Freda Rebecca GOLD MINE Limited V Wilfred Mboma

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HH 84/22
HC7376/21
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FREDA REBECCA GOLD MINE LIMITED

versus

WILFRED MBOMA

HIGH COURT OF ZIMBABWE

MUZOFA J

HARARE, 09 February 2022

Urgent chamber application for spoliation and declaratory relief

T Sena with W Musengwa, for the applicant

J Koto, for the respondent

MUZOFA J: The applicant approached this court on an urgent basis for spoliatory relief and a declaratur. During the proceedings the applicant abandoned the claim for a declaratur. After hearing parties I granted the order for spoliation. The applicant has requested for reasons for purposes of an appeal

The applicant is a mining company duly registered in terms of the laws of Zimbabwe. The respondent is an adult with full capacity. The parties are embroiled in a dispute in respect of a mining site in the Kitsi area, Bindura ‘the property’.

According to the applicant, it holds a valid mining lease known as FRGM Mining Lease 21 which gives it exclusive mining rights over a piece of land in Bindura. It has been operating its mining activities on the property. A map was attached to show the geographical extent of the area covered by the mining lease. In October 2021, the respondent invaded the area known as Kitsi area which falls within the property. He fenced off the place and commenced mining activities. The applicant engaged the respondent who advised it that he had acquired rights to the land from the Ministry of Local Government and Public Works. Upon enquiry with the Ministry of Mines, the applicant was advised that the respondent had no entitlement to any portion of land in the property. On 21 October 2021 the respondent was ordered to vacate the land by the Zimbabwe Republic Police. He duly complied with the order begrudgingly.

The respondent then filed an urgent chamber application for an interdict and an application for review under HC 5855/21 and HC5878/21 respectively. The matters are still pending. Before the matters were determined, on the 15th of December 2021 the respondent invaded again the piece of land and unlawfully deprived the applicant of its peaceful and undisturbed possession of the property. The respondent remains in such occupation and is conducting illegal mining operations on the property.

The respondent opposed the application. It took the point that the matter lacks urgency. The dispute between the parties arose in September 2021. The area he fenced and occupied does not fall withing the applicant’s property. It belongs to the Bindura Reserve. He fenced it off in September 2021 and he was not evicted at all. Since the fence has always been there, he remained in occupation therefore the applicant was not in peaceful and undisturbed possession on 15 December 2021.He did not re invade the property on 15 December. On that date he was on self-isolation in Zvimba. The fact that the applicant was not in peaceful possession is also evidenced by numerous artisanal miners on the land he occupied. The applicant caused the arrest of the respondent’s personnel for trespassing, and they were acquitted on the basis that the applicant failed to prove that it owned the land in question.

Urgency

A matter is urgent where harm is threatened or has manifested and if the courts fail to act, the applicants may well be within their rights to dismissively suggest to the court that it should not bother to act subsequently as the position would have become irreversible and irreversibly so, to the prejudice of the applicant.

In this case the parties are embroiled in a mining dispute. The respondent is alleged to have occupied the property against the applicant’s will and is already conducting mining activities. Minerals are a finite resource, and the court must hear the matter to avert the prejudice to the applicant. If one has regard to the purpose of this possessory remedy, namely to prevent persons taking the law into their own hands, it is my view such matters must be treated as urgent. No man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. The relief is meant to restore the status quo ante until the parties’ rights are determined. That is the reason the court does not concern itself with the substantive rights of the parties. The relief is meant to discourage anarchy where members of the public may resort to self-help without recourse to the law. If the applicant proves the averments set out, the respondent’s conduct amounts to self-help. It is on that basis that the court treated the matter as urgent.

On the merits, the applicant must satisfy the Court that,

It was in peaceful and undisturbed possession of the property and;

The respondent deprived it of the possession forcibly or wrongfully against its consent see generally Botha & Anor v Barret (2) ZLR 73 (S).

In Bennet Pringle Pvt Ltd v Adelaide Municipality 1977 (1) SA 230 the court had this to say on the requirements,

“In terms of all the authorities cited, the possession in order to be protected by a spoliatory remedy must still consist of the animus- the intention of securing some benefit to the possessor and of dentio namely the “holding” itself’

The onus is on the applicant to satisfy these requirements on a balance of probabilities. Since the relief sought is final in nature, it cannot be granted on prima facie proof.

The recognized defences that can be raised include denial of the facta propanda that is denial of the fact having taken place, impossibility of restoration, counter spoliation and failure to act within a reasonable time see Base Minerals Zimbabwe Pvt Ltd & Ors v Mabwe Minerals Pvt Ltd SC29/15

The respondent’s defence appears to be two pronged. He denies the fact of the spoliation and failure to act within a reasonable time.

It is common cause that the applicant is a holder of a mining lease 21 where its operations are conducted. The applicant attached a map with coordinates showing the extent of the location of the lease and where the respondent has occupied. The map is stamped by the responsible authority the Ministry of Mines and Mining Development. The lease is not disputed, it is prima facie evidence of possession. The respondent denies occupying the land as described by the applicant. He attached a map from the department of the Surveyor General. It indicates the applicant’s area of operations. However it does not indicate the portion occupied by the respondent. In para 20 of his opposing affidavit, the respondent was content to indicate that he occupied land under Bindura Reserve. In the absence of a clear indication of where exactly he occupied, the map remained meaningless. The respondent therefore failed to show that the land he allegedly occupied falls within the Bindura Reserve. It is the court’s finding that the area forming the basis of the dispute is within the property.

The Court is alive to the trite position of the law that in spoliatory proceedings the Court does not concern itself with ownership, however, in this case the lease is both evidence of ownership and possession. It was not disputed that the applicant is operating under lease 21. Even if the applicant was not mining at the precise location that the respondent occupied, the fact that the area fell within the applicant’s property implies that the applicant was in possession of the property. The property is 1,417 hectares in extent and the applicant is not conducting its mining activities on the whole property and that does not make its possessory rights any less. The applicant therefore hand both the physical possession and the requisite animus.

Having made that finding, the next issue for determination is whether the applicant was in peaceful and undisturbed possession of the property. The respondent averred that he has always been in occupation since October 2021. He did not leave the place. The alleged occupation of the 15th of December is a fabrication by the applicant. I do not agree with the submission. What is common cause is that respondent indeed fenced off the area around September or October. I accept the applicant’s submission that it acted against this unlawful conduct. It approached the Ministry of Mines. The Ministry confirmed that the respondent has no rights over the property and advised the Zimbabwe Republic Police to assist the applicant. In my view it is on the strength of this letter that the Police approached the respondent and ordered him out of the property. I also accept that the respondent complied with the directive for he confirms that his employees were denied access into the property. That means there was no further occupation of the property. To regain access and occupation the respondent approached the court on an urgent basis for an interdict and a review of the directive by the Police. The matters are still pending. The fact that the fence and his equipment remained on the property does not amount to occupation. The items remained on the property unlawfully. The respondent cannot benefit from his unlawful conduct. The supporting affidavit by Ranganai Kachere confirms that on the 15th of December while they were on patrol with other security guards, they discovered that the respondent’s employees were back on the property. This averment is not strongly controverted. Even if the respondent was in Zvimba, the mere presence of his employees is evidence of his occupation since the employees were on the property in furtherance of his interests.

It is my finding that from the time the respondent was ordered out of the property by the Police and he did, the applicant was in peaceful and undisturbed possession of the property until the 15th of December 2021 when the security officers of the applicant saw the respondent mining on the property.

The applicant did not consent to such occupation. This is evident from the applicant’s conduct. Initially it engaged the respondent when a solution could not be found, it approached the Ministry of Mines and the Police to assist it. Thereafter it approached the Court for relief.

The balance of convenience is in the applicant’s favour. The granting of the relief preserves the area fenced by the respondent. It is not in dispute that the applicant is not mining at that specific area. So, there is no further mining until the parties’ rights are determined. In any event on his application for the land the respondent does not intend to conduct mining activities. On the other hand, if the application is not granted, the respondent would continue mining on the property depleting the mineral resources. I comment in passing on the conduct of the respondent. The respondent fenced off the area after applying for the land. He has not been offered the land. According to the application he required the land for recreational purposes. However, it is surprising that contrary to the intended purpose the respondent is mining on the area he occupied. One wonders if the respondent was genuine in his application.

From the forgoing I concluded that the applicant had satisfied the requirements for a spoliation order. The application must be granted.

The applicant requested for costs on a higher scale on the basis that the respondent resorted to self-help and even defied lawful authority. I agree. Costs usually follow the cause except in exceptional cases. They are in the discretion of the court. In this case the respondent did not only resort to self-help. The respondent displayed a sheer disregard for authority and court process. He was ordered off the area by the Police. The Police were acting based on the letter from the Ministry of Mines. He had filed court process to challenge the orders. Instead of waiting for the resolution of the pending matters he defied the Police order and reinvaded the area. The court must censure such appetite for anarchy with an order of costs on higher scale.

In the result the following order was made:

IT IS HEREBY ORDERED THAT:

The application for spoliation be and hereby granted.

The respondent, and all those people acting on his instructions, be and are hereby directed to forthwith restore to the Applicant possession of the property commonly known as Kitsi are which is situated approximately 800 metres from the Army Barrack, 2 Infantry Brigade, Bindura (Kitsi area) which falls within Applicant’s Mining Lease Number 21 or any part of it thereof.

In the event the Respondent does not comply with paragraph (1) above, the Sheriff for Zimbabwe, together with such officers of the Zimbabwe Republic Police he may require, be and is hereby authorised to eject the Respondent aforesaid together with all persons acting on his instructions from Kitsi area and to restore possession of the Kitsi area to the Applicant.

The respondent shall pay the Applicant’s cost of suit on a legal practitioner and client scale.

Messrs ChimukaMafunga Commercial Attorney, Applicant’s Legal Practitioners

Messrs Koto And Company, Respondent’s Legal Practitioners