1

HH824/22

HC7100/20

PROSPER MACHEKERA

versus

MILMATH SECURITY (PRIVATE) LIMITED.

and

THE MINING COMMISSIONER, MASHONALAND EAST DISTRICT N.O

and

MINISTER OF MINES AND MINING DEVELOPMENT N.O

and

SECRETARY OF MINES AND MINING DEVELOPMENT N.O

and

THE CHIEF MINING COMMISSIONER N.O

HIGH COURT OF ZIMBABWE

NDLOVU J

HARARE, 22 JUNE & 16 NOVEMBER 2022

APPLICATION FOR A DECLARATORY ORDER

Adv. T. Mpofu, for the Applicant.

Adv L. Uriri,. For the 1^st Respondent.

Mr. P, Chibanda, for the 2^nd – 5^th Respondents.

NDLOVU J:  This is an application for a Declaratur in which the Applicant is seeking the following relief.

            “IT IS DECLARED AND ORDERED THAT:

1              The Applicant, PROSPER MACHEKERA is the sole and legitimate holder of rights, title, and interest in the mining claims which constitute RADNOR 58 Mine registered under certificate of registration 29825BM with the coordinates

                                A             36K0461998/8087373

                                C             36K0462002/8086865

                                E             36K0461504/8086870

                              G             36K0461500/8087371

2              The 1^st Respondent’s Certificate of Registration for Koo Doo 61 Certificate Registration No. 45464 is null and void.

3              The First Respondent and all those claiming occupation of RADNOR 58 mining location on account of Koo Doo 61 Registration Certificate 45464 have no right to occupy and conduct mining operations within the mining location which constitutes RADNOR 58 certificate of registration No. 29825BM.

4              First Respondent pays costs of suit on a higher scale between legal practitioner and own client.”

FACTS

In 2005 the Applicant was certified as the registered holder of a mining location named Radnor 58, Certificate number 29825BM and Licence number 282534J.  He was registered as the owner of a block of 25 Scheelite claims.  His certificate of registration is extant. The Ministry of Mines and Mining Development (the Ministry) personnel have confirmed that his certificate is extant and has never been cancelled in the past. On the other hand, the 1^st Respondent holds a certificate of registration No 45464 in respect of a block of Ten Gold Reef claims named Koo Doo 61 and avers that Radnor 58 (29825BM was forfeited on 10 April 2013 and bases his claim on a report written by someone in the Ministry dated 25 October 2016.

            The parties have been in this court before, HC6647/17, refers. The 1^st Respondent left the mining location in April 2019 only to return in October 2020 allegedly on the strength of its certificate of registration 45464 granted in 2014. The Applicant’s interest in the mining location in question has been acknowledged by this Court and also by the Ministry officials under different circumstances, including by the Minister. 

APPLICANT’S CASE

The Applicant’s case is that he took the title of the mining location in 2005 and never lost the same. The claim was never forfeited at any time but was converted to three blocks.  He argues and says the 2^nd Respondent in her 25 October 2016 letter stated that he could transfer title to a company known as Earthrow Investments (Pvt) Limited or enter into an official tribute agreement with it. According to him, that suggestion confirms that he had the mining rights to execute the suggested options, otherwise how would he do as suggested by the 2^nd Respondent if his title had been forfeited? It is primarily this letter that the 1^st Respondent bases its claim on.

1^ST RESPONDENT’S CASE.

The 1^st Respondent’s case hinges on saying that Radnor 58 (29825BM) was forfeited on 10 April 2013 and its conduct is legal as it was granted rights to carry out mining operations through a certificate of registration issued by the Mining Commissioner in 2014 and at that time the mining location in question was open for prospecting and therefore it violated no law.

2^ND – 5^TH RESPONDENTS’ CASE

Jointly and severally their case is that they are not opposed to this application being granted. They have given the following explanation in an Affidavit to back their stance on this matter.  25 hectares base block named Radnor 58 (Registration number 29825BM) was wholly converted by the Applicant to three gold blocks on 14 September 2007. The three gold blocks are named Radnor 58 (10Ha) (registration number 34075) Radnor 60 (10Ha) (registration number 34076) and Radnor 61 (5Ha) (registration number 34077). The three blocks were never forfeited and are all current to date.  The applicant should therefore be citing the three-gold block instead of the converted base block, Radnor 58 (registration number 29825BM).

POINTS IN LIMINE

The 1^st Respondent took a number of points in limine in its papers however only pursued a few of them at the hearing.  The following are the ones that were argued.

1.         MATERIAL DISPUTE OF FACTS.

The 1^st Respondent relied on the judgment of Mangota J in HC6647/17 wherein this Court stated that;

“They state that the certificate is a fraud on the part of the person or official who issued it in the name of the Applicant.  There are in my view material disputes of fact in the parties’ case” (my underlining)

It went on to argue that it is a material dispute fact regarding who holds superior rights over the mining location and a resolution of that by a robust approach is impossible regard being had to the pleadings filed by the parties over that issue.  The court, therefore, needs viva-voce evidence to resolve the same.  The Applicant countered this by arguing that Mangota J in HC6647/17 was referring to a matter that was subject to a resolution by the Ministry and the Ministry has since attended to the issue and there was no longer a dispute.  Adv. Mpofu went on to say the dispute over whether or not there was forfeiture has been cleared on affidavit by the Ministry. 

In any litigation, there is a dispute of fact of some kind and degree. What matters is the materiality and relevance of that dispute in the resolution of the matter.  The Applicant’s argument on this point is on point and l dismiss the point in limine taken for want of merit.

EXHAUSTION OF DOMESTIC REMEDIES

The 1^st Respondent’s argument on this point is that Section 50(1) of the Act provides for the relief sought and therefore is a readily available domestic remedy to the Applicant that needs exhaustion before one resorts to litigation.  The remedy is a sound public policy as it gives the administration an opportunity to rectify its own mistakes. The Applicant sees otherwise and argues that in terms of Section 345(1) the parties have to consent to bring their dispute to the jurisdiction of a Mining Commissioner and in this case, there is no such agreement sought or arrived at.  In my view, the matter is before the High Court now.  It would be remiss on the part of this court to divert the matter to another forum when the position of the Ministry Officials is known.  The point in limine taken fails and is duly dismissed.

FORFEITURE

Whether or not there was forfeiture.  This was a front-loaded defence presented as a point in limine.  For this reason alone, l dismiss this point in limine.

JUDGMENT

At the heart of the dispute between the parties in this matter is whether or not the Applicant’s rights and title to the mining location in issue were ever forfeited.  The answer to that question must be sought from the custodians of mining rights in this country, that is to say the Ministry of Mines and Mining Development.  That information must not be extracted from the memory of an individual official or opinion, the information must be found stored in the relevant office of the Ministry.

Adv. Uriri is on point when he says one who looks at a public document is not expected to go beyond that document to verify whether or not the necessary internal process has been complied with. One is expected to take the document in question on the face value.  Equally, what is done or is said by public officials in the execution of their official duties is taken as being the truth and takes precedence. 

It is not disputed that the Applicant registered 25 hectares of the base metal block under Registration number 29825BM under license number 28253J in 2005.  It is not disputed that the 1^st Respondent got onto the scene or picture on the basis that there had been a forfeiture of the certificate of registration number 29825BM which allegedly resulted in the cancellation of the Applicant’s mining rights, title, and interest in the mining location known as Radnor 58.  It is not disputed that in the Applicant applied to convert Radnor 58 into three precious metal blocks.  This court has already made a finding that both parties have an interest in the same mining location in HC6647/17.  The 3^rd Respondent (the Minister) has equally made that observation. 

This court in these proceedings is being asked one question and that is to declare who between the two parties has preferential or superior rights and title over the mining location in the issue.  To answer that question the court has to look at the law, but before that, it has to resort to the “granary” of that information or record and that is the Ministry of Mines and Mining Development. The Ministry through its official has answered. On affidavit, as directed by the court, they have said;

1.         The Applicant never lost his rights, interest, and title

2.         There was a conversion and change of name of the blocks.

3.         The Applicant has rights currently over the three blocks that were born out of the conversion of Radnor 58.

The question then becomes was there ever a purported forfeiture that allowed for the entry of the 1^st Respondent?  There might have been and if there was, clearly it was erroneous based on the totality of the facts and is now immaterial. 

Adv. Mpofu moved for the amendment to reflect the 3 blocks and there was no opposition to that.  It is therefore granted.

DISPOSITION

The Applicant has established his rights to the mining location and his application is entitled to succeed and it succeeds as amended.

IT IS DECLARED AND ORDERED THAT: -

1.         The Applicant PROSPER MACHEKERA is the sole and legitimate holder of rights, title, and interest in the mining claims which constitute;

                        A.        Radnor 58(10Ha) Reg. No.34075.

                        B.        Radnor 60(10Ha) Reg. No.34076.

                        C.        Radnor 61(5Ha) Reg. No.34077.

                        All formerly constituting RADNOR 58 (Registration Number 29825BM).

2.         The 1^st Respondent’s Certificate of Registration for Koo Doo 61 Certificate Registration No. 45464 is null and void.

3.         The 1^st Respondent and all those claiming occupation of the mining locations stated in para. (1) above on account of Koo Doo 61 Registration Certificate 45464 have no right to occupy and conduct mining operations within the said mining location stated in para. (1) above.

4.         1^st Respondent pays the costs.

Rubaya & Chatambudza, Applicant’s Legal Practitioners.

Madzivanzira And Associates, 1^st Respondent’s Legal Practitioners.

Civil Division Of The Attorney General’s Office, 2^nd – 5^th Respondents’ Legal Practitioners.