Chiroswa Minerals (Pvt) Ltd and Base Minerals Zimbabwe (Pvt) Ltd v Obert Mpofu (in his capacity as Minister of Mines) and Attorney General N.O. and Mrs E. Kahonde (in her capacity as the Mining Commissioner)

### Preamble
1
HH417 -13
HC 5208/13
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CHIROSWA MINERALS (PVT) LTD

and

BASE MINERALS ZIMBABWE (PVT) LTD

versus

OBERT MPOFU(in his capacity as Minister of Mines)

and

ATTORNEY GENERAL N.O.

and

MRS E. KAHONDE (in her capacity as the Mining Commissioner)

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

HARARE, 24 July 2013 & 25 October 2013

Chamber application

H.P. Ingebire, for the applicant

B. Chideme, for the respondents

TAKUVA J: This matter was referred to me as a Chamber Application on 22 July 2013.  After perusing papers filed of record, I  ordered as follows;

“1. Upon service on her of the Court Application in case HC 233/2013, the 3rd respondent, be and is hereby joined as a party to the contempt proceedings in the said case.

2. 	The notice of withdrawal tendered by the applicants to the HON MR JUSTICE HLATHSWAYO on 3 May 2013 be and is hereby set aside.

3	the pledge by the 1st respondent to refer a tribute agreement purporting to comply with the directions as ordered by His Lordship MR JUSTICE PATEL in case HH261/2011 be and is hereby  declared to be irregular in that the 1st respondent did not refer the tribute agreement quoted by the said Honourable Judge.

4.  The reference by the 1st respondent of the copy mentioned in paragraph 3 hereof be and is hereby deemed to be a referral of the original tribute agreement cited in paragraph 5  of the Order by the said HONOURABLE MR JUSTICE PATEL.

5.   Within 48 (forty eight) hours of the service of this order on them each respondent shall take such measures as are expedient to ensure that the appropriate tribute agreement shall be processed and registered in compliance with paragraph 4 above.

6.   Failing compliance, the 1st and 3rd respondents shall each be held to be in contempt of court and each such respondent shall be committed to prison for a period of 30 (thirty) days.

7.	The warrant of committal to prison in respect of each respondent shall be suspended on condition that each respondent shall comply with the order in paragraph 5 here of.

8.   The 3rd respondent shall bear the costs in this application”

On 14 August 2013, the first, second and third respondents filed a notice of appeal in the Supreme Court against this order.

The background of the case is as follows;

The Honourable PATEL J (as he then was) issued an order in case No. HH261/2011 in a case in which the first and second applicants were cited as the first and second plaintiffs and the first respondent was cited as the first defendant. Para 5 of that order reads:

“Within 10 days of the service of this order at his offices, the 1st defendant shall refer the tribute agreement entered into between the 1st and 2nd plaintiffs to the appropriate mining commissioner for approval and registration in accordance with the provisions of Part XVIII of the Mines and Mineral Act [Cap 21:05] (my emphasis).

The first respondent failed to comply with the court order prompting the applicants to file a court application in case HC233/2013 for an order holding the first respondent to be in contempt of the court order by PATEL J.  The first respondent opposed the application but got barred subsequent to which there was an order striking out the first respondent’s notice of opposition and directing that the matter be enrolled on the unopposed roll. The matter was duly set down on the unopposed roll for 10 April 2013 presided over by the Honourable HLATSHWAYO J. (as he then was) who directed that the parties attend in his chambers on 30 April 2013 at 15:00 hrs.

On that day the first respondent appeared in person and represented by Mr Dodo a law officer in the second respondent before HLATSHWAYO J in chambers.  The first respondent conceded that he had not complied with para 5 of the order by PATEL J and applied to have the matter postponed to enable him to comply.  The judge granted the  postponement to 3 May 2013.  On that day Mr Dodo produced a letter from the Permanent Secretary Mr P. Mupazviriho to the Mining Commissioner Harare one E. Kahonde.  The letter is dated 2 May 2013 and reads;

“Re: Referral of tribute agreement in terms of HH261/11

The attached copy of a Tribute Agreement has been referred to my office for onward reference to you so that you can process it in terms of Part XVIII of the Mines and Mineral Act.

I according by hereby refer the said attached copy in terms of the judgment granted by PATEL J in HH 261/11.”(my emphasis).

Mr Dodo further produced a letter from the first respondent to the Permanent Secretary Mr Mupazviriho the letter reads;

“Re: Referral of the Tribute Agreement in terms of HH 261/11.

The Hounourable Justice PATEL ordered that I refer the attached tribute to a responsible Mining Commissioner for consideration and approval in terms of the Mines and Minerals Act [Cap 21:05].

I therefore refer the attached tribute agreement to you in terms of section 341 (1) of the Mines and Minerals Act which provides that. “The   secretary shall be and is hereby vested with authority generally to supervise and regulate the proper and effectual carrying out of this Act by mining commissioners or other officers of the Public Service duly appointed there to, and to give all such orders.”  Kindly note section 341 (2).”

On these facts the applicants conditionally undertook to file a formal notice of withdrawal with no order as to costs.  On 6 May 2013, the applicant’s legal practitioners delivered a letter to the third respondent requesting the third respondent to advise when it would be at her earliest convenience that the applicants would attend at the office of the Mining Commissioner to collect the tribute agreement.  The tribute agreement referred to in para 5 of PATEL J’s order was signed by the grantor Mr John Richard Needham Groves and Peter Valentine.  The third respondent did not process the registration of the tribute agreement notwithstanding the fact that she had a copy in her office since 2008.

This is the background which prompted the applicants to seek leave of the court to withdraw the commitment they had made to file a notice of withdrawal in case HC 233/2013.  Applicant also sought to join the third respondent as a party in contempt of court of the order by PATEL J (as he then was).

The respondents opposed the application on the following grounds;

IN LIMINE

that the tribute agreement cited by PATEL J does not comply with the requirements for registration in that the claims are now owned by another entity which means that the Grantor has to change.

that the tribute agreement does not comply with provisions of s 280 of the Act.

that Peter Valentine does not have authority to represent Chiroswa Minerals (Pvt) Ltd.

As regards the first ground it is common cause that the sale of shares in Dodge Mine is subject to the tribute.  This reason is totally without merit in that both Mabwe Minerals (Pvt) Ltd and Mr John Richard Needham Groves were fully aware of the existence of the tribute agreement on and prior to the date of the sale on 12 August 2012 some nine months after judgment in case no HH261/2011.  The tribute agreement referred to in PATEL J’s judgment was signed by the grantor one John Richard Needham Groves and Peter Valentine.  It existed prior to Mabwe Minerals’ purchase of shares in Dodge Mine. Quite clearly, what Mabwe Minerals (Pvt) Ltd say is immaterial as it is bound by the tribute agreement in HH 216/2011.

In respect of the second ground, the thrust is that firstly the agreement lapsed and secondly that there was no written agreement submitted to the Mining Commissioner between Mabwe Minerals (the current claim holder) and Base Minerals Zimbabwe (Pvt) ltd.  As regards the first point it should be noted that the tribute agreement had a renewal clause.  As regards the second component, the facts show that Mabwe Minerals (Pvt) Ltd is not an innocent third party purchaser.

The third ground is without merit because Peter Valentine holds 50% share holding in Chiroswa Minerals (Pvt) ltd which owns the mining claims at Dodge Mine.  The other 50% is held by Mr John Richard Needham Groves.

All in all the third respondent is raising issues that were ventilated by PATEL J in his judgment.  If first and third respondents were dissatisfied with that judgment they should have appealed against it instead of subjecting it to blatant disobedience under the guise of impossibility.  This court simply restated the import of PATEL J’s judgment and it is baffling that respondents suddenly have the zeal and gusto to appeal against my judgment when the same zeal was not directed at PATEL J’s judgment.  It is ironic to say the least.

For these reasons I granted the order as prayed by the applicants.

F.M Katsande & Partners, applicant’s legal practitioners

Attorney General’s Office, respondents’ legal practitioners