Milmath Security (Pvt) Ltd v Tabatana Mining Syndicate and 13 Others and Minister of Mines & Mining Development

### Preamble
1
HH 480-18
HC 6647/17
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MILMATH SECURITY (PVT) LTD)

Versus

TABATANA MINING SYNDICATE

And

PAUL CHENJERAI

And

ISAAC JIRI

And

EARTHROW INVESTMENTS (PVT) LTD

And

PROSPER MACHEKERA

And

AUGUSTINE NYANGENGA

And

LUKE BOROMA

And

TENDAI MUCHERO

And

BOTHWELL NYAKAWETA

And

ANDREW MUDAPAKATI

And

SHACKMORE JAMBO

And

MANDIVAMBA RUKUNI

And

TANDI CHITOMBO

And

MINISTER OF MINES & MINING DEVELOPMENT

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 12 June 2018 & 9 August 2018

Opposed Application

T Biti, for the applicant

Adv T Mpofu, for the 1st – 13th respondents

MANGOTA J: An owner of property may recover it from whoever possess it without his consent (Badela Ndlovu v Spiwe Posi HH 475/15). The actio rei vindicatio is an action brought by an owner of the property to recover it from any person who retains possession of it without his consent (Tendai Savanhu v Hwange Colliery Company, SC 8/15). The principle that an owner cannot be deprived of his property against his will means that he is entitled to recover it from any person who retains possession of it without his consent (Silberbeg and Schoeman: Law of Property, 3 ed, p 273).

A common thread runs through the above cited dicta. It is that no person is allowed, at law, to retain the property of another against the latter’s will. Put differently, the law allows the owner to recover his property from whoever is holding the same against the owner’s will. The only exception which the law recognizes is where the possessor has some enforceable right against the owner.

The generally accepted position which is enunciated in the first paragraph of this judgment constitutes the applicant’s cause of action. Its contention is that gold claim number 45464, Makaha [“Makaha”] belongs to it. Makaha is in Mudzi which is under Mutoko District. It states that:

Makaha was granted to it in 2012 by the fourteenth respondent—and

in an ownership dispute of Makaha which ensued between the fourth respondent and it in October, 2016 the Acting Provincial Mining Director for Mashonaland East Province who works under the purview of the fourteenth respondent decided the dispute in its favour.

It alleges that the first to thirteenth respondents’ continued occupation of, and mining at, Makaha adversely affects its interests as well as its mining rights. It, therefore, moves the court to evict the respondents from Makaha.

All the respondents oppose the application. The second to the thirteenth respondents are a syndicate which is known as Tabatana Mining Syndicate, the first respondent in casu. The fourteenth respondent is the Minister of Mines and Mining Development.

The first to the thirteenth respondents state that:

they own Makaha through the fifth respondent—and

they appealed the decision of the Acting Provincial Mining Director to the fourteenth respondent who is yet to decide the appeal.

They allege that the application for their eviction was prematurely filed. They content

that the parties should await the decision of the fourteenth respondent. They state that there is a dispute of ownership of Makaha in terms of which the applicant and them are both in possession of certificates of registration. They aver that there is a material dispute of fact which cannot be resolved on the papers. The matter, they insist, should be properly ventilated and determined by way of an action. They aver that it requires viva voce evidence for its resolution. They challenge the applicant’s certificate of registration. They say it is not authentic but a fraud. They deny that there was ever any forfeiture of Makaha which was made against them or against the fifth respondent. The forfeiture, they state, was improperly done and is, therefore, invalid. They insist that their mining activities at Makaha are within the law. They state that their appeal suspends the decision of the Acting Provincial Mining Director. They aver that all the processes are suspended pending the determination of the appeal. They deny having ever dispoiled the applicant of Makaha. They move the court to dismiss the application with costs on a higher scale.

The fourteenth respondent’s affidavit aims at clarifying issues, he says. He acknowledges that the respondents’ appeal is before him for his consideration. He states that he set up what he terms the Disputes Committee which he mandated to hear, deliberate and make recommendations on the parties’ dispute to him. He confirms that the Disputes Committee is seized with the parties’ case.

As proof of its ownership of Makaha, the applicant attached to its application Annexure C. The annexure is a certificate of registration which the fourteenth respondent issued to it on 9 September 2014. It shows that it is the registered owner of Makaha.

The applicant’s statement which is to the effect that it acquired mining rights of Makaha in 2012 cannot possibly be correct. The date of registration which appears on the certificate does not support that allegation. Mineral rights are not acquired through any form other than by way of the annexure which bears 9 September, 2014 as the date that the fourteenth respondent granted mining rights of Makaha to the applicant.

It is common cause that the respondents, less the fourteenth respondent, showed some activity at Makaha in 2016. Their activity created the dispute between the applicant and them. The same was referred to the Acting Provincial Mining Director (“the Director”) for Mashoanland East Province for resolution. The director works under the supervision of the fourteenth respondent. The dispute which, in ernest, was between the applicant and the fourth respondent was decided in the applicant’s favour.

The Director’s ruling which is dated 25 October, 2016 reads, in part, as follows:

“Please be advised that Earthrow Investments (Pvt) ltd has no legal right over mining claims registered in favour of Prosper  Machekera even though he might be a Director in the company. Earthrow Investments and Prosper Machekera should sign an official tribute agreement and/or transfer title from Machekera P.

Basing on the above observations it is concluded that Earthrow Investments (Pvt) Ltd does not have a claim in the areas under dispute ………. Milmath Securities should be allowed to work---” (emphasis added).

It is the statement of the applicant that the decision of the director constitutes its second reason for claiming title in Makaha. It submits that it should be allowed to continue its mining operations at Makaha without any interference from the respondents. It avers that these despoiled it of Makaha. It, therefore, moves the court for their eviction from the same.

The decision of the director should, in my view, be read in its proper context. An effortless reading of the same shows that the director acknowledged the fifth respondent’s title in Makaha. What he is disagreeing with is the allegation that the fourth respondent has title in the same. He, in all probability, must have examined the records which are in his office. Those must have revealed to him that the fifth, and not the fourth, respondent has title in Makaha. It is for the mentioned reason, if for no other, that he stated that the fourth respondent has no legal right over mining claims which are registered in favour of the fifth respondent. He acknowledged, as late as October 2016, that Makaha was registered in the name of the fifth respondent. He acknowledges, further, that the fifth respondent may be a director of the fourth respondent. He states the correct position of the law which is that the only occasion when the fourth respondent can have title of Makaha occurs when the registered owner of Makaha (i.e. the fifth respondent) signs an official tribute agreement with, and/or transfers title in Makaha to, the fourth respondent.

According to the director’s records, therefore, two persons have title in Makaha. These are the applicant and the fifth respondent. The fourth respondent does not. It was by way of comparative analysis that he remained of the view that when the fourth respondent’s case is compared with that of the applicant, the latter entity which has title in Makaha was better placed than the fourth respondent to continue its mining operations at Makaha. That is the context in which the director’s decision should be understood.

The applicant makes every effort to discredit the appeal which the first to the thirteenth respondents filed with the fourteenth respondent against the director’s decision. It states that the appeal is defective for lack of locus standi on the part of the twelfth respondent who filed the same. He, it says, was not authorized by the fourth respondent which was involved in the dispute with it to appeal as he did. He, it alleges further, is not a director or an employee of the fourth respondent. He, it concludes, does not have the authority to appeal as he did. It states that the appeal does not, at any rate, suspend the decision of the director.

The respondents’ contrary statement is that their appeal is properly before the fourteenth respondent. They state, further, that the appeal suspends the decision of the director.

Whether or not the appeal is defective as the applicant would have me believe is not for me to decide. I am not seized with the appeal. The fourteenth respondent remains seized with the same. He will decide that at his own time. The applicant’s submission on the propriety or otherwise of the appeal is, therefore, misplaced.

What, however, I am called upon to decide is whether or not the appeal which the respondents filed with the fourteenth respondent suspends the decision of the director. If it does, the application cannot be granted. If it does not, and in the absence of such matters as should be considered in casu, nothing would stand in my way to grant the application as well as to order the eviction of the first to the thirteenth respondents from Makaha.

The principle which speaks to the suspension of the decision appealed against has advantages and disadvantages to the one or the other of the parties who appear before the court a quo. The principle is, in my view, a double-edged sword. It goes against the normally accepted statement which is to the effect that one cannot approbate and reprobate. It blows both hot and cold, as it were. That is so as the appeal can be bona fide or mala fide. The principle, by and large, depends on the appellant’s underlying reason for appealing.

A bona fide appeal occurs where the appellant who is not genuinely satisfied with the decision of the court a quo appeals the same. His aim and object would be to test the correctness of the decision and, in the same breadth, attain justice for himself.

It stands to good reason that the decision of the court a quo should not be enforced until the appeal has been conclusively heard. The rationale for the same is simple. It is that, if the decision is enforced before the appeal is heard, the appeal which he files would be more academic than it assists in the attainment of real and substantial justice.

Justice, it is accepted, must not only be done but must be seen to be done. With a bona fide appeal, therefore, the principle which insists that an appeal should, and does in fact, suspend the decision appealed against remains very sound law which should not be disturbed. It serves a very useful purpose. It allows the wheels of justice to turn slowly but surely for the proper administration of justice as well as for the parties’ benefit.

At the other end of the scale is the case of a mala fide appellant. He knows in his heart of hearts that his appeal would never see the light of day. He remains alive to the hopelessness of the appeal which he files. He sees some advantage if he appeals a sound decision properly grounded in law which the court a quo enters against him. He intends its suspension for his own ulterior reasons. He remains aware that the moment he appeals, the court a quo’s decision which was entered against him remains suspended until the appeal is heard and determined. He, in the process, makes every effort to delay the day of reckoning which he knows will one day take effect notwithstanding the appeal. His appeal becomes more effective where the subject of the parties’ dispute relates to property which is capable of being dissipated. He remains of the firm view that, during the period which extends from the date that he files his appeal to the date of its hearing, he will have repead a lot from his adversary’s property with probably no means of compensating the latter in the event of his appeal being dismissed for lack of merit This is a sad and very bad phenomenon which justice, unfortunately for the disadvantage party, has to go alone with.

A diligent bona fide litigant who suffers from the second described set of circumstances applies to the court a quo for leave to execute notwithstanding the appeal. The rules of court allow him the leeway. He has, however, to satisfy the court that his application has merit.

The court to which he applies for enforcement is, unfortunately for him, not infallible. It is manned by human beings who are not unnaturally immune to fallibility. They may not share his view in which case the undesirable situation which the mala fide appellant creates continues to rear its ugly head in the parties’ case in an unabetted manner.

The way forward in regard to this unnecessary, but very real, challenge which unscrupulous litigants are very much fond of remains unclear as well as undefined. Perhaps, the drafters of the rules of courts of all levels require some re-think on this aspect. That is all the more so because bone fide litigants whose cases are unquestionably well decided should not continue to be held to ransom under the guise of the principle which is under consideration. The principle which is otherwise good in substance should be crafted in such a way that it is able to, as it were, separate the sheep from the goats.

In our jurisdiction, the Supreme Court pronounced itself clearly and unambiguously on the principle which is under consideration. It proceeded on the accepted common law practice which is to the effect that an automatic stay of execution upon the noting of an appeal is binding only to the extent that it relates to superior courts of inherent jurisdiction. These are the High Court and the Supreme Court. Reference is made in this regards to the pertinent remarks of CHIDYAUSIKU CJ who eloquently discussed the subject at hand in Associated Newspapers of Zimbabwe v Min of State for Information and Publicity & Ors,2005 (1) ZLR 222 (S) at 254 D-E wherein he said:

“It is quite clear --- that the power of a court to order execution of its own judgment despite the notice of an appeal is founded in the common law doctrine of inherent jurisdiction. It is trite that only the superior courts enjoy inherent jurisdiction. In this country these are the High Court and the Supreme Court. Courts created by statute do not have inherent jurisdiction and consequently do not have power to order execution of their judgments unless such jurisdiction is conferred on them by statute.” (emphasis added)

GARWE JA clarified the matter further in Longman Zimbabwe (Pvt) Ltd v Midzi & Ors,

2008 (1) ZLR 198, 206 3 wherein he remarked as follows:

“The position may now be accepted as settled in this jurisdiction that unless empowered by law to do so, an inferior court, tribunal or other authority has no power to order the suspension of its own orders or judgments and, further, that the noting of an appeal against the judgment or order of such a court, tribunal or authority, in the absence of a statutory provision to that effect, does not have the effect of suspending the operation of the judgment or order that is sought to be appealed against.” (emphasis added)

It follows, from the above cited dicta, that the respondents’ appeal to the fourteenth

respondent does not suspend the decision of the director. That decision remains extant until it is varied or set aside by the fourteenth respondent. The respondents’ statement which was to the contrary effect is, therefore, misplaced.

The first to the thirteenth respondents’ case would have crumpled to pieces if they relied on the appeal for their continued presence at Makaha. They cannot properly argue that the appeal which they filed suspends the decision of the director and, in the process, offers an avenue to them to remain at Makaha. The above decided case authorities negate their contention.

The applicant has real rights in Makaha. The fifth respondent does also have real rights in the same. The remaining respondents who teamed up with the fifth respondent whose rights the director recognized in his ruling do, through him, have some rights in Makaha.

Whether or not the respondents, the fifth respondent in particular, suffer(s) forfeiture of Makaha remains a matter for another day. The issue of the alleged forfeiture can only be resolved through viva voce evidence. That is so because the respondents contest the same in a very emphatic manner. They describe the alleged forfeiture as having been of no force or effect. Their reason is that it was irregularly implemented. They challenge the applicant’s certificate of registration for Makaha. They state that the certificate is a fraud on the part of the person or official who issued it in the name of the applicant.

There are, in my view, material disputes of fact in the parties’ case. The fourteenth respondent states as much. He is seized with the parties’ dispute which he will determine after he has received the recommendations of the Disputes Committee which he set up to investigate the parties’ competing claims of Makaha.

It goes without saying that neither party has a better claim to Makaha than the other. Their claims are equal in competition one against the other. The court cannot, in the circumstances, grant the application.

The applicant failed to establish its case on a balance of probabilities. Its application is without merit. It is, accordingly, dismissed with costs.

Tendai Biti Law, applicant’s legal practitioners

Rubaya & Chatambudza, 1st – 13th respondents’ legal practitioners