PPC Zimbabwe Ltd v Tendai Chikonodanga & Philemon Mokuele & The Provincial Mining Director Matabeleland South Province; PPC Zimbabwe Ltd v Romeo Mkandla & The Provincial Mining Director Matabeleland South Province

### Preamble
1
HB 247/23
1. PPC ZIMBABWE LTD
HC 2564/22
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1.	PPC ZIMBABWE LTD					HC 2564/22

Versus

TENDAI CHIKONODANGA

And

PHILEMON MOKUELE

And

THE PROVINCIAL MINING DIRECTOR

MATABELELAND SOUTH PROVINCE

2.	PPC ZIMBABWE LTD					HC 2565/22

Versus

ROMEO MKANDLA

And

THE   PROVINCIAL MINING DIRECTOR,

MATABELELAND SOUTH PROVINCE.

IN THE HIGH COURT OF ZIMBABWE

NDLOVU J

BULAWAYO 06 JUNE & 14 DECEMBER 2023

Application for a Declarature

Mr. G. Nyoni for the Applicants

Mr. B. Mhandire for the 2nd Respondent in HC2564/22

No Appearance for the 1st Respondent

Mr. L. T. Muradzikwa for 3rd Respondent in HC2564/22 & 2nd Respondent in HC2565/22

Mr. Ngwenya for 1st Respondent in HC/2565/23

NDLOVU J: 	At the end of hearing arguments on both matters, it was agreed that the Court prepare one composite judgment since the matters were essentially and substantially the same in terms of the cause of action and the procedural controversies afflicting them. In both matters the Applicant is the same and is represented by one counsel.

HC 2564/22,

This is an application for a Declaratur in terms of Section 14 of the High Court Act [Chapter 7:06] to have the certificates of Registration numbers 48749, 48750, and 48751 issued by the 3rd Respondent to the 1st and 2nd Respondents declared invalid and of no legal force or effect.

HC2565/22,

The applicant is seeking a declaration that the prospecting licenses and the certificates of registration issued to the 1st Respondent in respect of gold mining, claims known as Cleveland, Cleveland 11, and Cleveland 13 and registered under numbers GA2000, GA48458, and GA48490 respectively be declared null and void and of no effect.

Central to these disputes are the provisions of the Mines and Minerals Act [Chapter 21:05] and of the Environmental Management Act [Chapter 20:27].

POINTS IN LIMINE

The parties took several points in limine. I intend to zero in on those that are logically connected and have the potential to dispose of the matter first.

Notice of Opposition By 2nd Respondent in HC 2564/22 filed Out Of Time.

The Applicant argued that the 2nd Respondent filed his opposition out of time, while the 2nd Respondent argued to the contrary.

Contrary to Mr. Mhandire’s assertion the application was served on the 2nd Respondent on 23 December 2022, the fact of the matter is that it was served on 21 December 2022 according to the Sheriff’s Return of Service [Page 47 of the Consolidated Bundle of Documents]. The dies induciae was 10 days in terms of the Rules. It is common cause that the 2nd Respondent filed his opposition on 11 January 2023. Between 21 December 2022 and 11 January 2023, there were 21 natural days. There were 3 weekends in between. In addition to that, 4 days were Public Holidays namely 22, 26, and, 27 December 2022 and 2 January 2023. A subtraction of those 10 days that are discounted by the Rules leaves us with 11 Court days.

Clearly, by filing the opposition on 11 January 2023 the 2nd Respondent was out of time by a day and was automatically barred.

Rule 59[7] & [9] provide as follows;

“59 [7] The respondent shall be entitled, within the time given in the court application….. to file a notice of opposition, together with one or more opposing affidavits.

[8]….

[9] A respondent who has failed to file a notice of opposition and opposing affidavit…., shall be barred.” [my emphasis]

The 2nd Respondent remains barred.

The point in limine taken by the Applicant is therefore upheld.

Defective Opposing Affidavit by the 3rd Respondent.

The Applicant argued that the 3rd Respondent, in HC 2564/22 & the 2nd Respondent in HC 2565/22’s opposing affidavits are defective in that the affidavits have 2 dates, that is, 28 December and 29 December 2022 in both matters. It is therefore not clear when exactly they were commissioned. In addition, the affidavits do not state who commissioned them. The affidavits in any case were not issued, only the notices were, in both matters, so argued the Applicant.

Counsel for the Respondent argued that there was no prejudice visited upon the Applicant as the Applicant responded in its Answering Affidavits to the contents of the opposing affidavits they are now seeking to have expunged, and that this was a point in limine taken for fashion.

A lot has been stated and restated about the features and character of an affidavit. What is central is that an affidavit is a written statement made on oath, before a person authorized by law to administer oaths. It is material and key that the deponent to the statement take the oath, and append his signature on the document in the presence of the commissioner of oaths. Equally important is that the commissioner of oaths must administer the oath and thereafter append his signature on the document and the date in the presence of the deponent. He must sufficiently identify himself or his office on the document.

Based on the commissioner of oath’s signature the world will act on the affidavit with the assurance that all the above procedures have been complied with.

In these cases, the affidavits in question are indicated as having been sworn to at Gwanda on 28 December 2022. The Commissioner stamped the documents on 29 December 2022. He/she did not identify himself or herself by name. All there is is a Staff Officer Administration- Zimbabwe Prisons & Correctional Service- Matabeleland South Province, stamp. There is no evidence that the key and material procedures referred to above happened contemporaneously. The documents are fatally defective. They lack credibility. Therefore, there is no opposition filed by the Provincial Mining Director for Matabeleland South Province in these matters.

Mike Mandishayika v Maria Sithole HH 798/15

State v Hurle & Others 1998 (2) ZLR 42

Ndoro & Anor v Conjugal Enterprises [PVT] Ltd & Anor HH 814/22

The point in limine taken by the Applicant is therefore upheld in both matters.

HC2565/22

Non-Compliance with Rule 59[8] & [9] of the Rules.

Applicant took the point in limine both in papers and in oral arguments that the 1st Respondent [in HC 2565/22] did not comply with Rule 59(8) & (9) provisions which read as follows:

59 [8] As soon as possible, in any event not later than seven days after filing a notice of opposition and opposing affidavit in terms of subrule [7] the respondent shall serve copies of them upon the applicant and, as soon as possible thereafter, but not later than forty-eight hours, shall file with the registrar proof of such service…”

[9] A respondent who has failed to file a notice of opposition and opposing affidavit in terms of subrule [8] shall be barred. [my emphasis]

The 1st Respondent ignored the point in limine both in papers and oral argument as if it was never raised. As soon as there was no compliance with Rule 59[8] the automatic bar kicked in in terms of Rule 59[9] and remains in place.

I uphold, the point in limine taken.

With all the Respondents barred in both matters, there is no logical reason to determine the points in limine taken by them. The 1st Respondent in HC 2564/22 did not oppose the application. The applicant moved me to treat this matters as unopposed. On the authority of GMB v MUCHERO 2008 ZLR 36 (SC) I oblige as none of the Respondents sought to have the bar operating against them uplifted. The opposing affidavits by the Provincial Mining Director, Matabeleland South Province are fatally defective and are expunged.

DISPOSITION

Both matters HC 2564/22 and HC 2565/22 are unopposed and the following Default Judgment Orders are duly entered in favour of the Applicant.

ORDER HC 2564/22

The prospecting licenses and certificates  of registration issued to the 1st and 2nd Respondents in respect of gold mining claims LONGHURST A1, A2 and A3 and registered under No. 48749, 48750 and 48751 respectively be and are hereby declared null and void, and of no legal force or effect.

Consequently, the prospecting licenses and certificates of registration referred to in para-1 above be and are hereby set aside.

The 2nd Respondent shall pay the Applicant’s costs of suit.

ORDER HC 2565/22

The prospecting licenses and certificates of registration issued to the 1st Respondent by the 2nd Respondent in respect of CLEVELAND, CLEVELAND 11 and CLEVELAND 13 and registered under No. GA 2000, GA 48458 and GA 48490 respectively be and are hereby declared null and void and of no legal force or effect.

Consequently, the prospecting licenses and certificates referred to in para-1 above be and are hereby set aside.

The 1st Respondent shall pay the Applicant’s costs of suit.

NDLOVU J.

Messrs. Moyo and Nyoni, Applicants’ Legal Practitioners.

Messrs. Masawi & Partners, 2nd Respondent’s Legal Practitioners. HC 2564/22.

Civil Division of the Attorney General’s Office, 3rd Respondent’s Legal Practitioners. HC 2564/22, 2nd Respondent’s Legal Practioners, HC 2565/22.

Messrs. Dube Legal Practice, 1st Respondent’s Legal Practitioners, HC 2565/22.