Court name
Masvingo High Court
Case number
HMA 44 of 2020
HC 199 of 2020

Sibanda v Dube & 5 Ors (HMA 44 of 2020, HC 199 of 2020) [2020] ZWMSVHC 44 (10 September 2020);

Law report citations
Media neutral citation
[2020] ZWMSVHC 44
Coram
Wamambo J
Zisengwe J

CHRISTINE MEYA SIBANDA

 

Versus

 

SMELLY DUBE

 

AND

 

MATOVU INVESTMENTS (PVT) LTD

 

AND

 

TEBEKWE SANDS (PVT) LTD

 

AND

 

THE PROVINCIAL MINING DIRECTOR, MIDLANDS (N.O)

 

AND

 

THE SHERIFF OF ZIMBABWE, GWERU (N.O)

 

AND

 

THE OFFICER COMMANDING, ZRP, SHURUGWI (N.O)

 

 

 

HIGH COURT OF ZIMBABWE

WAMAMBO J

MASVINGO 20 AUGUST & 10 SEPTEMBER, 2020

 

                                                                

 

Urgent Chamber Application

 

 

W.T Davira, for the applicants

M. Zinyakatira, for the 1st and 2nd respondents

No appearance for the 3rd and 5th respondents

K. Munatsi for 4th and 6th respondents

 

 

 

WAMAMBO J:          The applicants brought this application on a certificate of urgency seeking the relief as appears below: -

            "TERMS OF THE FINAL ORDER SOUGHT

            That the 1st Respondent shows cause why a final order should not be made in the following terms: -

  1. That the 1st and 2nd Respondent and/or any of their agents be and are hereby interdicted barred and restrained from continuing with mining operations at Tebekwe 2, registration number 15926, Tebekwe  6, registration number 15915, Tebekwe 8 registration number 20820, Tebekwe 9 registration number 151913, Tebekwe 15 registration number 15914, Tebekwe 16 registration number 15944, Tebekwe 17, registration number 21353, Tebekwe 28 registration number 53281 BM, Tebekwe 38, registration number 21344, Tebekwe 39 registration number 21315, Tebekwe 40 registration number 21316, Tebekwe 41 registration number 21347, Tebekwe 42 registration number 21348, Tebekwe 43 registration number 21349, Tebekwe 44 registration number 21350, Tebekwe 45 registration number 21351, Tebekwe  46  registration number 21352 pending final determination by the 4th Respondent.
  2. In the event of the 1st respondent failing to comply with paragraph 1 hereof, the 5th Respondent be and is hereby authorised to take such lawful steps as may be, necessary to ensure that the mining activities are stopped forthwith.
  3. That the 1st respondent shall pay the costs of this application.

 

INTERIM RELIEF GRANTED

Pending the confirmation of the final order this Provisional Order shall serve as an interim order interdicting and directing that:

  1. That the 1st respondent be and hereby interdicted, barred and restrained from continuing with mining operations at Tebekwe

2 registration number 15926, Tebekwe, 6 registration number 15915, Tebekwe, 8 registration number 20820, Tebekwe, 9 registration number 151913, Tebekwe, 15 registration number 15914, Tebekwe, 16 registration number 15944, Tebekwe, 17 registration number 21353, Tebekwe, 28 registration number 53281, BM, Tebekwe 38, registration number 21344, Tebekwe 39, registration number 21315, Tebekwe 40, registration number 21316, Tebekwe  41, registration number 21347, Tebekwe 42, registration number 21348, Tebekwe 43, registration number 21349, Tebekwe 44, registration number 21350, Tebekwe 45, registration number 21351, Tebekwe 46, registration number 21352 pending final determination by the 4th Respondent

 

 

SERVICE OF THE PROVISIONAL ORDER

Service of the Urgent Chamber application and the Provisional Order will be through the Additional Sheriff for Gweru or the applicant’s Legal Practitioner or their clerk."

The background of the matter as enunciated in the founding affidavit can be summarised as follows: -

Applicant and 1st and 2nd respondents hold mining rights for Tebekwe 2,6,8,9,15,16,17,28,38,39,40,41,42,43, 44,45,46

Notably in paragraph 9 applicant adds Berea 17 and18 which do not appear in the draft order.

Applicant on 7 August 2020 went to inspect her claims and was denied access by 1st and 2nd respondents who assaulted her leading to a case of assault being opened under Shurugwi CR 55/08/20. On 12 August 2020 applicant send her mining agents to commence mining at her claims and they were arrested on allegations of trespassing under Shurugwi CR 80/08/20. The charges were changed to committing the offence of public violence. The events above led to 1st and 2nd respondents continuing to mine to applicant’s exclusion while the partnership between applicant and 1st and 2nd respondents had not been dissolved. The partnership is encapsulated in Annexure A.

Applicant prays for an order in terms of the draft. She avers that the matter is urgent as she has been barred from mining while the 1st and 2nd respondent continue being unjustly enriched. She also avers that the 1st and 2nd respondents are carrying on mining operating in a destructive matter.

The first, second, third and fourth respondent filed notices of apposition. First and second respondents counsel raised a number of preliminary points as follows: -

Applicant has no locus standi as the agreement Annexure “A” was between Glorry Investments and Tebekwe Sands (Pvt) Limited. There is no partnership agreement between 1st respondent and applicant; further that applicant has failed to produce a partnership agreement. it was averred that urgency has not been proven. It was alleged that it is unknown when the mining dispute arose and that applicant has not been mining on the dispute mines.

It is also averred that applicant has not shown utmost good faith and has falsified information to mislead the court.

It is also averred that Glorry Investments (Pvt) Limited should have been joined to she proceedings. Its non joinder is fatal to the proceedings so it is argued.

A number of arguments are interwoven in the main preliminary points raised. It is one of these arguments that applicants can not enforce rights she does not have. In response to the preliminary points raised Mr Davira responded as follows: -

A partnership existed and still exists between 3rd respondents on one hand and applicant and 1st respondent on the other hand. The 2009 agreement (Annexure A) was verbally extended to run beyond the 10 year period reflected in Annexure A.

It is argued that applicant has no locus standi to sue in these proceedings as she could not sue in the partnerships name Glorry) because Glorry is made of 1st respondent and applicant, thus she could not obtain authority from 1st respondent to sue the same. Further that Glorry is not a registered company.

It was argued that the matter is urgent as it was only on 12 August 2020 that the cause of action arose as more detailed above. Ms Munatsi on her part was of the view that the portion of the draft order reflecting as follows "pending final determination" by 4th respondent should be excluded as it is as internal matter to be resolved between applicant, 2nd and 3rd respondent. It was argued that the dispute in question is not covered in the Mines and Minerals Act [Chapter 21:05] as a dispute 4th respondent can resolve. Annexure “A” which is central to the issues raised in this case deserves closer scrutiny.

Annexure “A” is titled" Deed of partnership". It is entered into between Glorry Investments (represented by applicant and 1st respondent) and 3rd respondent represented by Mike G. Hughes and Andrew Banda.

Among the witness to the agreement are a Senator and the Midlands Provincial Governor of the day. Paragraph 9 of Annexure “A” reflects that the partnership shall run for 10 years subject to signing an addendum for extension. It reads fully as follows:

"9. Partnership duration

The partnership shall continue to run for a period of 10 (ten) years and will be subject to renewal by signing of addendum for extension of the period"  

Annexure “A” reflects that the signatories thereto appended their signatures on 20 July 2009. There is no addendum that forms part of the record. The agreement Annexure “A” is specific that its extension should be encapsulated in an addendum. The implication following from the absence of an addendum which is specifically provided for in the agreement is not favourable to applicant.

The applicant has not proven ownership of rights to the mining claims enumerated in the draft order. There is a discord on the mining claims in issue as reflected in the founding affidavit and draft order. This reflects that applicant is even unsure of which mining claims should be included in the order.

The above factors to my mind reflect that applicant has failed on the first   hurdle. The applicant has failed to prove locus standi in this matter. There is no nexus between applicant his interests and the relief sought see Greendale One District T/A 2 Mukuvisi Cooperative versus Caledonia Enterprise (Pvt) Ltd and others HH511-15. It has not been proven prima facie why applicant should succeed to interdict 1st and 2nd respondents from continuing with their mining operations.

Notably applicant in their founding affidavit do not reflect why they cited 3rd respondent. This is but one of the several flaws in the application. After the finding that applicant lacks locus standi I will not delve into the other preliminary points raised. To that end I uphold the point in limine of applicant’s lack of locus standi

I order as follows: -

The application is dismissed on the point in limine with costs.

 

 

 

 

 

 

Gundu Dube and Pamanhede, applicant’s legal practitioners

Takaindisa Law Chambers, 1st and 2nd respondent’s legal practitioners

Civil Division of the Attorney General’s Office,4th and 5th respondent’s legal practitioners