1

HH823/22

HC5473/20

EARTHROW INVESTMENTS (PVT) LTD

versus

MINISTER OF MINES AND MINING DEVELOPMENT N.O

and

SECRETARY OF MINES AND MINING DEVELOPMENT N.O

and

TENDAI KASHIRI N.O

and

PAHASHA SOMALIA MINING SYNDICATE

and

THE CHIEF MINING COMMISSIONER N.O

IN THE HIGH COURT OF ZIMBABWE

NDLOVU J

HARARE 21 JUNE & 16 NOVEMBER 2022.

APPLICATION FOR A DECLARATUR.

Adv. T.Mpofu , for the Applicant.

Adv. L.  Uriri, for the 4^th Respondent.

No Appearance, for the 1^st to 3^rd & 5^th Respondents.

NDLOVU J:  This is an application for a Declaratory Order in which the Applicant is seeking to be declared the sole mining entity with valid registration certificates entitling it to solely conduct mining operations within Koo Doo 62 - 65 Mine in Mudzi District, Mashonaland East Province.  The Applicant is also seeking that the 4^th Respondent is declared to be conducting illegal mining operations within Koo Doo 62, 63, 64 and 65 Mining locations and therefore should cease its illegal operations.  The 1^st, 2^nd. 3^rd and 5^th Respondents consented to the application.  The 4^th Respondent is however opposed to the application. 

BACKGROUND FACTS

In 2003 the Applicant, a duly registered company became a holder of title to mining claims known as Koo Doo 62, 63, 64 and 65 in Mudzi Communal lands Mashonaland East Province.  At the time of filing this application and hearing of this matter, it was a holder of valid certificates of registration in respect of the said mining claims.  In 2014 the 4^th Respondent obtained a certificate of registration for mining claims Koo Doo 62 and 63.  The registration certificate in favour of the 4th Respondent has since been cancelled, and that cancellation is now subject to litigation in this court, HC1465/2018, refer.

POINTS IN LIMINE

The 4^th respondent took 2 points in limine, and they are;

(1)        lis pendens and

(2)        material disputes of fact

(1)  LIS PENDENS

Case number HC1465/18 birthed this point.  The defence of lis pendens will avail in a situation where

(a)  the litigation is pending.

(b)  the pending litigation is based on the same cause of action.

(c)  the pending litigation is in respect of the same subject matter

(d)   the other litigation is between the same parties or their privies.

Rolling River Enterprises -vs- Minister of State for National Security, Land and Reform and Resettlement HC2271/06.

Where the above requirements are met by a party the court still has the discretion to grant or refuse the defence.  In exercising its discretion, the court has regard to the balance of convenience in deciding whether or not justice will be done without a double remedy. Rupande 1 V Grobellar C and Ors HH654/18. Mhunga -v- Mtindi 1986 (2) ZLR 171(S). 

The application pending under case number HC1465/18 is a review application wherein the 4^th Respondent is seeking this court to set aside the 1^st Respondent’s decision to cancel its certificate of registration in terms of Section 50 of the Mines and Mineral Act; Chapter 21;05(the Act).

The 4^th Respondent has argued on this point as follows: -

Should the review application be successful then the application in casu will become an unorthodox way of challenging that decision in the same court, and the Applicant will continue holding on to the 4^th Respondent’s mining claims.  It is the 4^th Respondent’s argument that the litigation in HC1465/18 involves the same parties over the same subject matter as the matter in casu.  In both cases, the cause of action is premised on procedural irregularities in that in essence the Applicant in this matter is challenging how the 4^th Respondent got its mining rights.

The Applicant has counter-argued that HC1465/18 is a review application and the application in casu is a declaratur application. It argues that the cause of action, in either case, is different from the other.  It is the Applicant’s argument that reviewing the procedure adopted to cancel the 4^th Respondent’s certificate of registration by the 1st Respondent has nothing to do with the declaration of the rights of the parties as is being sought in the application in casu.  In any case in the event that the review succeeds or has succeeded does not terminate the controversy between the parties because that decision will effectively bring the parties’ controversy within the purview of Section 177(3) of the Act which provision secures the one earlier in title in the event of a dispute. So, the Applicant argues.

Both parties have urged this court to exercise its discretion in favour of their respective prayers. 

My understanding of the respective applications as argued in this matter is that in the case in casu the Applicant is seeking in the main the affirmation of its rights on the claims in question that it obtained in 2003.  Its argument is that it never lost those rights and is seeking the court to remind the world, as it were, of that fact.  On the other hand, the 4^th Respondent (Applicant in HC1465/18) is seeking the court to find fault with the manner the government cancelled or purported to cancel its certificates of registration of the claims that coincidentally are the mining claims that the Applicant in the matter in casu is seeking to assert its rights and title over.  In my view, the 2 applications are unrelated on the basis that the applications are not based on the same cause of action and therefore the lis pendens defence does not avail. In my view and on the facts of the matter, the balance of convenience favours that, l refuse the defence of lis pendens for the reasons that the custodian of mining claims in this country (the government) has taken a position, rightly or wrongly, that the certificates of registration in favour of the 4^th Respondent are cancelled. 

Success by the 4^th Respondent in HC1465/18 does not translate to success by it over the rights dispute relating to the mining claims in question.  I, therefore, dismiss the point in limine taken.

(2)   MATERIAL DISPUTE OF FACTS.

The 4^th Respondent based its argument on the fact that either party engaged its own prospector and the two experts produced differing certificates and coordinates.  It, therefore, contended that this court is not able to decide the matter on the papers without the aid of oral evidence.  The Applicant countered by arguing that by virtue of the fact there is no encroachment alleged, it basically means there is no dispute of fact. The point in limine is ill-taken in the circumstances of this matter.  The custodians of mining claims in this country are not opposed to this application.  No overlap in the mining claims is being alleged.  The application is for a declaratory order.

In my view, the court is in a position to resolve the dispute between the parties without the aid of viva voce evidence. The point in limine is therefore dismissed.

MERITS

The critical facts in this matter are a largely common cause and are that;

(1)       The Applicant acquired the title to conduct mining operations within the mining location in question in the year 2003.

(2)       The 4^th Respondent got its certificates of Registration in the year 2014.

(3)       The 4^th Respondent argues that at the time of pegging and registration of its claim, the Applicant was not on the ground and had therefore lost its title. 

(4)       The Applicant argues that it never lost its title and that its certificates of inspection are up to date.

(5)        The Government officials have since cancelled the 4^th Respondent’s certificates of Registration and are not opposed to this application.

THE LAW

The requirement for a Declaratory Order is an overtrodden path in this jurisdiction and

be summarised as follows.

            The Applicant must be an interested person that is to say must be having a direct and substantial interest in the subject matter of the suit.  The interest must concern existing future or contingent rights. Johnsen v Agricultural Finance Corp 1995(1) ZLR 65 (S).

The purpose of a Declaratory Order is to clarify what was uncertain or doubtful before.  Where a mining location has been registered, it ceases to be available for prospecting and pegging.  This is in terms of Section 31(1)(b) of the Act related to and/or reinforcing this statutory provision in Section 177(3) of the same Act in terms of which the rights of a prior pegger take precedence over those of subsequent pegger in the event of a dispute.  In terms of Section 58 of the Act, where a mining location has been registered for at least 2 years, it shall be incompetent for anyone to dispute the title in respect of such location.

THE LAW TO THE FACTS.

From the above-stated position of the law, and on the facts of this matter, it is clear that from 2003 to date, the Applicant never lost the title to its claims.  Non-occupation of a claim is not fatal to the right to title. In this matter, Government officials obligated to superintend such matters domestically agree with the Applicant and the law.  The long and short of it is that Government officials do not agree with the 4^th Respondent when it argues that the Applicant’s certificates of registration had lapsed at the time it conducted pegging long after 2003.   In any case; it is for the Government in the circumstances, to say whether a certificate of Registration has lapsed or not.

At the time the 4^th Respondent was issued with a certificate of registration and started pegging, the land in question had been reserved against prospecting.  Section 31(1)(b) of the Act refers.  The 4^th Respondent’s conduct was a legal nullity.  Whether or not the 4^th Respondent acquired its certificate of registration legitimately is not an issue before me and is irrelevant to the determination of this matter.

Armed with the fact of being a prior pegger and registration in 2003, an up-to-date certificate of inspection against a latter pegger who has no support of government officials in the dispute the Applicant is secure under the purview of Section 177(3) of the Act.  Section 58 of the Act is of no rescue to the 4^th Respondent on the facts of this matter. Where justice demands that a declaration be made as to the existence and nature of a legal right claimed by an Applicant a declaratur will be granted.

DISPOSITION

In my view, the Applicant has satisfied and met all the requirements of declaratory relief and his application is granted.

IT IS DECLARED AND ORDERED THAT:

1.         The Applicant, Earthrow Investments (Pvt) Limited is the sole legitimate holder of rights, title and interests in the mining claims which constitute Koo DOO 62-65 Mine.

2.         The 4^th Respondent’s Certificate of Registration 45650 is null and void.

3.         The 4^th Respondent has no right to occupy and conduct mining operations within the Mining location which constitutes Koo Doo 62, 63, 64 and 65.

4.         4^TH Respondent shall pay Applicant’s costs of suit.

Rubaya And Chatambudza Legal Practitioners, Applicant’s Legal Practitioners.

Civil Division of The Attorney General’s Office, 1^st, 2^nd, 3^rd & 5^th Respondents’ Legal Practitioners.

Madzivanzira And Associates, 4^th Respondent’s Legal Practitioners