Court name
Bulawayo High Court
Case number
HC 2867 of 2000

Chase Minerals (Pvt) Ltd v Madzikita (HC 2867 of 2000) [2002] ZWBHC 44 (29 May 2002);

Law report citations
Media neutral citation
[2002] ZWBHC 44
Headnote and holding:

The court considered an application for the granting of an order to evict the respondent pending the hearing of an appeal. The applicant was the registered title holder of four mineral claims. It instituted action seeking an eviction of the respondent from its registered claims, which was subsequently granted. The dispute between the parties related to ownership and mining claims of the minerals. It was not disputed that the mineral claims were registered in the name of the applicant. 

The court considered the parties’ rights of ownership of the minerals. These rights were governed by s 172 of the Mines and Minerals Act, which stated that every holder of a registered block of claim would possess the exclusive right of mining or deposit of the mineral in respect of which the block was registered which occurred within the vertical limits of his block. The court found that the applicant had the exclusive right as the registered holder of the claim. 

The court found that to suspend the eviction pending the appeal would entitle the respondent to continue mining, which was an untenable situation and would create a judicial anomaly where the court became a party to the respondent’s unlawful conduct. Accordingly, the court granted the application. 

 

Judgment No. HB 44/2002

                                                                                    Case No. HC 2867/2000

 

CHASE MINERAL (PVT) LTD

 

versus

 

EDMOTH NDLOVU MADZIKITA

 

IN THE HIGH COURT OF ZIMBABWE

SIBANDA J

BULAWAYO 2 FEBRUARY 2001 & 30 MAY 2002

 

J Tshumafor the applicant

Adv.T Cherry for the respondent

 

            SIBANDA J:In this application the applicant seeks an order couched in the

 

following terms:

            Applicant be and is hereby granted leave to execute the judgment in case   number HC 1225/2000 entitling it to evict respondent pending the hearing of    the appeal noted by the respondent in case number HC 1225/2000 with costs at            an attorney and client scale.

 

            When the matter came up for the hearing I granted the order sought.  The legal

 

practitioner for the respondent has written seeking reasons for my order, he explains

 

that he seeks those reasons in order to explain to his client, presumably why the

 

respondent lost.  My reasons are set out herein under.

 

            The applicant is the registered title holder of the following mineral claims:-

            (a)        Stella City A 10336BM

            (b)        Stella City B 10337BM

            (c)        Stella City C 10338BM

            (d)       Stella City D 10339BM

 

            On 29 May 2000, applicant instituted proceedings under case number HC

 

1225/2000 seeking an order for the eviction of the respondent from its registered

 

claims supra, with costs.  The application was heard jointly with other matters

 

involving the same parties in case numbers HC 879/2000 and HC 1314/2000. 

 

Judgment was handed down by this court in which inter alia, the court granted an

 

order of eviction against the respondent from applicant’s registered claims supra.

                                                                                                                        44/02

                                                            -2-

 

            Pursuant to the judgment, the applicant issued a writ of ejectment following

 

respondent’s refusal to voluntarily move out of the claims.  The main reason advanced

 

by the respondent for the said refusal is that the respondent has noted an appeal

 

against the eviction order granted in case number HC 1225/2000 sought to be

 

enforced.  The eviction order should await the outcome of the appeal so goes the

 

argument, as at common law an appeal has the effect of staying the execution of a

 

judgment or order appealed against.

 

            The disputes between the parties relate to the ownership and mining claims of

 

minerals set out supra.  It is not in dispute that the said mineral claims are all

 

registered in the name of the applicant.  That the respondent has in fact instituted

 

proceedings seeking an order for specific performance in respect of the same claims

 

against a 3rd party that is for the transfer of “Stella claims” to himself in case number

 

HC 3209/99.

           

            The rights of parties for the ownership of minerals are governed by the

 

provisions of the mines and Minerals Act (Chapter 21:05).  Section 172 of the Act

 

provides;

 

            “... every holder of a registered block of claim other than precious metal reef          claims shall possess the following rights-

            (a)        the exclusive right of mining any ore or deposit of the mineral in                             respect of which the block is registered which occurs within the                                  vertical limits of his block.”

           

            It will be seen, therefore, that the applicant, as the holder of the registered

 

claims, has the exclusive rights of mining the claims under dispute.  Such rights are

 

protected by section 379 of the Act which provides;

 

 

 

                                                                                                                       

44/02

                                                            -3-

 

            “any person who breaks, severs or removes any mineral from any mining     location, reef or deposits, or who takes, removes or conceals any minerals,        slag, slimes, amalgam, residues, tailings or concentrates, the product of any      mining location reef or deposit with intent to deprive the lawful owner or   holder thereof, shall be guilty of theft and liable to be prosecuted and punished          accordingly.”

 

            It is thus in so far as it is submitted that the respondent has been, in fact,

 

working on applicant’s claims, he is therefore guilty of contravening section 379 of

 

the Act.  To suggest that the eviction order be suspended or stayed pending appeal in

 

case number 1225/2000, so as to enable the respondent to continue mining amounts to

 

authorising the contravention of section 379 of the Act.  That would create an

 

untainable situation in which this court would not only be condoning but authorising

 

the criminal conduct of the respondent in breach of the provisions of the Act.

 

            The provision at common law that notice of appeal has the effect of staying a

 

writ of execution could not, in my respectful view, have been intended to operate or

 

come into effect in circumstances where such stay of execution had the effect of

 

perpetuating the commission of an offence or criminal conduct.  It could only have

 

been intended to come into effect where both parties had, in the dispute, rights

 

lawfully pending final determination and resolution by the court of appeal.  That

 

situation does not obtain in the instant case.  In this case if the eviction were to be

 

stayed pending appeal, that would create a judicial anomaly where the court, becomes

 

party to respondent’s unlawfully conduct in breach of the provisions of the Act. 

 

Further such unlawful conduct and operations of the respondent would be highly

 

prejudicial to the applicant because the minerals that would be extracted by the

 

respondent could not be recovered and the applicant would sustain considerable and

 

irreparable loss.

 

                                                                                                            44/02  

                                                            -4-

 

            It follows therefore that it is highly improper for the respondent to seek the

 

sanction of this court in respect of his criminal conduct.  I would for these reasons

 

grant the order.

 

            Accordingly, the applicant be and is hereby granted leave to execute the

 

judgment in case number 1225/2000 entitling it to evict respondent pending the

 

hearing of the appeal noted by the respondent in the case above referred.  That the

 

respondent shall pay the costs of this application at an attorney and client scale.

 

 

 

 

Webb, Low & Barryapplicant’s legal practitioners

Hwalima & Associatesrespondent’s legal practitioners