Stanley Kapawu v Nuggets Hub Private Limited & 2 Ors

### Preamble
Judgment No. SC 101/25
1
Civil Appeal No. SC 100/25
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REPORTABLE	(101)

STANLEY     KAPAWU

v

NUGGETS     HUB     PRIVATE     LIMITED     (2)     PAMELA     MUTEMBWA   (3)     PROVINCIAL     MINING     DIRECTOR     N.O.

[Mashonaland Central Province]     (4)     OFFICER     IN     CHARGE     [CID Minerals Flora & Fauna Unit] BINDURA

SUPREME COURT OF ZIMBABWE

MAVANGIRA JA, CHIWESHE JA & MUSAKWA JA

HARARE: 20 MAY & 6 NOVEMBER 2025

T. Zhuwarara, for the appellant

S.T. Mutema, for the first and second respondents

L.T. Muradzikwa, for the third and fourth respondents

MAVANGIRA JA:

[1]   	This is an appeal against the whole judgment of the High Court handed down on                10 February, 2025, dismissing the appellant’s application for spoliatory relief.  The applicant had also sought the relief of an interdict but this was abandoned during the proceedings before the court a quo, leaving it to determine the application for spoliation only.

FACTUAL BACKGROUND

[2]    	On 2 March 2016 the appellant was issued with a certificate of registration for ten gold reef claims named Chifefe, situated in Chiweshe, approximately 1.6 km south east of Bell Rock School, under certificate number 45915.  In 2018 he was issued with a certificate of registration for 9.9 gold reef claims named Chifefe 30, situated in Chiweshe, approximately 1.2 km south east of Bell Rock School under certificate number 46866.

[3]    	Sometime in February 2021, the appellant entered into a Joint Venture Agreement with the first respondent.

[4]    	Further negotiations between the two culminated in the signing of a “Standard Tribute Agreement” on 19 March 2021 which was to expire on 19 March 2024.  The agreement was registered with the third respondent.  A material term of the agreement, clause 8, expressly prohibited the first respondent, as Tributor, from subletting or assigning its rights or any part thereof without the prior written consent of the Grantor, being the appellant.

[5]   	Due to what the appellant described as “continued insecurities of the first and second respondents,” the parties entered into yet another Joint Venture Agreement.  The agreement expressly mentioned that it was not superseding the Tribute Agreement.

[6]    	The appellant later discovered that the first and second respondents were subcontracting third parties in contravention of clause 8 of the Standard Tribute Agreement.  This prompted the appellant to write to the said respondents on 18 August 2022 and on                     16 September 2022, calling for the cancellation of both the Tribute and Joint Venture agreements on the basis of material breach thereof.

[7]   	Thereafter, the first and second respondents are alleged to have stopped all operations, removed most of their mining equipment and disappeared from the mine.  After their departure, the first and second respondents instituted litigation in different fora including Chief Negomo’s Court and the court a quo.  They also unsuccessfully sought an injunction from the Ministry of Mines, Bindura.  The application for an injunction was opposed by the appellant.  The application was determined by the third respondent in the appellant’s favour.  By way of a letter dated 20 December, 2024, the third respondent stated as follows:

“We acknowledge receipt of your application for an injunction and a notice of opposition by Stanley Kapawu … After due consideration of the application … and a notice of opposition … we regret to notify you that the application for an injunction cannot be granted for the following reasons:

On prima facie basis, the applicant could not on a balance of convenience establish that it still has a tribute agreement registered with the Ministry of Mines and Mining Development and that on the area under injunction application, it has potential to suffer more harm in terms of investments and operational costs than the respondent.

Applicant did not prove that the potential harm cannot be compensated by damages.

Applicant delayed the submission of its injunction application since the 19th of March 2024 and 3 months prior to that during which time it was supposed to give notice of its intention to either continue or discontinue the tribute agreement.”

[8]    	It was also alleged that sometime in June 2023, the first and second respondents came to the mining site.  According to the appellant they threatened to force themselves back onto the mine and this prompted him to apply for an interdict against them under                                HCH 4420/23 after which the said respondents vacated the site.  The appellant abandoned the application after the said respondents left the site.  The said respondents later filed an application in 2024 under HCH 1373/24 for the dismissal of the application under                    HCH 4420/23 for want of prosecution.  The appellant did not contest the application.  The appellant’s application under HCH 4420/23 was accordingly deemed abandoned and dismissed as reflected in a letter by the Registrar of the court a quo dated                                          24 September 2024.

[9]   	On the night of 4 January 2025 the said respondents returned to the mine.  The parties have traded accusations about what transpired but it is common cause that a brawl ensued and it left several employees injured.  A report was made to the Police and some members of the appellant’s workforce were arrested.  On 7 January 2025 the respondents returned to the mine and are alleged to have begun extracting ore, barring the appellant’s employees from conducting mining activities, thereby disrupting the appellant’s activities at the mine.

[10]  	As a result of these developments and as the respondents remained milling around the mine, the appellant filed an urgent chamber application for an interdict on                                             10 January 2025 under HCH 79/25.  The matter was set down for hearing on                                  13 January 2025.  At the hearing, the judge in the court a quo raised certain issues relating to the adequacy of the interim relief that the appellant was seeking as viewed against the then prevailing circumstances as well as the propriety of “Chifefe Mine” suing the respondents when the mining claims were registered in the appellant’s name.  Apparently, after considering the judge’s concerns on these issues, the appellant withdrew the application on 16 January 2025 and tendered wasted costs.  He thereafter filed an urgent chamber application for a spoliation order and an interdict under                 HC 162/25.

[11]  	The respondents opposed the application.  They contended that there was no evidence to support the claim that on 4 January 2025 the appellant’s employees were attacked by the representatives of the first respondent.  On the contrary, they alleged that it was the appellant’s employees who in fact robbed the first respondent’s representatives at gunpoint.  They further asserted that they had not vacated the mine permanently but had temporarily withdrawn after receiving erroneous legal advice from their legal practitioner.  They also argued that, following the dismissal of HCHC 4420/23, they lawfully reoccupied the mine on the basis that the Joint Venture Agreement between the parties remained valid and binding.  Additionally, the first respondent argued that since 20 December 2024, both sides had been concurrently operating albeit on different sections of the mine.

[12] 	The parties appeared before the court a quo on 23 January 2025 and the court directed them to conduct a ground verification exercise and submit a joint report to resolve the dispute amicably.  The matter was postponed to 28 January 2025.  At that hearing, the parties reported that they could not agree on a joint report due to conflicting observations. The court nonetheless instructed them to submit a report reflecting both agreements and disagreements, and postponed the matter to 6 February 2025.  Despite agreeing to submit a video recording of their visit, by 6 February 2025, the parties filed separate reports, having again failed to reach consensus.  The court decided to make a determination and indicated it would address the reports in the judgment.

[13] 	The court a quo found that while arrests were made following the incident of                                    4 January 2025, no connection was established between the arrested individuals and the respondents.  Consequently, it held that there was no evidence of the alleged unlawful dispossession by the respondents.  It further held that the matter before it was primarily a live contractual dispute arising from agreements which the appellant claimed to have terminated.  Consequently, the court a quo found the application to be devoid of merit and dismissed it.

[14]  	Aggrieved by the decision of the court a quo, the appellant filed the present appeal on the following grounds:

GROUNDS OF APPEAL

The court a quo erred in failing to hold that the appellant was in peaceful and undisturbed possession of the mining claim (registration number 45915 known as Chifefe Mine) in circumstances where the first and second respondents had confessed to voluntarily vacating the aforesaid mining location as far back as July 2023.

Concomitant to the aforesaid ground: the court a quo also erred in failing to make a finding that the first and second respondents precipitous and forcible re-entry onto the mining claim, without the consent of the appellant, constituted an act of spoliation.  In doing so, the court overlooked the fundamental principle of the mandament van spolie, which prohibits the taking of possession through self-help.

The court a quo erred in finding that the parties were in peaceful co-existence despite clear and undisputed evidence demonstrating that, from the moment of the respondent’s forcible reoccupation occurred, the parties were in a state of open, ongoing and irreconcilable conflict.

Additionally, the court a quo misdirected itself by accepting or implicitly endorsing the respondent’s claim to a contractual entitlement to possession.  Such a finding effectively sanctioned the respondents resort to self-help, contrary to established legal principles underpinning the remedy of mandament van spolie, which requires a party seeking possession to do so through lawful judicial processes and not through forceful re-entry after abandonment.

The appellant seeks relief in the following terms:

RELIEF SOUGHT

That the instant appeal succeeds with costs.

That the order of the court a quo be set aside and substituted with:

The first and second respondents be and are hereby ordered to vacate and immediately restore possession of the mining claim registration number 45915 known as Chifefe Mine in the mining province of Mashonaland central to the applicant upon service of this order.

In the event of failure to comply with the above order, the Sheriff of Zimbabwe or his lawful deputy be and is hereby ordered to evict and restore possession of a mining claim registration number 45915 known as Chifefe Mine situate in the district of Mashonaland Central province to the applicant.

The first and second respondent to pay costs of suit.

SUBMISSIONS BEFORE THIS COURT

On behalf of the appellant

[15]  	Mr Zhuwarara, for the appellant, submitted that the error of the court a quo was in conflating of the parties’ contractual rights with the possessory protection that the appellant was seeking before it.  The court a quo thus did not apply the proper test, which test he described as having become sacrosanct.  He submitted that it was clear from the facts that despite the Joint Venture Agreement, the first and second respondents had abandoned the mining location and that the appellant was exclusively enjoying the use and possession of the complete mining location for a period of 17 months.  Further, that it was clear that the said respondents unilaterally resumed occupation in defiance of the appellant’s opposition and without any lawful authority.  In such circumstances, the court a quo ought to have granted the relief sought.  He cited Botha & Anor v Barrett 1996              (2) ZLR 73.

[16]  	Counsel also highlighted that the first and second respondents confessed in their opposing papers that they had left the mine in July 2023 after the application in HC 4420/23 had been filed but that this was on bad legal advice of their erstwhile legal practitioner.  They also confessed to having resumed occupation on or about 20 December 2024 without the use of any force.  He further submitted that whatever the reason or manner of the said respondents’ abandonment of the mine, the fact was that the appellant remained and was in sole possession and use of the whole mining location.  Before the court a quo, therefore, so counsel argued, the rights of the parties were irrelevant.  Counsel contended that the finding by the court a quo that there had been shared control with regard to the milling and mining divisions was no justification for the denial of spoliatory relief to the appellant.  In this regard, he argued that as long as possession of a portion of the whole is interfered with, spoliatory relief ought to be granted.  In this respect he cited, inter alia, Forrester Estate (Pvt) Ltd v Vengesai 2009 (2) ZLR 128 (H), at 130 C-D, Bennett Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230 (E), at 233 G-H.

On behalf of the first and second respondents

[17]  	Mr Mutema, for the first and second respondents submitted that the court has to look at the lawfulness of the possession being related to.  It was his submission that the court        a quo looked at the Joint Venture Agreement to determine whether possession was unlawful.  Whilst agreeing that Botha & Anor v Barrett, supra, reflected the correct position of the law, he contended that the court a quo correctly considered the lawfulness of the occupation by the respondents by taking into account their rights under the Joint Venture Agreement and consequently finding that there was no self-help by way of forceful occupation.  He submitted that the court a quo correctly found that the parties had co-possessed the mine and co-existed for a long time.  He argued that the relief sought was therefore incompetent because the respondents had only temporarily halted mining operations but never removed their mining equipment.  He submitted that the appeal therefore lacks merit.

On behalf of the third and fourth respondents

[18]  	Mr Muradzikwa, for the third and fourth respondents submitted that the third and fourth respondents’ observations on the ground, were that there was no spoliation that had taken place.  Further, that there were two security personnel on the ground, one from the appellant and the other from the first and second respondents.  The first and second respondents’ mining equipment was also at the mine.  Counsel further submitted that despite the expiry or cancellation of the Tribute Agreement, there was still a Joint Venture Agreement, valid for 20 years.  The judgment of the court a quo was thus correct and ought not to be interfered with.

Appellant’s reply

[19]  	In his reply, Mr Zhuwarara submitted that all the four respondents were making the same error that the court a quo had made and there was thus need for this Court to re-state the law as set out in the Chisvetu case supra, amongst other case authorities.  He highlighted that in motion proceedings, the affidavits constitute both the pleadings and the evidence, citing Saunders Valve Co Ltd v Insamcor (Pty) Ltd 1985 (1) SA 144 (T) at 149C, in support of the proposition.  Therefore, when the first and second respondents said that they left the mine in 2023 and returned in December 2024, no evidence was needed to prove that fact.  On the contrary, peaceful possession by the appellant during their absence was thereby proved or confirmed.  It was counsel’s contention that the day when the first and second respondents unilaterally returned to the mine in 2024 after an absence of 17 months, they despoiled the appellant and could not escape the condemnation by claiming the right to return on the basis of the Joint Venture Agreement.

ISSUE FOR DETERMINATION

[20]  	The issue falling for determination by this Court is whether the court a quo erred in finding that the appellant failed to meet the requirements that must be satisfied for a court to grant a spoliation order.

THE APPLICABLE LAW AND ITS APPLICATION TO THE FACTS

[21]  	In Kama Construction (Pvt) Ltd v Cold Comfort Farm Co-operative & Ors 1999 (2) ZLR 19 (SC) at 21F, this Court stated that:

“It is trite that in order to obtain a ‘mandament van spolie’ or spoliation order, the applicant must show that:

(a) he was in peaceful and undisturbed possession of the thing; and

(b) he was unlawfully deprived of such possession.”

[22]  	In Botha & Anor v Barrett 1996 (2) ZLR 73 (S) at 79E-80A the following was stated:

“It is clear that in order to obtain a spoliation order two allegations must be made and proved.  These are:

That the applicant was in peaceful and undisturbed possession of the property; and

That the respondent deprived him of the possession forcibly or wrongfully against his consent.

…

It was for the respondent to show that he had not consented to being deprived of possession.  No onus rested on the appellants, as the learned judge perceived, to establish the respondent’s consent.

Consent to the deprivation may be expressly given, as where the possessor is present at the time, is spoken to and gives his permission.  Or it may be implied from the conduct of the possessor both before and after the removal of his property. In casu, as I have mentioned, it was for the respondent to satisfy the court on a balance of probabilities that any actions or omissions bearing upon his loss of possession, did not warrant a finding that he had been a consenting party.”

[23]  	The merits of the underlying dispute are irrelevant considerations when a court is charged with deliberating a claim for a spoliation order.  In Chisveto v Minister of Local Government and Town Planning, 1984 (1) ZLR 248 (H) at 250B-F, Reynolds J stated:

“… as I understand it, it is a well-recognized principle that in spoliation proceedings it need only be proved that the applicant was in possession of something and that there was a forcible or wrongful interference with his possession of that thing – that spoliatus ante omnia retituendus est (Beukes v Crous and Another 1975 (4) SA 215 (NC)).  Lawfulness of possession does not enter into it.  The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands.  To give effect to these objectives, it is necessary for the status quo ante to be restored until such time as a competent court of law assesses the relative merits of the claims of each party. Thus it is my view that the lawfulness or otherwise of the applicant’s possession of the property in question does not fall for consideration at all.  In fact, the classic generalization is sometimes made in respect of spoliation actions that even a robber or a thief is entitled to be restored to possession of the stolen property.  The            oft-cited passage of Innes CJ in Nino Bonino v de Lange 1906 TS 120 at 122 is pertinent:

‘It is a fundamental principle that no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable.  If he does so, the Court will summarily restore the status quo ante, and will do so as a preliminary to any inquiry or investigation into the merits of the dispute.  It is not necessary to refer to any authority upon a principle so clear.’” (The underlining is mine)

[24]  	Equally aptly, in Shiriyekutanga Bus Services (Pvt) Ltd v Total Zimbabwe (Pvt) Ltd 2008 (2) ZLR 37 (H) at 41 D-F, after a review of the case authorities on the subject, the following was said:

“The court hearing a spoliation application does not at all look into the juridical nature of the possession claimed.  The possession protected by spoliation need not be lawful, not even morally sound.”

[25]  	In his founding affidavit, the appellant stated, amongst other things:

“16.  	First and second Respondent then stopped all operations, removed most of the mining equipment and disappeared from the Mine. …

17.  	However, even after their departure first and second Respondent started mounting litigation in different platforms ….

18. 	Sometime in June 2023, the first and second Respondent came at the mining site and threatened to force themselves back.  This led me to file an application for an interdict against first and second Respondent under case number HCH 4420/23, but later on abandoned it after first and second Respondent disappeared from the picture.  First and second Respondent later filed an application for dismissal of the matter for want of prosecution sometime in 2024 under HCH 1373/24 which I did not contest and thus my application (was) dismissed due to abandonment. …

…

20. 	After having gone to various platforms including the Community Court at Chief Negomo, insisting on their claim for continued existence of the Joint Venture Agreement and after all their efforts were not successful, first and second Respondent then forced themselves into the mining shaft on the  4th January 2025 during the night.

21. 	Prior to this, I should state that the first and second Respondents had written a letter notifying various authorities that they were moving back to the mine.  Even though this letter is dated 12 December 2024, they effectively forced themselves on to the mine on the 4th of January 2025.”

[26]  	In HCH 162/25, the deponent to the first and second respondents’ opposing affidavit stated the following at p 104:

“18. 	The need to act arose in July 2023 when Applicant realized that he was no longer on good terms with the first Respondent and filed an interdict against the first Respondent and myself under case HCH 4420/23, the averment that first Respondent and I completely left the mine for 2 years is incorrect.

18.1 First Respondent and I only left the mine after case number                  HC 4420/23 had been filed and on bad legal advice from our then legal practitioner, Mr … (name withheld) who advised that the filing of the Court Application meant that we were barred from setting foot on the mine.

18.2 	Applicant and first Respondent have been having disagreements on our working relationship and Applicant has always intended to interdict us from the mining location, which application Applicant abandoned.  See the attached dismissal order by the Registrar already attached to Applicant’s founding affidavit as annexure G1.

19. Applicant’s urgency is self-created and the need to act arose seventeen (17) months ago and Applicant simply aborted his right to have the Court determine the issue of whether first Respondent was to be interdicted.

19.1 	It is untrue that first Respondent and I simply left the mine after filing of the interdict application but we opposed the Application and when we saw that Applicant was not willing to prosecute the matter we even filed an application for dismissal for want of prosecution under case HCH 1373/24, this shows that we never abandoned the mine as alleged and Applicant knew this fact and decided to simply ignore the application.  See attached the application for want of prosecution in case HCH 1373/24 attached hereto as B.

20. 	First Respondent was only advised by our current legal practitioners in November that the interdict filed did not stop us from being present at the mine and that the matter had been dismissed on 16 June 2014 (sic).

21. 	Resultantly first Respondent and I wrote to all the relevant authorities informing them that by law there was nothing that stopped us from resuming mining activities and we returned to the mine on or about                                             20th December 2024 without the use of force.  See the correspondence written to the Mining authority dated 12th December 2024 already attached to Applicant’s founding affidavit as H1 & H2 thereto.

22. 	The averment that the first Respondent and I forced ourselves onto the mine on the 4th or 7th of January 2025 is sensational and baseless.” (The underlining is mine)

[27]  	From the first and second respondents’ own affidavit, they left the mine in 2023 after the filing of the application under HC 4420/23 and only returned on or about                                         20 December 2024.  The appellant’s contention that the said respondent abandoned the mine for 17 months is thus confirmed.  It follows that during the 17-month period of their absence from the mine the appellant was solely in occupation of the mine.  It is also clear from the papers that the return of the first and second respondents to the mine 17 months later was not welcomed by the appellant.  It clearly emerges from the papers that from the return of the said respondents to the mine, there has been no harmony between them and the appellant.  The disharmony arose from the said respondents’ drive to enforce the rights that they claim to have by virtue of the agreements that they entered into with the appellant.  However, it was not for the court a quo to determine those rights as what was before it was an application for a spoliation order.

[28] 	The principles that govern the granting of spoliatory relief have been related to earlier in this judgment where the requirements enunciated in the Kama, Botha, Chisveto cases amongst other case authorities, have been quoted.  The court a quo prematurely and erroneously considered the agreements entered into by the parties as determinative of whether or not the appellant had been despoiled by the first and second respondents. Notably, it also was alive to the fact that the parties were in dispute regarding those agreements.  The ongoing dispute relating to these agreements were irrelevant for purposes of the matter that the court a quo was seized with.  We agree with                                   Mr Zhuwarara that the court a quo conflated the parties’ contractual rights with the possessory protection that the appellant was seeking before it.  It thereby fell into error. The respondents having left the mine, the appellant was in peaceful and undisturbed possession of it.  The respondents’ unilateral return without the appellant’s consent thereto amounted to despoliation of the appellant.  Even on the respondents’ version of events, what clearly emerges is that the appellant was despoiled when the respondents returned 17 months after their departure therefrom.  The contractual dispute was not before the court a quo.

[29] 	In Forrester Estate (Pvt) Ltd v Vengesai 2009 (2) ZLR 128 (H) at 130 C-D the following was stated:

“A possessor need not have been dispossessed of the whole thing before he is entitled to claim a spoliation order.  Even where he has been deprived of possession of only a part thereof, he is entitled to this relief.”

In casu, the court a quo found that the appellant and the first and second respondents had had shared possession of the mine’s milling and mining operations respectively, However, on this authority (Forrester), even if the respondents were to be said to have only returned to their former activity, by their unilateral re-entry onto the mine without the appellant’s consent, they fell afoul of the law and endowed the appellant with the right to claim the protection afforded by the mandament van spolie.

[30] 	The point is aptly captured in the appellant’s heads of argument that with regard to the mode of dispossession, the evidence before the court a quo was unequivocal.  The first and second respondents re-entered the mining location unilaterally, without judicial sanction and without the appellant’s consent.  Furthermore, that the timing of their                     re-entry, long after their voluntary departure, placed their conduct squarely within the realm of unlawful self-help.  Whether the said respondents employed force, stealth or subterfuge is legally immaterial.  The facts of this matter reveal that the said respondents re-entered the mine without the consent of the appellant.  It therefore follows that the court a quo erred in failing to ask the correct legal question, viz, whether the appellant had been dispossessed without his consent and outside due process.

[31] 	In its judgment, the court a quo stated the following:

“From a reading of the reports and the documents before the court, it seems to me that the parties have co-existed on the ground for some time, but relations deteriorated following the alleged termination of the mining agreements between the applicant and the first and second respondents.

……………

What is also clear is that the applicant and the first and second respondents have all been in possession of the mine through their representatives at the same time.  There is a contractual dispute arising from the mining agreements between the applicant and the first and second respondents that requires urgent attention.  That contractual dispute, and the fact that the first and second respondents claim rights emanating from their mining agreements with the applicant, has effectively clouded the applicant’s claims of unlawful dispossession at the hands of the said respondents.  The court found no evidence of the alleged unlawful dispossession of the applicant by the respondents.  And as I have already noted, what is evident is that there is a live contractual dispute emanating from the mining agreements which the applicant claims to have terminated.

For the foregoing reasons the court determines that the applicant has failed to show that he was unlawfully dispossessed of the mine by the first and second respondents.  The application is therefore devoid of merit.” (The underlining is added)

It would seem to me that what may have been clouded was not the appellant’s claim of unlawful dispossession but the court’s lenses for discerning the claim that it was seized with.

[32] 	Notably, earlier in the judgment, the court made reference to Mr Zhuwarara’s submission on the merits of the matter when he drew its attention to the concession in para 18.1 of the opposing affidavit in which it was stated that the said respondents had left the mine as far back as July 2023 only to return on or about 20 December 2024.  Counsel submitted that during the period when they had admittedly left the mine, the appellant enjoyed peaceful and undisturbed possession thereof.  The court a quo also referred to counsel’s submission that the report prepared by one Mr Chimunoko who was representing the third and fourth respondents, stated that the mining side of the mine was under the security personnel of the first respondent, which personnel was under instructions to bar entry by any person other than the first respondent’s employees.  According to counsel, that also confirmed that the first and second respondents had forcibly taken possession of the mine. For ease of reference, the said para 18.1 is quoted, inter alia, in para [27] above.

[33] 	In finding that the parties had co-existed at the mine and that there was no evidence of the appellant having been dispossessed of the mine, the said court did not accord any consideration to paras 18.1 and 21 of the respondents’ opposing affidavit in which they admit to having left the mine only returning some 17 months later.  It did not also consider, in conjunction therewith, the letter dated 12 December 2024 written on the first respondent’s letterhead and addressed to “The Provincial Mining Director, Mashonaland Province, Bindura.” The letter reads:

“RE: CHIFEFE MINE, BELLROCK, CHIWESHE – RESUMPTION OF MINING ACTIVITIES.

The above refers.

We wish to inform you that we are resuming our mining operations at the said mine after a lull in operations because of various legal challenges that have since been dealt with.  Let me reiterate that your good office has consistently been kept in the loop of all legal proceedings as pertains to the said mine.

The brief background is that we are a women led organization in mining and we entered into a TWENTY (20) YEAR MINING AGREEMENT with MR STANLEY KAPAWU who owns CHIFEFE MINE.  In the course of establishing and operationalizing the mine we hired a Mining Consultant namely ELEPHANT TUNNELERS (PRIVATE) LIMITED through its Director, Reginald T. MUTOMBENI.

We worked briefly before challenges unexpectedly cropped up culminating in us being taken to court by CHIFEFE MINE which was seeking an interdict barring us from the Mining site.  I submit that you were also cited in your official capacity. The Court Application was abortive so much so that the High Court of Zimbabwe has dismissed the application.  See the Order and the Correspondence annexed hereto as issued by the High Court of Zimbabwe.  Thus there is no longer any prohibition against us legally to operate.

In the circumstances we have moved back onto the Mining site and are commencing operations.

We thank you in advance.” (The underlining is mine)

The letter was copied to: “C.I.D. Minerals, Flora and Fauna Unit, Bindura, The Minister of State for Provincial Affairs, The Local Councillor, O.P.C., O-I-C, ZRP Chimbiro, Chief Negomo, Member of the National Assembly, ZAWIMA.”

[34] 	Taken in conjunction with the quoted content of the opposing affidavit, the letter tends to confirm their admission of having left the site.  Any contractual dispute between the appellant on the one hand and the said respondents on the other was not relevant to the determination of the claim before the court a quo.

[35] 	In my view, the stance adopted by the third and fourth respondents in supporting the first and second respondents is based on observations made after the event.  It thus does not accord with the events and facts giving rise to the application for the spoliation order.  It accords no benefit to the first and second respondents as none accrues thereby.

DISPOSITION

[36] 	On the evidence that was placed before the court a quo, it is undeniable that following the admitted departure of the first and second respondents, the appellant was in peaceful possession of the mining location.  It follows that by their admitted unilateral re-entry onto the mine 17 months later without the appellant’s consent, the said respondents despoiled the appellant.  The claim that their departure from the mine was caused by bad legal advice has no relevance to the determination of the justification for the granting of a spoliation order.  The appellant was despoiled without due process.  He was therefore entitled, as of right, to have his possession restored.  The appeal is meritorious.  Costs will follow the cause.

[37] 	It is accordingly ordered as follows:

1. The appeal succeeds with costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

“1.  	The first and second respondents be and are hereby ordered to vacate and immediately restore possession of the mining claim registration number 45915 known as Chifefe Mine in the Mining Province of Mashonaland Central to the applicant upon service of this order.

2. 	In the event of failure to comply with the above order, the Sheriff of Zimbabwe or his lawful deputy be and is hereby ordered to evict and restore possession of the mining claim registration number 45915 known as Chifefe Mine situate in the Mining Province of Mashonaland Central to the applicant.

3.  	The first and second respondents shall pay the applicant’s costs of suit.”

CHIWESHE JA	:	I agree

MUSAKWA JA	:	I agree

Kadzere, Hungwe & Mandewere, appellant’s legal practitioners.

Mugomeza & Mazhindu, 1st & 2nd respondents’ legal practitioners.

Civil Division of the Attorney General’s Office, 3rd & 4th respondents’ legal practitioners.