Ronald Davison Mugangavari v K & G Mining Syndicate and Provincial Mining Director – Midlands N.O

### Preamble
1
HB 185/20
HC 835/20
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RONALD DAVISON MUGANGAVARI

versus

K & G MINING SYNDICATE

and

PROVINCIAL MINING DIRECTOR – MIDLANDS N.O

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 28 JULY 2020 & 10 SEPTEMBER 2020

Opposed Application

Mr D Mwonzora with Mr J Kadoko, for the applicant

Mr T Zishiri, for the 1st respondent

MAKONESE J: 	This is an application for leave to execute pending appeal. The application is made pursuant to a judgment I granted with costs in favour of the applicant on 11 May 2020 under judgment number HB 63/20 and case number HC 1776/19. The applicant had sought an order declaring the directive of the 2nd respondent halting the applicant’s and 1st respondent’s mining operations on a certain contested claim to be invalid, which application I granted, ordering the applicant to resume mining operations. The 1st respondent appealed against the judgment, effectively suspending its execution. The applicant seeks leave of this court to execute that judgment pending appeal. The application is opposed.

The relief sought is in the following:

It is order that:

Applicant be and is hereby given leave to execute the judgment f this court under case number HC 1776/19 pending the determination of the appeal by the 1st Respondent under case number SCB 35/20.

The Applicant be and is hereby allowed to resume mining operations at Clifton 15 Mine, Mberengwa forthwith.

The 1st Respondent be and is hereby ordered to pay costs of suit.

Factual Background

The facts of this matter are largely common cause. A dispute arose between the applicant and the 1st respondent. The parties are at loggerheads over the boundaries of certain mining claims locatedin the district of Mberengwa. 1st respondent claims that applicant has encroached onto its claims. The mining dispute was brought before the 2ndrespondent for determination. It appears there were in fact two separate mining claims pegged on the same location. The applicant referred to its claims as Clifton 15 while the 1st respondent referredto its claims as Midway 21. Upon visiting the disputed mine the 2nd respondent made a determination in favour of the 1st respondent. The 2nd respondent issued a directive cancelling the applicant’s certificate of registration in respect of the claims. Aggrieved by the 2nd respondent’s decision the applicant noted an appeal with the Minister of Mines and Mining Development. The Minister found in favour of the applicant ruling that the applicant was the rightful owner to the claims, that is Clifton 15, and that the certificate issued in favour of the 1st respondent in respect of the claim had been fraudulently obtained. In the result, the 2nd respondent’s decision in favour of the 1st respondent was nullified on 17 July 2015.

Holding true to the spirit of the dispute, the 1st respondent made an application for review under case number HC 2031/15 challenging the Minister’s decision on the grounds that the Minister lacked jurisdiction and further that the decision was grossly unreasonable. This court found that the Minister lacked jurisdiction and on that strength declared the decision to be null and void. The application was granted in favour of the 1st respondent under HB131/17.

The order sought to be executed

Prompted by a directive issued by the 2nd respondent on 17 January 2018 the applicant filed an application under case number HC 1776/19 for a declaratory order. The directive by the 2nd respondent was in the following terms;

“….Reference is also made to the Officer Commanding Police, Midlands Province dated 11th January 2018, indicating imminent violence between the disputing parties if operations continue to be conducted on the disputed area and that your office is already seized with numerous cases of violence emanating from this dispute where the cases on point are attempted murder, robbery, theft of gold ore and assault….

In view of the fore going mining and allied operations are hereby suspended until the matter is resolved before the courts and the dispute is put to rest …”

In the application that was placed before me, a finding in favour of the applicant was made.

The 1st respondent has noted an appeal against the judgment delivered on 31 May 2020 under case number SCB 34/20. It is pertinent to point out that the appeal had the effect of suspending the judgment in favour of the applicant. This has prompted the applicant to file the present application for leave to execute pending appeal.

The Law

The effect of noting an appeal against a judgment is settled at law. The common law position that an appeal suspends a judgment has beencrystallised through case law. It is established law that the court granting the judgment enjoys an inherent jurisdiction to order the execution of that judgment despite the noting of an appeal. See; Hosea O Ncube v Simbabrashe Mupinga HH 212/18. The court in South African Cape Corporations (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977(3) SA 534 further expounded that this inherent jurisdiction entailsa wide general discretion to grant or refuse leave to execute pending appeal. What this means is that, while the right to appeal is fundamental to justice and the right should not be lightly interfered with, the act of noting an appeal does not in itself confer on a party an absolute right to the stay of execution on the strength of an appeal  that has been noted. See; Hosea O. Ncube, supra. The factors to be considered by the court in deciding whether to grant or withhold its leave were set out by the Supreme Court inZimbabwe Mining Development Corporation & Anor v African Consolidated Resources PLC &Ors SC1/10 as follows:

the potentiality of irreparable harm or prejudice being sustained by the appellant on appeal (the respondent in the application) if leave to execute were to be granted;

the potentiality of irreparable harm or prejudice being sustained by the respondent on appeal ( the applicant in the application) if leave to execute were to be refused;

the prospects of success on appeal, including more particularly the question as to whether the appeal is frivolous or vexatious or has been noted not with bona fide intention of seeking to reverse the judgment but for some indirect purpose, such as  gaining time or harassing the other party; and

wherethere is the potentiality of irreparable harm or prejudice to both (the) appellant and (the) respondent, the balance of hardship or convenience, as the case may be.

It was further stated by the court that the above considerations are meant to guide the court in reaching what is a just and equitable determination in the circumstances of each case. It is important to note that the above considerations should be taken cumulatively in assessing and coming up with what is just and equitable position.

Analysis of the merits of the application

Potential of irreparable harm

As it is, all mining operations at the disputed mining location remain halted by the appeal noted by the 1st respondent. It is from this set of circumstances that irreparable harm is alleged by either party, both anchored on the premise that they are entitled to mine at the site.

It is noteworthy to highlight that a mine by its very nature holds finite resources.  To that end, to permit the applicant the right to extract gold ore from the mining claim in the interim, presents a real risk of financial prejudice in the event that the appeal succeeds. The harm occasioned in the circumstances would certainly be irreparable. This court must guard against such an outcome. 1st respondent is in relatively a favourable position before one factors in the applicability of any exceptional circumstances that may call for a departure from the general norm and permit execution pending appeal.

The applicant contends irreparable harm in that he alleges having invested in machinery and property that is lying idle at the mining site. While the applicant has not taken the court into its confidence as to this fact and therefore cannot heavily rely on it, it is in any event, a consideration that cannot be said to outweigh the potential harm to the 1st respondent through a potential depletion of resources if leave to execute were to be granted. The applicant can mitigate any losses by storing his equipment in a safe place pending the finalisation of the appeal. Machinery can be moved to a safe location. Resources that have been exploited cannot be restored nor replaced.

Prospects of Success

The applicant alleges that the grounds of appeal are defective in that the grounds of appeal while premised on factual considerations, in themselves, they do not demonstrate a gross misdirection by this court. The 1strespondent submits that the appeal raises genuine grounds of appeal and that appeal does have prospects of success. The 1strespondent’s grounds of appeal are to the effect that this court erred in entertaining and subsequently granting the applicant’s application.

Be that as it may, it is my view that sight must not be lost of the nature of this dispute. It is apposite to point out that what initially began as a boundary dispute has now turned to be a contestation over essentially one and thesame claim. This court may not ignore the importance of the various considerations this court has to take into account to come up with a just and equitable decision in the matter. The ultimate goal for both parties should be a determination as to who has the rights to the claim. An appeal has been noted. It cannot be said the appeal is frivolous and vexatious.  In the circumstances, it is prudent to allow the appeal to be heard. There is a need to maintain the status quoin the interim until the appealis heard and determined.

Disposition

Whilst the wheels of justice generally turn slowly, due diligence and an expeditious attitude to the prosecution of the appeal from both parties will allow them to know their fate. It is my view that this position will incentivise a swift approach in seeing the appeal through thereby resolving the dispute.

In the result, it is appropriate to maintain the status quo ante pending the determination of the appeal. The application for leave to execute pending appeal is hereby dismissed with no order as to costs.

Mwonzora & Associates, applicant’s legal practitioners

Garikayi & Company, 1st respondent’s legal practitioners