3
HH 337 - 24
HC 76/23
KUBAKAIDZE MINING SYNDICATE
versus
MINISTER OF MINES AND MINING DEVELOPMENT
and
THE PROVINCIAL MINING DIRECTOR
and
TRUSTEES FOR THE TIME BEING OF OPHIR TRUST
and
PIWA MINING SYNDICATE
HIGH COURT OF ZIMBABWE
CHINAMORA J
HARARE, 6 August 2024
Opposed Application
Adv R Mabwe, for the applicant
Adv E Mubaiwa, for the respondents
CHINAMORA J: The present matter came to me as a chamber application for condonation for late noting of a review, as well as extension of time within which to institute review proceedings in terms of Rule 62 (4) of the High Court Rules, 2021. I notice that the application is based on the following facts: Sometime in 2005, the deponent to the founding affidavit (Patrick Peter Kudyarawanza) (“Kudyarawanza”) was offered a farm, namely, subdivision 14 of R/E of Hallingbury in Chegutu, Mashonaland West Province, measuring approximately 117 hectares. Kudyarawanza and his wife (Norah Kudyarawanza) incorporated the applicant company and applied for a milling site. At that time the pegging of mining claims had been suspended. According to the papers before me, the application for a milling site was granted, and a site was registered in favour of the applicant in 2010 under site number 163. Thereafter, in 2012, the applicant applied for a mining claim when the suspension was uplifted. In doing so, the applicant converted half of the milling site into a block of claims. The same was granted as Chigwell 70 Mine, registration number 14822, after compliance with all the formalities.
According to Kudyarawanza, at the time he was allocated the farm, there was an existing homestead comprising of a main house (principal homestead) and a cottage. Doreen Zinanzva (“Doreen”) was given the principal homestead and buildings around it. On the other hand, Kudyarawanza was given the cottage and buildings around it, and by virtue of this, the cottage became his principal homestead. It is the applicant’s case that it sought the first respondent’s consent for applicant to be allowed to mine within 450 m of deponent’s homestead, and the same was granted.
In the course of carrying out mining activities under the applicant’s name, a boundary dispute arose with Fungai Zinanzva, who is Doreen’s daughter and a holder of a registration certificate over a claim known as Bosbury 69. A report was made to the secretary for the Ministry of Mines and Mining Development. It is notable that the determination or report does not speak to the third and fourth respondents. Aggrieved with the report of 15 January 2015, which allowed Zinanzva to mine within 450 m of deponent’s homestead, Kudyarawanza filed a complaint with the Secretary of Mines and Mining Development.
The applicant submits that, although the letter was not addressed to the Minister, it mysteriously metamorphosed into an appeal which included the third and fourth respondents. It is the applicant’s contention that there was no appeal before the Secretary or the first respondent. The appeal did not include the third and fourth respondents. The applicant was not given audience to present its story as is required by the very basics of our constitutional law. No representations were made by the third and fourth respondent. In fact, an attempt to file a complaint had been made by the third and fourth respondents, but the said appeal was dismissed for lack of merit. The applicant argues that on 2 February 2015 the Provincial Mining Director responded to the letter by Mr. Vera indicating that he could not hear the complaint by the third and fourth respondents against Fungai Zinanzva and the applicant. Then on 13 October 2015, the Secretary of Mines and Mining Development made a recommendation on the appeal to have Applicant’s claims cancelled. It is applicant’s case that it is not clear whether cancellation was approved. On 21 October 2015, the second respondent proceeded to make a decision cancelling applicant’s mining certificates and gave title to the third and fourth respondents.
On 21 October 2015, the applicant wrote to the first respondent contesting the memorandum and the determination of the second respondent. No reply was received until applicant approached this court by filing an appeal under HC (CIV A) 499/15. The appeal was set down for hearing on 22 November 2022 and it was reserved. Subsequently, on 21 December 2022, the appeal was struck off the roll as the appeal court deemed the appeal to be fatally defective. The applicant attributes the delay in lodging the appeal on the misunderstanding that proper process had been filed with the High Court. Since 2015, the applicant was of the view that the appeal was properly filed. In addition, the applicant attributes the delay to the unavailability of the record of proceedings. The extant of the delay is some seven years.
On the question of prospects of success, the applicant submits that the intended review has sound prospects of success in that second respondent has no jurisdiction to make the decision that he rendered on 21 October 2015. The Mines and Minerals Act does not give him the power to act in the way he did, nor does it recognize his office. In addition, the second respondent could not make that decision without affording applicant the opportunity to be heard by the Mining Commissioner. The applicant further argues that the decision made on 21 October 2015 is void as no reasons were given for it. In addition, the applicant avers that there were gross irregularities in the making of the decision as there was a joinder of third and fourth respondents under circumstances that were not explained. Furthermore, the applicant argues that the recommendation of the first respondent is equally not a decision as contemplated by law and the second respondent cannot rely on it. It appears from the papers before the court that the recommendation was made on 13 October 2015, and then signed by the Minister on 14 October 2015. However, the Minister did not indicate whether or not he was approving. Finally, the applicant submits that the matter is of great importance to it as it has a potential of resolving “farmer versus miner” and “miner versus miner” disputes.
The third and fourth respondents opposed the application. They raised preliminary points to the effect that the applicant is relying on the wrong rule; that there is no statement identifying applicant’s legal status; that there is no affidavit of explanation from the inept and negligent lawyers; that the applicant omitted essential elements in the application; that there was a material non-joinder of Fungai Zinanzva; that fourth respondent does not exist and that a new case (evidence) was pleaded in answering affidavit.
On the merits, the third and fourth respondents argue that the fact that the deponent to the founding affidavit does not in any way assist the court in the present matter. It is respondents’ case that such averments conflate the interests of applicant and those of the deponent. It is argued on behalf of the third respondent that the third respondent acquired its mining rights in 1999. They assert that they had already pegged and registered all their claims which were in existence in 2005 when Kudyarawanza claims to have acquired his farming rights, which at any rate hasvenothing to do with applicant. It is respondents’ contention that Chigwell 70 is a claim created twelve years after the claims held by third respondent. A finding to this effect was made by the Mining Commissioner in the documents annexed to the application. That finding is consequential and was never challenged, set aside or appealed against. The third and fourth respondent do not dispute that there is a principal homestead and a cottage. However, it is the third and fourth respondents’ argument that the farm was originally owned by Mr J.H. Beattie who gave consent to the third respondent to peg its claims in the distance that they are from the principal homestead. Consequently, the fact that the ownership status of the farm subsequently changed does not undo the consent that was given prior to the change of ownership.
Additionally, the respondents argue that there is a period of seven years of inaction from applicant which has not been explained. Even the part which has attempted an explanation is explained in an implausible and unreasonable manner. It is respondents’ contention that the applicant does not have good prospects of success in the intended application for review. The third respondent argues that it has held the claims since 1999 and the applicant is a latecomer who has no basis at law to undo prior rights. It is also argued on behalf of the third respondent that it has been more than thirteen years since the issues that form the basis of the challenge against the 3rd respondent’s claim arose. I am aware from section 58 of the Mines and Minerals Act that it is not possible for applicant to complain beyond two years of the issue arising.
This matter has taken too long to be resolved, spanning a period of over ten years ragging on. It is for this reason that I am more inclined not to entertain the preliminary points raised by the parties. The preliminary points raised by the parties in themselves do not ensure that the matter is determined to finality. In this regard, it is instructive to note that in Timveous and Anor v Mwonzora and Ors HH 370-20, the High Court held that:
“I refuse to be over fastidious. Courts should not demand mathematical exactitude from litigants when they present their case. Access to justice must be easy. Form should not be elevated above substance. Courts strive to resolve the real disputes between the parties and avoid getting choked by a thicket of technicalities, unless the alleged infraction complained of causes real prejudice.”
As a result, I am prepared to overlook the infractions of the rules raised by the third and fourth respondents and proceed to deal with the merits of the matter.
In Bonnyview Estates (Private) Limited v Zimbabwe Platinum Mines (Private) Limited and Anor SC 58-18, Makarau JA (as she then was) stated that:
“Condonation is an indulgence granted when the court is satisfied that there is good and sufficient cause for condoning the non-compliance with the rules.”
It is not in dispute that the delay in filing an appeal in this matter amounts to eight good years and is inordinate. Generally, this court is reluctant to condone such delay. The principle of finality to litigation would cease to have any meaning. See Terera v Lock and Ors SC 93-21.
The explanation proffered for this long delay is with due respect to the applicant unreasonable. What is strange and unfortunate is that the lawyer blamed for the delay did not depose to an affidavit explaining their own role in the negligence. In Diocesan Trustees, Diocese of Harare v Church of the Province of Central Africa 2010 (1) ZLR 267 (S) Malaba DCJ (as he was then) stated that:
“Although in argument Mr. Zhou suggested that the failure to comply with the relevant rules was wholly attributable to the respondent’s legal practitioners, there was no admission of negligence by the legal practitioner who deposed to the opposing affidavit on behalf of the respondent on 29 September one cannot consider absolving the respondent from the consequences of lack of diligence committed by its legal practitioners when there is suggestion in its papers that the ‘oversight’ was that of the legal practitioner. It would have been after the responsible legal practitioner had filed an affidavit admitting fault and explaining in detail what happened, that the judge would be in a position to decide…It must follow that without an affidavit from the person responsible for the ‘oversight’ admitting fault and explaining the circumstances under which he or she overlooked the rules, one is at loss for the reason why it was found necessary to state in the opposing affidavit that an ‘oversight’ on the part of the respondent was the cause of non-compliance.”. [My own emphasis]
See also United Refineries Limited v Mining Industry Pension Fund and Ors SC 63-14.
I will not take this point any further than what was appositely articulated by the learned DCJ (as he then was), suffice to say that in the absence of an affidavit of the lawyer responsible explaining the ‘oversight’, there is no plausible explanation for the delay. If indeed blame was attributable to the legal practitioners acting for the applicant, I find no reason why it was not found prudent to let the lawyers be candid with the court and admit their lack of diligence.
In addition, I make the observation that the issue sought to be taken on review does not give the applicant any prospects of success. Firstly, the applicant does not deny that the third respondent acquired its mining rights in 1999, long before applicant and Kudyarawanza came onto the picture. Secondly, Chigwell 70 which applicant is fighting for was created some 12 years after third respondent had acquired its mining rights; and Chigwell 70 actually over pegs third respondent’s mining rights. The third point I make is that the law is clear that the applicant’s failure to deny these allegations renders them admitted averments. See Church of Province of Central Africa vs. The Diocesan Trustees for the Diocese of Harare SC 48-12.
Perhaps as a matter of further emphasis, I reiterate that it has been eight years since the decisions sought to be impugned have been made. In this respect, Section 58 of the Mines and Minerals Act become relevant in this regard as it provides that:
“When a mining location or a secondary reef in a mining location has been registered for a period of two years it shall not be competent for any person to dispute the title in respect of such location or reef on the ground that the pegging g of such location or reef was invalid or illegal or that provision of this Act were not complied with prior to the issue of the certificate of registration.”.
I cannot ignore that the intended application for review would effectively be a challenge to the validity of the third respondent’s title. Yet the third respondent’s mining rights have been in existence for more than two decades. Therefore, there is little doubt that the right to make any such challenge has prescribed. The effect of such prescription is to extinguish any right that applicant may have had to challenge the third respondent’s right. See Coutts and Co v Ford and Anor 1997 (1) ZLR 440 (H) at 443B.
Consequently, it is my view that the applicant has failed to substantiate a case for the relief that it seeks. In the result, the application is dismissed with costs.
Bherebhende Law Chambers, applicant’s legal practitioners
Civil Division of Attorney General’s Office, first and second respondents’ legal practitioners
Warhust Attorneys, third and fourth respondents’ legal practitioners