G & G Preserves (Pvt) Ltd v Themba Sibanda t/a Bit Resources PBC Quarry Mine

### Preamble
1
HB 86.20
HC 1430/17
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G & G PRESERVES (PVT) LTD

Versus

THEMBA SIBANDA t/a BIT RESOURCES

PBC QUARRY MINE

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 27, 29 MARCH, 21 MAY 2019 AND 21 MAY 2020

Civil Trial

Advocate K I Phulu and Miss M N Sibanda, for the plaintiff

T Tavengwa, for the defendant,

MABHIKWA J:		Plaintiff issued summons against the defendant and prayed for judgement for the following;

An order that defendant immediately vacates the remaining extent of Lot “B” Lower Rangemore, Umguza.

That failing (i) above the Sheriff of Zimbabwe or his lawful deputy shall evict the defendant from the Remaining Extent of Lot “B” Lower Rangemore, Umguza.

Costs of suit.

For all intents and purposes therefore, the plaintiff’s claim was an Action rei Vindicatio.  It is well settled law that occupation or possession of an owner’s property by another person is prima facie wrongful.  All that the plaintiff needs to prove is that it is the registered owner of the property in issue and that it did not sanction or allow the occupation or possession of its property by the defendant.

See 	(a)	Hannex Investments (Pvt) Ltd v King ZLR (2) 334

(b)	Sanudi Masudi v David Jera HH 67/07

(c)	 Jolly v A Shannion & Another 1988 (1) ZLR 78

(d)	Stanbic Finance Zimbabwe (Ltd) v Chivhungwa 1999 (1) ZLR 262 (H)

(e)	Siyanda v The Church of Christ 1994 (1) ZLR 74 (S)

(f)	Spencer & Another v Minister of Lands & Others 2010 (1) ZLR 144

(H)

The defendant’s plea to the plaintiff’s claim was that defendant has been in lawful occupation of the property in issue since January 2017.  Defendant also pleaded that they were granted authority to conduct quarrying activities on the land in question in 2015.  Defendant then put the plaintiff to strict proof of the alleged wrongful occupation.  Defendant further maintained that they refused to vacate the said premises because their possession of the same was lawful.  Defendant also counter claimed against the plaintiff in convention.  However, just after closing the defendant’s case, defendant’s counsel submitted that he had been instructed earlier on during the trial, to withdraw the counter claim but had completely forgotten.  He apologized and then sought, with the indulgence of the court and the other party, to withdraw the counter claim.  There being no objection, the counter claim was accordingly withdrawn with no order as to costs.  This judgement will therefore limit itself to the main action henceforth.

Mr Dumisani Sibanda for the plaintiff company in simpler terms testified that he, his wife and children as a family, own the plaintiff company.  He produced the Deed of Transfer in respect of the property to prove ownership.  He also produced the Certificate of Incorporation showing the Articles of Association and the CR 14 form showing the list of the company directors.  Sibanda said he noticed at one time that there was some machinery, some of it very heavy machinery at the plaintiff’s premises.  He did not know the owners of the machinery.  The owners, whoever they were, had not consulted or engaged the plaintiff in any way before installing their machinery on the said premises.  There was no dispute and there is still no dispute that the plaintiff company owns the premises.

Further, Mr Sibanda indicated that his company has a massive housing scheme that was approved on 13 December 2017 that they are set to carry out on the same premises.  He later learnt that the defendants owned the machinery and invited them to the G and G Preserve (Pvt) Ltd offices.  He met 3 people who all introduced themselves as “Sibandas” and were possibly brothers.  On asking them, they told him that they had been given permission by the Umguza Rural District Council and Environmental Management Authority to extract quarry from the premises.

Having advised them that the premises were owned by the plaintiff company, they initially looked surprised and apologetic but later on seemed content to argue that they had documents entitling them to carry on with their presence and business at the premises.  Mr Sibanda in fact also stated that closely checking the documents the defendants had, it appears they were not mining at the place directed by the Rural District Council and that some of the documents were possibly not authentic.

Be that as it may, and whatever the case may have been with the Rural District Council, Environmental Management Authority, the Ministry of Mines, etc, the important part was that the plaintiff owned the property and had not been consulted at all about the occupation by the defendant and had not consented to it.

He said according to the special permit relied upon by the defendants, the physical addresses of the development project was given as “Dustale Farm, Umguza, Matabeleland North”.  He said Dustale Farm, though also under Umguza Rural District Council, is in fact a farm that is in Lower Rangemore area further away from the plaintiff’s farm.  When the plaintiff’s management confronted Umguza Rural District Council over the issue, the Rural District Council said the defendants had been granted permission to prospect at Dustale Farm not at the plaintiff’s farm.  He reiterated that he wants the defendants evicted from their farm.

At the closure of the plaintiff’s case, the defendant made an application for absolution from the instance.  The application was dismissed.

For a reason, let me summarise the evidence of the defendant in exactly the same manner it was put by counsel in defendant’s supplementary closing submissions.  His submissions verbatim were as follows:

EVIDENCE OF THEMBA SIBANDA AS SUMMARISED IN HIS OWN SUPPLEMENTARY CLOSING SUBMISSIONS

In his evidence in chief the defendant testified and provided sufficient evidence to prove that he is in lawful occupation of plaintiff’s farm.  He gave a detailed outline of how he occupied the farm.  He said that the Ministry of Mines first gave him authority to conduct mining activities at an area called Dustal East Farm near the National Museums Monuments.  However, he said that the Ministry of Environment, and Climate Change (as it was then) declined to give him the necessary authority to proceed with his mining activities as they were of the view that the mining activities will disturb the National Monuments.

He said that the Ministry of Mines then advised him to search and find an alternative area.  He found plaintiff’s farm and prospected there.  He discovered that the farm had base minerals in the form of quarry stone.  He alerted the Ministry of Mines of his discovery and expressed his desire to peg a mine thereat.  He said the Ministry of Mines after inspections had no objections and accordingly they relocated his registered block from Dustal East to plaintiff’s farm.

He stated that the Ministry of Mines surveyed the block at plaintiff’s farm after he had pegged same, and he was given co-ordinates outlining clearly the boundaries of his mining claim.  He produced a survey report from the Ministry of Mines dated 30th November 2016 which is marked as Exhibit “MM 2”.

He also did state that when he first learnt that plaintiff was challenging his occupation he wrote to the Ministry of Mines to seek confirmation of the correct location of his mining claim.  See letter dated 24 May 2017 marked as Exhibit “MM 3”.  He said Ministry of Mines responded by stating that indeed he had been relocated to plaintiff’s farm and that they had no objections to such occupation and mining on plaintiff’s land.  See letter dated 24th May 2017 marked as exhibit MM 4.  I must say that Exhibit MM4 does not say that the place is plaintiff’s farm.  It simply states that the Mines office has no objection to the “translocation”.

He further testified and said that he engaged an independent Land Surveyor to confirm if at all he was carrying out mining activities within the authorized pegged area.  To this end he produced a survey report from one I S Maingehama which is marked as Exhibit “MM 5A-5B”.  He said that this survey report was confirmation that his mine was within the co-ordinates given to him by the Ministry of Mines.

Over and above the produced exhibits, defendant adduced into evidence an Environmental Impact Assessment Report from the Ministry of Environment (Exhibit MM 7) and a current Inspection certificate from the Ministry of Mines (Exhibit MM6).  But most importantly as Approved Siting of Works Plan which is marked as Exhibit “MM 8”.

It was his evidence that all this documentary evidence was sufficient evidence to prove that he had authority from the Ministry of Mines and the Ministry of Environment to conduct mining activities at Plaintiff Farm.

I am cognissant, and will take into account that plaintiff would not entirely agree with that summarization of defendant’s evidence.  This court also does not necessarily agree with  some aspects of that Summary.  However, let me hasten to point out that even assuming that that summary were correct, it shows that right from the onset, defendant was mistaken regarding the rights of miners and landowners.

In fact this court will also hasten to state that throughout the pleadings, the commencement of trial and right up to the closure of the plaintiff’s case, the parties, especially the defendant did not know at all about the provisions of Part (IV) of the Mines and Minerals Act.  There was no reference at all to the Act throughout the pleadings and right up to the end of plaintiff’s cross-examination.  Of course Dumisani Sibanda had testified, that he had not been consulted and neither had he consented to have the defendant carrying its mining activities at the farm.  He had also testified that they would not have consented anyway since they, as a company had launched a massive development project which was at an advanced stage.  But it is this court that asked the plaintiff if he had received a written notice of defendant’s intention to prospect for minerals at the farm.  Or if any written consent for mining activities had been sought in terms of part IV of the Mines and Minerals Act, he said plaintiff had not received any such written notice neither did it receive any request for written consent.

I must in fact commend Mr Themba Sibanda who testified for the defendant.  He was asked if he knew that the land in issue was privately owned.  He was frank to say that he did not know.  The court also asked him

“Q	You have already said you did not know that the land in issue was privately owned, but in terms of the Mines and Minerals Act, do you know who has the onus to establish such ownership.

A	No

Q	Before all else and other arguments, did you know what was the first step you take before prospecting in privately owned land

A	No I did not.”

Sibanda therefore was honest with the court on that point, that he had been absolutely unaware that the land was a privately owned farm and the requirements of part IV of the Act in respect of such land.  It is therefore improper for counsel to claim in closing submissions that defendant acted in terms of section 38(7) of the Mines and Minerals Act.

This brings me back to the issue of defendant’s plea and evidence as summarised by his own counsel.  Defendant seems to believe that he is in lawful occupation or possession of plaintiff’s farm because of the numerous permits and licenses, certificates etc issued to him by the Ministry of Mines, Environment Management Agency and other institutions.  They are seriously mistaken.  They may as well have received other authorizations for services from ZINWA, ZESA etc.  That would still not amount to authorizing them to occupy privately owned land.

All the offices and institutions that defendant lined up and then boldly relies on them as his defence are institutions that deal with specific service provision.  They had no obligation to establish for the defendant the ownership of the farm and they did not, as now being cleverly submitted by defendant in closing submissions, “authorize” defendant to occupy plaintiff’s farm.  It is not true that all the documentary evidence produced by the defendant “was sufficient evidence to prove that he had authority from the Ministry of Mines and the Ministry of Environment to conduct mining activities at plaintiff’s farm”.  It is not true and this is the reason why Mr Sibanda for the plaintiff said he had no reason to confront the Ministry of Mines because the prospecting licence did not mention plaintiff’s farm and defendants also did not claim occupation by reason of the prospecting licence when he went to Umguza Rural District Council (RDC).

The registration Certificate (Exhibit MM1) mentions Dustal East Mine and I agree with Mr Phulu that the property description is for a different place than plaintiff’s farm at Lower Rangemore.  However, even if the description had fitted that of the plaintiff’s farm, the licence would still not have amounted to “authority to occupy plaintiff’s land” because the Ministry of Mines officials see a description of land only.  They themselves would be dealing with licences only and not ownership of the property and authority to occupy.

In short, all the exhibits that defendants rely on from MM1 to MM8, do not relate to the ownership and occupation of the farm in issue.   In any case, defendant admits that when they went through all those stages through various offices, they did not even know they were dealing with privately owned land.  They did not follow the provisions of part IX of the Mines and Minerals Act (Chapter 21:05).

I must say that counsel for the defendant is right at the close of submissions that generally, and prima facie, mining rights are superior to land rights in our law.  But this is not an absolute position and each case depends on its own facts and circumstances.  The prima facie position that mining rights take precedent over land right is also shown in the Act.

For the record Part IV of the Mines and Minerals Act is headed

“ACQUISITION AND REGISTRATION OF MINING RIGHTS”

Section 20 relates to Prospecting licences whilst section 26 relates to land open to prospecting, which includes State land, communal land, land under State and quasi State entities like Rural District Councils, parastatals etc, and also privately owned land.

Section 38 then is headed “Notice of Intention to Prospect”

Section 38(2) reads as follows:

“(2) 	Every person, before exercising any of his rights under a prospecting licence, special grant to carry out prospecting operations ……. land to which this section applies shall give notice of his intention to do so in whichever one or more of the following forms is applicable to the case………

(c)	If the land is unoccupied private land, he shall give notice in writing by registered letter addressed to the owner at his ordinary postal address.

(d)	……………………….

(e)	……………………….

(f)	If the land is Communal Land, he shall give notice in writing to any Rural District Council established for the area concerned;

And shall state in such notice his personal permanent postal address.

(3)	In every notice given in terms of subsection (2), there shall, in addition be stated the name and address of the person who will be in charge of prospecting operations on the land concerned”. (the emphasis is mine).

It is clear therefore that right at the beginning, before running up and down the  offices and places referred to in the “documentary evidence”(MM1 to MM8), defendant should have first established the status of the land concerned, and then followed all the procedure laid down in section 38 above, which are mandatory.  Mr Phulu rightly submits that the Act criminalises failure to give any notice as required by section 38, as it reads at section 38(8)

“Any person who fails to give any notice required in terms of this section, whether or not a mining location has been pegged, shall be guilty of an offence and liable to a fine not exceeding level three or to imprisonment for a period not exceeding one month or to both such fine and to such imprisonment.” (underlining is mine)

The institutions or offices now referred to by the defendant, that is Ministry of Mines, EMA, Umguza RDC, Surveyors etc are not obliged by the section to do anything concerning the ownership of the land on which prospecting or mining activities are to be carried out.  They are right to say they did not authorize defendant to occupy plaintiff’s farm”.  He who alleges proves.  Defendant is the one claiming that these institutions authorized him and is therefore the one who should have called them to tell the court whether in issuing all the documents, they were “authorizing him to occupy plaintiff’s farm” even without consulting plaintiff.  As already stated several times above, the institutions are mere service providers in this scenario.  Defendant could well have added ZESA and ZINWA and had electricity and water connection to the farm.  They could have added even a hundred other institutions.  That would still not amount to authorization to occupy privately owned land and do what they want simply because of mining rights.  Those institutions are in fact entitled to assume that defendant knows the law and that all is well with the owner of the property if it is privately owned land.

Defendant now seeks to rely on sections 82, 236 and 237 of the Act as well as the prima facie position that mining rights take precedence over land rights.  Defendant is completely off the mark in casu.  Regrettably also, the defendant is unrepetitent and uses that argument in a manner that implies that the plaintiff is the guilty party.

The sections that defendant relies on now should in fact be read together with section 32 of the Act, which reads as follows:

“32 DISPUTES BETWEEN LAND OWNERS AND PROSPECTORS

“If any dispute arises between the holder of a prospecting licence or a special grant to prospect or an exclusive prospecting order and a landowner or occupier of land as to whether land is open to prospecting or not, the matter shall be referred to the Administrative Court for decision.”

In my view therefore, it is only when the prospective prospector has given written notice shown in section 38, or when faced with any other resistence or lack of co-operation from the land owner that the prospector would then take the matter to the Administrative Court.  It is not the other way round as the counsel for the defendant now seeks to argue.  It should not be, and the legislature could not have intended that prospectors be allowed to get into privately owned land, occupy it and do whatever they want in the name of “superior” mining rights.  In fact in the circumstances of this case, it is the defendant who should have followed the law.  Had he met challenges, then he, not plaintiff, should have taken the matter to the Administrative Court.  This comes at the tail end and cannot be used to correct a wrong long committed.

In casu, it is clear anyway, and Mr. T. Sibanda for the defendant himself admitted that he did not follow the provisions of part IV of the Act at all.  In fact he was not even aware that he should have, until asked by the court.  This court therefore has no reason to continue following the long and winding arguments on the evidence of the only two (2) gentlemen who testified together with the documentary evidence.

In any event, the court agrees with the plaintiff that the description of the place given is not that of the plaintiff, and that the relocation theory or argument does not change anything in the circumstances.

Accordingly, I find that the defendant unlawfully occupied the plaintiff’s farm, and order as follows;

That the defendant shall immediately vacate the Remaining Extent of Lot “B” Lower Rangemore, Umguza;

Failing the above, the Sheriff of Zimbabwe or his lawful deputy shall evict the defendant from the Remaining Extent of Lot “B” Lower Rangemore, Umguza.

Costs of suit.

Messrs Vundhla-Phulu, plaintiff’s legal practitioners

Mutuso, Taruvinga & Mhiribidi, defendant’s legal practitioners