Plaxedes Mubaiwa and Patrick Mateu and Edmore Kauteko and Joel Mtetwa v Timesite Mining Private Limited and Time of Hope Mining Syndicate

### Preamble
1
HH 593-25
HCH 3512/25
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PLAXEDES MUBAIWA

and

PATRICK MATEU

and

EDMORE KAUTEKO

and

JOEL MTETWA

versus

TIMESITE MINING PRIVATE LIMITED

and

TIME OF HOPE MINING SYNDICATE

HIGH COURT OF ZIMBABWE

TAKUVA J

HARARE; 25 July & 2 October 2025

E Chibondo, T Munyari, for the applicants

K Shamu, for the 1st respondent

G Mupaya, for the 2nd respondent

Urgent Chamber Application for Interdict

TAKUVA J: This is an urgent chamber application for interdict. The applicants in this matter intends to prevent irreparable harm and damage being done to their mining area pending the determination of a rescission application filed under HCH 3416/25 in this court.

Background Facts

The Applicants are members of the Time of Hope Mining Syndicate, a duly registered syndicate in terms of the Mines and Minerals Act [Chapter 21:05], and lawful holders of mining rights over a location known as Kimberly F in Bindura. In April 2023, the second to fourth Applicants entered into an agreement with the syndicate to conduct mining operations on the site, and together with the syndicate, they lawfully carried out mining activities until 11 July 2025.

On that date, the Applicants were evicted from the mining location pursuant to a High Court order obtained by the first Respondent. The eviction order, granted on 3 July 2025, was obtained through consent given by one syndicate member, Reginald Ngulube, without notice to or participation of the other members. The Applicants only became aware of the judgment on 11 July 2025, after receiving anonymous calls alerting them to the impending eviction. They had not been served with summons or included in the eviction proceedings, and all court papers were served solely on Ngulube.

Upon discovery, the Applicants immediately instructed their legal practitioners and filed an application for rescission of the judgment on 11 July 2025, under case number HCH 3416/25. Despite the pendency of that application, the first Respondent moved onto the disputed mining site with machete-wielding gangs and commenced mining operations. This has resulted in the loss of gold ore, destruction of mining infrastructure, and deprivation of the Applicants’ source of livelihood.

The Applicants now seek urgent interim relief interdicting the first Respondent from carrying out mining operations pending the final determination of their rescission application. They contend that failure to grant the interdict will result in irreparable harm, depletion of resources, and render their pending challenge nugatory.

Both the first and second respondents oppose this application mainly challenging the urgency of this matter. The court will proceed to analyse the submissions made.

Preliminary point raised

Mr Shamu, counsel for the first respondent challenged the urgency of this application based on his view that the applicants did not act timeously when the need arose. As noted in the summary of the facts, the applicants got to know about the intention to evict them from the mine in dispute on 11 July 2025 through an order acquired on 3 July 2025. This application was filed on 17 July 2025 which the first respondent considers to be belated. This period marked 3-4 calendar days and it is due to this 3-4 day delay that first respondent challenged the urgency of this matter. In their defence however Applicants also argue that the need to act arose on the 13th of July 2025. Mr Chibondo, for the applicants in his submissions on the day of hearing indicated that the actual eviction took place on the 13th of July 2025.The applicant states that this time cannot be considered inordinate considering the fact that they also went on to file a rescission application against the order that was being used to evict them on the 11th of July 2025 when they caught wind of the eviction order.

Zhou J in Apostolic Faith Mission in Zimbabwe v Apostolic Faith Mission of Zimbabwe (253 of 2022) HH 254/22 stated the following;

“The court does not engage in a mathematical exercise to count days from the day when the act complained of arose up to the day that the application was instituted.  The court looks at the totality of the facts and circumstances of each case holistically.  In other words, in one case a delay of even a day or two may deprive a matter of its urgency while in an appropriate case a delay of even a month or more may not necessarily deprive a case of its urgency. Whether or not urgency is established in any case will depend on all the circumstances of the case.”

Considering the facts surrounding this matter I have to agree with the applicants that the delay of this nature cannot be considered fatal. The applicants acted timeously in these circumstances and the fact that the applicant may suffer irreparable harm if this matter is not dealt with urgently further supports this view. This point therefore lacks merit and is hereby dismissed.

Issues for determination

Whether the eviction order obtained by the first Respondent, through consent of only one syndicate member, was procedurally valid in light of the Applicants’ undisputed membership and interest in the mining syndicate.

Whether the Applicants have established a prima facie right to the mining location sufficient to justify the grant of an interim interdict pending the outcome of their rescission application.

Whether the Applicants have demonstrated that they will suffer irreparable harm if the interdict is not granted.

Whether the Applicants lack an adequate alternative remedy apart from the interdict they seek.

The court shall proceed to deal with these issues following the order in which they are listed. The parties’ dispute emanates from the order of 3 July 2025. This said order is what gave the first respondent the right to evict the applicants. Firstly, on one hand, the applicants claim that this order was acquired fraudulently since none of them were served with any papers relating to the eviction. On the other hand, the first respondent argues that there had no obligation to serve the applicants. In its view, the first respondent claims that they only had to serve the second respondent which is the registered owner of Kimberly. This second responded was then represented by one Reginald Ngulube who then consented to the order of 3 July 2025. The applicants claim that this said representative acted fraudulently as the order was acquired through a resolution that was doctored. The said resolution included 2 signatures instead of the 3 that are required by the Syndicate for validity. Further, applicants also raised their concern over the signatures showing on 3 different affidavits purported to have been signed by one Douglas Ngulube. This is another member who was said to have signed in support of Reginald Ngulube’s authority as the Syndicate’s representative. This member, as seen in the papers distanced himself from the actions of Reginald in a letter. To add on, in one of the affidavits dated 14 May 2025, any reasonable person by mere observation can see that the signature that is reflected on this document is different from the actual signature that Douglas Ngulube uses.

This in itself raises eyebrows as to what really occurred and what procedure was followed in order for the order of 3 July to be obtained. This also coupled with the fact that the first and second respondents are adamant in their view that they were not obliged to serve the applicants any papers concerns this honourable court. Eviction is not just against one person but affects the entire syndicate’s possessory and mining rights. As such, all members who are reflected on the syndicate certificate are necessary parties in eviction proceedings. Failure to cite or serve them amounts to a material non-joinder and renders any resulting order procedurally defective. The rules of natural justice and audi alteram partem (the right to be heard) require that every person whose rights are directly affected by a judgment must be cited and served. This is emphasised in Fidelity Printers & Refiners (Pvt) Ltd v Minister of Mines & Ors SC 107/22 emphasises that mining rights cannot be abrogated lightly and without due process. Surely, the first respondents knew exactly the parties their order would consequentially affect and it seems to me to have been a malicious and deliberate omission on their part not to include the members of the Syndicate. All registered members have a direct and legally protectable interest in the mining location and they ought to have been served with the summons of intention to evict. It is therefore my considered view that the order was not obtained bona fide and should be considered void at law.

Secondly, there is a bone of contention with regards to the location of Kimberly F. Applicants are members of the second Respondent, the registered owner of Kimberly F. It is from this location that they claim to have been evicted by the first respondent.  First respondent however, oppose these claims stating that the Ministry of Mines already settled this dispute through a letter indicating that what applicants considered Kimberly F, was actually Hospital L, owned by the first respondent. This claim seems to bring about further concern as from these submissions, the respondents do not then offer any information given by the Ministry to indicate where then Kimberly F is situated. Applicant has been operating at this location registered under the Syndicate from 2023. It therefore follows that the claim indeed exists and it is not possible for it to automatically vanish in 2025 without explanation. In my view this was an issue raised in casu but nonetheless one that can be dealt with in the main matter wherein all parties will be cited. Be that as it may, in relation to Kimberly F as known to both parties and as described in the main dispute in which the order was granted, the applicants indeed have the prima facie right sufficient enough to grant an interim interdict pending the outcome of their rescission application.

Applicants will definitely suffer irreparable harm if the interdict is not granted. The operation taking place is the mining of a finite mineral. The continuation of these operations without the applicants being heard risks the possibility of having an exhausted mine by the time matter is dealt with. There is need to cease all operations on this disputed mine which will allow whoever succeeds when the matter is finalised, to operate and maximise on the proceeds of the mine. There are several vital answers which should be presented first before each party loses its interest in this mine and everyone should be heard before drastic measures are taken. There is also no other alternative remedy through which the applicants can obtain relief in my view.

Disposition

In the result, and for the reasons set out above, it is ordered as follows:

The 1st Respondent, its agents, employees, or any persons acting on its behalf, be and are hereby interdicted from carrying out any mining operations, removing gold ore, or conducting any activities whatsoever on the mining location known as Kimberly F in Bindura, pending the final determination of case number HCH 3416/25 (the rescission application).

The interim relief granted herein shall remain operative pending the determination of the rescission application under case number HCH 3416/25.

Costs shall be in the cause.

Takuva J:………………………………………

Gumbo & Associates, applicants’ legal practitioners

Mapaya & Partners, respondents’ legal practitioners