SSSZ Mining Syndicate v Takaidza Chitoro & 2 Ors

### Preamble
1
HMA 46-18
HC 395/18
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SSSZ MINING SYNDICATE

versus

TAKAIDZA CHITORO

and

TAVARAISA MUSARAKUFA

and

MINISTER OF MINES & MINING DEVELOPMENT

and

PROVINCIAL MINING DIRECTOR, MIDLANDS PROVINCE N.O.

and

OFFICER IN CHARGE – CID MINERALS & BORDER CONTROL UNIT, ZVISHAVANE

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE: 5, 20 & 26 September 2018

Urgent chamber application

Mr L. Mudisi, for the applicant

First and second respondents in person

Ms K. Munatsi, for third and fourth respondents

No appearance for fifth respondent

MAFUSIRE J:

[1]	This was an urgent chamber application heard over two days, two weeks apart. Issues emerged on the first day of hearing that necessitated an investigation and a report by the third and fourth respondents’ officials. The third and fourth respondents did not oppose the application. They indicated they would abide by any court order issued.

[2]	The applicant sought two substantive final remedies. The first was an interdict to bar the first and second respondents from carrying out any mining operations at a certain mining location described as a Block of 10 Gold Claims named Nhema 12A, situate Mberengwa District (hereafter referred to as “Nhema”). The second was the ejectment from that location of the first and second respondents, and all those claiming occupation through them.

[3]	The draft relief, which I have edited for coherence and brevity, was that the respondents had to show cause i/ why the provisional order [that it obviously hoped to obtain] should not be confirmed; ii/ why the terms of that order should not be confirmed as final, and iii/ why the first and second respondent should not pay the costs on an attorney and client scale.

[4]	In the interim the applicant sought the two remedies in Para [2] above.

[5]	Following queries raised by myself on the nature of the relief sought, given that the matter was an urgent chamber application, the applicant abandoned its draft order and promised to replace it. But the amended one was practically no different. The two remedies sought were just swapped around. The original terms of the interim relief were now the show cause order of the final relief sought. The interim relief now sought just the interdict, with the rider that both parties should put up security to guard the mines during the interim period.  For the sake of clarity I reproduce the material portions of the applicant’s amended provisional order:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be confirmed in the following terms:

Applicant be and is hereby declared the sole and legal owner of …[Nhema].

The 1st and 2nd Respondent be and is [sic] hereby evicted [sic] from … [Nhema].

The 1st and 2nd Respondents be and is [sic] hereby ordered to pay costs at an attorney client scale.

INTERIM RELIEF GRANTED

That pending the determination of this matter, the Applicant is granted the following relief:

1	Applicant, 1st and 2nd Respondents and those acting at Applicant’s, 1st and 2nd Respondents’ behest be and are hereby interdicted from carrying out any mining activities at a location named either Nhema 12A mine or Buddy Mine … pending finalization of the application.

2	Each party at their own expenses be and is hereby allowed to put security to guard a location named either Nhema 12A mine or Buddy Mine … pending finalization of the application.”

[6]	The applicant’s case was this. It was a registered mining syndicate of four persons, including one Sibanengi Moyo. For more than a year and some three months since June 2017, it had been waiting for its certificate of registration in respect of Nhema, following its application and the payment of the requisite fees. When its certificate of registration was finally issued it went straight to the mine but found it “infested” with illegal gold panners sponsored by Sibanengi Moyo. Respondents 1 and 2 were part of the gang. They became violent. Applicant turned to the law and filed the present application.

[7]	The applicant said the matter was urgent because gold ore is non-renewable. Each day that passed with the respondents extracting the ore it was depleting. The Constitution protects property rights. There was a danger of an irreparable harm if the respondents were not stopped and evicted.

[8]	Respondents 1 and 2 opposed the application. They filed a notice of opposition and appeared in person. They took a preliminary objection that the matter was not urgent. They said there were two mines in the locality. The one was Nhema. The other was called Buddy. Sibanengi Moyo had interest in both. He was in syndicate with three others on Nhema but had exclusive ownership of Buddy. They were working on Buddy, not Nhema. Buddy was some ten kilometres north or east of Nhema. They were investors in Buddy. Sibanengi Moyo had invited them. The matter was not urgent because Sibanengi Moyo had been working on Buddy since 2006. They themselves had come on board in June 2018. Neither the police nor any officials from respondents 3 and 4 had ever challenged their workings. They denied anybody from Nhema had approached them or that they had become violent.

[9]	During the hearing the issue of urgency was deferred. It was very clear that all that needed to be done was very simple. Either respondents 1 and 2 were working or encroaching on Nhema or they weren’t. It was respondents 3 and 4 that had the duty and expertise to clarify the position. They said they needed two weeks to do so. We adjourned for two weeks. The applicant pressed for an interim order for those two weeks to the effect that none of the contesting parties should be allowed to carry on with mining operations. It said that was the fairest course because such an order would preserve the gold ore for the rightful owner of the disputed site. If an interim order was not granted respondents 1 and 2 would continue to benefit unfairly. The prejudice would be enormous if it should turn out that they had no right to be on the site in the first place and if the mine was eventually declared to belong to the applicant.

[10]	I declined an interim interdict. I considered it inappropriate to be issuing piece meal orders. In counter to the applicant’s simplistic request, respondents 1 and 2 made a robust case that they had been on the disputed site for a considerable time. Any abrupt cessation of operations would not be without financial stress to them and their employees. I also considered that given that the applicant had waited for more than a year before getting the licence to work on the site, two more weeks would not drastically affect their situation materially. At any rate, the applicants had not at that stage proved to any extent that Buddy, which respondents 1 and 2 said they were working on, was the same as, or encroaching on, Nhema.

[11]	Respondents 3 and 4, in compliance with the interim directive, carried out a survey on the disputed site in the presence of the contesting parties. They filed a report. Attached to it was a map of the mining locations Nhema and Buddy.

[12]	It was explained that a mining site is denoted on a map by what are called docket and ground positions. The docket position is the theoretical or master plan depicting the position of the pegs or beacons marking the mine boundaries as submitted by the miner’s surveyor. The ground positions are the coordinates as entered on the map by the mining officials following ground surveys. Generally the docket and ground positions should correspond. But discrepancies are not uncommon.

[13]	It was further explained that until recently ground surveys were largely estimates obtained from rudimentary forms of measurement such as foot counts. Nowadays more modern methods such as the GPS (Global Positioning System) are used. GPS is a satellite navigation system used to determine the ground position of an object. It is more accurate.

[14]	In summary, the report by the mining officials following their survey of the disputed site were that Buddy’s docket position lay to the north of its ground position, and that its ground position was roughly in the same location as Nhema’s  docket and ground positions. In other words, Nhema’s docket and ground positions were both on the same location. But that was where Buddy’s ground position was also. There was a small encroachment of about fifty metres by Nhema’s docket and ground positions and Buddy’s ground position onto Buddy’s docket/master plan position.

[15]	It was explained that the depiction of Buddy’s docket/master plan position being in a different location than its ground position was nothing unusual. Buddy was registered in 2006. The GPS was not yet in use. Its ground position, as well as Nhema’s docket and ground positions, had been sketched out after the introduction of the GPS. Buddy’s ground position as depicted on the map was the more accurate than its docket/master plan position.

[16]	The ultimate conclusion by respondents 3 and 4 was that the disputed workings lay in both Nhema’s ground (and docket) positon and Buddy’s ground position, but outside Buddy’s docket/master plan position. Thus, there had been overpegging on the disputed site. That explained the two competing claims. I was urged to resolve the conflict in terms of s 58 as read with section 177 of the Mines and Minerals Act, Cap 21:05.

[17]	Section 58 of the Act says that when a mining location has been registered for a period of two years it shall not be competent for any person to dispute the title of such location on the basis that the pegging of such location was invalid or illegal or that the provisions of the Act had not been complied with prior to the issuing of the certificate of registration.

[18]	But plainly, s 58 was irrelevant. The applicant was not challenging Buddy’s title on paper. It was challenging its location on the ground. Following the report by the mining officials, Mr Mudisi, for the applicant, crafted the argument that Buddy’s alleged ground position, which appeared to coalesce with Nhema’s ground and docket positions, should be disregarded. Buddy’s alleged ground position was not the primary evidence of its location. The primary evidence of its location was the docket/master plan position. For any mining location, the docket/master plan position is always the fall-back or default position in case of a dispute such as the present one.

[19]	Mr Mudisi accused respondents 3 and 4 of abusing their regulatory status. Having been wisened to the problem of their own creation, they were now trying to resolve it by shifting Buddy’s location from its docket/master position to the alleged ground position under the pretext that its docket/mater plan position had been plotted prior to the advent of the GPS. He claimed the mining officials had been misled by the new beacons that respondents 1 and 2 had deliberately erected, or caused to be erected, once I had issued the interim directive aforesaid.

[20]	Section 177 of the Mines and Minerals Act lists the priority of mining rights where there is a dispute. Sub-section (3) says the priority of acquisition of title to any mining location, reef or deposit, in all cases of dispute, shall be that, in the event of the rights of any subsequent pegger conflicting with the rights of a prior pegger, then, to the extent to which such rights conflict, the rights of any subsequent pegger shall be subordinated to those of the prior pegger. I understand this provision to be analogous to the double sale situation in commercial transactions. All other things being equal, the first buyer is to be preferred ahead of the subsequent one whose remedy may lie in a claim of damages against the seller.

[21]	The applicant’s case was tenuous. It was skating on thin ice. Starting with the objection in limine: undoubtedly the applicant sought to establish commercial urgency in the sense contemplated in Silver’s Trucks (Pvt) Ltd & Anor v Director of Customs and Excise 1999 (1) ZLR 490 (H). In that case the urgent chamber application had been brought some four months after the applicant’s goods had been embargoed by customs. It was held that the court has power to hear an application as a matter of urgency not only when there is a serious threat to life or liberty but also where the urgency arises out of the need to protect commercial interests: see also 20th Century Fox Film Corporation & Another v Anthony Black Films (Pty) Ltd 1982 (3) SA 582, at 586.

[22]	But in casu the applicant’s case for commercial urgency was ill-defined. Its case was that each day that passed with respondents 1 and 2 digging at the disputed site, saw the gold ore depleting irreplaceably. Yet it had been fifteen months since it had been waiting for a licence. Sibanengi Moyo, one of the syndicate members, had been working the site since 2006. Lately, respondents 1 and 2 had started working the same site since June 2018. The applicant said it had applied for registration a year earlier. But there was no explanation what action, if any, it had taken to speed up the processing of its application, if its fear of irreparable harm was that the gold ore was depleting irreplaceably owing to the first and second respondents’ continuous digging.

[23]	Furthermore, the claim by respondents 1 and 2 that no one had ever approached to challenge their operations on the disputed site sounded more plausible. Certainly, the applicant had not engaged the mining officials before rushing to court. What was done during the two week adjournment is probably what could have been done had the applicant sought audience with respondents 3 and 4 prior to launching this application.

[24]	However, and be that as it may, I am prepared to hold that the matter was urgent on the basis that once its certificate of registration was issued on 28 August 2018 the applicant wasted no time in claiming what it believed now belonged to it. When it felt respondents 1 and 2 would not budge, it wasted no time in running to the law three days later.

[25]	But applicant’s case trod on several patches of quick sand. It was bound to sink. The applicant’s case and nature of relief sought were somewhat confused. The foundation and entire premise of the case was for a final interdict. Although the draft provisional order was the Form 29C prescribed by the Rules, with the two basic segments: the final remedy sought (show cause order) and the interim relief granted, from start to end, the applicant made it clear that what it sought was a final order.

[26]	The amendment to the draft order changed nothing. The applicant still sought a final interdict and an order of ejectment. But save in exceptional cases, you don’t seek a final order on an interim basis. This must now sound like a broken record. But it is worth repeating. CHATIKOBO J said in Kuvarega v Registrar – General & Ors1998 (1) ZLR 188 (H) at p 193A – B:

“The practice of seeking interim relief which is exactly the same as the substantive relief sued for, and which has the same effect, defeats the whole object of interim protection. In effect a litigant who seeks relief in this manner obtains final relief without proving his case. That is so because interim relief is normally granted on the mere showing of a prima facie case. If the interim relief is identical to the main relief and has the same substantive effect, it means that the applicant is granted the main relief on proof merely of a prima facie case. This, to my mind, is undesirable where, as here, the applicant will have no interest in the outcome of the case on the return day.”

[27]	A matter that is truly urgent is allowed to jump the queue of cases awaiting adjudication at the courts. But in an urgent chamber application issues are not canvassed to any great depth. All that the applicant is required to do is to show some prima facie right of his that is under peril, even if that right be open to some doubt. He also has to show a well-grounded apprehension of an irreparable harm; that the balance of convenience favours the granting of the interim relief; that there is no other satisfactory remedy; and that there are reasonable prospects of success in the merits of the main case: see Setlogelo v Setlogelo 1914 AD 221.

[28]	In Cawood v Madzingira & Anor HMA 12-17 I likened justice delivery to medical treatment of the human body where it is afflicted by a serious condition requiring surgery at some future date. In every case the real or main dispute between the parties must eventually be determined to finality. That is the surgery. But this may take time.  In the interim side issues that may crop up before the main dispute is resolved may be dealt with on an urgent basis, just as a doctor may prescribe pain killers for temporary relief.

[29]	In the present case, despite the applicant claiming a final order on an urgent basis, the resolution of the main dispute between the parties was pending nowhere. The main dispute was this: on which mining location, Nhema and Buddy, did the disputed site lie? Put differently, who was the registered owner of the site? I could not possibly determine that issue in the urgent chamber application.

[31]	The application failed to satisfy the requirements for an interdict. Mr Mudisi argued that all that the applicant needed to do was to prove a mere prima facie right to the disputed site and that it had done so. He pointed to the certificate of registration that it had just obtained and the map that showed that the disputed site lay squarely in both the docket and ground positions for Nhema as prima facie proof of the right.

[32]	But Mr Mudisi’s argument was just a small part of the bigger picture. To begin with, for a final interdict, an applicant has to prove a clear right, not merely a prima facie one. Furthermore, Buddy’s ground position was also where Nhema was. But Buddy had been registered in 2006, and Nhema only in 2018. Therefore, Nhema’s licence had to be subordinated to Buddy’s in accordance with s 177(3) of the Mines and Minerals Act.

[33]	There was also another aspect that was fully ventilated at the hearing and that went to the root of the issue of rights, and even to the applicant’s locus standi. Respondents 1 and 2 filed an affidavit by Sibanengi Moyo. He “denounced” the applicant’s activities. Respondents 1 and 2 were on the disputed site at his invitation.

[34]	Contrary to Mr Mudisi’s insinuation that the applicant, as a syndicate, could be dissociated from its members, I have not seen anything that suggests that upon getting a certificate of registration in respect of a mining location in terms of s 61 of the Mines and Minerals Act, a syndicate becomes a body corporate with an identity separate from that of its members as would be the case with registered companies. Thus, if Sibanengi Moyo was part and parcel of the applicant, and yet he was against its activities, who then, from a legal point of view, was the applicant? Whose mandate was Mr Mudisi executing? If it was the mandate of the remaining members of the syndicate, was the action that they had taken the appropriate one? In my view, it was not. Their remedy seemed to lie against Sibanengi Moyo. But the applicant had not cited him, a point pressed home by respondents 1 and 2.

[35]	The requirements for an interdict are taken conjunctively. Some of them may assume greater importance in some cases than do others in other cases. In the present case, whilst the applicant might have had a well-grounded apprehension of an irreparable harm, the balance of convenience plainly dissuaded the court from getting involved on a piece-meal basis. Respondents 1 and 2 derived their right of occupation from Sibanengi Moyo. Sibanengi Moyo had worked the site since 2006. He was now entrenched. He had accrued rights and obligations. Apart from s 177 of the Mines and Minerals Act, it was undesirable to order a cessation of operations in a matter that was pending nowhere.

[36]	Lastly, the applicant could always claim damages if it should finally sort itself out and assert its rights. It might be tedious or difficult to prove the damages. But that was not to say there was no other remedy available.

[37]	It is upon the above reasons that the application must fail. It is hereby dismissed with costs.

26 September 2018

Mutendi, Mudisi & Shumba Legal Practitioners, applicant’s legal practitioners

Civil Division, the Attorney-General’s Office, third and fourth respondents legal practitioners