Joseph Mpofu Kayiya v Richard Madzviti a.k.a. Matare & 4 Ors

### Preamble
1
HB 76/22
HC 1654/19
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JOSEPH MPOFU KAYIYA

Versus

RICHARD MADZVITI a.k.a. MATARE

And

FARAI MADZVITI a.k.a. MATARE

And

THE PROVINCIAL MINING DIRECTOR, MIDLANDS PROVINCE

And

THE SECRETARY FOR MINISTRY OF MINES

AND MINING DEVELOPMENT

And

THE OFFICER COMMANDING ZRP MINERALS,

FLORA AND FAUNA UNIT, MIDLANDS PROVINCE

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 17 JUNE 2020

Opposed Application

S.T Farai, for the applicant

S. Zingano, for the 1st and 2nd respondents

3rd – 5th respondents in default

MABHIKWA J:	On 17 July 2020, the applicant sought confirmation of a Provisional Order granted by this Honourable Court on 24 July 2019.  Only the 1st and 3rd respondents opposed the confirmation of the said Provisional Order.  This court confirmed the Provisional order into a final order and below are the court’s reasons for the confirmation.

In his application, the applicant had contended that sometime in 2009, he purchased some mining claims from the now late Cosmas Matare.  The mining claims are located on Loith Hill Farm in Zhombe.  They are known as Maligreen 34 Mine.  He proceeded to register the said mining claims in his names under registration number 24326.  This was during the life of the now late Cosmas Matare.  On 7 January 2010, he secured a Certiifcate of Registration after Transfer as shown by Annexture “A” to the application.  At the time of filing the application in July 2019, he had an inspection certificate valid until 2021 as shown by Annexture “B2”.  He worked peacefully on the mines.

Applicant further contends that in late 2012, 1st and 2nd respondents brought a large group of people and invaded the mining claim.  The two allegedly claimed that they had not benefited from the sale proceeds of the mine by their late father, Cosmas Matare.  As a result, they said they did not recognise the sale and that they were entitled to inherit the mining claim from their late father.

In his application, applicant had attached an affidavit by one Nevison Matare who confirmed that he was a son to the late Matare and a half-brother to the 1st and 2nd respondents.  He confirmed also, the sale between his late father and the applicant and that he (Nevison) was now only an employee of the applicant.  However, the 1st and 2nd respondents argued that Nevison was supporting the applicant because he had benefitted from the sale proceeds.

When the claim was invaded, applicant says he quickly engaged the 3rd respondent (the Provincial Mining Director for the Midlands Province).  The 3rd respondent called all the parties including the 1st and 2nd respondents.  They failed to justify their invasion of the mine.  Applicant then went to the police (5th respondent).  With the help of the 5th respondent, the 1st and 2nd respondents were evicted from the mining claim.  Applicant then enjoyed peaceful, undisturbed occupation and operation of mining business for more than seven (7) years thereafter.  Later in 2019, the 1st and 2nd respondents invaded the mine again with the full knowledge that applicant is the registered owner of the mine.  They started mining illegally.  They were allegedly always armed with machetes and baying for blood.  Applicant says he initially tried to persuade the respondents to see reason but they kept threatening.  He then approached again the 3rd and 5th respondents but they told him that this time, because of the 1st and 2nd respondents’ intransigence and menacing nature of their gang, they would need a court order or similar authority in order to assist him.  He says within eight (8) days of the invasion, he had approached the courts and that he thus treated the matter with the urgency it deserves.  Applicant says that as a result of the violence exhibited by the 1st and 2nd respondents and their group, his employees feared for their lives and abandoned their dwelling houses at the mine.  Applicant’s counsel also allegedly attempted to negotiate with the two respondents but his efforts were in vain.  The two respondents remained determined to occupy the mining claim even without any permit, document or authority empowering them to do so.  All they argued was that it was their late father’s mining claim.

As already shown above, the applicant was granted the Provisional Order on 24 July 2019 after satisfying the requirements of an urgent chamber application for an interdict, hence these confirmation proceedings.  The court was satisfied that being the registered owner of the mining claim, he had a legal and prima facie right to bring the application.  There was a real risk of irreparable harm with the syphoning of gold ore from his claim which would be difficult to calculate and compensate by way of costs or a claim.  With the assistance of the 3rd and 5th respondents on the 1st invasion and their response to his request on the 2nd invasion, he really had no other remedy or authority to turn to other than the court.  The matter had indeed been urgent.

In opposing the confirmation of the Provisional Order, the 1st and 2nd respondents raised initially a point in-limine.  They stated that their National Registration Certificates, which they attached as Annextures to the notice of opposition, show that they are registered as Richard Matare and Farai Matare respectively.  They therefore contended that the names Richard Madzviti and Farai Madzviti cited by the applicant, did not exist.  They contended further that the law requires that persons be cited by their registered names.  Surfices to note that the 1st and 2nd respondents, perhaps for a reason, did not deny that practically and in truth, they were the persons refered to in the application.  They were merely saying that on the legal technicality of the citation, the order should not be confirmed.

It turned out that the 1st and 2nd respondents and all other children of the late Cosmas Matare’s proper surname is “Madzviti.”  This is clear from the affidavit of their biological paternal grandmother Auxilia Madzviti, also supported by their eldest brother Nevison and their paternal cousin Taurai Madzviti.  According to the 87 year old Auxilia Madzviti, her late husband was Matare Madzviti with “Matare” being the 1st name and “Madzviti” the surname.  Madziti is the whole family’s surname and they are all known as such.  She states that it appears however that in obtaining his National Registration Certificate (Nationa I.D), her son the late Cosmas inadvertently had his father’s first name recorded as the surname.  He was thus recorded as “Cosmas Matare” but otherwise known by the community as “Cosmas Madzviti”.  It appears that this was the trend with his children when they took Cosmas’s National Identity card to obtain their own.  The official surname on the I.D would be “Matare” but practically the family and the community would call them using the surname “Madzviti”.  This was not denied by the 1st and 2nd respondents.

In fact the grandmother went on to state that during his lifetime, Cosmas never wanted anything to do with Farai and Richard, whom he treated as “rogue” sons.  They allegedly spent their entire lives with their mother and maternal uncles.  She stated that Farai, recently collected their father’s death certificate indicating that he wanted to use it to obtain their own I.D s.  This was already during the quarrels over the mining claim between them and the applicant.  Auxilia confirms that her son Cosmas indeed sold the mining claims to the applicant whom she also calls “Mhofu”.  In their notice of opposition, the 1st and 2nd respondents have not filed their birth certificates but their National I.D. cards to show that they are registered as “Farai Matare and “Richard Matare” respectively.  However, a closer look at the dates of issue shows that 1st respondent’s National I.D. card was issued on 11/10/2013 whilst that of the 2nd respondent (Farai) was issued on 11/01/2016.  Clearly, both were obtained long after their father’s death and at a time that is between the first and the second invasion of the mining claims.

In any event, the applicant had stated clearly in his paragraphs 1 and 2 of his founding affidavit in describing the “parties” that the 1st and 2nd respondents are known to him as “Richard Madzviti” and ‘Farai Madzviti” respectively, and that their further and better particulars are not known to him.  Applicant correctly argues in my view, that if Richard and Farai Madzviti are non-existent people as they claim, the 1st and 2nd respondents would not have received the application and gone on to respond to it on the merits showing a clear and intimate knowledge of the goings on at the mine and the dispute at hand.

It became clear therefore, that the issue of the names was trivial, a minor transgression that could be condoned and corrected in terms of Rule 4C of the High Court Rules, 1971 and that the two respondents were known as “Matare a.k.a. Madzviti”.

On the merits, the 1st and 2nd respondents basically contended that the mine (Maligreen 34 Mine) belonged to their late father Cosmas Matare and it is therefore part of his deceased’s estate.  They contended that the applicant obtained transfer of the mining claim from Cosmas either fraudulently or by some other unlawful means.  The two respondents refer to the applicant’s claim that he bought the mine as a “red flag”.  He says this is so because their father was “terminally ill” and “passed away on 5 January 2009, having been admitted at Zhombe Mission Hospital in November 2008.  The applicant has not however, claimed that he bought the mine within those two (2) months even if it is true that Cosmas was admitted at hospital between November 2008 and 5 January 2009.  In any case it appears from the same affidavit of the 1st respondent that Cosmas must have been admitted briefly at Zhombe Hospital, and then at Kwekwe General Hospital where he was released to his rural home in Gutu.

Curiously, 1st and 2nd respondents attached Annexture “C”.  They claim that it is a copy of the death certificate proving that their father died on 5 January 2009.  However, Annexture “C” is a death certificate for a person known as “Nzvenge Matare” not for “Cosmas Matare”.  There has been no explanation why it was filed to prove Cosmas’s death.  In fact it appears from the papers that “Nzvenge is the maiden surname for “Beauty Nzvenge” who is the mother of the two respondents.  She and her uncles are of the Nzvenge family.  It is not the 1st name for the late father of the 2 respondents.  Be that as it may, nothing has been filed to prove the fraud or any other unlawful acquisition of the mine by the applicant.  They claim that their legal practitioner visited 3rd respondent (Provincial Mining Director) to find out how the applicant managed to transfer the mining claim to his name when their late father’s estate had not been registered and got no proper explanation other than that the Mining Director, as a matter of procedure does not allow third parties to peruse files under his custody.

ANALYSIS

I must say at this stage that apart from brief allegings of fraud that were unsubstantiated, the gist of the 1st and 2nd respondents’ argument was centred on the claim that the mining claim(s) in question belonged to their late father and they are the rightful owners to his estate. The bulk of their affidavits, supporting affidavits and annextures are all meant to prove that they are the only two (2) sons and beneficiaries of the estate of the late Cosmas Matare.  They even attached affidavits from their late mother Beauty Nzvenge and one from her brother Charles claiming that they were the two sons of the late Cosmas and that their family had agreed that the mining licence be given to Farai Matare.  All this is irrelevant in this matter.  The bulk of the argument in Heads and to some extent in court is centred on trying to prove who is and who is not Cosmas’s child.  Even the applicant at some stage was tempted to enter the argument, filing affidavits from Cosmas’s mother and a brother to prove that the two respondents were rogues who were never wanted by the late Cosmas and they also never liked him and did absolutely nothing for him even in death.  All that was irrelevant in this matter.

The law, as both counsel for the parties eventually agreed in court, is clear on mines and mineral claims, just as it is clear on communal and other state lands.  They remain state property.  One cannot just inherit a mining claim at the death of their father.  Mineral claims cannot be treated like goats, cattle, cars or houses in terms of the Deceased Estates Act.  The 3rd respondent being the Provincial Mining Director appears to have explained this well to the respondents and their counsel but they did not seem to have appreciated that simple explanation.  Even in court, it took them quite some time to appreciate the point.

The rights to minerals and their acquisition in Zimbabwe are spelt out in sections 2 and 3 of the Mines and Minerals Act, (Chapter 21:05).  Section 2 of the Act reads as follows that;

“2. Rights to minerals vested in President

The dominium in, and the right of searching and mining for and disposing of all minerals, mineral oils and natural gases, notwithstanding the dominium or right which any person may possess in and to the soil on or under which such minerals, mineral oils and natural gases are found or situated, is vested in the President subject to this Act.” (underlining is mine).

Section 3 goes on to read as follows

“3. Acquisition of mining rights

Except where otherwise provided under any title deed to land granted prior to 1st November 1961, rights can be acquired in the manner hereinafter in this Act set out and in such manner only to all minerals, mineral oils and natural gases.”

In Minister of Mines and Mining Dvelopment & Ors v African Consolidated Resources PLC & Ors HH 205-10 - 2010 (1) ZLR 307 (H), the matter was for rescission of judgement and the court rescinded it largely on the basis that the applicants were guilty of fraudulent non-disclosure of material facts and that the court had been misled when the order was granted.  However, the court mentioned the important point that the dominium in, and the rights of searching and mining for minerals vests in the President who holds these rights for and on behalf of the state and public.

In casu, unlike in Minister of Mines and Mining Development & Ors v African Consolidated Resources PLC & Ors (supra), the applicant is supported by section 58 of the Mines and Minerals Act.  It reads;

“58. Impeachment of title, when barred

When a mining location or a secondary reef in a mining location has been registered for a period of two (2) years, it shall not be competent for any person to dispute the title in respect of such location or reef on the ground that the pegging of such location or reef was invalid or illegal or that the provisions of Act were not complied with prior to the issue of the certificate of registration.” (the underlining is mine)

The applicant had the claim registered in his name on 7 January 2010 as shown by the Certificate of Registration.  By the time the respondents sought to have the registration invalidated in 2019 on account of alleged fraud and claim of “inheritance,” it was more than nine (9) after registration.

In any case, I agree with the applicant that the 1st and 2nd respondents are missing the point. The background circumstances that the applicant and their late Cosmas had been close friends, that the applicant assisted financially during his illness and his funeral and that he says he bought the mining claim is not the core of this matter.  Further, their belief, even if were to be true, that their half brother Nevison, is at the mining claim supposedly to benefit as the late Cosmas’s son, is also not relevant in this matter.  All of them would still be mistaken.  In fact, the applicant did not need to “buy” the mining claim as he did, unless if he paid only for any structures and developments made by the late Cosmas at the mining location.  See also sections 266 and 264 of the Act.

Further and in any event, the 1st and 2nd respondents did not seem to be aware of section 5 of the Mines and Minerals Act that a “holder” in relation to a registered mining location, and in the case of a deceased person or a company in liquidation, or any person under a legal disability means the executor, administrator, liquidator, trustee, tutor, curator or other person in whose name such location is registered.  The 1st and 2nd respondents themselves in their affidavits state that Cosmas Matare died in 2009.  They claim that the mining claim is his deceased property.  They further claim that his estate is still unregistered with the Master of the High Court up to today.  However, they do not state in what capacity they seek to occupy the mining claim and in what capacity they oppose the confirmation of the order granted in July 2019.

Nine years after the Registration Certificate was issued to applicant, the 1st and 2nd respondents seek to have the Certificate of Registration invalidated and only after being evicted by the police in 2012, and then after an order for an interdict had been granted against them in July 2019.

I am inclined to hold that the 1st and 2nd respondents failed to prove that the registration of the mining claim in the applicant’s name in January 2010, was void ab initio as they claim.  Secondly they failed to convince this court that the requirements of an interdict were not met.

The 3rd to the 5th respondents, did not file any papers.  They were deemed to have consented to the application and confirmation or simply that they would abide by the order of the court.

It is for the foregoing reasons that I confirmed the Provisional Order with costs of suit on an attorney and client’s scale.

Farai and Associates Law Chambers c/o Tanaka Law Chambers, applicant’s legal practitioners

Messrs Wilmot & Bennet c/o Danziger & Partners Inc. Ben Baron and Partners, 1st and 2nd respondents’ legal practitioners