Tich Darangwa & 4 Ors v New Horizon Mining Syndicate & 2 Ors

### Preamble
1
HB 165/19
HC 1664/19
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TICH DARANGWA

And

HAPPIAS CHINGWANYA

And

DANIEL MUTISI

And

NHAMO MAPIYE

And

SIMBARASHE CHIKWEZA

Versus

NEW HORIZON MINING SYNDICATE

(Represented by ALLEN SIBANDA in his capacity

as the Mine Manager)

And

THE PROVINCIAL MINING DIRECTOR,

MIDLANDS PROVINCE (N.O)

And

THE MINISTER OF MINES AND MINING

DEVELOPMENT (N.O)

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 1 AUGUST & 31 OCTOBER 2019

Urgent Chamber Application

T Chinyoka with T. Hara for the applicants

E Mandipa  with C. Makwara for the 1st respondent

L Dube for 2nd and 3rd respondents

TAKUVA J:		This is an urgent chamber application in which the applicants seek an order couched thus;

“TERMS OF THE FINAL ORDER SOUGHT

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

1.	That no mining activities, milling and carrying of ores should be carried out at RA MID002  in the mining district of Midlands measuring 45 hectares until the resolution of the mining dispute by the 2nd respondent or an order by a court of competent jurisdiction.

2.	Respondents to pay costs of suit on an attorney client scale if the application is opposed.

INTERIM RELIEF GRANTED

Pending the confirmation or discharge of the order, applicant is granted the following relief:

1.	That no mining activities, milling and carrying of ore should be carried out at RA MID002 in the mining district of Midlands measuring 45 hectares until the determination of the application in case HC 1660/19.

2.	The respondents to pay the applicants’ costs on an attorney and client scale if the application is opposed.”

According to the applicants’ Founding Affidavit sworn to by the 1st applicant, this is an application for “a provisional order whose import is to restore the status quo that obtained prior to 5 July 2019 in respect of certain mining location known as RA MID002 in the mining district of Midlands pending the conclusion of an application for rescission of judgment in case number HC 1543/19 that the applicants are filing simultaneously with this application”.

What happened in HC 1543/19 is that pursuant to an urgent chamber application by the 1st respondent, this court granted an order by consent on the 5th day of July 2019.  The order is to the effect that;

“1.	The respondent’s directive dated 24 May 2019 stopping mining activities at RA MID002 in the mining district of Midlands measuring 45 hectares be and is hereby set aside and quashed.

2.	No order as to costs.”

The 1st respondent in casu was the applicant and the 2nd respondent was the 1st respondent while the 3rd respondent was the 2nd respondent.  The application was not opposed by both respondents and the order was granted by consent of the parties.

The salient facts in that application are that sometime in 2008, 1st respondent was granted a mining tribute by ZIMASCO to carry out mining activities within RA MID002 in the Midlands Province.  Around January 2019, a mining syndicate going by the name TDNH, comprising all but the 5th applicant invaded the 1st respondent’s mining area and embarked on illegal mining activities at the area in question.  A dispute arose between the syndicate and the 1st respondent culminating in the latter writing to the 2nd respondent on 27 February 2019 for assistance in removing the applicants from CISSY 18 mine situated within RA MID002.  The 1st respondent summoned both parties for a hearing on 13 March 2019.  The 1st respondent simultaneously stopped all “mining activities, milling and carrying ores.”

Subsequently, on 10 April 2019 the 1st respondent was issued with a Special Grant No. 726 (Part XIX)   to carry out mining operations for gold in terms of section 291 of the Mines and Minerals Act (Chapter 21:05)).  The location and area for the special grant is approximately 45 hectares situated within RA MID002 in the mining district of Midlands.  On 10 May 2019 both parties put pen to paper to produce the following letter addressed to the 1st respondent:

“Withdrawal of mining dispute in CISSY 18

Reference is made to the letter dated 27 February 2019 in which we raised concern on the operations at CISSY 18 mine where we were reporting TDHN mining syndicate of encroaching in our block.  We have resolved the dispute and we are satisfied on the development on the ground.  NEW HORIZON and TDHN wish to withdraw the dispute lodged with your office.  (my emphasis).

This letter was signed by representatives of 1st respondent and 1st to 4th applicants.  One would have thought that the saga had ended but alas the 2nd respondent on 24 May 2019 addressed the following letter to the Officer Commanding ZRP Minerals Flora and Fauna Unit in the Midlands Province;

“…….. Reference is made to our correspondence dated 8 March 2019.

Ref: MID/Q/419/231/19; on the above subject. Please note that the contents of that correspondence still remains enforced (sic) until this office has advised your office on the resolution of the dispute.  Failure to comply with the order dated 8 March 2019 should result in prosecution by law enforcements (sic) agents. …”

The 1st respondent was not amused by this letter hence its application under HC 1543/19.  The 1st respondent cited the 2nd and 3rd respondents who did not oppose the application leading to the consent order that applicants now want stayed pending the determination of their application for rescission in terms of r449.

In the current application applicants argue that the status quo that obtained prior to the granting of the consent order under HC 1543/19 be restored.  In other words their wish is that all mining operations be halted pending the finalization of this case.  The basis of the application is firstly that the order under 1543/19 was granted “despite there being a dispute between the applicants and the 1st respondent over that location.”    Secondly, it was concluded that the application in HC 1543/19 is a case of “non-joinder” and its rescission is being sought in terms of r449.  Thirdly, it was argued that the application for rescission has very good prospects of success and that applicants would suffer “serious and irreparable harm and prejudice” should the 1st respondent be permitted to “continue mining on our location”.  Finally, it was also submitted that the balance of convenience in the matter weighs heavily in favour of an order staying the operation of the order.

As regards urgency, applicants submitted that their application is urgent since they filed their application within days of the order of 5 July 2019 having been granted.  They also argued that urgency should be founded on the fact that 1st respondent has resumed mining operations.

The application was opposed by the 1st respondent while the 2nd and 3rd respondents opted to abide by the court’s decision.  The 1st respondent raised two points in limine.  Firstly, it was contented that the matter is not urgent in that the applicants have not established any right which would be prejudiced if this matter is not heard on an urgent basis.  It was also argued that the applicants have not shown any legal right which entitles them to stop mining operations on an urgent basis.  Secondly, it was submitted that the application is fatally defective in that the interim relief being sought by the applicants is the same as the final relief.

Since the first point in limine is interwoven with the merits, it would not be appropriate to deal with it in isolation.  As regards the competency of the relief sought, CHATIKOBO J in Kuvarega v Registrar General and Another 1998 (1) ZLR 188 (H) had this to say;

“The practice of seeking interim relief which is exactly the same as the substantive relief sued for and which has the same effect, defeats the whole object of interim protection.  In effect, a litigant who seeks relief in this manner obtains final relief without proving his case.  This is so because interim relief is normally granted in the mere showing of a prima facie case.  If the interim relief sought is identical to the main relief and has the same substantive effect, it means that the applicant is granted the main relief on proof merely of a prima facie case.  This to my mind is undesirable especially where, as here, the applicant will have no interest in the outcome of the case on the return day …  Care must be taken in framing the interim relief sought as well as the final relief so as to obviate such incongruities.” (my emphasis)

In the present matter, the interim relief and the final relief are identical.  The interim relief in its word and spirit, seeks to have “all mining activities, milling and carrying of ores” stopped pending the determination of an application for rescission in terms of r449 filed under HC 1660/19.  On the other hand the final relief is couched in the following terms;

“That  no mining activities, milling and carrying of ores should be carried out at RA MID002 ... until the resolution of the mining dispute  by 2nd respondent or an order by court of competent jurisdiction”. (my emphasis).

Quite evidently, the substantive relief sought by the applicants is that all mining activities at the disputed mines be stopped.  This is the relief they require both as an interim and final relief.  Once they obtain it in the interim, the applicants would have no interest in the outcome of the case on the return day.  Further, applicants would have obtained “final relief” on the mere showing of a prima facie case.

For these reasons the point in limine has merit and the application ought to be dismissed on this ground.

However assuming I am wrong I will proceed to deal with the matter on the merits.  As pointed out above, this application is to “ restore the status quo that obtained prior to 5 July 2019 in respect of certain mining location.”   In other words, it is an application for stay of execution of the order granted under HC 1543/19 pending the determination of an application for rescission in terms of order and r449

Rule 449 (1) (a) provides that;

“The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind or vary any judgment or order.

that was erroneously sought or erroneously granted in the absence of any party affected thereby”.

I must point out that while this application is not one for rescission, in considering whether or not to grant the relief I must necessarily consider the factors that must be taken into account before rescission is granted under Rule 449.   Put differently, I must consider in a way the prospects of success in the application for rescission

In Tiriboyi v Jani and Another 2004 (1) ZLR 470 (H) it was held that:

“………the purpose of Rule 449 is to enable the court to revisit its orders and judgments to correct or set aside its orders and judgments given in error, in situations where to allow such to stand on the excuse that the court is functus officio would result in an injustice and would destroy the very basis upon which the justice system rests.  It is an exception to the general rule and must be resorted to only for purposes of correcting an injustice that cannot be corrected in any other way.  The rule goes beyond the ambit of mere formal, technical, and clerical errors and may include the substance of the order or judgment.  The rule is designed to correct errors made by the court itself and is not a vehicle through which new issues and new parties are brought before the court for trial.  The three requisites that have to be satisfied for relief under the rule are;

1.	that the judgment was erroneously sought or granted;

2.	that the judgment was granted in the absence of the applicant; and

3.	that the applicant’s rights or interests are affected by the judgment.” (my emphasis)

The first question is whether or not the order was erroneously sought or granted.  Applicants claim that 1st respondents erroneously sought the order by failing to cite the applicants and that it was sought despite the existence of a dispute between the parties.  The applicants allege therefore that because there was non-joinder the order was sought erroneously.  It is common cause that 1st respondent did not cite applicants and the reason is because they had no interest in the matter after the dispute had been withdrawn from 2nd respondent by the parties.  The order under HC 1543/19 was granted by consent of the parties, namely the 1st and 2nd respondents.  Applicants fell out of the picture after the special grant had been granted to the 1st respondent.  The fact that there was non-joinder of applicants who were not known to the court at the time the order was issued cannot be described as an error by the court, see Tiriboyi’s case supra.

Applicants also argued quite strongly that the order was erroneously and fraudulently sought in that the 1st respondent misled the court into believing that the dispute between the parties had been resolved, when in actual fact it was still raging.  This submission is not a sound one in my view.  During the hearing of the urgent chamber application under HC 1543/19 a notice of withdrawal was produced by consent.  This notice was signed by all the applicants on 10 May 2019.  The signatories acknowledged their willingness and desire to withdraw the dispute lodged with the 2nd respondent.  Accordingly, at the time the order under HC 1543/19 was granted, there existed no dispute between the parties.  If however a dispute subsequently arose, then applicants are free to refer it to the 2nd respondent for resolution.

Further, the 2nd respondent is quite aware that there is no outstanding dispute in this matter.  This is why he consented to the judgment.  In any event the facts as they are put by the applicants or by the 1st respondent, in case number HC 1543/19 do not change the outcome of the matter in any way.  Nothing contained therein changes the fact that the 1st respondent is the holder of a special grant over the mining claim in dispute and that it has not been set aside nor challenged.  Further, nothing changes the fact that the dispute that existed was withdrawn by consent of the parties after the granting of the special grant. Consequently, no dispute remains registered before the 2nd respondent.  Finally, nothing changes the fact that no one has a better right over the 1st respondent who has a special grant over the mining location. Therefore, despite the alleged misrepresentation of facts, the outcome would still be the same.

The applicants believe that the judgment was erroneously sought because 1st respondent misled the court or that there was material non-disclosure.  They allege in essence that the nature of the dispute between the parties is that of the position of the mining location.  Put differently they are alleging that the 1st respondent’s mining claim under special grant 7256 is within their coordinates.  However, applicants have not attached any evidence to show that they have a mining claim close to the 1st respondent’s claim.  Quite clearly, applicants have no claim which is alleged to have coordinates encroaching to the 1st respondent’s claim.  Applicants claimed to have been using prospecting licences but these were never produced.  This explains why they did not lodge a complaint of that nature to the 2nd respondent at any given time.

These facts are not at all going to assist the applicants to establish their application for rescission under Rule 449.  The facts do not show that the judgment was erroneously sought.  Applicants have dismally failed to show that the court committed an error.

The second requirement is that the judgment must have been granted in the absence of the applicant.  In casu, the applicants engaged a legal practitioner a Mr B Masamvu who actually appeared in chambers on the date of the hearing   He however indicated that although he was aware that his clients had not been cited, he was not applying for joinder as all he was interested in was to note the outcome of the hearing.  He was in attendance throughout without participating in the proceedings.  More importantly, he never divulged the identity of his clients to the judge.  The applicants’ interests were represented by a lawyer they now disown.  In view of the above it can hardly be said that the judgment was granted erroneously in the absence of the applicants.

The 3rd and final requirement is that the applicants’ rights or interests are affected by the judgment.  The 1st point to note is that the applicants have no prima facie rights that can be affected by the judgment.  They have not shown any right or interest which would be prejudiced by the mining operations of a holder of a special grant.  Applicants have not placed before the court any process which they have done with a bid to have the Special Grant either cancelled, set aside or quashed.  The applicants’ complaint and real reason for this application centres on how the 1st respondent was granted the “Special Grant” when they are the ones “who applied first”.

Applicants also argued that they have a legitimate expectation which has been affected.  They also claimed that the 1st respondent has dispossessed them of their mining location.  Unfortunately, applicants have not shown prima facie proof that the mining location is theirs.  What the uncontroverted facts show is that applicants were illegally conducting mining activities in the area resulting in 1st respondent lodging a complaint with the 2nd respondent.  The dispute was withdrawn by consent of the parties after the granting of the special grant to the 1st respondent.  As confirmation that there was no pending dispute, the order under HC 1543/19 was granted by consent.

In paragraph 11 of their founding affidavit, applicants indicated that they will suffer “serious and irreparable harm and prejudice” if 1st respondent is allowed to continue mining at “their mining location”.  Can it be seriously argued that a group of illegal miners would suffer irreparable harm if they are barred from interfering with the rights of a miner whose rights are registered under a Special Grant?  The applicants have not established any rights or interests which would be prejudiced if the order under HC 1543/19 is not stayed pending the determination of the applicants’ application for rescission of judgment under rule 449 of this court’s rules.

It is my considered view that the applicants have not shown the legal basis for granting the relief sought.

In the circumstances, the application is dismissed with costs.

Gunje Legal Practice, applicant’s legal practitioners

Mutatu & Mandipa Legal Practice, c/o Dube-Tachiona & Tsvangirai, 1st respondent’s legal practitioners

Civil Division of the Attorney General’s Office, 2nd & 3rd respondents’ legal practitioners