Over and Above Profit Enterprises (Pvt) Ltd t/a Even Milling Centre v Albert Yotamu and The Chief Commissioner-Kadoma (N.O) and Officer in Charge Zimbabwe Republic Police Sanyati (N.O)

### Preamble
1
HH 462-12
HC 6948/12
---------


OVER AND ABOVE PROFIT ENTERPRISES (PVT) LTD

t/a EVEN MILLING CENTRE

versus

ALBERT YOTAMU

and

THE CHIEF COMMISSIONER-KADOMA (N.O)

and

OFFICER IN CHARGE

ZIMBABWE REPUBLIC POLICE SANYATI (N.O)

HIGH COURT OF ZIMBABWE

BERE J

HARARE, 27 November and 7 December 2012

Opposed Application

C. Chinyama, for the applicant

I. Mugwagwa, for the 1st respondent

R.M. Bhasera, for the 2nd and 3rd respondents

BERE J: The applicant sought an order confirming the provisional order which incidentally I granted on an urgent basis on 26 June 2012.

After hearing counsel, on 7 December 2012 I granted the following final order:

That the applicant be and is hereby declared to be the sole and rightful holder of mining rights over mining blocks known as Essex 8, Essex 27 and Essex 28.

That the first respondent be and is hereby prohibited, stopped and interdicted from carrying and interdicted from carrying out any mining activity at Essex 8, Essex 27 and Essex 28 and from interfering in any way with the applicant’s mining activities at Essex 8, Essex 27 and Essex 28.

That the first respondent pays costs of suit on an Attorney-Client Scale.

That the applicant is the current holder of valid mineral rights on Essex 8,

Essex 27 and Essex 28 is borne out by the certificates of registration marked B1-3 attached to the applicant’s founding affidavit on pp 17-19 of its papers.

Annexure F on p 25 of the applicant’s papers further cements the applicant’s unquestionable right to mine in the disputed area.

It was quite revealing that during submissions in court despite the first respondent’s notice of opposition and the serious allegations it made against the applicant, the first respondent’s counsel was quick to make a concession to the effect that Essex 8 and Essex 27 had nothing to do with the first respondent as these are located 3 km away from the first respondent’s plot.

If the first respondent’s position through his counsel is accepted, as it should be, then this leaves only Essex 28 as the area of concern to the first respondent.

The dithering by the first respondent does not portray him in good light in the sense that his claim lacks consistency.

In comparison, the applicant’s claim to the mining claims is consistent and supported by documentary evidence in the form of copies of licences attached to the founding papers. Not only is the applicant’s claim consistent, but the second respondent who is the administrative arm and custodian of all mineral licences in the concerned district has confirmed the applicant’s entitlement to all the three mining claims in issue. In doing so the second respondent has inter alia relied on the investigations carried out by a committee which was put in place pursuant to the allegations raised by the first respondent against the second respondent himself and the applicant. The committee in its report to the Chief Mining Commissioner dated August 13, 2012 concluded its findings as follows:-

“Conclusion

In terms of s 177 of the Act, Eleven Milling Centre, should be allowed to resume their operations as there are considered to be the prior pegger as they pegged the area in 2005 and Yotamu’s application was deliberated in that he knew the existence of the Essex claims and pegged on top of the claims. The Mining Commissioner should reject the application for certificate of registration that was submitted by Yotamu as stated above it was not procedurally done”.

Faced with this clear position of the committee, the first respondent raised

further dust by filing supplementary heads of argument where he repeated his vitriolic attack on the applicant by alleging the second respondent in connivance with the applicant’s representative had made false representations in order to influence the conclusion of the committee. He went on to allege that the police were investigating the activities of the Kadoma Mines Commissioner and sought to rely on a letter from the Police General Headquarters to that effect.

The court’s view is that the investigations to be carried out by the police cannot be afforded greater weight than the investigations carried out by the committee as well as the existence of the valid mining licences currently in the hands of the applicant. I shudder to think that the first respondent might be merely trying to use the police in his effort to interfere with the mining activities of the applicant.

It is quite significant in my view to note that even when this matter was argued in court, the first respondent had not himself taken the initiative by way of court process to try and have the mining licences for the three Essexes nullified if at all he genuinely believe there was an anomaly in the manner in which they were issued.

The supporting affidavit by Basil Pindurai attached to the first respondent’s notice of opposition does not in my view take the first respondent’s case any further because the involvement of Basil Pindurai in this dispute was condemned by the Independent Committee for the simple reason that Pindurai was said not to be an approved prospector as envisaged by s 21(1) of the Mines and Minerals Act [Cap 21:25].

There is yet another hurdle which the first respondent had to deal with in this application. The documentary exhibits tendered by the applicant clearly show that the claims now being disputed or challenged by the first respondent have been in existence for a period in excess of two years having been registered in 2005. The applicant has made the point that in terms of s 58 of the Mines and Minerals Act, the validity of registration cannot be put into question.

For clarity’s sake the section reads as follows:-

“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 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 the provisions of this Act were not complied with prior to the issue of the certificate of registration”.

I did not hear the first respondent making any attempt to counter this clear provision of the law.

Having carefully considered the submissions by the three legal practitioners as well as analysing the documentary evidence filed, I am more than satisfied that the odds are heavily tilted in favour of the applicant in this matter.

In fact, whichever way one looks at the interests of the competing parties, one cannot but inevitably conclude that the balance of convenience in this matter dictate that the provisional order be confirmed.

On the question of costs, whilst I accept that it must be in very unusual circumstances that punitive costs are awarded, I am satisfied that the first respondent has demonstrated total stubbornness in opposing this matter. To show the court’s displeasure with such conduct and in order to discourage frivolous and vexatious litigation, the first respondent must be ordered to pay costs on Attorney-Client Scale.

Chinyama and Partners, applicant’s legal practitioners

Zimbodza and Associates 1st respondent’s legal practitioners

Civil Division of the Attorney-General’s Office, 2nd & 3rd respondents’ legal practitioners