter is not urgent going on to say this is self-created urgency. In that argument they told the court that the founding affidavit and the certificate of urgency are short in demonstrating urgency in this matter.  It was their argument that the document founding the Applicant’s complaint came about in January 2022 but the Applicant filed this application in August 2022. Lost to the Respondents is the allegation by the Applicant that in August 2022 1st Respondent started mining her claims using the January 2022 report as the basis for doing that.

I dismiss that point in limine.

BAD CERTIFICATE OF URGENCY

The basis of this application were that the legal practitioner who wrote the certificate of urgency comes from the same law firm as the Applicant’s legal practitioner.  In addition to that 1st and 5th Respondents stated that the legal practitioner concerned did not state the date on which the duty to act arose.

There is no law that bars a legal practitioner from the same law firm as that of the Applicant to do a certificate of urgency, although desirable that it be done by a legal practitioner form another law firm.  It might be so that the legal practitioner did not state the date the duty to act arose, however that date is discernible in the Applicant’s founding affidavit.

I dismiss this point in limine.

MATERIAL DISPUTE OF FACTS

The 1st and 5th Respondents alleged that there are material disputes of facts in this matter and they are around the following issues:

(a)	whether or not it is true that 1st Respondent is mining at the Applicant’s mine.

(b)	Applicant has referred to the 1st Respondent in the natural person when it is not.

(c)	It being a corporate person the 1st Respondent cannot fire a gun

(d)	That 5th and 6th Respondents did not compile a new survey report but were complying with the court order in HC 386/14

I dismiss this point in limine as lacking merit as these are the issues in the merits.

LEADING EVIDENCE FROM THE BAR

At the hearing of this mater the court directed that counsel argue in a rolled-up approach that is to say they address the court both on the points in limine and the merits at once so that time is saved.  In his address counsel for the Applicant made reference to some aspects of this matter that his client did not raise in her founding affidavit but were raised and highlighted by the 1st and 2nd Respondent in their respective apposition.  That then birthed this point in limine when the 1st Respondent got to address the court in turn.

I dismiss this point in limine as well for want of merit.

May this court hasten to point out the following.  It appears what was stated by MAFUSIRE J. in Main Road Motors -v- Commissioner General, ZIMRA; Sylvia Choruma -v- Commissioner-General, ZIMRA HMA 17/17, has escaped some legal practitioners’ attention.  In that combined judgment involving two matters the court stated thus:

“I dismissed the respondent’s first point in limine. I was not about to entertain and be bogged down by a sterile dispute about forms ….. or to let form override substance….. It is a fundamental principle of justice delivery that whenever possible the real dispute between the parties should be solved without being over fastidious about forms and formalities” (my underlining).

This was after MATHONSI J (as he was then was) had said the following in Telecel Zimbabwe (Pvt) Ltd -v- POTRAZ & Ors HH446/15.

“A preliminary point should only be taken where, firstly, it has merit and secondly, it is likely to dispose of the matter (my emphasis)

These are the considerations that a legal practitioner must consider in deciding whether or not to take a point in limine.  If the choice is properly made, the wheels of justice will turn faster for his or her client as the matter will, in all probability, be disposed of expeditiously.  A point in limine must be capable of disposing of the matter and not be one that from the onset its capacity is cast on stone that it will only delay the finalization of the matter and no more.

MERITS

The only issue to be determine in this matter is whether or not the Government functionaries produced a new report in violation of the Order of this court, or they produced a report in compliance with that very Order.

In the resolution of that central issue, a reading and understanding of both the interim and final Orders in HC386/14 by MAKONESE J is critical.  It is clear that the Interim Order dated 03 March 2014 directed the Mining Commissioner of Masvingo Mining District (as that officer existed then) to engage the Regional Mining Surveyor to conduct and prepare a comprehensive report in relation to the boundary dispute involving the parties in that and this case.  That order was complied with to the satisfaction of the court.

Of cardinal importance is that, in that 14 August 2014 report, the Principal Mine Surveyor stated as follows, among other things: -

“Adjustments at the claims are supposed to be as would be recommended by your office, but with relevance to priority rights.

However, there was quite a lot of irregularities in the allocation of the claims.” (my emphasis)

This report was directed to the Chief Government Mining Engineer (CGME).

A simple interpretation of this report is that after a site visit by the Principal Mine Surveyor he found a lot of irregularities in the allocation of the claims.  Those irregularities called for an adjustment that were yet to be done, but those adjustments are supposed to be as would be recommended by the CGME.  The CGME in making those recommendations pertaining to the adjustments must pay regard to priority rights and they must take precedence.

This court was satisfied with the report and gave a Final Order on 24 February 2020 in which the court once again directed the Mining Commissioner of Masvingo Mining District to implement the findings and remove encroachments on the disputed claims in terms of the survey report dated the 14th August 2014.

The critical question then is, What does that Final Order mean?  That Order means the following: -

The terms of the survey report dated 14 August 2014 must be carried out and the results thereof should be implemented by the Mining Commissioner of Masvingo Mining District and if there are any encroachments identified during the carrying out of the terms of the 14 August 2014 survey report those encroachments must be removed by the Mining Commissioner (Masvingo Mining District). Sight should not be lost of the fact that the terms of the 14 August 2014 survey report are that adjustments were to be done to the claims but in doing so, the CGME’s recommendations must be considered and the adjustments must be done while respecting priority rights in the disputed claims.

In compliance with the Final Order granted by this court in HC 386/14, the CGME produced a report on 04 June 2021, it is this report, that has been christened “The new survey report dated 31 January 2022” by the Applicant. 31 January 2022 is the day that the Provincial Mining Engineer communicated the report to the interested parties.

The findings and recommendations by the CGME in that report, in which he produced a map on its relevant aspects reads as follows: -

That the continuous line on the map shows the original registered claims by each miner and that should stand.  The dotted line show claimed boundaries of the claims and those cannot be used as the registered areas.  The original boundaries are clear and do not cause over pegging.  As regards Berea 17, Berea 18 and Site 232 in particular, the CGME had the following to say:-

Berea 17 whose registered area is 4 hectares had a purported area of 17 hectares and this constituted irregular pegging.  Berea 18’s registered area is 5 hectares but its purported area is 7 hectares.  This claim had been moved to a new site and was now larger than originally pegged. Site 232’s registered area is 1 hectare and its purported area is 2 hectares and the CGME says the purported site area over pegged on purported block site for Berea 18.  The CGME then poignantly concluded as follows: -

“The miners should resort to the original and registered positions to avoid unnecessary disputes of over-pegging as shown on the map”.

CONCLUSION

With the above history of the matter it is clear for anyone to see and know that the report issued by the Chief Government Mining Engineer in this case on 04 June 2021 and communicated to the concerned parties on 31 January 2022 was in fact in compliance with the Final Order of this court issued under case number HC 386/14 on 24 February 2020 by Justice MAKONESE resolving the dispute between the parties.  The Applicant has not established a prima facie right entitling her to the relief she is seeking. The application by the Applicant is therefore ill advised, without merit, is  frivolous and vexatious and stands to fail and it fails as it should not have been made in the first place  and is a waste of the court’s time.   It is therefore ordered as follows:-

IT IS HEREBY ORDERED THAT

1. 	The application against the 2nd Respondent be and is hereby withdrawn by the Applicant with a tender for costs.

2. 	The application against the 1st, 3rd to 6th Respondents be and is hereby dismissed with costs.

Mutendi, Mudisi & Shumba Legal Practitioners, Applicants Legal Practitioners

Gundu, Dube & Pamacheche Legal Practitioners, 1st and 3rd Respondents Legal

Practitioners.

Office of the Attorney General, 4th – 6th Respondents Legal Practitioners.