Ncube v Provincial Mining Director Matebeleland South N.O (5 of 2026) [2026] ZWBHC 2 (6 January 2026)

1 HB 05/26 HCBC 1105/24 LUNGISANI NCUBE A. K. A LUNGISANI C. TWO MINUTES NCUBE VERSUS RAINAS GAMBIZA AND PROVINCIAL MINING DIRECTOR MATEBELELAND SOUTH N. O HIGH COURT OF ZIMBABWE MPOKISENG DUBE J BULAWAYO, 11 JULY 2025 & 06 JANUARY 2026 Opposed application- Exception L. Chimire, for the plaintiff S. Nyathi, for the defendant MPOKISENG DUBE J: This is an exception by the 1st defendant to the summons issued out of this court by the plaintiff on the 06th of September 2024. The plaintiff instituted a summons against the 1st defendant claiming the following: 1. An order declaring Plaintiff as the lawful owner of a mine claim described as Van Roo 3 registration number 32656, which claim Plaintiff acquired as commission for facilitating the sale of the mine claims of the late Mr Michael J Van Rooyen. 2. Consequent to paragraph (a) above, in the event that Van Roo 3 registration number 32656 has already been transferred into the name of the 1 st defendant or any other person by the date of this order an order directing 2nd defendant, to cancel and reverse transfer of Van Roo 3 registration number 32656 into from the 1st defendant, his agent, assignee, syndicate, association or any other third party and register the claim in the plaintiff s name within 7 days of the granting of this order. 3. In the event that paragraph (b) above have not been complied with, the sheriff of the High Court or his lawful deputy be and is hereby authorized to sign all the necessary papers to effect the transfer of Van Roo 3 registration number 32656 into the plaintiff s name within 14 days of this order. 4. An order evicting 1st defendant and all those claiming occupation and possession through him from Van Roo 3 registration number 32656 within 7 days of this order. 5. An order that 1st defendant pays costs of suit on the scale of attorney and client. HB 05/26 HCBC 1105/24 The summons were duly opposed by the 1st defendant, who filed an exception to the summons on the basis that the claim was vague and embarrassing as it does not disclose a cause of action. Brief Background The plaintiff’s case is based on an agreement allegedly entered into sometime in 2020. The plaintiff states that he facilitated the sale of mining claims belonging to the estate of the late Michael J Van Rooyen. The plaintiff’s role was that of an intermediary, introducing a buyer, Mr. Philisani Ncube, to the seller. The plaintiff states that an understanding was reached among the seller, the buyer, and himself, whereby his facilitation fee would be satisfied through the transfer of the mining claim Van Roo 3. The plaintiff further asserts that he later discovered that the 1 st defendant had assumed control over the mining location and states that this occupation was an unlawful invasion based on fraud, forgery, and misrepresented. He further alleges that the 1st defendant possesses documentation that is not only illegitimate but is a deliberate attempt to bypass the plaintiff’s prior contractual rights. The plaintiff alleges that upon reporting the 1st defendant’s ‘unlawful invasion’ to the 2nd defendant, the official records indicated a lack of any paperwork justifying the 1st defendant’s presence at the mining claim. Despite this acknowledgement, the plaintiff claims that the 2nd defendant failed to intervene, thereby allowing an illegal mining operation to persist. This alleged administrative inactivity forms the basis for the plaintiff’s request for an order directing the 2nd defendant to reverse any purported transfers and register the claim in the plaintiff’s name. 1st defendant’s exception to the summons After receiving the summons, the 1st defendant entered an appearance to defend and subsequently filed a notice of exception, contending that the plaintiff’s summons and declaration are fatally defective, fail to disclose a cause of action, and are hopelessly vague and embarrassing. HB 05/26 HCBC 1105/24 This court is now called upon to determine the merits of this exception in accordance with Rule 42 of the High Court Rules, 2021. Rule 42(1) (b) provides that a party may except to a pleading or to single paragraphs thereof if they embody separate causes of action or defense, as the case may be. The rules recognize two primary categories of exception: those asserting that the pleading fails to disclose a cause of action (or defense), and those asserting that the pleading is vague and embarrassing. The 1st defendant’s primary contention is that the plaintiff’s claim, as formulated in the summons and declaration, does not disclose a cause of action recognizable at law against the 1st defendant. To evaluate this, the court must apply the test established in Dube v Banana 1998 (2) ZLR 92 (H) at 95, where a cause of action was defined as the “combination of facts that are material for the plaintiff to prove to succeed in his action”. The plaintiff’s claim is essentially a request for specific performance and a declaratory order based on a contract for commission. However, the contract alleged by the plaintiff was entered into with a third party, the late Michael J. Van Rooyen, who is not a party to this litigation. The 1st defendant is described as an invader or a person who has transfer through fraudulent means. The plaintiff’s pleading, however, fails to establish a causal link between the plaintiff’s personal right under the commission agreement and the 1st defendant’s current title or occupation. In Muhahlera v Clerk of Parliament and Others HH 107-07, it was clarified that a cause of action is the entire set of facts that gives rise to an enforceable claim. The fact that the first defendant holds title to property that the plaintiff believes he was promised by a third party does not create a cause of action for eviction or transfer against that third party. Furthermore, the nature of mining rights in Zimbabwe must be considered. Mining claims are statutory titles governed by the Mines and Minerals Act [Chapter 21:05]. The dominion in all minerals is vested in the President. Acquisition and transfer of these rights are strictly regulated, and the Act outlines procedures for the transfer of a mining location or any interest therein. The plaintiff’s declaration is silent on whether the alleged commission agreement was ever reduced to a written contract for the transfer of mining interests, whether such an HB 05/26 HCBC 1105/24 agreement was lodged with the Mining Commissioner, or whether the necessary duties were paid. Without registration, the plaintiff’s right is merely a personal right against the estate of the late Van Rooyen or the buyer, Philisani Ncube. It is a well-established principle of property law that a personal right cannot be enforced against the holder of a real right unless the doctrine of notice applies, that is, if the 1st defendant took transfer with knowledge of the plaintiff’s prior right. The plaintiff has not pleaded that the 1st defendant had such knowledge, rendering the claim against him bad in law. The second ground of exception is that the allegations of fraud and misrepresentation are vague and embarrassing. The plaintiff’s declaration states in paragraph 6 that the first defendant, through fraudulent and misrepresentation means... took over the mine claim’ and in paragraph 9 that the 1st defendant’s documentation is a ‘product of fraud, forgery and misrepresentation’. Fraud is a serious allegation that must be pleaded with particularity. A party alleging fraud must set out the specific facts constituting the fraud in clear and plain form. The plaintiff’s use of the words fraud, forgery, and misrepresentation without providing a single supporting fact is the embodiment of a vague and embarrassing pleading. The 1st defendant is placed in an impossible position where he is forced to deny the averments without knowing what specific acts or omissions he must defend. A pleading that simply tells a story in the hope that the court will untangle it is an abuse of process. The plaintiff’s declaration in this matter fails to satisfy the requirements of Rule 13 of the High Court Rules, 2021, which requires a statement of material facts in support of the claim. The 1st defendant further excepts based on non-joinder, arguing that the action cannot proceed without the inclusion of the executor of the estate of the late Michael J. Van Rooyen and the buyer, Philisani Ncube. Rule 32 of the High Court Rules, 2021, provides that the court may join any party who has a direct and substantial interest in the issues raised in the proceedings. The estate of a deceased person is not a separate legal persona. The assets of the estate vest in the executor, who is the only person with the locus standi to represent the estate or be HB 05/26 HCBC 1105/24 sued in relation to its assets. The plaintiff’s claim is founded on a contract with the late Michael J Van Rooyen. Therefore, any order declaring the plaintiff the owner of a claim that was part of the deceased’s estate or which the deceased allegedly promised to transfer necessarily affects the rights and obligations of the estate. While Rule 87(1) of the previous rules stated that no cause or matter shall be defeated by reason of misjoinder or non-joinder, it also affirms that the court may determine the issues so far as they affect the rights and interests of the parties who are before the court. In this case, the rights of the 1st defendant cannot be adjudicated without first determining the validity of the plaintiff’s agreement with the late Van Rooyen. Such a determination cannot be made in the absence of the estate’s representative. The failure to join the executor is a fatal procedural defect that renders the claim excipiable. In Romus Gumisai Chihota v Minister of Home Affairs and Others HH 93-15, it was held that: “The remedy available to an excipient on the basis that a summons does not disclose a cause of action is not an outright dismissal of the claim but an order directing the plaintiff to amend the pleadings within a fixed period of time: Auridium Zimbabwe (Pvt) Ltd v Modus Publications (Pvt) Ltd 1993 (2) ZLR 359 (H) 373C-D; Adler v Elliot 1988 (2) ZLR 283 (S) 292B” However, I took note of the fact that some defects are so profound that amendment may be an exercise in futility. For example, the plaintiff’s claim is inherently bad at law because it seeks to enforce an unregistered personal right against a registered real right. In my view, no amount of amendment can change. Costs The 1st defendant has prayed for costs of suit on the scale of attorney and client. In our courts, such an award is an expression of the court’s displeasure with a litigant’s conduct, such as where a claim is frivolous or vexatious. The summons and declaration in this matter show a lack of professional rigor. It uses terms such as fraud and forgery without substantiating such as required by the rules. The 1st defendant wrote a letter to the plaintiff to withdraw the summons, but the plaintiff did not take heed. This forced the 1 st defendant to answer to such pleadings, and therefore, this justifies an award of costs on a higher scale. HB 05/26 HCBC 1105/24 Disposition The 1st defendant’s exception is well-founded. The pleadings fail to disclose a cause of action and are vague and embarrassing in a manner that causes real prejudice. The failure to join the executor of the estate, the late Michael J. Van Rooyen, further rendered the current process procedurally incompetent. In the premises, I make the following order: 1. The 1st defendant’s exception to the plaintiff’s summons and declaration be and is hereby upheld. 2. The plaintiff shall pay the 1st defendant’s costs of suit on an attorney and client scale. Masamvu and Da Silva Gustavo, plaintiff’s legal practitioners. Job Sibanda and Associates, 1st defendant’s legal practitioners