EL

Ricnob Suppliers (Private) Limited & Another v Mandizera & Others (HB 262-18, HC 5563/18 X REF HC 1755/18) [2018] ZWBHC 262 (25 October 2018);

This was an application for an order for spoliation. The applicants claimed that they had been unlawfully dispossessed of their quiet and peaceful possession of their property by the first respondent. The first respondent contended that he was issued with a prospecting licence by the second respondent on the same land and that he entered the property on the strength of the authority from second respondent. The applicants alleged that the first respondent entered their land by cutting a fence and causing damage to their property.

The court considered whether or not there had been a spoliation and whether the applicants were entitled to relief. The court established that the first respondent unlawfully deprived the first applicant of its possession of the quarry stone site and that this was an unlawful invasion of the property as the land was private property. 

The court noted that the first respondent had not raised any of the recognised defences in an action for spoliation. The court found that the first respondent intended to take over the quarry site by forcibly removing them applicants from the quarry site without following due process as he did not possess a court order to justify his intended action.

Accordingly, the court held that the requirements for an order for spoliation had been met and ordered the respondents to return the applicant’s status quo prior to the spoliation.

 RICNOB SUPPLIERS (PRIVATE) LIMITED

and

ALFRED CHINANAYI

versus

MIKE MANDIZERA

And all those claiming title use and occupation through same at

certain piece of land being Wallingford a situate in the district of

 Insiza measuring 946.4524 hectares

and

MINISTER OF MINES AND MINERAL DEVELOPMENT

 

 

 

HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 16 OCTOBER 2018 AND 25 OCTOBER 2018

 

 

Anjin Investments (Private) Limited v The Minister of Mines and Mining Development & 3 Others (CCZ 6/18, Constitutional Application No. CCZ 38/16) [2018] ZWCC 6 (27 June 2018);

The applicant, had received a letter from the Secretary for Mines and Mining Development alerting them that their special grants for mining had expired and they had to cease all mining activities and vacate the covered mining areas. The Minister further issued a press statement on the consolidation of all diamond mining activities in the grant areas.

The applicant averred that the above decisions had prejudicial effect on it which also violated its property rights.

The respondents alluded that the application was improperly brought before the court as it appeared to be a response to the judgment of the High Court which the applicant had previously lodged but never appealed and that the cause of action was res judicata and that the avoidance principle applied here. The court, therefore, had to decide on these three main points.

The court held that the appeal had been disguised as a case concerning constitutional points and should have been brought in terms of s167(5)(b) of the Constitution.

It held that although the basis of the application had changed with the introduction of the constitutional question, the effect of the relief sought remained the same.

The court also held that the bulk of the applicant’s case was on right to just administrative action which was protected under the Administrative Justice Act which had sufficient grounds to deal with the rights they alleged had been infringed.

The matter was dismissed with costs.

REPORTABLE        (6)

 

 

ANJIN     INVESTMENTS    (PRIVATE)     LIMITED

v

  1.  

 

 

 

CONSTITUTIONAL COURT OF ZIMBABWE

MALABA CJ, GWAUNZA JCC, GOWORA JCC,

HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC,

MAVANGIRA JCC, UCHENA JCC & ZIYAMBI AJCC

HARARE, 19 JULY, 2017 AND 27 JUNE, 2018.

 

 

 

 

Forbes & Thompson (Bulawayo) (Pvt) Limited v ZINWA & Another (HB 147-18, HC 1148-16) [2017] ZWBHC 147 (08 June 2017);

The applicant in this High Court case moved the court to issue an interdict order against the first and second respondent. The applicant needed the court to compel the respondents to restore the supply of water that they had disconnected to the applicantÕs mine.  The interim relief had been issued in a previous application, but the applicant additionally sought an order interdicting the respondents from terminating the water supply. 

The first and second respondent disconnected the water supply that fed the applicants mine and the neighbouring community. The applicant argument was that the respondents infringed its right to water under s77 of the Constitution of Zimbabwe. The respondents argued that they were entitled to disconnect the water supply as the applicant failed to pay the water bills, thereby ending their contract.

Thus, the issue for determination was whether the applicant satisfied the requirement for an interdict to be issued.

The court held that in the issue of spoliation, it is established in law that for a party to succeed it must show that the party was in peaceful and undisturbed possession. The court was satisfied that the applicant was constitutionally entitled to water supply, and that interference with this right without a court order was unlawful.

As a result, the interdict was allowed pending the main trial.

FORBES & THOMPSON (BULAWAYO) (PVT) LTD

 

Versus

 

THE ZIMBABWE NATIONAL WATER AUTHORITY

 

And

 

TIMOTHY KADYAMUSUMA

 

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 2 & 8 JUNE 2017

 

Opposed Application

 

W. Ncube for applicant

Dondo for the respondents

G & W Industrial Minerals (Pvt) Ltd (HH 266-18, CIV Á'367/17) [2018] ZWHHC 266 (16 May 2018);

G and W INDUSTRIAL MINERALS (PVT) LTD

versus

THE SECRETARY FOR MINES AND MINING DEVELOPMENT

and

SELDO MINING (PVT) LTD

and

THE PROVINCIAL MINING DIRECTOR-MASHONALAND CENTRAL

 

 

 

HIGH COURT OF ZIMBABWE

CHITAKUNYE & CHIRAWU-MUGOMBA JJ

HARARE, 15th and 16th May 2018

 

 

 

Civil Appeal

 

S. M Hashiti, for the appellant

P. Macheka, for the 1st and 3rd respondents

E. T Muhlekiwa, for the 2nd respondent

S v Tinodya & 3 Others (HH 215-18, CA 668/16 Ref CRB 3503-7/16) [2018] ZWHHC 215 (25 April 2018);

The court considered a criminal appeal, where the applicants had been charged for contravening s7(1)(a) or (b) of the Communal Land Act, by occupying or using communal land without lawful authority. The applicants pleaded guilty and were convicted and sentenced to pay a fine of $5000 or 30 days in prison. The appellants appealed the conviction on the ground that the court committed an irregularity by failing to proceed in terms of the correct procedure. 

They contended that by entering a guilty plea, the court had a duty to safeguard the fair trial rights of the accused by adopting a procedure which was most likely to suggest a defence where there was one.

The court considered whether the appellant’s conviction was lawful. It observed that with unrepresented accused persons, there was the ever-present likelihood that out of ignorance of the law, a person would admit to charges of a complex nature out of a desire to draw sympathy of the police or the courts and the onus was upon the court to choose a procedure which would have given the appellants a possible defence.

The court found that the conviction was wrong and remitted the matter back to the lower court. In addition, the court below would be required to take cognizance of s 16 of the Act which required that following a conviction, an order for eviction be granted. Accordingly, the appeal succeeded.

TAVENGERWEI TINODYA

and

AGNES MUCHINA

and

BESTI MUNGONO

and

FUNGAI WENGE

versus

THE STATE

 

 

HIGH COURT OF ZIMBABWE

HUNGWE & WAMAMBO JJ

HARARE, 29 March 2018 & 25 April 2018

 

 

Criminal appeal

 

 

D Mudadirwa, for the appellant

Mrs S Fero, for the respondent

 

Hippo Valley Estates Limited & Another v Minister of Environment, Water & Climate (HH 235-18, HC 7770/16) [2018] ZWHHC 235 (03 May 2018);

The court considered an application to set aside the National Water Authority Regulations and tariffs on the ground that they were ultra vires and violated the applicants’ rights. 

The applicants’ business operations involved sugar-cane growing and sugar processing. They concluded two agreements with the Zimbabwe National Water Authority (ZINWA), which related to the supply of water. It was a term of the agreement that the parties would, together, review charges for raw water, and should they fail to agree, the respondent would fix the prices.  Subsequently, ZINWA addressed a letter advising the applicants of their intention to review the charges. The respondent unilaterally increased the tariffs and failed to notify the applicants. The respondent argued that in terms of the ZINWA Act, she had the authority to impose tariffs for water charges and that the regulations did not violate the applicants’ rights. 

The court considered whether the respondent had acted lawfully in imposing the water tariffs. It found that the government reviewed the water charges, and not ZINWA which was lawfully established to review the tariffs in as far as the applicant was concerned.  

The court found that the respondent could not unilaterally increase water tariffs, unless ZINWA had made application to it to justify the increase. In this case, the respondent failed to notify the applicants, nor did she give them an opportunity to respond. The court concluded that the respondent acted ultra vires by increasing the tariffs and her actions were unlawful. Accordingly, the application was upheld

HIPPO VALLEY ESTATES LIMITED

and

TRIANGLE LIMITED

versus

MINISTER OF ENVIRONMENT, WATER AND CLIMATE

 

 

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 20 February, 2018 and 3 May, 2018

 

 

Opposed application

 

 

T Magwaliba, for the applicants

E Mukucha, for the respondent

 

 

S v Bvuto (HH 94-18, CA 156/16 Ref CRB MSH 32-40/16) [2018] ZWHHC 94 (03 August 2017);

The court considered an appeal against a prior criminal conviction. 

The appellants had extracted gold ore from a gold mine and were intercepted and arrested by the police. They were charged under s368(2) of the Mines and Minerals Act for illegally prospecting for minerals. They pleaded guilty, were convicted and sentenced to the mandatory two-year prison sentence. They appealed on the ground that they were convicted on a charge which was not supported by the facts admitted between them and the State.

The court had to consider whether the appellants’ plea of guilty was sufficient to convict them for contravening s368(2) of the Act. The court found that courts have a duty to protect the rights of the accused and to ensure that they fully understand the charge and the essential elements, as well as that they genuinely, and unequivocally admit to the charge, its essential elements, and the facts alleged by the prosecution. 

In this case, the lower court simply accepted the uninformed admission of guilt by the accused as proof and disregarded the fact that the charge was not proved by the facts relied upon by the State. 

Further, the court found that the appellants did not prospect for minerals, they simply stored gold ore from a known mine, thus contravening s379 not s368. 

Accordingly, the appeal was upheld. 

ARNOLD BVUTO                                                                                       

versus                                                                                                 

THE STATE

 

 

HIGH COURT OF ZIMBABWE

HUNGWE & MUSHORE JJ

HARARE, 3 August 2017

 

 

Criminal Appeal

 

J Makiseni, for the appellants

Mrs F Kachidza, for the respondent

 

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 BONG

This was an application for an interdict to prohibit mining activities at West Nicholson mine and a further order relating to the processing, sale of and distribution of gold ore mined by the applicants. 

The applicants were members of the West Nicholson Youth in Mining Association. The 2nd respondent offered to grant a tribute to the association to mine gold ore and three representatives were appointed by the association to negotiate with the 2nd respondent. After operations had begun, the three representatives along with the 3rd respondent, a third party, unilaterally implemented a profit sharing scheme which gave 50 percent of the proceeds to the four of them. 

The 3rd respondent opposed the application contending that it did not satisfy the requirements of an interdict because the applicants had no prima facie right.

The main issue for the court’s consideration was whether or not the applicants had satisfied the requirements of an interdict. The court found that the applicants had proved that they were members of the association and had therefore established a prima facie right to the mining benefits granted by the agreement. The court further held that there was a well-grounded apprehension of irreparable harm to the applicants if the interim relief was not granted and that this had been clearly proved by the applicants. 

Accordingly, the court granted the interim interdict as prayed.

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 1st and 4th respondents

Ms S Mbondiya for 2nd respondent

K. Ngwenya for 3rd respondent

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

Pinkstone Mining (PVT) Limited & 2 Others v Lafarge Cement Zimbabwe Limited & Another (HH118-18, HC 1751/18) [2018] ZWHHC 118 (07 March 2018);

The court considered an urgent application for an order interdicting the first respondent from carrying on mining operations on the applicants’ mineral claims. At some point, the applicants and the first respondent had business dealings involving minerals from those claims. The respondent then went on to register mining claims over a piece of land which included the first applicant’s mining claims. The respondent argued that the matter was not urgent, and that the relief sought was not competent as it was final in effect. 

The court considered whether the applicants had established a right to the relief sought. The court observed that the relief sought was an interim interdict, the requirements for which were: a clear right; irreparable harm; balance of convenience in favour of granting the relief, and no other satisfactory remedy. The court found that the respondent intended to mine on the applicants claim, and although the mining hadn’t commenced, the applicants could not wait until it acted and had established the prejudice likely to be suffered. 

In determining the balance of convenience, the court weighed the prejudice to the applicant if the interdict was not granted against the harm to the respondent if the relief was granted. In this instance, as the mining activities were not being carried on yet, there was no prejudice to the respondent. Accordingly, the court found that the requirements for the interdict were met and the application succeeded.

PINKSTONE MINING (PVT) LTD

and

TIMOTHY MATANGI

and

AFRICAN MILLS & MINERALS (PVT) LTD

versus

LAFARGE CEMENT ZIMBABWE LIMITED

and

MINISTER OF MINES AND MINES DEVELOPMENT

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 2 & 7 March 2018

Urgent Chamber Application

E. T. Muhlekiwa for the applicants

B. K. Mataruka, with him G. Ndlovu for the first respondent

M. Chimombe for the second respondent

Icon Alloys (Pvt) Ltd. & Another v Gwaradzimba N.O. & Others (HMA 30 -17 , HC 73/17) [2017] ZWMSVHC 30 (20 June 2017);

The court considered an urgent application, which was heard in chambers, to prevent the applicants’ eviction from their mining claims. 

The mining claims, which were abandoned, were owned by the second respondent. Pursuant to the abandonment, the mining claims were opened up to prospecting third parties. 

The applicants claimed that they applied to the relevant authority and were granted a lease of the disputed mining claims. Consequently, they argued that they should not be evicted.

The court, therefore, had to determine whether the eviction of the applicants was lawful.

The court found that the applicants failed to provide evidence showing that they had obtained a lease. It also found that the second respondent, which purportedly abandoned the mining claims in dispute, had been placed under a reconstruction order in terms of the Reconstruction of State-Indebted Insolvent Companies Act [CAP 24:27], which had the effect of voiding every disposition of the property, without the approval of the administrator. In this instance, the administrator did not approve the abandonment. As such, it was null and void, and was not open for prospecting.

The court found that the applicants’ manager and principal officer in person, not the applicants themselves, featured in the provided documents and that the eviction was against that person. The applicants themselves never acquired a right over the mining claims.
Finally, the court found the applicants were sluggard and failed to approach the court in good time.

Accordingly, the application was dismissed.

1

HMA 30 -17

HC 73/17

 

ICON ALLOYS [PVT] LTD

and

TEID HARDWARE [PVT] LTD                                         

versus

ARAFAS MTAUSI GWARADZIMBA N.O.

and

SMM HOLDINGS [PVT] LTD

and

MASVINGO RURAL DISTRICT COUNCIL

and

SHERIFF FOR ZIMBABWE                                  

 

 

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 13 March 2017 & 20 June 2017

 

 

Urgent chamber application

 

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