Tawanda Muchenurwa v Double M Prospects & Others

### Preamble
1
HB 147/21
HC 33/21
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TAWANDA MUCHENURWA

Versus

DOUBLE M PROSPECTS

(Being represented by Ezekiel Masvavike & S. Mavhuna)

And

PROVINCIAL MINING DIRECTOR,

MIDLANDS (N.O)

And

THE MINISTER OF MINES AND MINING

DEVELOPMENT (N.O)

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 28 JULY & 30th JULY 2021

Urgent Chamber Application

E. Mandipa with T Chitere, for the applicant

Ms P Chigariro, for the 1st respondent

MAKONESE J: 	This matter was placed before me as an Urgent Chamber Application.  The application was filed on the 3rd of March 2021.

On the 5th of March 2021 the parties appeared before me in chambers.  The matter was argued briefly.  It was resolved that it was prudent for the 2nd respondent (Provincial Mining Director Midlands) to investigate the circumstances surrounding the mining dispute and thereafter file a comprehensive report on the matter to guide the court in coming up with a correct decision on the matter.

NATURE OF THE APPLICATION

This is an urgent application for an interdict.  The relief sought seeks to bar 1st respondent from conducting mining activities at a mining claim known as Rose 1 Mine Registration number 31531.  The order sought is couched as follows:

“TERMS OF INTERIM RELIEF SOUGHT

Pending the determination of this matter the applicant is granted the following interim relief is granted:

That 1st respondent and all those claiming mining rights through it are hereby interdicted from conducting any mining activities within Rose 1 claim, registration number 31631, Zimbabwe, which belongs to the applicant, pending the resolution of the dispute between the parties.

above, the Zimbabwe Republic Police be and are hereby empowered and directed to stop their operations.

TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable court why a final order should not be made in the following terms:

(a)	That the 1st respondent be and is hereby permanently interdicted from accessing, interfering with or conducting any mining activities within Rose 1 claim, registration number 31631, Zvishavane which belongs to the applicant.

(b)	That the directive by the 2nd respondent dated 12th February 2021 stopping applicant’s mining activities within Rose 1 claim, registration number 31631 Zvishavane, be and is hereby set aside as null and void and of no force and effect.

(c)	That 1st respondent be ordered to pay costs of suit on a legal practitioner and client scale.”

This application is opposed by the 1st respondent who argues that the matter is not urgent at all.  1st respondent argues that on the merits the applicant has failed to establish the requirements for an interdict as laid down in our law.

WHETHER THE MATTER IS URGENT

This application was filed under a Certificate of Urgency on the 3rd of March 2021.  Applicant averred that 1st respondent was conducting mining activities within the applicant’s mining claims and that as a result, a dispute had arisen.  Applicant contended that 1st respondent’s conduct was unlawful and in contempt of 2nd respondent’s directive dated 12th February 2021 instructing the 1st respondent to stop mining operations within the disputed location.  Applicant contended that 1st respondent’s agents had acted violently towards the applicant thereby disrupting mining operations.  In response, 1st respondent argued that both parties had been ordered to stop mining activities within the disputed claims by letter dated 12th February 2021.  The letter by 1st respondent reads in part as follows.

“Officer Commanding Police

Zimbabwe Republic Police

CID Minerals Flora and Fauna Unit Midlands Provincial Headquarters

Gweru

Re:	DISPUTE BETWEEN MR TAWANDA MUCHENURWA (ROSE 1 MINE REGISTRATION NUMBER 31631) AND DOUBLE PROSPECTS (ZHARA 5 MINE REGISTRATION NUMBER 8162)

………..

It has come to our attention that the mines reported as illegal by Mr T. Muchenurwa are in reality registered members representing Zhara Mine (Registration number 8162).  We are therefore retracting our earlier instruction to stop one party from operating and instructing both parties, Tawanda Muchenurwa, Rose 1 mine Registration number 31531 and Double M Prospects, Zhara 5 mine, registration number 8162 to stop all mining operations including   movement of ore and milling.

It is against this backgound that both Tawanda Muchenurwa (Rose 1 mine) and Double M Prospects (Ezekiel Masvavavike and S. Mavhuna of Zhara 5 mine, Registration number 8162 should stop mining operations at those mines until the dispute is resolved..”

It would appear that it is this letter that led to a series of incidents that ultimately led to a physical confrontation between the parties.  Employees from Rose 1 and Zhara 5 mine were involved in running battles.  The police could not assist.  This application was filed by the applicants in a bid to interdict the 1st respondent from working on the disputed claims.  At an initial hearing of the matter on the 5th of March 2021 it became clear that what was before the court was essentially a boundary dispute.  There was need for a detailed report from the Mines Department, and consequently, an order was granted with the consent of both parties to cease operations on the disputed claim, pending the production of a survey report by 2nd respondent.

In my view, the matter was clearly urgent.  Both parties conceded that there had been violent confrontations between the applicant’s employees and 1st respondent’s employees.  The requirements for urgency are settled in this jurisdiction and beyond.  See: Kuvarega v Registrar General and Anor 1998 (1) ZLR 188.  I therefore dismiss the point in limine raised by 1st respondent regarding urgency.

BACKGROUND FACTS TO THE DISPUTE

It is common cause that Zhara 5 mine, Registration number 8162 block of claims was registered on 20th March 2002.  Zhara 5 Mine was transferred from the original owner Double M Prospects on the 10th of March 2017.  At the time Zhara 5 Mine was pegged in 2002, the Global Position Systems (GPS) coordinates had not been adopted by the Mines Department.  The ground position for Zhara 5 Mine does not tally with its location on the map.  Double M Prospects has been operating on this location for the past 18 years.  1st respondent has constructed 6 cynidation tanks on the mining site.  There is an old tailing dump on Zhara 5 Mine within its ground location.

It is also not in dispute that applicant registered Rose 1 Mine, registration number 31631 on 8th December 2020.  Applicant’s ground position tallies with his registration position as depicted on the maps.  Applicant erected a fence and installed 4 hammer mills and a crusher on his mining site.  A temporary wood cabin has also been erected on site.  In his Founding Affidavit, applicant alleged that on 4th February 2021 he discovered that a number of illegal mines were operating at his registered claim.  He further alleged that those illegal invaders had violently chased away all his employees who were on site.  Applicant averred that the illegal miners were armed with sjamboks, machetes and logs, among other assortment of weapons.  Applicant wrote a letter of complaint to the 2nd respondent complaining about the alleged invasion.  The matter was also reported at Zimbabwe Republic Police, Zvishavane.  Investigations by the 2nd respondent quickly revealed that the so-called illegal invaders were in fact employees of 1st respondent.  This is amplified in a letter dated 12th February 2021 referred to earlier in this judgment.

2nd respondent has filed a detailed report dated 3rd May 2021.  That report was prepared at the direction of this court.  The recommendations in the report are well articulated at page 3 of the report in the following terms:

1.	“After consideration of all facts on the ground and registration of the mines in dispute, the resolution of this dispute is strongly anchored on section 177 (3) of the Mines and Mineral Act (Chapter 21:05) which deals with priority of mining rights which reads:

“Priority of acquisition of title to any mining location, reef of deposit, if such title has been duly maintained, shall in every case determine the rights between the various peggers of mining locations, refs, or deposits as aforesaid and in all cases of dispute the rule must be followed that, in the event of the rights of any subsequent pegger conflicting with the rights of a prior pegger, then to the extent to which such rights conflict, the rights of any subsequent pegger shall be subordinated to those of the prior pegger, and all certificates of registration shall be deemed to be issued subject to the above conditions.”

2.	In this regard Double M Prospects (Registration number 8162) by virtue of being the prior pegger are the rightful owners of the registered block and mining location.

3.	It is the opinion of this office that registration block 9808, which no longer has any legal title cannot be the anchor for a dispute with an existing mining title which nevertheless still has Priority of Ming Rights.  The location registration number 9808 (long forfeited) cannot be ascertained by way of registered coordinates as it was also registered during a period when no GPS coordinates were recorded.  The dispute can only be between Rose 1 (Registration number 31631) and Zhara 5 (Registration number 8162) and should not involve registration number 9808.

4.	Mr T. Muchenurwa (applicant) can only remain on the ground by adjusting his block to sit outside the confines of registration number 8162.  Should the court find it in order, then the Ministry of Mines and Mining Development will inspect and authenticate these positions to avoid further recurrence of similar disputes between the parties.”

The report by the 2nd respondent is clear and credible.  The report is based on an actual assessment of the ground positions of the mining claims.  I must point out that this report was prepared with both parties giving their input on the ground on the 24th of March 2021.  The report is incredibly important in that it settles the dispute in accordance with the provisions of section 177 (3) of the Mines and Minerals Act which recognizes the principle of Priority of Mining Rights. Whilst applicant has played the victim by alleging invasion of his claims by 2nd respondent, it is evident that applicant pegged over an area that had been pegged earlier.  In this regard, applicant must adjust his ground position, and ensure his operations are located outside the confines of Zhara 5 (registration number 8162).  It is prudent for the 2nd respondent and the Ministry of Mines to authenticate the ground positions by carrying out an inspection for the purposes of setting out the boundaries of these two mining locations.  This will bring to an end the apparent confusion in this matter.

WHETHER THE APPLICANT SATISFIED THE RQUIREMENTS FOR AN INTEDICT

This application is for an interdict.  The relief sought in the draft order is for an order permanently interdicting 1st respondent from accessing, interfering, with or conducting any mining activities within Rose 1 claim, registration number 31631, Zvishavane.  The application fails on the first hurdle.  The applicant has not established the existence of a clear or prima facie right.  Quite to the contrary, the applicant’s mining block was clearly pegged pursuant to a prior mining block pegged by 1st respondent.  This much is clear from the report by 2nd respondent.  On that ground alone, the applicant’s application would not find favour with this court.  On the second requirement, applicant has an alternative remedy.  Applicant must adjust his claims in order that they are located outside 1st respondent’s Zhara 5 claims.  This is a simple remedy.  The remedy is sound both at law and on the facts.  The balance of convenience clearly does not favour the granting of the relief sought.  1st respondent has been carrying out mining activities at Zhara 5 for the past 18 years.  1st respondent as the prior pegger would suffer extreme prejudice if the order were granted.  The requirements for an interdict are well set out in the case of Zesa Staff Pension Fund v Mushambadzi SC 57-02.  The learned judge stated that it is trite that the requirements for a final interdict are:-

1.	a clear right which must be established on a balance of probabilities.

2.	irreparable injury actually committed or reasonably apprehended; and

3.	the absence of a similar protection by any other remedy.

See also: Setlogelo v Setlogelo 1914 AD 221 at 227 and Flame Lily Investment Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd and Anor 1980 ZLR 378.

DISPOSITION

I am satisfied that the applicant has failed to make a case for the relief sought.  The requirements for an interdict have not been established, even in the slightest degree.  In any event, the detailed report by 2nd respondent settles the matter beyond dispute.  Applicant cannot lay any claim to 1st respondent’s mining claims.  Applicant must adjust his ground position and work within the confines of Rose 1 mining claim as recommended by 2nd respondent. Both counsel, Mr Mandipa, for the applicant and Ms Chigariro, for the 1st respondent appeared to agree that the 2nd and 3rd respondents must inspect the mining claims and authenticate the ground positions of the mining blocks to avoid further recurrence of the same dispute. In order to give effect to that recommendation, it is ordered as follows;

The application be and is hereby dismissed with costs.

2nd and 3rd respondents are ordered and directed to inspect the mining claims being Zhara 5 and Rose1, situate in the district of Zvishavane, for the purpose of authenticating the ground positions.

Mutatu and Mandipa Legal Practice c/o Mutatu, Masamvu and Da Silva-Gustavo, applicant’s legal practitioners

Chigariro Phiri and Partners c/o Dube-Tachiona & Tsvangirai, 1st respondent’s legal practitioners