Mlauzi Syndicate v Bilboes Holdings (Private) Limited and 2 Others

### Preamble
1
HB 79/22
HC 187/19
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MLAUZI SYNDICATE

And

BILBOES HOLDINGS (PVT) LTD

And

THE MINING COMMISSIONER N.O.

And

OFFICER IN CHARGE, CRIMINAL

INVESTIGATING DEPARTMENT

MINERALS AND BORDER CONTROL,

INYATHI POLICE STATION

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 10 FEBRUARY & 17 MARCH 2022

Civil Trial

L. Chimire for the plaintiff

J. Tshuma for 1st defendant

MOYO J:	This is a matter where plaintiff had issued summons against the defendant.  The defendant defended the proceedings and filed a counter claim to the plaintiff’s claim.

In the counter-claim the defendant claims the following:

“(a)	that the plaintiff be ejected from Calcite Southern Mine, Inyathi Matabeleland North.

(b)	The plaintiff pays costs of suit.”

The basis of the defendant’s counter-claim is that plaintiffs’ mining claim was cancelled but that plaintiff continues to occupy Calcite South Mine and continues to mine without a valid permit yet defendant acquired the mining claims known as Calcite 22 to 28 on the 7th of May 1986.

In their plea to the defendant’s counter-claim, plaintiff avers that “the defendant has not been shown the said cancellation and that in fact they are challenging the said process”.  At a pre-trial conference held on 10 November 2020, the only issue referred for trial was whether the 1st defendant is entitled to evict the plaintiff from Calcite South Mine on Eastner Farm and that the onus would be on the 1st defendant.  The plaintiff’s claims were thus dropped at the pre-trial conference stage and were thus never referred to trial.  What this court has to determine therefore is the 1`st defendant’s counter-claim.  The 1st defendant led evidence through S. Chimwanda who told the court that claim 22 is the claim in dispute and that a dispute arose relating to the co-existence of the parties vis-à-vis that claim and the Mining Commissioner.  The result of the engagement and consultation with the Mining Commissioner was that a finding was subsequently made that plaintiff’s mining claim be cancelled as there is no gap/ground open for pegging on the survey map and that at the time of registration of Calcite South Mine (46920) the area was covered by Reserved Area 134/03.  Plaintiff’s Violet Mlauzi witness also testified that since the cancellation of the plaintiff’s certificate plaintiff has continued mining activities in breach of the Mines and Minerals Act.

In her testimony Mrs Mlauzi for the plaintiff, conceded that plaintiff currently does not hold any documents entitling her to mine in the area wherein 1st defendant seeks plaintiff’s eviction.  She confirmed that she did not review her registration certificate issued to her in 2012 for claim Calcite South registration number 46920.  She said it has never been renewed since 2013.  She confirmed that plaintiff is still mining on Calcite South 46920.  She confirmed that she received the letter of cancellation.  Questioned under cross-examination that she was defying the Ministry of Mines.  She said she knew that.

Thus being a mining dispute, the only resolution lies with the information in the court record obtained from the Ministry of Mines.

Clearly, the Mines Ministry from the letter at page 43 of 1st defendant’s bundle of documents cancelled the plaintiff’s Calcite South (46920) Mlauzi Syndicate claim.  Plaintiff was by virtue of that letter also ordered to cease all mining activities.  It is common cause from the documents in 1st defendant’s bundle that the cancellation was as a result of a dispute between plaintiff and 1st defendant.  It is also common cause, as per Mrs Mlauzi’s admission that the plaintiff still mines at the disputed site where its claim was cancelled.

The view of this court in resolving the issue of whether the eviction should be granted or not is that, mining land is within the jurisdiction of the Mines Ministry.  They issue certificates of registration and also cancel same where appropriate.  Where the Mining Commissioner has taken a decision to cancel a certificate of registration and where the Mining Commissioner has found in favour of one party in a mining dispute or encroachment, the court, in a matter like this one, cannot re-visit the appropriateness or otherwise of the  Mining Commissioner’s decision since the purpose of these proceedings is not to review them but what the 1st defendant seeks in my view is to confirm its rights of ownership of a claim and to eject plaintiff from a claim where the Mining Commissioner has already found in its favour in a mining dispute involving the parties.  1st defendant has tendered documentary proof of copies of registration certificates at pages 60 – 64 of 1st defendant’s bundle of documents.  On the other hand, plaintiff has confirmed that they have no registration to title and that they were ordered to cease mining operations by the Mines Ministry but that they did not heed that directive.

The case clearly should be resolved on the facts as are established by the documents emanating from the Mines Ministry which documents are proof of title or otherwise.  It is for these reasons that I find that 1st defendant having proven its title, and 1st defendant having tendered documents from the Mines Ministry which support its cause and plaintiff having failed to produce anything in support of its presence on the ground, this court is bound by the documentary evidence before it and consequently I find that 1st defendant has indeed made a case for the relief that it seeks.

I accordingly order as follows:

The counter claim succeeds.

That the plaintiff be ejected from Calcite South Mine, Inyathi, Matabeleland North, forthwith.

That plaintiff pays the costs of suit.

Liberty Mcijo & Associates, plaintiff’s legal practitioners

Scanlen & Holderness c/o Webb, Low & Barry, 1st defendant’s legal practitioners