Edson Tinashe Musaruro v Emmanuel Tivakudze

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                                                                                HC 117/21


EDSON TINASHE MUSARURO
versus
EMMANUEL TIVAKUDZE


HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 26 February 2021



Urgent Chamber Application




       CHIRAWU-MUGOMBA J: The applicant seeks the following relief before this
honourable court.
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:
   a. The respondent and any persons acting on his behalf or for his interests are hereby
       prohibited from denying the applicant access to his mining claim located at sub-
       division 6, Ndiri South Mazoe within RA PJ 002 measuring 23 hectares in any
       manner whatsoever.
   b. Respondent is ordered to pay cost of suit.
TERMS OF THE INTERIM RELIEF GRANTED
Pending the confirmation or discharge of the terms of the final order, applicant is hereby
granted the following relief:
   1. The respondent be and are hereby interdicted from interfering with applicant’s mining
       processes and any other operations at sub-division 6, Ndiri South Mazoe within RA
       PJ 002 measuring 23 hectares in any manner likely to interfere with applicant’s
       mining operations thereon.
   The applicant’s averments in support of the provisional order can be summarised as
   follows. He was allocated a piece of land known as sub-division 6 of Ndiri South
   Mazowe (the land) by the Ministry of Lands and Rural Settlement. In support of his
   contention he attached a copy of an offer letter dated the 19 th of August 2016. He
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occupied this piece of land and has been in peaceful occupation since then. He does not
state when he occupied the land. He did some mineral prospecting and discovered that
there were some mineral deposits especially gold. He approached the Ministry of Lands
to acquire a special grant and comply with the legal requirements. He applied for a special
grant to commence operations which is still awaiting the relevant signatures. Attached to
the application is a copy of a special grant purportedly issued to the applicant to carry out
gold mining operations. Part of the compliance requires that an environmental impact
assessment be done. On the 12 th of February 2021, the applicant whilst in the company of
an environmental impact assessor was barred by the respondent from carrying out the
exercise. The applicant has commenced proceedings for the eviction of the respondent
from the land. The applicant stands to suffer irreparable harm as he has a prima facie
right to occupy the land. He also faces economic prejudice should the respondent not be
interdicted from disturbing the mining operations. He does not have any other remedy
except seeking an interdict. The balance of convenience is in his favour.
        The application is strenuously opposed by the respondent. By way of background,
he contends that the land in question is subject of an offer letter that was given to his aunt,
one Abigail Tevera dated the 24th of December 2001. She deposed to a supporting
affidavit to that effect. The respondent is therefore occupying the land with the express
authority of his aunt. The operations on the land can be described as nothing short of
prolific. The applicant tried in 2018 to forcibly occupy the land but he failed. Applicant
and respondent appeared before the Land Commission and he was advised that he is not a
lawful occupier and his offer letter was fraudulent. In 2020 applicant dragged the
respondent to the Magistrates Court seeking an interdict. He was unsuccessful. The
decision of the Magistrate Court is still extant. Applicant resorted to claiming that he
holds certain mining rights. He has not joined the Ministry of Lands and Ministry of
Mines. With that background, the respondent takes several points in limine as follows:-
a. Material non-disclosure as the applicant has failed to tell the court that the matter is
   res judicata, that he did not appeal against the decision of the Magistrates Court, that
   there is an offer letter that precedes his, that the matter was handled by the Lands
   Commission and a determination was made against him.
b. Exhaustion of other remedies – the applicant has tried unsuccessfully to interfere with
   the respondent’s occupation through seeking an interdict. He has not appealed against
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        the Magistrate Court’s decision nor has he sought a review of the determination of the
        Lands Commission.
    c. The matter is not urgent – The applicant has since 2018 been engaged with litigation
        against the respondent and this matter is tantamount to a duplication of former
        lawsuits.
    d. No cause of action- applicant lacks a clear right.
        Having gone through the papers filed of record, it is my considered view that the
application has no merit at all as it is characterised by material non-disclosure – see Graspeak
Investment (pvt) Ltd v. Delta Operations (pvt) Ltd and anor ( 2001(2) ZLR 551(H); NSSA v
Capital Bank Corporation Ltd and ors ( HH-6-19); Mukuvisi Tashinga Co-operative v
Masukuma and ors, HH-478-15 and The Executive Assistance Training Centre (pvt) Ltd v
ZESA Pension Fund and ors, HB1/06.

It is trite that an urgent application is one of utmost good faith and a litigant is required to
place before the court all material facts so that an informed decision is made. This is more so
because an urgent chamber application jumps the queue ahead of all other cases. The
applicant sought to create a fallacious impression that his ‘offer’ letter is the only one. He did
not disclose the offer letter issued to Abigail Tevera in 2001. He did not disclose the
existence of an application for an interdict in the Magistrates Court at Concession in case
number C01/2020 over the same land. He failed to disclose previous appearance before the
Land Commission. His version of the history of the matter between the parties is highly
flawed as it does not disclose the incidences that started in 2018. Once there is material non-
disclosure, a matter ceases to be urgent.

          On costs, I agree with the respondent that the applicant has abused court processes
and has put the respondent out of pocket by forcing him to defend a frivolous urgent chamber
application. Accordingly an order of costs will be made against applicant.



DISPOSITION

It is ordered that:-
     1. The application be and is hereby dismissed.
     2. The applicant shall pay the costs
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Chinawa law Chambers, respondent’s legal practitioners