Monochrome (Private) Limited v Kehrai Investments (Private) Limited & Anor

### Preamble
Judgment No. SC 83/25
1
Chamber Application No. SC 387/24
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REPORTABLE   (83)

MONOCHROME     (PRIVATE)     LIMITED

v

KEHRAI     INVESTMENTS     (PRIVATE)      LIMITED     (2)     LABENMON     INVESTIMENTS     (PRIVATE)     LIMITED

SUPREME COURT OF ZIMBABWE

HARERE 25 OCTOBER 2024 & 15 SEPTEMBER 2025

G. R. J. Sithole with S. Muchigere, for the applicant

No appearance for the first respondent

E. Mubaiwa, for the second respondent

CHAMBER APPLICATION

BHUNU JA:

This is an application for condonation and extension of time within which to file an appeal.  The application is opposed.  The applicant seeks to appeal against the whole judgment of the High Court of Zimbabwe (the court a quo) sitting at Harare.  The judgment was handed down on 7 August 2023 being judgment number HH 474/23 under case number HC 5560/23.

THE PARTIES

The applicant Monochrome (Pvt) Ltd is a company in the business of mining, smelting and exporting chrome. It is duly represented by its director one Phebion Busanagabanye. Both respondents Kehrai Investments (Pvt) Ltd and Lebenmon Investments (Pvt) Ltd are companies in the business of mining chrome as well.  All the three disputants are companies duly registered in terms of the laws of Zimbabwe.

REASONS FOR DELAY

It is trite that in an application of this nature, the applicant is obliged to proffer a reasonable explanation for the delay and non-compliance with the rules.

The applicant timeously filed its appeal against the court a quo’s judgment under case number SC 503/23.  The appeal was struck off the role for want of compliance with r 37 of the Supreme Court Rules, 2018. Thereafter it filed an application for condonation of late filing of the appeal and extension of time under case number SC 323/24.  The application was however withdrawn because it was defective hence the present application for condonation and extension of time within which to file the notice of appeal.

What emerges quite clearly is that the applicant did not sleep on its laurels.  It pursued the appeal remedy with zeal and determination.  The fault for delay lies more with its lawyers than itself.

The courts are generally loath to punish litigants for the sins of their lawyers unless such conduct is gross and unpardonable.  The courts and the ends of justice demand that whenever possible justice be dispensed on the merits rather than on technicalities. It is for this reason that I am inclined to hold that the explanation for delay is reasonable and excusable.

I now turn to consider the applicant’s prospects of success on appeal.

BRIEF SUMMARY OF THE CASE

The applicant claims to be the lawful owner of the following Chrome mining claims situate in Guruve North Dyke:

Msasa 122 Reg No. 3315 MB

Msasa 123 Reg No. 31316 MB

Msasa 124 Reg No. 31317 MB

Msasa 125 Reg No. 31318 MB

Msasa 126 Reg No. 31319 MB

Msasa 127 Reg No. 31320 MB

Sometime in June 2018, the applicant issued summons against both respondents claiming payment of US$8, 173, 188 00, (Eight Million One Hundred and seventy- three Thousand, one hundred and eighty-eight United States Dollars inclusive of interest.  The claim is for damages for loss of profit from alluvial chrome illegally mined by the respondents on its mining claims.  The applicant’s claim was joint and several, one paying and the other one to be absolved.

The respondents entered a joint plea denying the allegations leveled against them.  They denied mining on the applicant’s mines and challenged the appellant’s ownership of the six mining claims in the process.  The second respondent laid ownership claims to the same chrome deposits as did the applicant.

The second respondent’s plea was to the effect that it lawfully mined chrome on mining claims owned by the first respondent in terms of a valid contract between the parties. It challenged the applicant’s ownership of the mining claims on the basis that it had been shown current licenses in the name of the second respondent as proof that it was the owner of the disputed claims.

The second respondent further disputed the amount of chrome it extracted from the claims. It contended that it extracted very little chrome from the claims not amounting to the second respondent’s claim.  The first respondent did not however attend the hearing before the court a quo.  Consequently the applicant obtained default judgment against the first respondent.  The matter then proceeded to a full trial with the second respondent as the sole defendant.

THE EVIDENCE

At the trial before the court a quo, the applicant called two witnesses comprising its operations manager Ms Chikowero.  It also called Mr Mufari, a registered and approved prospector with the Ministry of Mines and mining Development (the Ministry).

Ms Chikowero’s evidence was to the effect that she alerted the applicant of the respondents’ illegal mining activities once she got knowledge of it.  She physically visited the sites of the illegal mining activities.  She then engaged the respondents through letters to no avail.  She then reported the matter to the Ministry.  The Ministry then compiled a report which showed that the second respondent’s claims encroached into the applicant’s claims.

Mr Mufari’s testimony was to the effect that he was assigned to conduct a geological survey of the disputed claims, Msasa 122 to 127.  The geological survey revealed that the respondents were encroaching onto the applicant’s mining claims.  He compiled a report with vivid diagrams and pictures.

It was his testimony that he had helped the applicant in registering the disputed mining claims sometime in 2009.  In 2013 he discovered that the respondents were mining on applicant’s claims and he took pictures of a stockpile of chromite from which he compiled a chromite estimation report.

On the other hand, the second respondent relied on the evidence of a single witness, Mr Mlalazi its human resources and operations manager.  He averred that during the period extending from 2016 to 2017, his principal entered into an agreement in terms of which it would mine alluvial chrome on the first respondent’s claims, while the second respondent was restricted to mining nickel on the same claims.  It was his evidence that given that the second respondent had authority to mine on first respondent’s claims, the second respondent could not be liable for damages to the applicant as claimed.

THE PARTIES’ RESPECTIVE ARGUMENTS

The applicant’s argument is basically fastened onto the Ministry’s finding that the respondent’s mining activities encroached onto the applicant’s said mining claims at the material time.

On the other hand the second respondent’s case is that it is not liable to pay any damages because it had permission to mine on first respondent’s mining claims.  It claims to have mined on the first respondent’s mining claims. It further challenges the quantum of damages.

The second respondent also seeks to take refuge in s 371 (7) which permits a holder in a dispute of over pegging to continue mining lawfully until stopped by either the Mining Commissioner or the High Court.

THE COURT A QUO’S JUDGEMENT

Upon a consideration of the facts and the law the court a quo found that the applicant:

Had failed to prove that the second respondent had mined on applicant’s claims at a time it did not have authority to mine on those claims.

Had no basis for the claim of US$8 173 188.00.

Had failed to prove the quantum of damages claimed.

Had failed to prove the period during which the second respondent mined on its claim.

THE APPEAL

Aggrieved by the court a quo’s judgment, the applicant sought to appeal to the Supreme Court on the following grounds of appeal:

“(1)	The court a quo gravely erred in law and misdirected itself when it failed to consider that the illegality of the respondents’ mining activities had already been determined by the Ministry of Mines and Mining Development and remained unchallenged.

(2)	The court a quo gravely erred and misdirected itself on the aspect of unjustified enrichment placed before it by the Appellant and directly arising from the Respondent’s conduct.

(3) 	The court a quo grossly misdirected itself as to the facts. When it made a finding that the Applicant only took action to address Respondent’s illegal mining in 2019, when the evidence before it conclusively proved otherwise.

(4) 	In its analysis of the case, the court a quo grossly erred and misdirected itself as to the facts when it considered an alleged agreement between Applicant and 2nd Respondent, when in the first place no such allegation was made and at any rate no such agreement ever existed.

(5)	The court a quo erred in law and misdirected itself, in failing to find that 2nd Respondent’s deliberate act of prospecting on ground that was not open to prospecting by law constitutes sufficient wrongfulness under the Aquilian action.

(6)	The court a quo erred and misdirected itself, in failing to consider that, the applicant’s estimation of the quantities extracted by the defendants from the disputed area was not dispute.”

ISSUES FOR DETERMINATION ON APPEAL

In my view the intended appeal falls for determination on two primary issues:

(1) Who is the lawful owner of the disputed 6 mining claims?

(2) Is the second respondent protected by s 371 (7) of the Mines and Minerals Act    [Chapter 21:05]?

PROSPECTS OF SUCCESS

With regard to the first issue, the second respondent appears to be on precarious ground.  This is because it claims the right to mine the disputed claims through the first respondent whom it claims to be the rightful owner.  The first respondent has however not defended its alleged ownership of the mining claims.  In fact the first respondent appears to have capitulated as the applicant has obtained default judgment against it.  The default judgment is still extant.  That default judgment has the full force of law and has the effect of stripping the first respondent of any claim to ownership of the disputed mining claims.

With regard to the second issue, the protection accorded by s 137 (7) of the Act accrues to a holder.  It appears the first respondent has once again swept the rug from underneath the second respondent by not defending the suit.  The second respondent will undoubtedly have a mountain to climb in convincing the appellate court that the first respondent is the rightful owner of the disputed mining claims.  This is for the simple but good reason that the first respondent already has an adverse extant court order militating against its ownership of the disputed mining claims.

The alleged agreement between the first and second respondents allowing the former to mine the claims would be tainted if the first respondent was not the owner and holder of the claims.  In the circumstances of this case it appears to me that the applicant has sound and reasonable prospects of success on appeal given that the first respondent’s ownership of the mining claims has been severely dented by the extant default judgment against it.  The second respondent is merely riding on the back of the first respondent as the source of its mining rights.  That being the case, it is likely to fall with the capitulation of its principal.

In the result I find that the applicant has bright prospects of success on appeal.  It is accordingly ordered that:

1. The application for condonation for non-compliance with r 37 (1) (a) and r 37 (1) (e) of the Rules of the Supreme Court, 2018 be and is hereby granted.

2. The application for condonation for non - compliance with r 38 (1) (a) of the Supreme Court Rules, 2018, be and is hereby granted.

3. The application for an extension of time within which to file and serve a notice of appeal in terms of the Rules be and is hereby granted.

4. The notice of appeal shall be deemed to have been filed on the date of this order.

Or

The applicant shall file its appeal within (10) ten days of the granting of this order.

5. Each party shall bear its own costs.

Absolom & Shepherd Attorneys, applicant’s legal practitioners.

Sadowera Kuwana, 2nd respondent’s legal practitioners.