Sukoluhle Moyo (Representing Silobela Community Development Trust in her official capacity as Trustee thereof) v The Midlands Mining Commissioner and The Provincial Mining Director N.O. and The Provincial Mining Director (Midlands Province) and Apollo Mhlophe

### Preamble
1
HB 236/22
HC 1346/22
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SUKOLUHLE MOYO

(Representing Silobela Community Development

Trust in her official capacity as Trustee thereof)

Versus

THE MIDLANDS MINING COMMISSIONER

And

THE PROVINCIAL MINING DIRECTOR N.O.

And

THE PROVINCIAL MINING DIRECTOR

(MIDLANDS PROVINCE)

And

APOLLO MHLOPHE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 29 JULY & 22 SEPTEMBER 2022

Urgent Chamber Application

B. Masamvu for the applicant

S. Nkomo for the 4th respondent

MAKONESE J:	This matter was filed under a certificate of urgency with this court on the 25th July 2022.  The parties appeared before me on the 3rd of August 2022 to argue the matter.  The applicant seeks an order in the following terms:

“Interim relief sought

It is hereby ordered that the applicant be allowed occupation, use and access to a mine registered under certificate of registration number 30223 registered on 5 October 2015, in the name of Silobela Community Development Trust in respect of a mine named Turtle 54.

The 4th respondent with all those who act through him on his behalf, be and are hereby ordered to stop all mining operations on a mine named Turtle 54  the situation of which is indicated to be on Silobela Communal Lands and to return the said mining claim to Silobela Community Development Trust.

This order shall be a warrant requiring any member of the Zimbabwe Republic Police to assist the applicant and or the Sheriff or his lawful deputy in enforcing it and to arrest anyone who acts in a manner which interferes with Silobela Development Trust occupation, use or access of a mine name Turtle 54 through certificate of registration number 30223 the situation of which it indicated to be an Silobela Communal Lands.

The 4th respondent to pay costs on an attorney and client scale.

Terms of final order sought

The provisional order be and is hereby declared to be final.

It is ordered that the status quo ante be ad is hereby mentioned until finalization of applicant’s application which case number HC 1344/22

Costs of this application be paid by any party who opposes this application”.

This application is opposed by the 4th respondent who raised certain preliminary points.  I shall deal with these in turn.

The matter is not urgent

4th respondent submitted that the certificate of urgency filed together with the urgent chamber application is fatally defective and therefore invalid and inadmissible in support of the urgency of the matter.  Respondent contends that it is apparent on the face of the certificate of urgency that the legal practitioner who prepared the certificate of urgency did not apply her mind to the issue of the urgency.  4th respondent argued that the certificate of urgency does not disclose when the need to act arose and why it is believed the matter is so urgent as to be worthy of the court’s time and to be accorded preferential treatment.

The 4th respondent placed reliance on the case of Kuvarega v Registrar-General and Anor 1998 (1) ZLR 188 (H).

4th respondent contends that the application does not meet the threshold of urgency as laid out in the Kuvarega case, and many other authorities such as Document Support Service (Pvt) Ltd v Mapuvire 2008 ZLR (2) 232.

Applicant argues that the matter is extremely urgent and cannot be heard on the ordinary roll of court applications.  Applicant contends that she has a prima facie right in respect of the mining claims and that her continued deprivation of access to the mining claims means that she is suffering irreparable harm.  Applicant avers that on the 5th of October 2015 the Silobela Community Development Trust registered the mining claim known as Turtle 54 more commonly referred to a Peace Mine, under certificate of registration number 30223.  The 4th respondent is in occupation of the mine and continues to extract gold ore to the detriment of the applicants’ Trust.  Applicant avers that the matter cannot wait to join the ordinary roll of court applications as 4th respondent continues to benefit from the extraction and processing of gold ore from the claims to the exclusion of the Trust.  Mr Masamvu, appearing for the applicant submitted that the matter is urgent and that a matter has been filed under case number HC 1344/22.  Pending the resolution of that matter, applicant submits that there must be an order in terms of the draft.  Generally a determination on whether or not a matter is urgent is at the discretion of the court. This discretion has to be exercised judiciously.  In the case of Chiwenga v Mubaiwa SC-86-20 the court expressed the view that it is trite that a finding that a matter is urgent is a factual finding involving the exercise of discretion.  I am satisfied that given the background of the matter and the fact that gold is a finite resource that is depleted with each passing day, the matter urgent.

The interim order is final in nature

Mr S.Nkomo, appearing for the 4th respondent submits that the order sought is final in nature not only in the form but in substance.  It is contented that the interim relief speaks of the applicant being allowed occupation, use and access to a mine registered under certificate of registration number 30223 registered on 5th October 2015. 4th respondent avers that there is nothing interim about the order sought and that granting it would mean that applicant would have no need to come back to court for confirmation of the order.

The applicant contends that the order sought is competent as what is being sought is the restoration of the status quo ante.  Applicant highlights that the certificate of registration referred to by the 4th respondent is in favour of the Silobela Development Trust.  The 4th respondent has deprived the applicant and other members of the Trust access to the said mining claims.

The order sought is in the form of an interim interdict.  The 4th respondent is entitled to return to court on the return day and seek a discharge of the order ought.  The order as framed is not final in nature. The order sought is not, in my view incompetent.   This point in limine has no merit.

Material non-disclosure

The 4th respondent contends that applicant has not been candid with the court in failing to disclose material facts.  In particular, respondent avers that the applicant failed to take the court into its confidence in that several urgent applications have been filed on the same matter in this court.  These matters are HC 481/51; HC 830/16; HC 220/16 and HC 2644/14.  It is argued that all these matters dealt with the same subject matter.  I am alive to the fact all the matters referred to are cross-referenced in this application.  The applicant does disclose this case as appears on the face of the urgent chamber application.  The court does have access to the records referred to and can easily cross-check the orders given by this court in earlier cases.  The applicant submitted that she approaches this court as a Trustee of the Trust and representing the Silobela Community Development Trust.  It is settled law that litigants who bring matters to court on a certificate of urgency have a duty to disclose all the material facts.  A deliberate non-disclosure of facts that are material to the determination of the matter is frowned upon by this court.  See Contra (Pvt) Ltd v Moyas & Anor HH-57-12 and National Social Security Authority v Capital Bank Corporation Limited HH-6-19.

A perusal of case law reveals that material non-disclosure relates to the withholding of vital information.  In this matter, as I have already indicated all the records referred to where cited and referred to by the applicant are listed on the face of the application. I find that this point in limine has no merit.

ON THE MERITS

Background facts

On 5th October 2015, 1st respondent issued in favour of Silobela Community Development Trust, certificate of registration number 30223 (the certificate), over a block consisting of eight (8) gold reef claims named Turtle 54 located in the Silobela Communal Lands under cover of case number HC 1926/18, 4th respondent issued process which led to an order which inter alia, provided that a certificate of registration issued in favour of  Sukoluhle Moyo by 2nd respondent in respect of Turtle 54 Peace Mine, be declared null and void.  Paragraph 4 of the same order directed that 2nd respondents transfers mining title in respect of Turtle 16 mine, Silobela to the 4th respondent.  On or about 26th February 2019, 1st respondent transferred the rights held by the Trust to the 4th respondent.  On 25th July 2022, the Trust under case number HC 1344/22 issued summons against 1st to 4th respondents seeking a declaration that the cancellation of the Trust’s mining certificate of registration and the subsequent transfer of mining rights to 4th respondent was unlawful owing to the fact that this was not done in accordance with any law of general application.  On that same date, the applicant approached this court on an urgent basis seeking to prevent the 4th respondent from continuing to exploit the depreciating resource pending the determination of the rights of the parties under HC 1344/22.

On the 3rd of August 2022, 4th respondent filed heads of argument raising several preliminary and addressing the merits.  The applicant filed detailed heads of argument on the merits on the 9th of September 2022.

Issues for determination

The first issue for determination in this matter is whether the applicant satisfies the requirements for a temporary interdict which are:

a right, which through prima facie is open to some doubt

a well-grounded application of irreparable injury

the absence of any other remedy

the balance of convenience favours the applicant

See ZESA Staff Pension Fund v Mashambadzi SC-57-02 and Pinkstone Mining (Pvt) Ltd v Matangi & Ors HH-118-18.

Prima facie right

Applicant contends that according in terms of section 343 (b) of the Mines and Minerals Act (Chapter 21:05), (the Act) every mining district in Zimbabwe shall have a Mining Commissioner (now known as the Provincial Mining Director) who shall perform the functions imposed upon him by the Act or any other enactment.  In that regard, in terms of section 45 of the Act, a Mining Commissioner is endowed with the authority to grant certificates of registration over the mining blocks.  In accordance with these provisions, on 5th October 2015 1st respondent issued to applicant a certificate of registration over eight blocks of gold reef claims named Turtle 54.  Applicant acquired ownership over the mine together with all rights attendant to such ownership. That such certificates of registration as well as inspection certificates to a mine are indicative of rights in mining claims is a position accepted by this court in Pinkstone case (supra).  On 26th February 2019, 1st respondent transferred the Trust’s rights in the mine to the 4th respondent.  Consequently, 1st respondent issued to 4th respondent certificate of registration number 23440.  Applicant avers that there was no legal basis for the transfer of the Trust mining claims to the 4th respondent.  Applicant submits that under case number HC 1344/22 applicant’s prima facie right to the mining claims is established, though open to some doubt.

Well-grounded apprehension of irreparable harm

It is common cause, that minerals are a depreciating resource.  For as long as 4th respondent contends to extract gold from the mining claims there is likelihood that the mineral resource will be exhausted.  The applicant stands to suffer irreparable harm.  Additionally, applicant avers that 4th respondent may act maliciously to ensure that if applicant resumes mining operations at the mine, the mine will be in such a state that there will be no resource left for the benefit the Trust.  In Balwearie Holdings (Pvt) Ltd v Jofris &  Ors  HH-403-20, the court held that there is no point in a litigant waiting and watching respondents persist with an illegality or self-help, and then approach the court when the damage has been done.  This is the same scenario that is playing out in this matter.  The applicants have established that there is a well-grounded apprehension of irreparable harm.

Balance of convenience

4th respondent contends that the balance of convenience clearly favours him in that he is the holder of a registration certificate in respect of Turtle 54 mine.  In determining the balance of convenience the court is required to weigh the prejudice the applicant will suffer if the interim relief is not granted against the prejudice to respondent if it is not granted.  4th respondent contends that the convenience to him is that if the order is granted he will be evicted from the mine and mining operations will be disrupted.  In the instant case the 4th respondent continues to extract gold ore without regard to the rights regards of the Silobela Community Development Trust that was established for the benefit of the community.  The balance of convenience favours the grating of the relief sought.

Absence of another remedy

On the facts as shown in the papers there are no other satisfactory remedy available to the applicant.  I make the observation that 4th respondent who filed detailed heads of argument did not address this aspect of the application.  I can only conclude that 4th respondent is aware that there are no other remedies available to the applicant.

Disposition

I am satisfied that the applicant has established the requirements of a temporary interdict.  As far as costs are concerned there is no reason to deprive the applicant from recovering costs on the ordinary scale.

In the result, and accordingly the application is granted with costs in terms of the draft order.

Masamvu & Da Silva-Gustavo Law Chambers, applicant’s legal practitioners

Mathonsi Ncube Law Chambers, 4th respondent’s legal practitioners