Tapiwa Mining Syndicate v Rebecca Siziba and the Minister of Mines and Mining Development and the Mining Commissioner N.O. Matabeleland North and the Provincial Mining Director N.O. Matabeleland North and the Officer in Charge ZRP, Inyathi N.O.

### Preamble
1
HB 198.19
HC 1084/19
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TAPIWA MINING SYNDICATE

Versus

REBECCA SIZIBA

AND

THE MINISTER OF MINES AND MINING DEVELOPMENT

AND

THE MINING COMMISSIONER N.O

MATABELELAND NORTH

AND

THE PROVINCIAL MINING DIRECTOR N.O

MATABELELAND NORTH

AND

THE OFFICER IN CHARGE ZRP, INYATHI N.O

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 25 NOVEMBER & 19 DECEMBER 2019

Opposed Application

Advocate S M Hashiti, for the applicant

Advocate L Nkomo, for the 1st respondent

L Dube, for the 2nd – 5th respondents

MAKONESE J:		This is an application for a declaratory wherein the applicant seeks an order in the following terms:

“IT BE AND IS HEREBY DECLARED ANS ORDERED THAT:

1.	The applicant is the holder of 10 Gold Reef claims named Cottage 5, Registration number 44886 situate in Matabeleland North.

2.	The applicant is the registered holder of 10 Gold claims named Cottage 6, Registration number 44887 situate in Matabeleland North.

3.	The applicant is entitled to all rights and access to the said claims in terms of the Mines & Minerals Act (Chapter 21:05) for as long as it remains the registered holder of the same.

4.	1st respondent’s claims of ownership with respect to the said claims are declared to be without merit.

5.	1st respondent to pay costs of suit on an attorney and client scale.”

The applicant’s claims are opposed.  1st and 4th respondents filed opposing affidavits and urged the court to dismiss the application.  The background to this matter is that a boundary dispute between applicant and 1st respondent in respect of Cottage 5 and Cottage 6 mining blocks has been ongoing since 2012.  Applicant petitioned this court under case number HC 511/12 for an order interdicting the 1st respondent from interfering with its mining activities at the disputed claims.  On 27th February 2012 I dismissed the application on the grounds that the applicant had failed to establish a prima facie case for the grating of an interdict.  That order is …. and has not been appealed against.  In the meantime, the applicant has continued with mining operations on the disputed claims.  Applicant still holds certificates of registration in respect of Cottage 5 and Cottage 6 mining claims.  Applicant has continued to pay the statutory inspection certificates and is up to date with payment of inspection fees.  Applicant holds current inspection certificates for the claims.  Applicant contends that only the holder of a claim can apply for and be issued with inspection certificates in terms of the Mines & Minerals Act.  Applicant further avers that by virtue of the applicant being the registered holder of the claims, it is not competent for 1st respondent or any other person to dispute title in the manner she has sought to do.  The essence of applicant’s argument is that since 2011 he has held the certificates of registration in respect of Cottage 5 and Cottage 6 and this court ought therefore to issue a declaratory to the effect that applicant is the registered holder of these claims.

1st respondent raises certain preliminary objections to this application which I shall deal with before dealing with the merits of the application

1.	Whether Applicant has locus standi to institute proceedings

It is argued by 1st respondent that applicant lacks the requisite locus standi to institute these proceedings as it is not a legally recognizable person.  On this basis alone, it is argued, the application should be dismissed with costs.

Advocate Hashiti appearing for the applicant pointed out that all the respondents have personally dealt with the applicant as a legal persona.  In the earlier order in case number HC 511/12, which is relied upon by 1st respondent in arguing that this matter is res judicata, it was accepted that applicant is a recognizable legal persona.  The Provincial Mining Director has treated the applicant as a legal persona, and in previous communication, has ordered that;

“TAPIWA MINING SYNDICATE must stop all mining activities at the disputed claims …….”

The inescapable conclusion is that at all material times applicant has been treated as a legal persona, with separate existence.  I am fortified in this position in that in previous proceedings in this court 1st respondent has never questioned the locus standi of the applicant.  I am satisfied that this point in limine is not merited.  I do not uphold this preliminary objection.

Whether this application is res judicata

1st respondent avers that the matter is not properly before the court since the same dispute has already been dealt with on the merits under case number HC 511/12.  It is indeed correct that these parties have appeared in this court before.  In the matter referred to, the applicant sought to interdict the 1st respondent from interfering with its operations on the disputed claims.  It was held in that matter that the applicant had failed to establish a prima facie case.  The application was accordingly dismissed on that basis.  The case before me now is for a declaratory order.  In Kawondera v Mandepovu 2006 (1) ZLR 110 at page 112c the Supreme Court stated per ZIYAMBI JA as follows:

“The requisites for a successful plea of res judicata based on a judgment in personam are three fold, namely that the primer action must have:

been between the same parties or their proxies

concerned the same subject matter; and

been founded on the same cause of action.”

See also: Rupande v Grobella & 2 Others HH 654-18.

It is not in doubt that both matters were between the same parties and relate to the same subject matter.  However, the cause of action is completely different.  In HC 511/12, the cause of action was an interdict.  This present application is for a declaratory order.  The cause of action in this application was clearly triggered by 4th respondent’s letter addressed to the Zimbabwe Republic Police dated 27th March 2019 in the following terms:

“Please be advised that TAPIWA MINING SYNDICATE must stop all mining activities at the disputed claims with immediate effect.  Both parties must comply with the High Court order dated 27th February 2012.  Tapiwa Mining Syndicate is encouraged to visit the Ministry of Mines office for any clarification on the matter.”

The order in case number HC 511/12 did not determine the rights of the parties.  The dismissal of the Urgent Chamber Application did not mean that the dispute had been conclusively resolved.  Although not conclusively doing so, the Constitutional Court in Anjin Investments (Pvt) Ltd v The Minister of Mines & Mining Development & 3 Others, CCZ 6/18 had occasion to discuss the plea of res judicata in circumstances where the basis of the relief sought had changed but the effect of the relief sought remained the same.  HLATSHWAYO JCC, held that:

“Although the basis of the application is changed with the introduction of the constitutional question, the effect of the relief sought remains the same.  Whether this disjuncture between the basis upon which relief is sought while the effect remains the same negates the plea of res judicata at all or only in specific circumstances I will leave open for now.”

In this case, the basis of the relief sought has changed.  Applicant seeks an order in terms of section 14 of the High Court Act for a declaratory order.  I come to the conclusion that the plea of res judicata does not apply in the present case.  I would dismiss that preliminary objection

Determination of The Merits

I shall now proceed to determine whether the applicant is entitled to the relief sought in the draft order.  The requirements for the granting of a declaratory order in the case of Munn Publishing (Pvt0 Ltd v ZBC 1994 ZLR 337 (S) the court held in that matter, per GUBBAY CJ that:

“The condition precedent to the grant of a declaratory order is that the applicant must be an interested person, in the sense of having a direct and substantial interest in the matter of the suit which could be prejudicially affected by the judgment of the court,  See United Wath & Diamond Co (Pvt) Ltd & Others v Disa Hotels & Another 1972 (4) SA 409 (C) at 415 in fine; Milami & Another v South African Medical & Dental Council & Another 1990 (1) SA 899 (T) at 902 G-H.  The interest must relate to an existing, future or contingent right.  The court will not decide abstract, academic or hypothetical questions unrelated to such interest.  See: Anglo – Transvaal Collieries Ltd v S A Muthal Life Assurance Soc 1977 (3) SA 631 at 635 G-H.  But the existence of an actual dispute between persons interested is not a statutory requirement to an exercise by the court of jurisdiction …… Nor does the availability of another remedy render the grant of a declaratory order incompetent………  At the second stage of the enquiry it is incumbent upon the court to decide whether or not the case in question is a proper case for the exercise of its discretion under section 14.  What constitutes a proper case was considered by Williamson J in Adbro Investment Co Ltd v Minister of Intener & Others 1961 (3) SA 283 at 258 B-C, to be one which generally speaking, showed that-

“….despite the fact that no consequential relief is being claimed it perhaps could be claimed in the proceedings, yet nevertheless justice or convenience demands that the declaration be made, for instance as to the existence of or as to the nature of a legal right claimed by the applicant or of a legal obligation said to be due by a respondent.  I think that a proper case for a purely declaratory order is not made out if the result is merely a decision on a matter which is really of mere academic interest to the applicant.  I feel that some tangible and justifiable advantage in relation to the applicant’s position with reference to an existing future or contingent right or obligation must appear to flow from the grant of the declaratory order sought.”

In this matter, it is common cause that there is a dispute between the applicant and first respondent regarding the boundaries in respect of Cottage and Boma Mining claims.  This much is set out in a letter dated 2nd April 2012 by the Principal Mining Surveyor, Matabeleland North.  The letter is in the following terms:

“BOUNDARY DISPUTE BETWEEN COTTAGE AND BOMA MINES (BELONGING TO REBECCA SIZIBA) AND COTTAGE 5 AND COTTAGE 6 MINES (BELONGING TO GREEN)

The above mines were visited on the 20th of March 2012 by the undersigned as directed by Justice Makonese.

In the presence of all mentioned below, the boundaries were established on the ground as per Mines office records (red boundary of the attached map) and coordinates of the four corner points given to the disputing parties.  The disputed infrastructure and workings were also surveyed to establish their position in relation to the claim boundaries.  Beacons put by Mr Green were surveyed (Green boundary of the attached map.)

Present

……………

Findings

A chery examination of the disputing parties maps as indicated by the Mines office records suggest that the abovementioned four mines were pegged directly on top of each other (see the attached copies of the 1:25000 scale maps extracted from disputing dockets as per Mines office records.

Universal Traverse Mercator (U.T.M)  coordinates of the disputed claims according to the Mines office records as follows:-

………………..

Please note that the mines got the same coordinates because they are pegged one on top of the other.

Mrs Rebecca Siziba’s beacons could not be located on the ground there were allegedly destroyed, hence, they were not surveyed.

Mrs Rebecca Siziba’s Mining claims (Cottage and Boma mines) were pegged on the 8th and 9th June 1995, according to Mines records.

Mr Green’s Mining claims Cottage 5 and Cottage 6 were pegged on the 27th of November 2007 according to mines records.

Accordingly Cottage 5 and Cootage 6 overpegs Cottage and Boma mines respectively belonging to Mrs Rebecca Siziba.

Cottage 5 claim beacons though wrongly placed on the ground overpegs Cottage mine.

The disputed workings which include the sands dump, the water shaft, the vertical shaft, … tanks and the housing, including the set up ball mill fall in Cottage mine (belonging to Mrs Rebecca Siziba) as indicated by the red boundary in the attached map.

Recommendations

Section 50 subsection 1 (a) of the Mines & Minerals Act (Chapter 21:05) states that:- subject to subsection (2) the Mining Commissioner may notwithstanding subsection (1) of section fifty –eight, at any time cancel a Certificate of registration issued in respect of a block or site if he/she is satisfied that:

At the time when such block or site was pegged it was situated on ground reserved against prospecting and pegging under section thirty one or thirty five or on ground not open to pegging in terms of subsection (3) of section two hundred and fifty eight.

Mrs Rebecca Siziba should be allowed to carry on with her activities within Cottage and Boma mining claims without hindrance or interference.

Mrs Rebecca Siziba should re-erect her claim beacons and maintain them as stated by section 51 subsection 7 of the Mines & Minerals Act (Chapter 21:05)”

This then is the detailed report by the Principal Mining Surveyor.  The parties to this dispute are well aware of the findings.  The applicant’s attitude has been to pretend as if the report does not exist.  Applicant has paid the inspection fees every year in respect of Cottage 5 and Cottage 6.  Applicant has elected not to challenge the report of the survey report.  Instead, applicant completely has ignored the clear findings of the Mining Survey.  On the 24th April 2019 applicant was advised by the Provincial Mining Director to stop all mining activities on the disputed claims.  Instead of complying with this directive, applicant launched an application for declaratory order.

Advocate Hashiti, appearing for the applicant submitted that all that is required was to merely declare that the applicant is the holder of the certificates of registration.  He contended that the 1st respondent has not produced her own certificates in respect of these claims.

In response, Advocate L Nkomo, appearing for the 1st respondent argued that this is not a proper case for the exercise of the court’s discretion under section 14 of the High Court Act.  The applicant may not seek a declaratory order whose net effect is to render the determination by the Provincial Mining Director on this matter irrelevant.  It is wrong in my view, to simply insist on the grant of a declaratory order in the face of clear evidence of a raging mining dispute between the parties.

In Berly – Lynn Surtee v Mohamed Hassim Surtee 2008 (1) ZLR 145 (HC)

MAKARAU JP (as she then was), emphasized the principle that the court should not ignore the findings of another court or tribunal.  She stated as follows:

“It would appear to me that this court has over the years adopted the approach that where there is an existing order by a court of competent jurisdiction, another court cannot make an order competing with or overriding it even if the court making the original order is inferior to the High Court …..”

The Provincial Mining Director has already pronounced himself on this matter.  A detailed report has been placed before the court.  It is clear that the applicant overpegged on an area not open for pegging.  Applicant has adopted a beligerant stance and has made various attempts to armtwist the court into granting an order in its favour.  This is not a proper case for the exercise of the court’s discretion in terms of section 14 of the High Court Act.

For the aforegoing reasons I accordingly make the following order.

The application be and is hereby dismissed.

The applicant is to bear the costs of suit.

Messrs Coghlan and Welsh, applicant’s legal practitioners

Malinga and Mpofu, 1st respondent’s legal practitioners

Civil Division of the Attorney General’s Office, 2nd – 5th respondents’ legal practitioners