Judgment record
Twin Castle Resources (Pvt) Ltd v Paari Mining Syndicate and Provincial Mining Director (Manicaland) N.O and Minister of Mines and Mining Development N.O and The Officer In-Charge Odzi Police Station N.O
HH 153-21HH 153-212021
Viewing: Word Document (Legacy)
Loading document...
Full text archive
Judgment text copy
A clean reading copy is shown below. Use Download for the original formatted document.
1
HH 153-21
HC 847/21
REF CASE HC 129/21
TWIN CASTLE RESOURCES (PVT) LTD
versus
PAARI MINING SYNDICATE
and
PROVINCIAL MINING DIRECTOR (MANICALAND) N.O
and
MINISTER OF MINES AND MINING DEVELOPMENT N.O
and
THE OFFICER IN-CHARGE ODZI POLICE STATION N.O
HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 26 and 31 March 2021 & 6 April 2021
Urgent chamber application
Mr G Chihuta with Mr N.P Chinzou ,for the applicant
Mr M Muzaza, for the 1st respondent
Mr C Chitekuteku for the 2nd, 3rd and 4th respondents
TSANGA J: The applicant filed an urgent chamber application seeking a provisional
order which in effect sought execution of a specific clause from an earlier provisional order
granted to it. This was in light of an appeal of that order by the first respondent to the
Supreme Court despite not having opposed the provisional order when it was sought.
The background to the matter is pertinent. On the 19 th of February 2021 the same
applicant Twin Castle Resources Private Limited, lodged an urgent chamber application
under HC 129/21 for an interdict and compelling order against the first respondent Paari
Mining Syndicate Private Limited. The applicant averred that it was the registered owner of
Snipe B46 Odzi with pending registration notices no 19994AA and 019995AA. The first
respondent, a mining syndicate, was said to be denying the applicant’s employees entry into
the said mining locations despite a clear ruling by the Minister of Mines and Mining
Development (the 2nd respondent herein) that the applicant had stronger rights to the mining
locations having been the first to peg there. The dispute between the applicant and the first
respondent had been resolved by the Minister of Mines on the 15 th of February 2021
according to the application filed. In defiance of the ruling, the first respondent was said to
have continued extracting gold ore and to have also unlawfully secured the mining site using
2
HH 153-21
HC 847/21
REF CASE HC 129/21
armed and un-uniformed guards. What applicant essentially sought was an anti-dissipation
interdict. In light of the Minister’s ruling, the applicant averred that it had a right to the
locations. Moreover, the harm was palpable in view of minerals being finite and also the fact
that it relies on proceeds to pay its employees. It was further averred that it had no other
remedy but to seek the interdict as it had already exhausted local remedies by approaching
the Minister. The balance of convenience was said to favour the applicant.
That urgent application came during the lock down when urgent matters could be
heard on the papers filed by all parties. Upon receipt of this urgent application the following
instructions where accordingly given through an email to the Registrar regarding the matter:
Registrar
Applicant to notify the respondents to serve their notices of opposition if any by close
of business on the 25th of February 2021. Parties may file heads of argument as well if
deemed necessary by the same date. Matter will be dealt with on papers.
This method of disposing of the matter under the coved restrictions was in line with
Practice Direction 2 of 2021 which permitted urgent applications to be disposed of on papers
filed by the parties instead of hearing them orally and physically.
It was my assumption that the above instructions were communicated to all the
respondents in particular that the matter would be dealt with on papers hence the need to file
any opposing papers. Equally, the understanding was that if there were no papers filed in
opposition since the matter was being be heard on papers, the provisional order sought was
not being objected to as the final order was yet to be sought.
There was no response from the first respondent on the 25 th of February 2021 or
thereafter and even until court resumed on the 2nd of March 2021. The certificates of service
on all respondents were on file which showed that the respondents had been served with the
application. In particular, the first respondent had been served on the 24th of February at 12
noon by affixing the application onto the front gate in the presence of one Henry Marimba, a
security guard under the employ of the first respondent. Certificates of service for 3 rd and 4th
respondents cited in their official capacity also showed they had been served on the 24 th of
February 2021.
In addition to providing proof of service, the applicant also drew my attention to a
letter written to Maunga Manda and Associates detailing the service of the application on one
Henry Matimba and asking them to confirm that they as legal practitioners, were no longer
3
HH 153-21
HC 847/21
REF CASE HC 129/21
acting on of the first respondent. This was in view of the applicant having been referred to
them by one of the employees. There was no response to that letter either. On the 2 nd of
March 2021 when courts resumed there was still no response from any of the respondents.
Against the background of what had been averred in the founding affidavit, I was satisfied
that the applicant had made out a prima facie case for the granting of the provisional order. I
treated the application as unopposed and gave the provisional order in question with the
following interim relief:
Pending the determination of this matter, the applicant is hereby granted the following
relief:
1. 1st respondent and anyone acting on its behalf be and are hereby interdicted from
mining, extracting or processing any mineral ore or carrying out any other mining
activities within Snipe B46 Mine and prospecting rights within the pending
applications registration notice 01999AA and 019995AA.
2. 1st respondent be and is hereby interdicted to desist from denying applicant’s
employees entry into B46 Mine and interfering with applicant’s mining activities
within Snipe B46 Mine and prospecting rights within the pending applications
registration notice 01999AA and 019995AA.
3. In the event that first respondent or its agents continue to deny the applicant
access to the mining location, the 4th respondent be and is hereby ordered to assist
the applicant to access and gain entry to the mining location Snipe B46 and
pending registration notices 01999AA and 019995AA.
4. Alternatively, in the event that first respondent has appealed against the
determination by the 2nd respondent to 3rd respondent, it is ordered that both
parties must stop mining at the disputed mining location pending the finalisation
of such appeal and each party shall secure the mining location through the service
of three guards from a registered private security company pending such appeal.
The first respondent has filed an appeal to the Supreme despite full knowledge that it
did not bother to file any papers to the provisional order that was sought and despite being
served. The appeal was filed on the 15 th of March 2021 whilst the appeal to the Minister of
Mines was filed on the 16 th of March 2021. Applicant has now filed an urgent chamber
application seeking to stop all mining by both parties specifically pending the appeal given
that an appeal suspends the order appealed against save with the leave of the court.
The order sought is in the following terms:
PENDING determination of the matter the applicant is hereby granted the following relief:
1. The execution of the judgment in the Honourable Court in HC 129/21 on the 2 nd of
March 2021 be and is hereby granted pending the final determination of the appeal to
the Supreme Court in SC 28/21.
2. All parties are ordered to stop mining operations at the disputed mining area, that is at
Snipe B46 and area covered by pending registration 019994AA and 019995AA.
4
HH 153-21
HC 847/21
REF CASE HC 129/21
3. Each party is ordered to secure the disputed mining area that is, Snipe B46 and area
covered by pending registration 019994AA and 019995AA through services of three
guards from a registered security company pending the determination of appeal to the
3rd Respondent.
4. The order shall not be suspended by any appeal by either party and shall remain in
force notwithstanding such any appeal.
5. In the event that part 2 and 3 of this interim order is not complied with the deputy
sheriff with the assistance of 4th Respondent is authorised to ensure compliance.
This application was placed before me on the 24th of March and I directed that it be
set down on the 26th of March 2021. A few minutes before the matter was to be heard at 12
noon on the 26th of March, a fairly thick document constituting the notice of position by the
first respondent was placed before me. My initial suggestion was that as this was an urgent
application the first respondent could take me through the document. Mr Uriri who appeared
on behalf of the first respondent indicated that it would be preferable to allow me time to go
through it. The matter was postponed to the 1 st of April at 2pm as I had motion court
preparations for the following Thursday morning.
However, when it emerged that Thursday the 1 st of April would be a half day due to
the Easter break, on Monday the 29th of March, I instructed my assistant to call the parties to
advise that the matter was being moved to Wednesday 31 st of March at 2pm instead of
Thursday 1st of April 2021 at 2pm. Advocate Uriri indicated his unavailability on this new
date. Instead of making arrangements for the hearing of the matter on this new date, the first
respondent’s lawyer Mr Muzaza chose to write what appeared to be a foot stomping letter
that if the judge is to insist on the matter being heard on Wednesday the 31 st of March, they
would appear to make an application that the matter be heard on the 1 st of April as had been
agreed. This was despite the explanation having been relayed as to why the matter had been
moved. In any event, an urgent application is to be heard expeditiously and is not dictated by
the availability or non-availability of an advocate of choice.
By this date, the first respondent had in any event filed additional documents which
included a purported supplementary notice of opposition, a supporting affidavit from the
erstwhile lawyers as well as heads of argument. As this was an urgent chamber application
and as the instructing attorneys were present and therefore represented, there was no reason
why the urgent matter could not proceed even though Mr Muzaza maintained that he was
merely there to seek a postponement. Since I insisted that the matter should proceed, Mr
Muzaza stood by the documents filed on record.
5
HH 153-21
HC 847/21
REF CASE HC 129/21
Applicant’s lawyer, Mr Chiuta, raised a point in limine regarding the defective nature
of the notice of opposition as well as the supplementary affidavit and supporting affidavit that
had been filed by the first respondent. The supplementary notice of opposition was said to
have been attested to for the purpose of introducing an affidavit by first respondent’s
erstwhile lawyer. The point was that the supporting affidavit was a misleading affidavit,
purporting to have been made after reading the supplementary affidavit yet this could not
have been the case as there the dates showed that there was no supplementary affidavit read
by the deponent as it was not in existence at the time. The supporting affidavit by one
Passmore Nyakureba had in fact been written before the supplementary affidavit by Luxton
Mawanga. In other words, the supporting affidavit was not supporting anything as it had been
written on the 27th of March prior to the supplementary affidavit written on the 29th of March.
But that was not the only defect. Neither of the two affidavits had been properly
attested by any commissioner of oaths. The purported affidavits merely had a signature with
no indication of who had signed it as a Commissioner of Oaths or where and when they had
been attested to.
The main notice of opposition itself was equally said to be defective. Whilst the main
notice of opposition bore a stamp by the Commissioner of Oaths, it was silent as to when
Luxton Mawanga who swore to the affidavit, had appeared before the Commissioner of
Oaths. It merely had one computer generated date as to when the deponent had signed. It was
therefore argued that effectively there was no notice of opposition before me. Applicant’s
lawyer Mr Chiuta, drew on the case of Mike Mandishayika v Maria Sithole HH 798/15 to
bolster this point wherein it was stated that:
An affidavit is a written statement made on oath before a commissioner of oaths or
other person authorised to administer oaths. The deponent to the statement must take
the oath in the presence of the commissioner of oaths and must append his or her
signature to the document in the presence of such commissioner. Equally the
commissioner must administer the oath in accordance with the law and thereafter
must append his or her signature onto the statement in the presence of the deponent.
The commissioner must also endorse the date on which the oath was so
administered. These acts must occur contemporaneously.
See also S v Hurle & Others (2) 1998(2) ZLR 42 and Firstel Cellular (Pvt) Ltd v NetOne
Cellular (Pvt) Ltd S-1-15.
The notice of opposition most certainly did not have the date on which the oath was
administered. The supplementary documents were even more defective as illustrated. Clearly,
6
HH 153-21
HC 847/21
REF CASE HC 129/21
in light of the Mandishika case, the affidavits were indeed defective for the reasons outlined.
The point in limine regarding the defective affidavits and that there was no valid notice of
opposition before me is upheld.
Suffice it point out that as justification for granting of the order, the applicant
emphasised that the resource being depleted is finite and that the provisional order being
sought is necessary in view of the appeal to the Supreme Court having suspended the
provisional order that was granted on the 2 nd of March 2021. Applicant further emphasised
and outlined how the first respondent was served and how the first respondent failed to
comply with directive to file any papers by a given date if opposed. Applicant equally
highlighted why the appeal itself is merely dilatory given that the first provisional order was
in default of their failure to file any papers of opposition as instructed. Indeed as the applicant
pointed out, instead of appealing, the first respondent ought to have applied for rescission of
judgment if it was erroneously granted or alternatively opposed the confirmation of the final
order by setting the matter down for a return date. None of these viable alternatives were
pursued. Applicant also emphasised that the interim order in this case is not the same as the
final order in that the final order seeks costs on a higher scale given the first respondent’s
needless recklessness in approaching the Supreme Court on appeal.
Mr Chitekuteku for the second, third fourth respondents agreed to be bound by the
findings of this court. I am in agreement with the totality of these arguments by the applicant.
There is no reason why the appeal filed ought to suspend the order. The order sought seeks to
bar both parties from mining until the appeal to the Supreme Court is finalised. It only makes
sense that both parties cease to benefit until the dispute is finalised. The first provisional
order already addresses the eventuality of an appeal to the Minister of Mines. I bars both
parties from mining is such an appeal has been lodged. It is the unanticipated appeal to the
Supreme Court and its effect which the order sought before me herein seeks to address. In my
view, the applicant has made out a compelling case. The provisional order is order is granted
as prayed in the following terms:
TERMS OF FINAL ORDER SOUGHT
That you show cause to this honourable court why a final order should not be sought
in the following terms:
1. The provisional order is hereby confirmed.
7
HH 153-21
HC 847/21
REF CASE HC 129/21
2. The first respondent and the 4th respondent is ordered to pay costs of suit on an
attorney – client scale.
INTERIM RELIEF GRANTED
PENDING determination of the matter the applicant is hereby granted the following
relief:
1. The execution of the judgment in the Honourable Court in HC 129/21 on the 2 nd of
March 2021 be and is hereby granted pending the final determination of the appeal to
the Supreme Court in SC 28/21.
2. All parties are ordered to stop mining operations at the disputed mining area, that is at
Snipe B46 and area covered by pending registration 019994AA and 019995AA.
3. Each party is ordered to secure the disputed mining area that is, Snipe B46 and area
covered by pending registration 019994AA and 019995AA through services of three
guards from a registered security company pending the determination of appeal to the
3rd Respondent.
4. The order shall not be suspended by any appeal by either party and shall remain in
force notwithstanding such any appeal.
5. In the event that part 2 and 3 of this interim order is not complied with the Deputy
Sheriff with the assistance of 4th Respondent is authorised to ensure compliance.
Gumbo & Associates, applicant’s legal practitioners
Wintertons, 1st respondent’s legal practitioners
Attorney General’s Office, 2nd, 3rd and 4th respondents’ legal practitioners