Scraiven Nyamuchengwa v Larryscope Health Care (Private) Limited and Minister of Mines & Mining Development

### Preamble
1
HH 388-21
HC 3934/21
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SCRAIVEN NYAMUCHENGWA

versus

LARRYSCOPE HEALTH CARE (PVT) LTD

and

MINISTER OF MINES & MINING DEVELOPMENT

HIGH COURT OF ZIMBABWE

MHURI J

HARARE, 26 July 2021

Urgent Chamber Application

MHURI J: This is an urgent chamber application wherein applicant is seeking that a provisional order be granted on the following terms:

“that the first respondent or any person acting on behalf of first and second respondents be and is hereby interdicted from disputing, stopping or occupying  SCRAI A Acturus, without any lawful authority or a Court Order or until the finalization of the appeal presently before the first respondent.”

I had directed that the application be set down for hearing on Thursday 22 July 2021 but due to the Covid restrictions and Practice Direction	 6 of 2021 I decided and advised the parties accordingly that I will decide the matter on the papers filed.

In summary, the dispute between the parties hinges on the ownership of mining claim SCRAI A Acturus. Applicant avers that he is the rightful owner of the said claim as evidenced by the Certificate of Registration No. ME 348 G issued to him on 24 November 2017. He has been mining and paying his dues to second respondent since then until July 2021 when first respondent started interfering with his operations with the assistance of the second respondent.

First respondent also avers that it is the rightful owner of the claim being a holder of a Certificate of Registration ME 18 issued on 11 May 2017.

By a letter dated 22 April 2021, second respondent’s Provincial Mining Director Mashonaland East, gave applicant notice of intention to cancel his Certificate of Registration on 3 June 2021. As a result, applicant noted an appeal with the second respondent on 21 June 2021 which appeal according to applicant is still to be determined. It is pending the determination of this appeal that applicant is seeking to have the two respondents interdicted from interfering with his operations.

I will deal first with the issue of urgency. Is the application urgent? The answer is to be found in the certificate of urgency by Taurai Killian Mandiki and the founding affidavit by applicant. A reading of these two documents shows that urgency is being based on the irreparable harm and loss which applicant stands to suffer as a result of his operations being abruptly stopped by respondents. He avers that if first respondent continues disrupting his mining or stop progress he will suffer beyond measure financially and emotionally hence the need for urgent hearing of this application.

After considering the papers filed of record, I find that the applicant has not established urgency to warrant approaching this court on an urgent basis.

Applicant has been aware of the dispute over the claim before, particularly in 2019 when he had a dispute with Kaukonde, Annexure F of applicant’s papers refers, which dispute is subject of the appeal before the second respondent. By virtue of Annexure F, applicant was aware of first respondent’s existence on the claim in 2019 as is clear from paragraph 7 of his appeal to the second respondent (Annexure ‘D’). In view of this, applicant therefore cannot aver emotional suffering as a ground to establish urgency.

Further, applicant became aware of first respondent’s coming to the claim on 10 July 2021. It was on 14 July 2021 that he established that it was first respondent but he did not act immediately until 17 July when he then filed this application.

Further, I am not persuaded by applicant’s averment in paragraph 10.2 of his founding affidavit, that having a valid Certificate of Registration establishes urgency. First respondent is also a holder of a valid Certificate of Registration over the same claim. I note that applicant’s certificate is subject of the appeal before second respondent, as a result of the notice of intention to cancel it.

Further, it is not applicant’s averment that he will suffer irreparable financial harm because first respondent is conducting mining operations, i.e. extracting minerals to warrant the application being heard on an urgent basis. His averment is that he will suffer financial harm because he has been stopped from conducting his operations. I do not find this to be a basis for urgency.

Overally therefore I find that the application is not urgent and is to be struck off the roll of urgent chamber applications.

It is therefore ordered that the application be and is hereby struck off for lack of urgency.