Spare Sithole v New Barrier Mines (Private) Limited & 3 Ors

### Preamble
1
HB 239/22
HC 1342/22
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SPARE SITHOLE

Versus

NEW BARRIER MINES (PRIVATE) LIMITED

And

NOMUHLE MACLAREN

And

THE PROVINCIAL MINING DIRECTOR,

MATABELELAND SOUTH, N.O.

And

OFFICER COMMANDING POLICE, ZRP

INSIZA DISTRICT N.O

And

OFFICER COMMANDING POLICE, ZRP

MATABELELAND SOUTH PROVINCE, N.O

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 28 JULY AND 22 SEPTEMBER 2022

Urgent Chamber Application

S.T Farai, for the applicant

Advocate L Nkomo, for the 1st and 2nd respondents

No appearance for the 3rd respondents

Ms M.M Takaedza, for the 4th and 5th respondents

MAKONESE J: 	This is an urgent chamber application for an interdict.  The Draft Order is in the following terms:

“INTERIM RELIEF SOUGHT

Pending the confirmation or discharge of the order, applicant is granted the following interim relief:-

1.	The 3rd to 5th respondents or their agents or assignees be and are hereby interdicted from enforcing the determination by 3rd respondent dated 15th June 2020.

TERMS OF THE FINAL ORDER

That you show cause to this Honourable Court why a final order should not be made in the following terms:-

1.	The Provisional Order be and is hereby confirmed.

2.	The 3rd to 5th respondents are hereby interdicted from enforcing the determination by the 3rd respondent dated 15th June 2020 until the finalisation of a court application for a declaratory order filed under case number HC 1341/2022.

3.	The 1st and 2nd respondents shall pay costs of suit on an attorney and client scale.”

The application is opposed by the 1st and 2nd respondents.

Background Facts

The applicant and 1st respondent had a mining dispute over the pegging of applicant’s Eric 9 Mine which had allegedly encroached onto 1st respondent’s Annedale 12 Mine.  Both mines are located in the Insiza District.  With the consent of the applicant and 1st respondent the mining dispute was investigated and adjudicated upon by the Provincial Mining Director, Matabeleland South.  3rd respondent handed down a determination on 15th June 2020 with findings that applicant was required to adjust the boundaries of his claim so that they did not overlap into 1st respondent’s claims.  Dissatisfied with the determination by 3rd respondent, applicant filed a Notice of Appeal with this Honourable Court in terms of section 360 of the Mines and Minerals Act (Chapter 21:05) raising six grounds of appeal.  This court sitting as an appeal court heard the appeal under case number HCA 28/2020.  On 30th September 2021 in HB 184-2021, KABASA J, with MAKONESE J concurring upheld the points in limine raised by the respondents.  The court held that the appeal had not been properly filed in accordance with the Rules of this court.  The matter was struck off the roll with costs.  In striking off the appeal, the court made a specific finding that the appeal record gave the name of the other party to the mining dispute as New Barrier Mines (Pvt) Ltd, care of  Nomuhle Maclaren, while the Notice of Appeal was directed at Nomuhle Maclaren who was not a party to the dispute.

Applicant was not satisfied with the judgment of this court and proceeded to note an appeal to the Supreme Court on 4th October 2021.  While the applicant’s Supreme Court appeal was still pending and on the 19th January 2022 the applicant filed a court application for a declaratory order in this Court under case number HC 101/2022.  The application filed by the applicant in this court on the 22nd of July 2022 under case number HC 1341/2022.  The relief sought in this urgent chamber application is the nullification of the proceedings conducted by 3rd respondent resulting in the 2020 determination of the 15th June 2020.  In the meantime, the applicant’s Supreme Court appeal was heard under SCB 49/2021 on the 24th of March 2022.  After argument, the appeal was struck off the roll with costs.  The 1st and 2nd respondents have raised certain preliminary points, which if upheld, would be dispositive of the matter.  I shall deal with the points in limine in turn.

POINTS IN LIMINE

The matter is not urgent

The respondents contend that the matter is not urgent at all as the determination which is the subject of this interdict sought has been enforceable 10 months since the judgment of this court striking the applicant’s appeal under case number HCA 28/20 on 30th September 2021.  The need to act arose on the 30th of September 2021, when the suspension of the enforcement of the determination fell away upon the striking off of the appeal under case number HCA 28/2020.  See: Majongwe & Ors v The President of the Republic of Zimbabwe & Ors SC 1-20 at page 7 where MALABA CJ stated thus:-

“In every urgent application, there are essentially two applications involved.  The first one serves as a procedural vehicle for the substantive application to be heard on an urgent basis.  The merits of the matter are not considered at this stage.  The court is only seized with a question of fact pertaining to whether or not the matter is urgent on the facts presented.  If urgency is established, the substantive application will then be heard and determined on the merits.  The hearing of the second application depends on a finding of whether or not the matter is urgent.”

The respondents contend that this application is not urgent at all and does not deserve to be treated as such. The applicant sat back and waited for 10 months until the day of reckoning arrived and then sprang into action on 23rd July 2022 when this application was filed.  Our law is fairly settled that a matter is urgent, if at the time the need to act arises, the matter cannot wait.  See: Econet Wireless v Trustco Mobile (Pty) Ltd & Anor 2013 (2) ZLR 309 (S).

In Chibanda & Ors v City of Harare SC 83-21 at page 9 of the cyclostyled judgment, HLATSHWAYO JA (as he then was) made the following remarks:-

“When a party brings an unsavoury situation upon himself by taking a lackadaisical approach to litigation in which he is involved and showing utter disinterest for a long time, the arrival of the day of reckoning does not create a calamity in respect of which the court should drop everything in order to give audience.  Those are the consequences of being sluggard and in the present case the court is unmoved as it does not ordinarily come to the rescue of the indolent.”

In the present case, the applicant has not presented before this court any facts that would meet the threshold of urgency.  The applicant has not taken action timeously.  He only has himself to blame.  The certificate of urgency filed with the urgent chamber application falls far short of establishing the urgency contemplated in the Rules of this court.  The matter is therefore not urgent.  On this point alone, the urgent chamber application ought to be struck off the roll with costs.

MIS-CITATION OF 2ND RESPONDENT

In the extant judgment of this court in Spare Sithole t/a Eric 9 Mine v Nomuhle Maclaren HB 184-21, this court sitting on an appeal court, made a specific finding that Nomuhle Maclaren (2nd respondent) was improperly cited in her personal capacity as the respondent in the mining dispute, when the party that ought to have been cited is New Barrier Mines (Pvt) Ltd (1st respondent), a company with limited liability.  The findings of this court in the extant judgment of the court on the impropriety of citing Nomuhle Maclaren in her personal capacity as a party to the mining dispute are binding on the applicant.  The citation of Nomuhle Maclaren as a party to the present application is incompetent and a total disdain of a previous finding of this court.  Such conduct amounts to defiance of the order of this court.  In any event, there is no basis at law for the citation of Nomuhle Maclaren in her personal capacity to the present proceedings.  See: Sports & Recreation Commission v Nhera & Ors HH 72-09.

The applicant has not pleaded any circumstances which justify the citation of Nomuhle Maclaren in her personal capacity as a party to the application.  The applicant is being unnecessarily intransigent in persisting with citing Nomuhle Maclaren in her personal capacity in respect of the mining dispute between him and 1st respondent.  This point in limine does have merit.  The mis-citation is material to the extent that the citation of Nomuhle Maclaren should be struck off from the papers as a party to the application.

DISPOSITION

Having found that the matter is not urgent, there is no need to deal with the rest of the preliminary objections.  It shall not be necessary to delve into the merits.

In the result, the court makes the following order:

1.	The matter is not urgent.

2.	The matter is struck off from the roll of urgent matters.

3.	The applicant is ordered to pay the costs of suit.

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

Messrs Malinga & Mpofu, 1st and 2nd respondents’ legal practitioners

Civil Division of the Attorney-General’s Office, 4th and 5th respondents’ legal practitioners