JUDA MOYO SIBANGANI NCUBE JUSTIN MACHEZA STANELY NCUBE BELIEF NDLOVU MABOLYN MAKWENA MAHLABA S. NKOMO AXWELL SIZIBA BUTHOLEZWE SIZIBA MERESHARD GWANANGARA RODRECK NYONI SINDISIWE KAMHUKA THABO NARE SIHLE NDLOVU EMMELY NDLOVU REMEMBER NKOMO DION NCUBE BONGANI SIBANDA NKULULEKO DABENGWA EDMORE SIBANDA BUTHOLEZWE HLABANDLELA Versus PROVINCIAL MINING DIRECTOR – MATABELELAND NORTH, PRONVINCE N.O.. FARVIC CONSOLIDATED MINES (PVT) Ltd PHILEMON MOKWELE THE OFFICER IN CHARGE MINERALS, GWANDA N.O. (HB 108 of 2018; HC 629 of 2018) [2018] ZWBHC 97 (18 May 2018)

JUDA MOYO

SIBANGANI NCUBE

JUSTIN MACHEZA

STANELY NCUBE

BELIEF NDLOVU

MABOLYN MAKWENA

MAHLABA S. NKOMO

AXWELL SIZIBA

BUTHOLEZWE SIZIBA

MERESHARD GWANANGARA

RODRECK NYONI

SINDISIWE KAMHUKA

THABO NARE

SIHLE NDLOVU

EMMELY NDLOVU

REMEMBER NKOMO

DION NCUBE

BONGANI SIBANDA

NKULULEKO DABENGWA

EDMORE SIBANDA

BUTHOLEZWE HLABANDLELA

Versus

PROVINCIAL MINING DIRECTOR –

MATABELELAND NORTH, PRONVINCE N.O.

FARVIC CONSOLIDATED MINES (PVT) LTD

PHILEMON MOKWELE

THE OFFICER IN CHARGE MINERALS, GWANDA N.O

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 5 MARCH & 3 MAY 2018

Urgent Chamber Application

Advocate L. Siziba & H. Moyo for the applicants

P. Tarubereka & Ms B. Nyoni for 1^st and 4^th respondents

Ms S Mbondiya for 2^nd respondent

K. Ngwenya for 3^rd respondent

TAKUVA J: This is an urgent chamber application wherein the twenty-one applicants seek the following interim relief:

“Pending the return day applicants are hereby granted the following interim relief:-

1. All mining operations at West Nicholson B mine shall be stopped pending the return date.

2. An order that the gold ore under the custody of the 4^th respondent be processed in the presence of 1^st applicant and his shift. The gold recovered be sold to Fidelity Printers and refineries and the proceeds be distributed equally amongst 1^st applicant and the shift he worked with.”

The facts

Sometime in 2015, the West Nicholson Development Committee hatched an initiative to assist youths in their community to eradicate unemployment and poverty. These efforts culminated in the formation of the West Nicholson Youth in Mining Association (the Association) around August 2017. A draft constitution was produced but not finalised. Residents aged between 17 and 45 years joined the association including the 21 applicants as shown by Annexure A.

During that time, the 2^nd respondent offered to grant a tribute to the Association to work the same and mine gold ore and other valuable products. The Association selected representatives to negotiate with the 2^nd respondent. They were Natsai Faith Ncube, Paul Gwanangara and Mpumelelo Nyoni. A tribute agreement was eventually signed between the 2^nd respondent and the Association. The 3 representatives signed the agreement in their capacity as “accredited agents” of the Association on 27 November 2017. The agreement expires on 26 September 2020 with an option to extend or relinquish the tribute. It should be noted that in terms of clause 2 of the Tribute Agreement, the right to work the mining location, to develop, to extract, mill and treat ore from the same and to dispose of the products for own account is bestowed on the “Tributor” who is named as the West Nicholson Youth in Mining. That right does not reside in the 3 representatives or the Executive Committee.

Further, in terms of the agreement, the Tributor is required to perform all operations under this Tribute in a proper and workmanlike manner and to conform to the provisions of the Mines and Minerals Act and Mining Regulations of Zimbabwe. As operations progressed, disputes arose as to the manner in which the mining activities were conducted. The three representatives mentioned supra unilaterally incorporated 3^rd respondent into the Association. Third respondent is neither a member nor a resident of West Nicholson. Sub letting is prohibited by the Tribute Agreement. The trio and 3^rd respondent dictated that the share of profits would be 50% in favour of the 3^rd respondent plus the named trio while the remaining 50% would then be shared by members in a group of 20 – 25 people who would have produced the ore from the ground.

This unfair and perplexing conduct by the trio and 3^rd respondent persisted and in February 2017, 1^st and 7^th applicants together with their group produced gold ore estimated at 42 tonnes which potentially translated to 1,5kg of gold with an estimated value of plus US$600,00. The 3^rd respondent and his group insisted on the profit sharing ratio forcing the 1^st applicant to file a report of theft of gold ore with the 4^th respondent against the trio and 3^rd respondent. During investigations, 4^th respondent was shown a “constitution” by the trio purportedly granting exclusive power to run the mine. During the hearing the 4^th respondent indicated that he had since released the gold ore to the trio upon advice from the Area Public Prosecutor at Gwanda. As regards safety, the applicants contended that the mining activities are carried out in a dangerous manner in that blasting and drilling is done haphazardly on support pillars. The executive is also accused of having abandoned community consultative and engagement meetings on the finalisation of the constitution making process.

The 1^st, 2^nd and 4^th respondent did not oppose this application. The 3^rd respondent’s opposition is based on the ground that the application does not satisfy the requirements of an interdict in that the applicants have no prima facie right. He also argued that he is an “employee of the executive” and conceded he is neither a member of the Association nor a resident of West Nicholson.

The issue

The sole issue is whether or not the applicants have satisfied the requirements of an interdict.

The law

The standard formulation of the requirements of an interdict is that given by CORBET J (as he then was) in L.F. Boshoff Investments (Pvt) Ltd v Cape Town Municipality 1969 (2) SA 216 (c) at 267A-F as:

“Briefly these requisites are that the applicant for such temporary relief must show-

1. that the right which is the subject matter of the main action and which he seeks to protect by means of an interim relief is clear or if not clear is prima facie established, though open to some doubt;

2. that if the right is only prima facie established, there is a well grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeded in establishing his right;

3. that the balance of convenience favours the granting of interim relief; and

4. that the applicant has no other satisfactory remedy.

In casu, the 3^rd respondent’s contention that the applicants have not established a prima facie right because they are not members of the Association is not supported by the evidence. The 3^rd respondent has argued that the 1^st applicant is an employee but has failed to produce any contract of employment between the Association and 1^st applicant. Surprisingly there is a deafening silence on the status of the twenty (20) applicants. More importantly, the trio or 3^rd respondent has not produced a membership register for the Association. Applicants filed annexure A which contains a list of names of founding members of the Association. Obviously, 3^rd respondent does not know how the Association came into being since he was not in the picture when it was established. In that regard, I find the applicants’ explanation of who is and who is not a member of the Association credible. In any event the right set up by the applicants need not be shown by a balance of probabilities. If it is prima facie established though open to some doubt that is enough. Consequently, I take the view that the applicants as members of the Association I have a prima facie right to the mining locations granted by the tribute agreement.

That there is a well-grounded apprehension of irreparable harm to the applicants if the interim relief is not granted has been clearly proved by the applicants. It goes without saying that the object of the activities on the mine is to harvest gold for the financial benefit of the Association’s members. On the evidence, the 3^rd respondent and his associates have produced a constitution that seems to have abrogated the initial objectives of the Association. That disputed constitution is not a product of the collective efforts of the generality of the members. The 3^rd respondent and the “executive” have used that constitution to successfully convince the National Prosecuting Authority to direct the 4^th respondent to release the gold ore produced by some of the applicants to them. This directly interferes with the applicants’ rights in the mine and this loss or injury is of an irremedial character. In my view this is one of those cases where unless the application is granted, irreparable damage to the applicants would ensue.

As regards the balance of convenience the 3^rd respondent argued that since the applicants did not sign the tribute agreement and have not cited the signatories, they have not shown that the balance of convenience favours the closing of the mine. This argument is lame in that it under plays the dynamics surrounding the creation of the Association and the fact that the trio signed the agreement in their representative capacities.

The duty of the court is to weigh the prejudice the applicants will suffer if the interim relief is not granted against the prejudice to the 3^rd respondent if it is. The object is to assess which of the parties will be least seriously inconvenience by being compelled to endure what may prove to be a temporary injustice until the just answer may be found at the end of the trial - see Multitube Systems (Pvt) Ltd v Ponting & Ors 1984 (3) SA 182 (D) at 190C-D.

In casu, if the interdict is refused the applicants will suffer financial prejudice greater than that of the 3^rd respondent in that the latter will continue to unjustifiably benefit from the sweat of the Association’s members. On the other hand if the interdict is granted, the 3^rd respondent as an “employee” will simply seek employment elsewhere. The real parties will endeavour to come up with a valid constitution that defines their respective rights. That process cannot be described as an infringement of the so-called “executive” members’ rights.

Finally as regards the question of whether or not there is another satisfactory remedy, the issue is whether the applicants’ rights can be protected by any other ordinary remedy with the same result. The 3^rd respondent submitted that the applicants have an existing remedy namely that they should compel the “representatives” to be accountable rather than have the mine closed. In my view, this is not a satisfactory remedy in that the injury in casu is a continuing violation of applicants’ rights.

All in all, I find that the applicants have established all the requirements for an interdict.

Accordingly, it is ordered that pending the return day applicants are hereby granted the following interim relief:

All mining operations at West Nicholson B Mine shall be stopped pending the return date.

Joel Pincus, Konson & Wolhuter, applicants’ legal practitioners

Legal Aid Directorate, respondents’ legal practitioners