Shantelle Mining (Private) Limited v Yusuf Phiri and Peter Nzabuko and Provincial Mining Director (Mash West)

### Preamble
1
HH 162/21
HC 67/21
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SHANTELLE MINING (PRIVATE) LIMITED

versus

YUSUF PHIRI

and

PETER NZABUKO

and

PROVINCIAL MINING DIRECTOR (MASH WEST)

HIGH COURT OF ZIMBABWE

FOROMA J

HARARE, 27 January 2021 & 21 April 2021

Urgent Chamber application

FOROMA J: Applicant has instituted an urgent chamber application against first, second and third respondent claiming a provisional order in the following terms:-

Terms of final order sought

That you show cause to this Honourable Court why a final order should not be granted that

The applicant be declared the rightful owner of the mine called Virginia 2 registration number 4588 in Kadoma and Virginia 7 registration number 4589 in Kadoma.

That the first respondent pay costs on a legal practitioner and client scale.

Interim order granted.

The Notice issued in the Government gazette published on the 8th January 2021 relating to certificate number 4588 for Virginia 2 Kadoma be and is hereby suspended.

First and second respondent be and are hereby interdicted from interfering with the mining activities of the applicant on Virginia 2 and Virginia 7 until finalisation of this matter.

Costs be in the cause.

Applicant’s major concern is to prevent the transfer of the Mining Claim held under certificate number 45881 called Virginia 2 to first and second respondents as the claim belongs to it and not to Mondale mining P/L or Zane Hobson against whom first and second respondent obtained an order for the transfer of the said mining claim under HC 6488/20. Applicant’s contention is that Mining Claim under Certificate no. 4588 does not belong to and never belonged to Hobson Zane or any company belonging to the said Hobson Zane thus any Court order depriving applicant of title in Virginia 2 without affording applicant an opportunity to defend his rights would be legally misplaced.

There are two competing principles involved in this matter namely Respondents are in possession of a court order in HC 6488/20 granting the relief they seek to enforce and the alleged order is ex tant while applicant as owner claims that he cannot be deprived of its rights without due process as it was not cited in HC 6488/20 the case in which Respondents were granted rights in the Applicant’s Mining Claim.

First and second respondents oppose the applicant’s application on the merits and they have objected in limine to applicant’s application claiming that it is not urgent.

In their opposing affidavit the first and second respondent argue that the applicant’s application is not urgent for the following reasons:-

The need to act did not arise on the date (19th January 2021) as urged by the applicant.

Applicant in September 2020 instituted under HC 4747/20 an application for rescission of judgment which the Respondent successfully opposed in that following upon a notice of opposition applicant did not prosecute its application resulting in Respondents obtaining a dismissal of the application for want of prosecution.

It is significant to note that in HC 4747/20 the applicant sought the following relief in its draft order:-

“Whereupon after perusing the record and hearing the parties it is hereby ordered that

The judgement entered in favour of first and second respondents granting possession of Shantelle Mining (Pvt) Ltd namely Virginia 2 and Virginia 7 Mining Claims to. Respondents be now and hereby rescinded.

……

An order that the agreement if any between first and second respondents on one side and third and fourth respondents on the other side should not be used on applicant’s mining block is now and hereby issued.

……

That fifth respondent be now and hereby interdicted from taking action of third and fourth respondents Mondale Mining matters with reference to the mine on applicant’s Virginia 2 and Virginia 7 registered under Shantelle Mining P/L as there are different entities.

In the said application applicant made the following averment under paragraph 13 of its founding affidavit:-

“It is only last week that first applicant learnt of the court actions, that the Sheriff, Deputy Sheriff came and dismantled our mills and gave position (presumably meant to be possession) to first and second respondents of not just our Mining claim but also our Milling Centre”. The affidavit in which this averment is contained was sworn to on 31 August 2020.

This clearly means that the incident which indicated the need to act as per CHATIKOBO J in the Kuvarega v The Registrar General & Anor 1998 (1) ZLR 188 cannot have been any later than the date when applicant learnt of the court actions which gave the applicant the right to act in protection of its rights as contemplated by Kuvarega judgment. Indeed applicant purported to take action when the need to act arose. It is irrelevant that the action taken was not needful.  There was no need for an application for rescission of judgment as inter pleader proceedings were clearly called for as the first and second respondents could not execute their judgment against their former employer Zane Robson’s Mondale Mining (Pvt) Ltd by proceeding against applicants property when they did not hold any judgment against applicant.

Be that as it may the action taken by applicant to protect its own could not help applicant save its property with the result that the first and second respondents in casu pursued what they perceived was their right to execute the judgment in their favour.

What is significant however is that when applicant claims that the need to act arose on 19 January 2021 when he learnt about a notice published in the gazette he is clearly mistaken. The need to act clearly arose in or around events which jolted it into instituting proceedings per HC 4774/20.

The fact that applicant did not take further action after its application for rescission had been dismissed for want of prosecution is a clear case of applicant sitting on its laurels. In the circumstances any urgency arising in January as claimed by Applicant is one of its (applicant’s) own making and it is not the urgency contemplated by the rules of this court.

In the circumstances I find that the matter is not urgent. I observe that even if this matter had any semblance of urgency I would have declined to hear it as an urgent application by reason of applicant having committed a material non-disclosure in that applicant totally omitted to disclose the outcome of proceedings it instituted under in HC 4774/20 namely that the application was dismissed for want of prosecution.

In the circumstances and having found that the matter is not urgent, I order that it be removed from the roll of urgent applications.

Muronda Malinga Legal Practice, for the applicant

F.G. Gijima and Associates, for the respondents