Hungwe Mining Syndicate & 17 Others v The Ministry of Mines and Mining Development & 4 Others

### Preamble
1
HH 565-25
HCH 3070/25
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HUNGWE MINING SYNDICATE

and

WORKERS CONSORTIUM MINING SYNDICATE

and

MARTINMANG MINING SYNDICATE

and

MASHONALAND MINING SYNDICATE

and

VISION 2030 MINING SYNDICATE

and

KAT MINING SYNDICATE

and

BATMAN MINING SYNDICATE

and

SANDSPRING MINING SYNDICATE

and

NUCLEOUS MINING SYNDICATE

and

RUFARO MINING SYNDICATE

and

COMMONWEALTH MINING SYNDICATE

and

MMS MINING SYNDICATE

and

STONEMABLE MINING SYNDICATE

and

JCB MINING SYNDICATE

and

MADSAY INVESTMENT PRIVATE LIMITED

and

LICANTA MINING PRIVATE LIMITED

and

SOS WEST MINING SYNDI

and

GUDGAL MINING SYNDICATE

and

GABRIELLA MINING  SYNDICATE

versus

THE MINISTRY OF MINES AND MINING

DEVELOPMENT

and

THE CHIEF GOVERNMENT MINING ENGINEER

and

ASSISTANT COMMISSINER ENOCK MASIMBA

and

ASSISTANT COMMISSIONER BAZIBI DUBE

and

MAZOWE MINING COMPANY

HIGH COURT OF ZIMBABWE

MANYANGADZE J

HARARE, 7 July & 24 September 2025

Urgent chamber application

RG Gumbo, for the applicants

C Masoka, for the 1st to 4th respondents

L Uriri, for the 5th respondent

MANYANGADZE J:

INTRODUCTION

The applicants seek an interdict against the respondents. They want a provisional order in the following terms:

“A. Terms of final order sought

That you show cause if any, why a final order should not be made in the following terms.

i) That the respondents and all people acting under their authority be and are hereby interdicted from carrying out illegal evictions of the applicants and their workers at their respective mining locations within Lease 35 Jumbo, Mazowe.

ii) That the respondents or any people under their authority be and are hereby interdicted from destroying applicants' mining equipment and allied equipment and their property and possessions and from closing the mining pits operated on by the applicants.

The 1st and 2nd respondents to pay the costs of this application on the legal practitioner/ client scale.

B. Interim Relief Granted

Pending the final determination of this matter the following interim relief is granted.

i) The 1st to 4th respondents are hereby interdicted from carrying out their illegal threatened eviction of the applicants and their employees from their respective mining areas in Lease 35 Jumbo, Mazowe without a court order.

ii) 1st to 4th respondents are further interdicted in the interim from carrying out their threats to destroy applicants' mining equipment and close their pits without a court order.”

FACTUAL BACKGROUND

The applicants are a group of mining syndicates operating in the Mazowe area, which is under Mazowe Mining Company’s Mining Lease No. 35.

The second respondent issued an order for the suspension of mining operations in the mining area in question. This was done for safety reasons, as there were numerous reports of accidents arising from the applicants’ mining activities. The second respondent, as the regulatory authority, acted in terms of the Mines and Minerals Act and regulations made thereunder.

The applicants aver that they are in occupation of their respective mining locations lawfully and are entitled to carry out mining operations. They contend that since they were granted spoliatory relief by this court in February 2024, they should not be prohibited from carrying out their mining activities in that area.

POINTS IN LIMINE

The fifth respondent has raised six points in limine. These are that:

The applicants have cited a non-existent party

The applicants have used the wrong form

The applicants have approached the court with dirty hands

The deponents to the applicants’ founding affidavits have no authority

The applicants cannot interdict a lawful process

The matter is not urgent

Non-existent party

Under this point, the fifth respondent avers that the applicants have committed a fatal irregularity by citing the Ministry of Mines and Mining Development (“the Ministry”) instead of the Minister. They contend that it is the Minister who is clothed with the legal capacity to sue or defend suits on behalf of Government. This is provided for in the State Liabilities Act [Chapter 8:14], section 3 thereof.

Failure to cite the correct respondent renders the application void ab initio, as the Ministry is not a legal persona.

In countering this averment, the applicants contend that the State Liabilities Act does not make it peremptory to cite the Minister. It is discretionary. This is so because the statute uses the word “may” instead of “shall”. The application cannot therefore be rendered fatally defective by reason of this irregularity alone.

Further to that, the applicants aver that the non-citation of the Minister does not vitiate the application, as there are other respondents who are not affected by this irregularity.

THE LAW

The legal position is that a plaintiff or an applicant cannot sue a non-existent entity. In this regard, the court has been referred to the case of Fadzai John v Delta Beverages SC 40/17. guvava JA stated, at p 4-5:

“The respondent highlighted that it has been cited as “Delta Beverages Limited” as opposed to Delta Beverages (Private) Limited.  Applicant concedes this point in his answering papers.

In Gariya Safaris (Pvt) Ltd v van Wyk it was stated as follows:

“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those of the defendant, the summons is null and void ab initio.”

In this case the applicant cited a non-existent respondent. Thus in the same vein the application was a nullity.”

In K and G Mining Syndicate v Mugangavari & Ors HB 159/20, Dube-Banda J was seized with a similar question, this time within the context of a mining dispute in which the Ministry was cited instead of the Minister.  The learned judge made the following pertinent remarks, at p 5 and 6, with which I fully associate:

“Is the Ministry of Mines and Mining Development a legal persona? In terms of section 3 of the State Liabilities Act [Chapter 8:14] in any action or other proceedings which are instituted by virtue of section two, the plaintiff, the applicant or the petitioner, as the case may be, may make the Minister to whom the headship of the Ministry or department concerned has been assigned nominal defendant or respondent. Applicant concedes that in terms of this provision, it is incorrect to cite the Ministry, the proper third respondent in case HC 2031/15 must have been the Minister, not the Ministry. The Ministry is not a legal persona, capable of being sued.” (underlining added for emphasis)

The learned judge went on to refer to the often-cited case of Fadzai John v Delta Beverages, supra, and other authorities, wherein the same point was underscored, at 6:

“In Fadzai John v Delta Beverages SC 40/17 the court observed at page 4 that:  “In Gariya Safaris (Pvt) Ltd v van Wyk 1996 (2) ZLR 246 (H) it was stated as follows: ‘A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those of the defendant, the summons is null and void ab initio.” In this case number HC 2031/15 the applicant cited a non-existent third respondent. See Amos Makono & 32 Others v Freda Rebecca Gold Mine HH 400 / 18, Masuka v Delta Belverages HB 2012 (1) ZLR 112, Masukume v Treston Enterprise (Pvt) Ltd HH 416/15, Nuvert Trading (Pvt) Ltd v Hwange Colliery HH 791/15, CT Bolts (Pvt) Ltd v Workers’ Committee 2012 (1) ZLR 363 (S), Gariya Safaris (Pvt) Ltd v van Wyk 1996 (2) ZLR 246 (H) all referred to by the applicant; Marange Resources (Private) Limited v Core Mining & Minerals (Private) Limited (in liquidation) & Ors SC 37/16 and Stewart Scott Kennedy v Mazongororo Syringes (Pvt) Ltd 1996 (2) ZLR 565 (S).)

APPLICATION OF THE LAW

From the above case authorities, and the numerous other cases referred to therein, it is clear that the citation of a non-existent entity, an entity with no legal persona, deals a fatal blow to an action or application. The applicants cannot opt, as they contend, to sue a non-existent entity. For their application to be valid, the entity sued must be clothed with legal persona. If it is not a legal persona, then the application is incurably defective.

The argument that the first respondent is not the only respondent cited does not save the application. It is vitiated by the citation of the first respondent, who is not a legal persona. In K and G Mining Sydicate, supra, the court further remarked, at p 7:

“I take the view that nothing turns on the fact that the second and third respondents herein do not oppose the relief sought by the applicant in this application. On the facts of this case, this court cannot invoke rule 449 for the purposes sought by the applicant, even if second and third respondent are not opposed to the order sought. A party cannot confer jurisdiction to this court which it does not have.”

Thus, the weight of authorities is simply not behind the applicants’ averment that it matters not whether one cites the Ministry or the Minister. The fundamental point, which the applicants miss, is that the entity sued must have legal persona. The application is rendered null and void ab initio if the respondent lacks legal persona. The applicants have tried, without success, to wriggle out of this legal predicament. It is a predicament which they have brought upon themselves.  The proper course of action to take is to strike this matter off the roll. It is unnecessary to delve into the other points in limine.

DISPOSTION

In the result, it is ordered that:

The application be and is hereby struck off the roll.

The applicants bear the respondents’ costs jointly and severally, the one paying the others to be absolved.

Manyangadze J…………………………………….

Gumbo & Associates, applicants’ legal practitioners

Civil Division of the Attorney General’s Office, 2nd- 4th respondents’ legal practitioners

Scanlen & Holderness, 5th  respondent’s legal practitioners