Tobo Mining Syndicate v Eagle Mining Syndicate & 3 Ors; Eagle Mining Syndicate v Tobo Mining Syndicate & 4 Ors

### Preamble
1
HB 102/19
HC 1412/19 & HC 1418/19
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TOBO MINING SYNDICATE						HC 1412/19

Versus

EAGLE MINING SYNDICATE

And

PROVINCIAL MINING DIRECTOR NO

And

OFFICER COMMANDING

ZIMBABWE REPUBLIC POLICE – MATABELELAND SOUTH

And

SHERIFF OF ZIMBABWE NO

D. Dube and L. Ngwenya for the applicant

Advocate L. Nkomo with C. Chigomere for the 1st respondent

R. Hove for 2nd and 3rd respondents

(2)	EAGLE MINING SYNDICATE						HC 1418/19

Versus

TOBO MINING SYNDICATE

And

THUSA NDLOVU

And

PRISCILLA NCUBE

And

DUMISANI NDLOVU

And

MINISTER OF MINES & MINING DEVELOPMENT

Advocate L. Nkomo with C. Chigomere for the applicant

D. Dube for 1st, 2nd, 3rd & 4th respondents

R. Hove for 5th respondent

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 19 & 27 JUNE 2019

Urgent Chamber Application

MAKONESE J:	These urgent chamber applications were filed under case numbers HC 1412/19 and HC 1418/19 respectively.  On perusing the papers it became evident that these applications related to the same parties.  The relief sought in both applications is substantially similar and relates to disputed mining claims adjacent to each other.  I directed that these applications be considered and determined at the same time.  Before hearing brief oral submissions from counsel, I enquired whether there would be any prejudice to the parties if these matters were consolidated.  Legal counsel for the parties confirmed that it was indeed appropriate to hear these matters at the same time.

In case number HC 1412/19, Tobo Mining Syndicate is the applicant and the respondents are Eagle Mining Syndicate, the Officer Commanding Zimbabwe Republic Police and the Sheriff of Zimbabwe.  The relief sought by the applicant is set out as follows:

“Interim relief sought

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

That the 4th respondent be and is hereby directed to eject 1st respondent and all those claiming occupation through it, its goods, chattels and possessions, without notice from certain mining claims situate in the District of Insiza known as Esap registration number 35879.

That the 1st respondent, its agents and/or assignees be and is hereby interdicted from interfering with the applicant’s mining activities in certain mining claims situate in the District of Insiza known as Esap registration number 35879.

That the 1st respondent its agents and/or assignees be and are hereby interdicted from accessing or entering certain mining claims situate in the District of Insiza known as Esap registration number 35879.

The operations on certain mining claims situate at the District of Insiza known as Eagle 2 registration number 1021 be and are hereby stopped pending finalisation of action matter over ownership by applicant and 1st respondent under case number HC 1295/19.

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:

The 1st respondent and all those claiming occupation through him be and are hereby interdicted from accessing or occupying certain mining claim situate in the District of Insiza known as Esap registration number 35879 without a court order.

The order stopping operations on Eagle 2 registration number 1021 be confirmed as final pending action filed under HC 1295/19.

The first respondent to bear the costs on an attorney and client scale.

It is common cause that Tobo Mining Syndicate is the registered owner of gold mining claims known as Esap registration number 35879, situate the Insiza District.  On 26th March 2019 the applicant and 1st respondent were advised to cease mining operations at their respective mining claims pending the resolution of a dispute.  The letter generated by the Provincial Mining Director is in the following terms:

“Re: Miner to Miner Dispute: Thusa Ndlovu and Tobo Mining Syndicate of Esap Mine Reg. No. 35879 and Eagle Mining

This office is in receipt of a complaint by Bindura Trojan Nickel Mine that there are illegal mining activities within their mining claims Eagle 2 registration number 10231 in Shangani by Thusa Ndlovu of Tobo Mining Syndicate Esap registration number 35879.  May all parties immediately stop all mining operations including ore removal on the abovementioned mines immediately until the matter brought to finality by this office …”

The parties, that is, Eagle Mining Syndicate and Tobo Mining Syndicate were invited to a meeting on the 30th April 2019 at the offices of the Provincial Mining Director.  On 14th May 2019, the Provincial Mining Director came up with a finding on the dispute between the parties.  A detailed background is set out in the report narrating how Tobo Mining Syndicate acquired mining rights in respect of Esap 35879.  The determination by the Provincial Mining Director is laid down in the following terms:

“1.	Tobo Syndicate registered holder of Esap mine claim, registration number 35879 which has shifted ground position by 152m is hereby directed to revert back to the block position as at registration without fail …”

It is crucial to observe that this dispute was resolved by the applicant, Tobo Mining Syndicate, being directed to revert to its original position as at the registration of the claim.  The determination relates to Esap 35879 and clearly confirms that Tobo Mining syndicate had shifted its ground position and encroached into Eagle Syndicate mining claims.

I have no doubt that the application brought against Eagle Mining Syndicate in the first urgent application has no basis and is not well grounded for the following reasons:

The applicant purports to seek an interdict against the respondents against any interference at Esap 35879. The papers disclose that Eagle Mining Syndicate carries out the operations at an adjacent mining claim at Eagle 2 registration number 10231 at Shangani.

The application purports to seek an interdict against the respondents at Eagle 2 registration number 1021.  The papers reveal that such a claim does not in fact exist.

The relief sought relating to Eagle 2 claims is not supported by the averments in the founding affidavit.  The mention of Eagle 2 mining claim is sneaked into the draft order in a manner that is meant to deceive the court.

I must pause to mention, that it is absolutely dishonest for a litigant to seek relief from this court by making false and unsubstantiated claims.  In urgent matters where the court is required to grant relief on an urgent basis, and on the papers, it is necessary for any party to litigation to show a high degree of truthfulness.  Where a party demonstrates a reluctance to be candid with the court, relief will not only be denied, but invariably punitive costs will be ordered against the errant party. See; Graspeak Investments (Pvt) Ltd v Delta Operations (Pvt) Ltd & Anor 2001 (2) ZLR 551 (H)

On the facts, and the papers, Tobo Mining Syndicate clearly attempted to mislead this court into granting the relief sought.  Mr Dube, appearing for the applicants was however, constrained to concede that the application was not well grounded on the facts.  Clearly, the requirements for an interdict were not established.  These are:

a prima facie right

a well grounded apprehension of irreparable harm

the absence of any other satisfactory remedy.

See – Phillips Electrical v Gwaunza 1988 (2) ZLR 117 (HC)

For the aforegoing reasons, the application under case number HC 1412/19 has to be dismissed with costs.  I shall set out the terms of this finding at the end of this judgment.

In case number HC 1418/19, the applicant is Eagle Mining Syndicate.  The respondents in that matter are Tobo Mining Syndicate, Thusa Ndovu, Priscilla Ncube, Dumisani Ndlovu and the Minister of Mines and Mining Development.  Advocate Nkomo, appearing for the applicants drew the court’s attention to the fact that Eagle Mining Syndicate derives its mining rights from a Tribute Agreement granted to it by Trojan Nickel Mine.  A letter was placed before the court to confirm that this Tribute Agreement had been approved by the Ministry of Mines and Mining Development.  Further the tribute was due to expire on 25th March 2022.  There seems to be no dispute that the applicant lays claim to certain mining claims that are known as Eagle 2 registration number 10231 Shangani, Matabeleland South.  The relief sought by Eagle Mining Syndicate is in the following terms:

“Interim Relief sought

Pending the confirmation or discharge of this order:

That the 1st to 4th respondents, their agents, assignees or employees be and are hereby interdicted from visiting the applicant’s mining area or interfering with access to the mine or any other interference whatsoever with the applicant’s operations at Eagle 2 registration number 10231 Shangani, Matabeleland South.

The Sheriff of Zimbabwe by the powers vested in his office with the assistance of the members of the Zimbabwe Republic Police be authorized to enforce clause (a) of the above in the event of non-compliance with the court order.

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:

That 1st to 4th respondents be and are hereby permanently interdicted from interfering with the applicant’s mining operations at Eagle 2 registration number 10231 Shangani, Matabeleland South.

That the Tribute Agreement and the mining operations by the Applicant at Eagle 2 registration number 10231 Shangani, Matabeleland South be and is hereby declared lawful and the underlying documents valid.

That the 1st to 4th respondents be and is hereby ordered to pay costs on an attorney and client scale.”

This is the relief sought by the applicant.  The applicant alleges that on the 6th of June 2019 a group of people led by 2nd, 3rd and 4th respondents invaded its mining claims and commenced illegal mining activities.  Applicant’s security personnel were overwhelmed by the sheer numbers of the invading party.  During the unlawful invasion, gold ore was removed from the mining claims.  A report was lodged with the Provincial Mining Director in Gwanda.  On the 8th of June 2019 in the dead of night 2nd to 4th respondents invaded the mining claims once again and illegally removed gold ore.  The group of invaders had in their possession dangerous weapons, which they used to instill fear in applicant’s personnel.  A report was made to the Zimbabwe Republic Police but nothing was done.

In a report prepared by the Provincial Mining Director dated 15th May 2019 and addressed to the parties to the dispute the following findings were made;

“1.	Tobo Mining Syndicate Esap claim, registration number 35879 was registered in 1992 whilst Trojan Nickel Mine, registration number 10231 was registered in 1974.

Tobo Mining Syndicate, registration number 35879 overpegs and falls within Trojan Nickel Mine, registration number 10231 as at ground position.

According to the docket for Tobo Mining Syndicate, the two mines share a boundary hence should not overpeg.

Tobo Mining Syndicate’s ground position is at variance to the docket position in orientation.”

In his findings, the Provincial Mining Director concludes that Tobo Mining Syndicate had contravened section 376 (1) of the Mines and Minerals Act (Chapter 21 ;05 ).  The section provides as follows:

“No person shall, except as provided in this Act, deface, alter the position of, remove, pull down, injure, destroy or erect or renew in any other claim its proper or original position any peg, notice, beacon or landmark designating or intended to designate the position, boundary, other particular of any mining location, reef or deposit or designation the name of the discover thereof …”

The recommendation by the Provincial Mining Director is that Tobo Mining Syndicate should revert to its original docket position.  On the facts as set out in the papers filed, there can be no doubt that the issue of Tobo Mining Syndicate over-pegging or encroaching into Eagle Mining Syndicate, claims is the source of this dispute.  The decision by the Mines Department is informed by the investigations that were carried out to ascertain the respective ground positions of the parties to this dispute.

I am satisfied that the applicants, Eagle Mining Syndicate have established the requirements for an  interdict.  In this regard I can do no better than refer to the case of Setlego v Setlego 1914 AD 221. See also; Sanachem Pty Ltd v Farmers Agricare 1995 (2) SA 781

The applicant has shown a clear right in that it has mining rights deriving from a Tribute Agreement that is current.  The respondents have invaded the mining claims and there has been actual harm done in the theft of gold ore from the mining claims.  There is no immediate satisfactory remedy available to the applicant.  In response to the application, the respondents sought to argue that they are carrying out mining activities at the same place they have been operating since 1994.  Nothing could be further from the truth.  The investigations by the Mines Department revealed gross violations of the provisions of the Mines and Minerals Act.  Beacons have been removed and the respondents have shifted from their original ground position.

In the result, the applicant, Eagle Mining Syndicate are  entitled to the order sought:

Accordingly, the following order is made:

The application by Tobo Mining Syndicate under case number HC 1412/19 is dismissed with costs.

The 1st to 4th respondents in case number HC 1418/19, their agents, assignees or employees be and are hereby interdicted from violating the applicant’s mining area or interfering with access to the mine or any other interference whatsoever with the applicant’s operations at Eagle 2, registration number 10231 Shangani, Matabeleland South.

The Sheriff of Zimbabwe with the assistance of the Zimbabwe Republic Police be  and  is  hereby authorized to enforce the terms of this order in the event of non-compliance by the respondents.

The respondents shall bear the costs of suit.

Mathonsi Ncube Law Chambers applicant’s legal practitioners

Mutatu & Partners 1st respondent’s legal practitioners

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

Mutatu & Partners applicant’s legal practitioners

Mathonsi Ncube Law Chambers 1st,, 2nd, 3rd & 4th respondents’ legal practitioners

Civil Division, Attorney General’s Office, 5th respondent’s legal practitioners