Gauthleza Enterprises (Pvt) Ltd v Recordnote (Pvt) Ltd and Provincial Mining Director Mashonaland West and Provincial Mining Director Mashonaland Central and Minister of Mines and Mining Development

### Preamble
1
HH 466-25
HCH2740/23
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GAUTHLEZA ENTERPRISES(PVT)LTD

versus

RECORDNOTE (PVT)LTD

and

PROVINCIAL MINING DIRECTOR MASHONALAND WEST

and

PROVINCIAL MINING DIRECTOR MASHONALAND CENTRAL

and

MINISTER OF MINES AND MINING DEVELOPMENT

HIGH COURT OF ZIMBABWE

DEME J

HARARE, 30 July 2025 and 5 August 2025

Opposed Application

D Tivadar, for the Applicant

M Tshuma, for the 1st  Respondent

A Zikiti, for the 2nd-4th respondents

DEME J: The applicant is seeking the cancellation of the mining claims registered in the name of the first Respondent. The Applicant alleged that such mining claims encroached into its claims. In particular, the Applicant prayed for the following relief:

“1. The application be and is hereby granted.

The First Respondent's mining claim known as BM4745 located in Mashonaland West Mining Province be and is hereby cancelled as it is overpegging Applicant's mining claim known as Chambadzi N3, registered under BM21677.

The First Respondent's mining claims known as BM4132 and BM4133 located in Mashonaland Central be and are hereby cancelled as they are overpegging Applicant's mining claims known as Chambadzi N, BM 20973 and Chambadzi N2, BM21083.

The Second, Third and Fourth Respondent are hereby ordered to effect the cancellation of First Respondent's mining claims.

The First Respondent shall bear the costs of suit.”

The application was opposed by the first Respondent who raised numerous points in limine. Firstly, the first Respondent averred that this court does not have jurisdiction to hear the present application. By way of its second point in limine, the first Respondent alleged that the application is anchored on an erroneous cause of action. Thirdly, the first Respondent maintained that the matter has prescribed in terms of s 58 of the Mines and Minerals Act [Chapter 21:05] (hereinafter called “the Mines and Minerals Act”). In its fourth point in limine, the first Respondent alleged that the Applicant committed acts of fraud. Fifthly, it was argued that the Applicant’s former legal practitioners are conflicted, having at one time represented the first Respondent as well. Finally, the first Respondent claimed that the present application is pregnant with material disputes of fact. The first Respondent, through their counsel, Advocate Tshuma abandoned the last three points in limine. He submitted that the abandoned points will be dealt with at the stage when the parties will be addressing the court on the merits.

Thus, my responsibility is to make a determination on the status of the first three points in limine. The question of jurisdiction was orally raised for the first time by Advocate Tshuma on the day of hearing. Adv Tivadar submitted that he was ready to respond to the question of this court’s jurisdiction. However, he submitted that if the point in limine succeeds, his client must not be ordered to pay punitive costs, as he was given short notice to respond to the point in limine.

Advocate Tshuma argued that this court does not have jurisdiction to hear the present application, which, according to Advocate Tshuma, is lodged in terms of s 31 of the Mines and Minerals Act. He further contended that once the application is made in terms of s 31 of the Mines and Minerals Act, s 32 of the Mines and Minerals Act becomes applicable. In terms of s 32 of the Mines and Minerals Act, only the Administrative Court does have jurisdiction to hear such matters arising from s 31 of the Mines and Minerals Act. For this reason, Adv Tshuma argued that the High Court does not have jurisdiction to hear the present application. He referred the court to the case of Retinue Stars Investments (Pvt) Ltd v Olympus Gold Zimbabwe Ltd and Ors. He urged the court to strike the application from the roll on this basis.

Responding to the point in limine of jurisdiction, Advocate Tivadar expressed his surprise at the last-minute attempt to smuggle the point in limine of jurisdiction, which was never part of the original points in limine. He argued that the point in limine is not merited and hence must be dismissed. He further argued that s 32 of the Mines and Minerals Act is only applicable to the prospector and land owner dispute. Thus, he further contended that the present dispute is between two miners. For this reason, he submitted that the point in limine must be dismissed. Advocate Tivadar also claimed that the Applicant is relying on s 177(3) of the Mines and Minerals Act for the remedy. He referred the court to para 28 of the founding affidavit.

Advocate Tivadar further argued that the first Respondent consented to the order that the Secretary for Mines and Mining Development must produce a report for the court. By consenting to the order, Advocate Tivadar contended that the first Respondent submitted to the jurisdiction of this court. He argued that the case of Retinue Stars Investments (Pvt) Ltd supra can be distinguished from the present application.

It is apparent that the case of Retinue Stars Investments (Pvt) Ltd v Olympus Gold Zimbabwe (Pvt) Ltd supra is dealing with the dispute between the land owner and the prospector. Reference is made to para(s) 3 and 33 of the case of Retinue Stars Investments (Pvt) Ltd v Olympus Gold Zimbabwe Ltd supra. Section 32 of the Mines and Minerals Act relied upon provides that:

“If any dispute arises between the holder of a prospecting licence or a special grant to prospect or an exclusive prospecting order and a land owner or occupier of land as to whether land is open to prospecting or not, the matter shall be referred to the   Administrative court.”

Section 31 of the Mines and Minerals Act provides as follows:

“(1) Save as provided in Parts V and VII, no person shall be entitled to exercise any of his rights under any prospecting licence or any special grant to carry out prospecting operations or any exclusive prospecting order—

upon any holding of private land except with the consent in writing of the owner or of some person duly authorised thereto by the owner or, in the case of a portion of Communal Land, by the occupier of such portion, or upon any State land except with the consent in writing of the President or of some person duly authorised thereto by the President—

within four hundred and fifty metres of the site of the principal homestead on such holding or on such State land, whether such homestead is already erected or actually in the course of erection;

within four hundred and fifty metres of the site of any intended principal homestead, which site has been registered with the mining commissioner by the land owner:

Provided that if a principal homestead is not erected on such a site within three years after the date of such registration, such site shall thereupon become open to prospecting;

within ninety metres of any area set aside on which housing constructed of brick or concrete has been erected for occupation by farm employees, if the total value of such housing is not less than five thousand dollars;

within ninety metres of any other building or permanent improvement of a value of not less than five hundred dollars;

within ninety metres of any permanent cattle dip tank or spray race;

upon any land under cultivation or within fifty metres thereof;

within ninety metres of any other permanent bona fide farm building, except on payment to the land owner of such compensation as may be fixed by agreement or, failing agreement, by the Administrative Court to whom the matter shall be referred for decision;

upon any mining location, other than one in respect of which he may have acquired the exclusive right of prospecting under such licence or special grant or exclusive prospecting order;

within the surveyed limits of any city, town, township or village, or upon a belt fifty metres in width outside such limits;

upon any site which is on town lands, but outside the surveyed limits of any city, town, township or village situated thereon, and has been surveyed and set aside for any specific purpose;

upon any licenced aerodrome or any emergency landing ground or aerodrome of the State;

upon any rifle range of the State, any railway reserve or any cemetery;

except with the consent in writing—

of the owner or of some person duly authorised thereto by the owner, upon any holding of land which does not exceed one hundred hectares in extent and which is held by such owner under one separate title:

Provided that if such owner has one or more holdings which are contiguous and the total area of such contiguous holding exceeds one hundred hectares this paragraph shall not apply to such holdings;

in the case of a portion of Communal Land which does not exceed one hundred hectares in extent, of the occupier of such portion;

where any consent in terms of this paragraph is unreasonably withheld, the Minister may authorise any person to exercise his right under any prospecting licence or any special grant to carry out prospecting operations or any exclusive prospecting order on such land, subject to such conditions as the Minister may impose;

upon any Communal Land occupied as a village without the written consent of the rural district council established for the area concerned.

(2) Where a site intended for a principal homestead has been registered by the land owner under subparagraph (ii) of paragraph (a) of subsection (1)—

(a) the land owner shall as soon as may be after such registration erect a peg marking the centre of the site and bearing an inscription stating the purpose of such peg, and shall maintain such peg and maintain such inscription in legible form;

(b) the land owner shall not, if such principal homestead has not been erected within the period of three years mentioned in the proviso to that subparagraph, be entitled again to register such site or any portion thereof until a period of not less than twelve months has elapsed from the date upon which such site again became open to prospecting.

(3) If a land owner fails to comply with any provisions of paragraph (a) of subsection (2), the mining commissioner may cancel the registration of the site to which such failure relates.”

From a jurisdictional perspective, it is difficult for me to conclude that this court does not have jurisdiction to resolve the dispute between two miners. In my view, the point in limine of jurisdiction is not sustainable under such circumstances, especially where the Applicant also seeks to rely on s 177(3) of the Mines and Minerals Act. The present matter does not fall within the category of disputes between landowner and prospector. The Applicant and the first Respondent are all miners. Declining jurisdiction to hear this matter will assume that the Administrative Court does have jurisdiction to hear the matter. It is evident that the Administrative Court does not have jurisdiction to hear this matter. Declining this court’s jurisdiction will leave the Applicant without a remedy.  Any reference to s 31 of the Mines and Minerals Act is likely to be a result of an error. I would have ruled otherwise if s 31 of the Mines and Minerals Act was correctly pleaded.  Accordingly, the point in limine is hereby dismissed.

Moving on to the question of statutory prescription, the first Respondent argued that the Applicant failed to challenge its mining title for over two years and hence the Applicant lost the right to challenge such title. The first Respondent alleged that it got registered as the owner of the disputed mining claims in 2019, while the Applicant sought to challenge the title more than two years later. Reference was made to s 58 of the Mines and Minerals Act.

Responding to this point in limine, the Applicant maintained that s 58 of the Mines and Minerals Act does not arise where the Applicant is a prior pegger. In its Heads of Argument, the Applicant referred the court to the case of Gin Yang Africa v Estate Late George Makurira and ors, where Makonese J held that:

“The legal position is clear. A prior pegger has superior rights and s 177 (3) of the Act protects the applicant.  I am not persuaded that s 58 of the Act can be applied to protect the rights of a claim that was pegged in an area not open for pegging. Once it is established that Applicant has prior rights, the court cannot and should not resort to s 58 of the Act.  Olympia 7 Mine was registered encroaching into Bonsor South Mine. It was not supposed to be registered in the first place. It is liable for cancellation in terms of s 50 of the Act. This is because the rights of first and second respondents are subordinate to the rights of the Applicant who is the first pegger. See the case of K & G Mining Syndicate v Mugangavari & Ors HB 131/17.  In this instance Bonsor South and Olympia 7 cannot co-exist. This is what has led to the physical and at times violent confrontation between the disputing parties.”

Section 58 of the Mines and Minerals Act provides as follows:

“When a mining location or a secondary reef in a mining location has been registered for a period of two years, it shall not be competent for any person to dispute the title in respect of such location or reef on the ground that the pegging of such location or reef was invalid or illegal or that provisions of this Act were not complied with prior to the issue of the certificate of registration.”

Section 177(3) of the Mines and Minerals Act provides as follows:

“Priority of acquisition of title to any mining location, reef or deposit,  if such title has been duly maintained, shall in every case determine the rights as between the various peggers of mining locations, reefs or deposits as aforesaid and in all cases of dispute the rule shall be followed that, in the event of the rights of any subsequent pegger conflicting with the rights of a prior pegger, then, to the extent to which such rights conflict, the right of any subsequent pegger shall be subordinated to those of the prior pegger and all certificates of registration shall be deemed to be issued subject to the above conditions.”

It is an established principle of statutory interpretation that words must be assigned their ordinary and grammatical signification unless where doing so would lead to repugnance or absurdity. Reference is made to the case of Falcon Gold Zimbabwe v Pfura Rural District Council, where the Supreme Court opined as follows:

“The law on the interpretation of statutes and other legal documents is now well established in this jurisdiction.  It is the duty of the court to give effect to every word which is used in a statute unless necessity or absolute intractability of the language employed compels the court to treat the words as not written – Keyter v Minister of Agriculture 1908 NLR 522.  This is the golden rule of interpretation which, put otherwise, stipulates that the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnance or inconsistency with the rest of the instrument – Coopers and Lybrand & Others v Bryant 1995 (3) SA 761, 767 (A). In Chegutu Municipality v Manyora 1996 (1) ZLR – 262 (SC) this Court remarked that there is no magic about interpretation and that words must be taken in their context.

[19] More recently the Constitutional Court of Zimbabwe in Chihava v The Provincial Magistrate Francis Mapfumo CCZ 6/15 stated at pp 7-8 of the unreported judgment:

“The principles set out in the dicta cited above can aptly and instructively be summarized as follows:

the Legislature is presumed not to intend an absurdity, ambiguity or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an enactment.

Therefore, in order to ascertain the true purpose and intent of the Legislature, regard is to be had, not only to the literal meaning of the words, but also to their practical effect.”

In casu, it is apparent that the prior pegger rule is a time-honoured and celebrated principle which has been used to resolve mining disputes in our jurisdiction. This principle establishes certainty in the resolution of mining disputes. The principle definitely cannot be overruled by s 58 of the Mines and Minerals Act. In its wisdom, the legislature promulgated s 177(3) of the Mines and Minerals Act to resolve the dispute between miners. Through the use of the phrases “in every case” and “in all cases” in s 177(3) of the Mines and Minerals Act, the legislature made its intentions precise and clear. The phrases used suggest that under all circumstances, the prior pegger rule must be employed to resolve the disputes between miners subject to the satisfaction of the conditions outlined in s 177(3) of the Mines and Minerals Act. The legislature put it beyond any doubt that s 177(3) of the Mines and Minerals Act should not be subjected to s 58 of the Mines and Minerals Act by the use of phrases such as “in every case” and “in all cases”. In my view, the phrase “any person” in s 58 of the Mines and Minerals Act should not be construed to include the prior pegger.

The Applicant is alleging to be a prior pegger in the present application. Whether it qualifies to be a prior pegger will only be determined at the appropriate stage when the merits of the present application are considered. On the basis of the allegation of being a prior pegger, the point in limine for statutory prescription may not be sustainable.

Further, it is apparent that certain provisions of the Mines and Minerals Act override s 58 of the Mines and Minerals Act.  For example, s 50(1) of the Mines and Minerals Act confers upon the Mining Commissioner the power to cancel the mining certificates notwithstanding the provisions of s 58 of the Mines and Minerals Act. Section 50(1) of the Mines and Minerals Act provides as follows:

“(1) Subject to subsection (2), the mining commissioner may, notwithstanding subsection (1) of section fifty-eight, at any time cancel a certificate of registration issued in respect of a block or site if he is satisfied that—

at the time when such block or site was pegged it was situated on ground reserved against prospecting and pegging under section thirty-one or thirty-five or on ground not open to pegging in terms of subsection (3) of section two hundred and fifty-eight; or

provisions of this Act relating to the method of pegging a block or site were not substantially complied with in respect of such block or site.”

Thus, I am unable to find the merit for statutory prescription. The argument was not properly taken. For these reasons, the point in limine for statutory prescription is hereby dismissed.

Arguing on the point in limine for absence of cause of action, the first Respondent maintained that the application is anchored on s 31 of the Mines and Minerals Act. According to Advocate Tshuma, this section does not provide for the cancellation of the mining certificates by this court. He argued that the present application is made in terms of s 31 of the Mines and Minerals Act.  Reference was made to para 10 of the Applicant’s founding affidavit, which reads as follows:

“10. This is a court application for an order to cancel mining claims with Registration Numbers BM4745, BM4732 and BM4733 held in the name of the First Respondent [Record Note (Private) Limited] which were pegged on land that was not open to prospecting and pegging in violation of s 31 of the Mines and Minerals Act [Chapter  21:05].”

Advocate Tivadar, in response, argued that the application is seeking remedy in terms of s 177(3) of the Mines and Minerals Act. Reference was made to para 28 of the founding affidavit. He further submitted that if the court makes the finding that there is no cause of action arising from s 31 of the Mines and Minerals Act, he is abandoning the relief in terms of this section and will pursue the remedy in terms of  s 177(3) of the Mines and Minerals Act.

A reading of para 10 of the founding affidavit does not suggest that the application is lodged in terms of s 31 of the Mines and Minerals Act. Reference to this section is not suggesting that the Applicant is seeking relief in terms of this provision, in my view. The Applicant is simply stating that the first Respondent’s mining claims are violating the provisions of s 31 of the Mines and Minerals Act. Although the present application is for the cancellation of the mining claims, nothing in para 10 suggests that the application is lodged in terms of s 31 of the Mines and Minerals Act.

However, the court needs to examine whether the first Respondent is violating the provisions of s 31. It is apparent that s 31 provides that an area may not be open to prospecting where the consent of the land owner has not been obtained. The Applicant and the first Respondent are all miners. None of them is a landowner. Hence, violation of s 31 of the Mines and Minerals Act cannot arise under such circumstances. It is an established principle that the Applicant who approaches the court must specify the legal provision upon which the application is founded so as to inform the court and the opposite party. Reference is made to the case of Bushu v GMB and Ors, where Chitapi J remarked as follows:

“The application filed by the applicants’ legal practitioner is hopelessly inadequate in form and substance. I deal with the inadequacies in the application hereunder. Firstly the application does not indicate the provisions of the law under which it is made. I will accept that form 29 of the High Court rules does not specifically provide that the applicant relying on a provision of the law should cite the rule under which the application is made. However, in practice, any astute legal practitioner making an application in terms of a statutory provision including a rule of court is expected to indicate the rule or provision concerned. The need to cite the relevant provision of the law under which the application is made, where applicable of course, cannot be overemphasized. The citation of the correct and relevant provision attunes the court to its jurisdiction and the judge or court as the case may be immediately opens up to the provision and if need be researches on the provision if it is not one that immediately comes to mind.

Notwithstanding that form 29 does not provide for the rule or statutory provision citation, it should be accepted as a basic rule and pre-requisite in any application grounded on a statutory provision or rule of court that the provision or rule be cited. If not cited in the heading “court application…..” then the founding affidavit should at least contain a statement by the applicant that he or she is making an application in terms of the specific provision or rule. It should not be left to the judge to have to go through all the papers filed in the application in order to determine the nature of the application. I have indeed dealt with countless applications where the provision or rule if applicable has been cited. This is as it should be. It is a matter of common sense and logic. It is to me no different from the need for a party to provide a citation for a legal case authority intended to be relied upon in heads of argument. The case citation is indicated as a matter of common sense practice and logic because the party citing the case wants the judge to read the case. A statutory or rule specific application should using the same logic specify the statute or rule. I would extend my reasoning to non statutory or and non rule specific application. If the application is grounded in the common law, it should state so. After all Order 1 r 4 (2) is clear that the forms in the first schedule to the rules should not be used with slavish adherence, but be altered to suit the circumstances of the matter at hand.”

By referring to the violation of s 31 of the Mines and Minerals Act, the Applicant referred the court and the Respondents to a wrong provision of the law. Section 31 of the Mines and Minerals Act establishes the conditions that enhance the peaceful coexistence between the land owner and the miner. There are no allegations made by the Applicant that such conditions have been violated. The pleading of an improper cause of action will affect the manner of response by the opposite party. The other party needs to have a correct picture of the Applicant’s complaint for him or her to properly respond. The pleading of a correct cause of action will enable the court to deal with the real dispute between the parties. Further, the basis for cancellation of the site, and not the mining claim, arising from s 31(3) of the Mines and Minerals Act, can only be a result of the land owner’s failure to comply with the manner in which his or her principal homestead may be pegged.  This is irrelevant for the present application where none of the parties is a land owner.  For these reasons, the Applicant’s cause of action is erroneously rooted. The Applicant ought to have referred the court to the appropriate provision. Any attempt to depart from s 31 of the Mines and Minerals Act through oral submissions, as was attempted by Advocate Tivadar, cannot correct the defect. The Applicant must have foreseen this defect, having been alerted through the Heads of Argument filed on behalf of the first Respondent.

Advocate Tivadar submitted that he is now abandoning the relief in terms of  s 31 of the Mines and Minerals Act. He further submitted that his client is now pursuing remedy in terms of  s 177(3) of the Mines and Minerals Act. However, it is apparent that the application stands or falls by its founding affidavit. Reference is made to the case of Chironga and Anor v Minister of Justice, Legal and Parliamentary Affairs and Ors, where Hlatshwayo JCC held that:

“It is trite that an application stands or falls on the averments made in the founding affidavit.  See Herbstein & van Winsen the Civil Practice of the Superior Courts in South Africa 3rd ed (hereinafter ‘Herbstein &Van Winsen or the Authors’) p 80 where the authors stated that:

“The general rule, however, which has been laid down repeatedly is that an applicant must stand or fall by his founding affidavit and the facts alleged therein, and that although sometimes it is permissible to supplement the allegations contained in that affidavit, still the main foundation of the application is the allegation of facts stated therein, because these are the facts which the respondent is called upon either to affirm or deny. If the applicant merely sets out a skeleton case in his supporting affidavits any fortifying paragraphs in his replying affidavits will be struck out.”

Paragraph 10, where  s 31 of the Mines and Minerals Act is pleaded, falls under the heading of “nature of application”. When one reaches the “nature of application”, one may expect to see the outline of the cause of action upon which the application is set up. Thus, the present application is founded upon an incorrect cause of action. Paragraph 28 of the founding affidavit cannot be used to remedy the defect, as this paragraph is not being pleaded as an alternative cause of action to para 10 of the founding affidavit, where  s 31 of the Mines and Minerals Act is alleged to have been violated. In any event, para 28 of the founding affidavit does not fall under the “nature of application” like para 10 of the founding affidavit. Consequently, the application is improperly before the court as the Applicant has pleaded a wrong cause of action. On this basis, the application must be struck from the roll with costs. This will enable the Applicant to approach the court based on a correct cause of action.  In the circumstances, it is accordingly ordered as follows:

The two points in limine raised by the first Respondent to the effect that:

This court does not have jurisdiction to hear this matter; and

The matter has prescribed;

be and are hereby dismissed for want of merit.

The point in limine to the effect that the Applicant has failed to plead a correct cause of action is hereby upheld.

The application be and is hereby struck from the roll with Costs.

Deme J:………………………………………………………

Masiya-Sheshe & Associates, Applicant’s Legal Practitioners.

Mawere Sibanda Commercial Lawyers, 1st  Respondent’s Legal Practitioners.

Civil Division of The Attorney General, 2nd- 4th respondents’ Legal Practitioners.