Algem Investments (Pvt) Limited v Nyanga Resources (Pvt) Limited and Evans Kamombo and Officer in Charge Ruwangwe (ZRP) and Minister of Mines and Minerals N.O

### Preamble
1
HMT 65-20
HC 25/20
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ALGEM INVESTMENTS (PVT) LIMITED

versus

NYANGA RESOURCES (PVT) LIMITED

and

EVANS KAMOMBO

and

OFFICER IN CHARGE RUWANGWE (ZRP)

and

MINISTER OF MINES AND MINERALS N.O

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 23 September 2020 and 01 October 2020

Opposed Application for an Interdict

C  Mateza, for the Applicant

Mrs R Nyamutawa with F Nyakatsapa, for the 1st and 2nd Respondents

P Garwe, for the 3rd and 4th Respondents

MUZENDA J: On 29 January 2020 the applicant company brought an application to this court seeking the following order or relief:

“IT IS ORDERED THAT

The application for an Interdict is hereby granted.

The first to third Respondents or any persons acting in their authority or instructions stop or desist from interfering with mining activities taking away gold ores and entering the applicants’ mining claims G 2121, G 1222 and G 1223, G1224, G 2125 and M 1333 MB pending the determination of disputes between the parties by the fourth Respondent.

The first Respondent to pay the costs of this application on a legal practitioner and client scale.”

The application is opposed by all the four respondents.

Facts

The applicant is a duly registered company under the company laws of Zimbabwe. It is the registered owner of mining blocks in Nyazingwe area, Nyanga North under registration numbers G 2121, G 2122, G 2123, G 2124, G 2125 and M 1333 BM and the applicant states it has owned these mining blocks since 2008.

The first respondent was granted a special Grant SG 7222 and that special grant covers a space of 400 hectares.

The applicant contends that the first respondent’s special grant encroaches into its mining blocks G 2121 to G 2124. In addition applicant avers that first respondent’s Director, second respondent has repeatedly laid claim on block M 1333 BM which blocks belong to the applicant.

Applicant claims that the second respondent in concert with third respondent had disrupted applicant’s operations at the claims. The third respondent has impounded gold ore extracted by the applicant’s employees. Applicant has suffered prejudice.

The applicant has since engaged the provincial Mining Director, Manicaland seeking a resolution of the dispute and it is waiting for the outcome.

Whilst the applicant is waiting for the Provincial Mining Director’s resolution of the matter, applicant perceives that first to third respondents are venturing into the areas of encroachment, impounding the extracted ore and disrupting the applicant’s lawful operations at the sites, such operations, applicant contends in its papers, have unjustly prejudiced the applicant’s lawful activities at the claims in question. On that basis the applicant is seeking an order of an Interdict barring first and second respondents from removing extracted gold ore from the claims in dispute and meddling with operations until the Provincial Mining Director had adjudicated upon the matter and passed a binding resolution.

POINTS IN LIMINE

First and second respondents have raised preliminary points which need to be decided on. It has been agreed by the parties that if points in limine succeed the application will be disposed of but if they are dismissed the matter will be determined on the merits.

First and second respondent’s points in limine are that:

1.   	the applicant used the wrong procedure in approaching the court by way of a court application where there are material disputes of facts.

2.  	the applicant filed illegible annexures to the founding affidavit and produced new facts in the answering affidavit hence the illegible annexures and the new facts in the answering affidavit ought to be ignored and expunged from the record.

Submissions by counsel

Mr Nyakatsapa for first and second respondents submitted that there are material disputes of facts regarding the interference alleged by the applicant, which disputes cannot be resolved on papers without the aid of oral evidence. He referred the court to the matter of Supa Plant Investments (Private) Limited v Edgar Chidavaenzi.

He went on further to highlight the material disputes of fact in this application. The fact that first respondent’s special grant encroaches into applicant’s alleged mining claims is the first dispute which is already pending before the Provincial Mining Director of Manicaland. First and second respondent aver that their special grant was issued by the responsible authority after physical verification and due diligence by officials of fourth respondent who satisfied themselves that there are no pre-existing claims on the land covered by the special grant.

The fact that first and second respondents invaded and removed ore from applicant’s claims is also disputed. First and second respondents contend that they are lawfully carrying out mining operations in accordance with the beacons defined in the special grant. The alleged boundaries perceived by the applicant have not clarified and confirmed as such by the fourth respondent. The diagram attached by the applicant in its answering affidavit does not assist the applicant, it was argued by the first and second respondent. The diagram does not bear helpful coordinates of the mining area and the author of the diagram is unidentified.

The third dispute of facts was the averment by applicant that first and second respondents invaded its mining claims in collusion with the police, third respondent. First to third respondents deny interfering with the mining activities of the applicant. First and second respondents contend that they only engaged police when they were executing court orders and reporting illegal gold miners who were stealing ore from their claim covered by the special grant.

It was the submission by the first and second respondents that the disputed facts were grave and cannot be resolved on paper. The conflicting positions of the parties herein are irreconcilable and applicant’s affidavit does not clearly establish the truth of all the issues to the extent that there is a ready answer to the disputed facts in the absence of further evidence, it was argued. The dispute on boundaries is not established by the applicant, the point of entry by first and second respondent into the applicant’s claims is not clarified by the applicant on the map or diagram. The first and second respondents further argued that the point of looting was not pointed out by the applicant. Counsel for the first and second respondents referred the court to the matter of Mukurira v Jin Yang Africa Mining (Pvt) Ltd.  The first and second respondent added that the Provincial Mining Director is required to establish full facts, prepare a report and adduce oral evidence before the court can make conclusions. Counsel for first and second respondent went on to cite the matter of Muzanenhamo v Officer in Charge CID Law and Order and Others which urges this court to find that there are material disputes of fact and call for oral evidence in trial proceedings. First and second respondent submitted that applicant adopted a wrong procedure by bringing this case as an application well knowing that there existed patent material disputes of fact which could not be resolved without the need of oral evidence. They went on to cite the matter of Masukusa v National Foods Ltd and Others  which matter dealt with the law on a party who used a wrong procedure in view of apparent disputes of facts. First and second respondent further cited the matter of Riozim Limited v Falcon Resources (Pvt) Ltd  where the court dismissed an application where there were material disputes of fact. The other point in limine raised by the first and second respondent was the aspect of illegible annexures to the founding affidavit. First and second respondent submitted that the court should expunge the annexures from the record. The illegible documents prejudices the respondents in that the first and second respondents would not adequately respond to the applicant’s allegations. Consequently the illegible documents annexed to the founding affidavit did not help applicant to make its case. There is no proof to support the applicant’s ownership of the alleged mining claims. First and second respondent cited the matter of Nashe Family Trust v Chiwara where the court held that applicant stands or falls by his or her founding affidavit.

The first and second respondent also attacked the answering affidavit as containing new facts and documentary evidence  and the introduction of new evidence in an answering affidavit infringes on the first and second respondent’s right to be heard since they will not have an opportunity to file another opposing affidavit. First and second respondent gave an example of paragraph 2.2 of the answering affidavit, paragraph 4.4, annexures A1 and D to the answering affidavit, they urged the court to ignore the new evidence. In any case the first and second respondents submitted that even that new evidence smuggled by the applicant does not prove ownership, invasion, interference and looting of ore alleged by the applicant. They urged the court to dismiss the application with costs.

In response the applicant urged the court to take a robust and common sense approach to a dispute of fact and resolve issues at hand despite the apparent conflict. Mr Mateza contended further that in reality there are no disputes of fact because the first and second respondents failed to challenge applicant’s supporting affidavits. To applicant the court must not hesitate to decide an issue of facts on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over fastidious approach to a dispute raised in an affidavit.

Applicant further submitted that first and second respondent are but just making a bare denial or are merely alleging a dispute. To Mr Mateza, first to third respondents failed to disclose material disputes that would make the application procedure adopted by the applicant inappropriate. A real genuine and bonafide dispute of fact can exist only where the court is satisfied that the party who states that there is a dispute has in his affidavit seriously and ambiguously addressed the facts said to be disputed, it was argued on behalf of the applicant. In this case the applicant averred that first to third respondents failed to raise pertinent material disputes of facts that should prevent the court to deal with this dispute on papers.

The applicant urged the court to dismiss the points in limine and alternatively utilise r 229 B of the High Court Rules to allow oral evidence. Such a course would be in the interests of justice. He referred the court to the matter of Musevenzo v Beji and Another.

Mr Mateza also cited the matter of Muza v Saruchera and argued that what applicant is asking for is a temporary interdict until the Provincial Mining Director had resolved the dispute. He added in his submission that this court cannot usurp the Provincial Mining Director’s powers and averred that there is no basis why this court dismiss applicant’s application.

As far as applicant is concerned, the disputes of fact alleged by the first and second respondents are just illusory.

On the issue of new evidence being introduced through the answering affidavit, Mr Mateza submitted vehemently that no new information nor documents was added or introduced. The documents were attached to the founding affidavit, and the annexed documents were but clearer than those initially attached. There was no prejudice to the first and second respondent, he said. However he conceded that annexures on pages 87 and 89 should be expunged from the record. Otherwise the rest of the documents form part of the record for those documents on page 91 and 92, he also conceded that they be disregarded.

On the issue of legibility of the certificate of registration, Mr Mateza tried to produce the documents from the bar on the date of hearing. First and second respondents as well as third and fourth respondents’ counsel objected to their production on the basis that it was not fair to them  since they would not be afforded to comment on the documents. I upheld the respondent’s objection. The documents were thus not produced before the court. Applicants went on to argue that the original certificates of registration of the applicant’s claims were public documents and first and second respondent should have visited the Ministry of Mines and Mining Development and inspected them. He denied that applicant acted in bad faith when it produced legible documents in an answering affidavit. The submissions by the applicant in totality sublimed to the effect that the points in limine had no merit and that they should be dismissed and that the matter be heard on merit.

The Law

There are two forms of proceedings in this court instituted by either the issue of summons, or application. An action is necessary in all cases where there is a dispute of fact. Where there are disputes of fact it is inappropriate for a court to ascertain the true facts on affidavit. The court will be availed with the opportunity to consider the credibility of the witnesses.

A dispute of fact arises where one party denies material allegations made by the other and produces or outlines positive evidence to the contrary. Where a party does not proceed by way of application, the court will consider whether there is a dispute of fact but will generally adopt a fairly robust approach to denials made by the respondent. Where there is a dispute of fact the court may dismiss the application, order oral evidence, or order the matter to stand over to trial with such orders as to pleadings as it sees fit. In Horizon Investments (Pvt) Ltd case supra. Bartlett j deplored voluminous opposing affidavits where it is clear that there was a dispute of fact. The respondent should simply have indicated the disputes and not gone into detail.

A real dispute of fact arises most obviously when the respondent denies material allegations made by the deponents on the applicant’s behalf and produces cogent and positive evidence to the contrary.

“A material dispute of fact arises when such material facts put by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”

Where it is established by the respondent that applicant approached the court using the wrong procedure and where it is apparent that there are material disputes of fact which would warrant the court censure the litigant the option would be to dismiss the application. This is more so where the conflicts of fact are glaring and obvious. In the Riozim Limited case, supra, the application was dismissed and applicant had to institute fresh proceedings by way of summons. This is so where it is shown that applicant should have realised when launching the application that a serious dispute of fact was bound to develop, the court may dismiss the application with costs.

On the aspect of illegible documents the position of this court is that r 227 (1) (a) of the High Court Rules specifically provides for the filing of legible affidavits. It is further added that this rule may be extended to mean that wherever possible original documents ought to be attached to the founding affidavit for the court’s copy so that all parties can safely access them as and when necessary. The applicant must avail complete information, else it will be guilty of “material non-disclosure, malafide and dishonesty” in any case the applicant is required to make his or her case in the founding affidavit.

As for a litigant to bring new evidence in an answering affidavit the position of this court is that such practice is frowned against by this court. The applicant’s counsel conceded on this aspect and consented to have every new document annexed to the answering affidavit disregarded.

Application of law to the facts

This court dealt with facts almost similar, if not identical to the facts herein, in the matter of Mukurira v Jin Yanga Mining (Pvt) Ltd supra cited by the first and second respondents where the court concluded and held that:

“as matters stand this court has the following unanswered questions:

Where axactly is the respondent mining?

Is the respondent trespassing on applicant’s claims?

Where is the factual basis for such conclusion?

Should the court take applicant’s mere say so and grant the provisional order?

If this court can take applicant’s mere say so that respondent is encroaching what about respondent’s own mere say that it is not encroaching?”

The first and second respondents raised three critical areas of factual disputes pertaining encroaching, interference, removal of ore and the area covered by first and second respondent’s special grant. These disputes are so material to the consideration relating to the applicant’s prima facie right which is one of the requirements to be established in an application of an interdict. The applicant in its own affidavit clearly admits that the matter or dispute is already before the fourth respondent for deliberation. I agree with the first respondent that these facts are so fundamental to the determination of this matter and requires oral evidence from the Provincial Mining Director to establish more particularly whether the first and second respondent’s special grant is super-imposed on the applicant’s claims to provide diagrams as well as beacons for each claimant. This entails real evidence which does not exist on the current documents produced in support of the application.

I am satisfied that the first and second respondent’s contention holds substance and the applicant should have realised that the intended application was replete with contentious disputes of fact. Hence I am satisfied further that the applicant chose an inappropriate procedure of bringing this matter as an application. It ought to have proceeded by way of action thus requiring oral evidence to be led. I dismiss the applicant’s averments that first and second respondents are just raising a bare denial on the facts. The facts alluded to by first and second respondents are substantially material. I hold therefore that there are material disputes of fact which are incapable of resolution on paper.

The other aspect raised by the first and second respondents as preliminary points equally gravely affect the application. The lack of legible documents filed by the applicant affects the applicant’s application. The applicant has failed to outline the requirements for an interim order due to poor presentation of facts supported by documentary evidence. An application must stand or fall on its founding affidavit. If evidence attached to the answering affidavit filed on behalf of the applicant is disregarded by this court then the applicant has failed to prove that it owns the claims where it alleges it is being interfered with and where first and second respondents are invading and removing ore. In the absence of supporting documents that is legible certificates of registration, the applicant cannot argue that there are no disputes of facts more particularly relating to the issue of extend of its claims.

All the preliminary points raised by the first and second respondents are meritorious and are upheld.

The first and second respondents had prayed for costs on attorney client scale. It can be noted that the applicant is the one who approached the Provincial Mining Director to resolve the impasse between itself and the respondents. It then decided to bring this application to this court in circumstances that show that there are material disputes of facts. Ordinarily costs follow the result or outcome of the matter but on award costs on attorney-client scale will be punishing the applicant who merely followed the advice of its legal practitioners. In the interests of justice costs would be at an ordinary scale. One would not say that the application was frivolous given the honest belief of the applicant that it was a registered owner of gold claims.

DISPOSITION

IT IS ORDERED THAT:

First and second respondent’s preliminary points are all upheld.

Applicant’s application for an Interdict is dismissed with costs.

Chimwamurombe Legal Practitioners, applicant’s legal practitioners

T Pfigu Attorneys, first and second respondent’s legal practitioners

Civil Division of the Attorney-General’s Office, third and fourth respondent’s legal practitioners