Vibranium Resources (Private) Limited v Nyakudya (20 of 2021) [2021] ZWHHC 20 (27 January 2021)

1 HH 20-21 HC 7682/20 VIBRANIUM RESOURCES (PVT) LIMITED versus SPENCER NYAKUDYA HIGH COURT OF ZIMBABWE MUREMBA J HARARE, 8 & 27 January 2021 Urgent Chamber Application R T Mutero, for the applicant T Chiturumani, for the respondent MUREMBA J: This is an urgent chamber application for an interdict. What can be gathered from the papers filed is the following. The applicant is the registered owner of mining claims held under claim numbers 47323, 47324, 47325, 47326 and 47327 which were issued by the Ministry of Mines and Mining Development in terms of the Mines and Minerals Act [Chapter 21:05] in May 2020. On 26 August 2020 the respondent was issued with a mining certificate under Shamva ‘X’ mine, registration number 47622 which mining claim falls on an area covered by the applicant’s mining claims. This resulted in a dispute between the applicant and the respondent. The Ministry of Mines and Mining Development convened a meeting with the parties to resolve the dispute. The Provincial Mining Director of Mashonaland Central Province made a finding that the respondent’s certificate was erroneously issued. On 20 November 2020 he issued a notice of intention to cancel the respondent’s certificate of registration. The notice states that Shamva ‘X’ was registered on ground not open to prospecting and pegging as it was pegged on top of current mining locations of Ganja mines, belonging to Vibranium Resources (Pvt) Ltd registration numbers 47323 – 27 which were registered prior to Shamva ‘X’. On 30 November 2020 the Provincial Mining Director also wrote to the Zimbabwe Republic Police, Bindura and to the respondent instructing immediate suspension of operations at Shamva ‘X’ mine on the basis that it was erroneously registered overpegging the mining locations of Ganja mines. HH 20-21 HC 7682/20 It is the applicant’s averment that the respondent continues to carry out mining activities on the disputed claim. The last attempt to stop him was on 24 December 2020. The applicant averred that he went to Shamva Police but got no assistance. The officer in charge advised that they did not know whether or not the respondent had seen the letters from the Ministry of Mines and Mining Development which instructed him to suspend operations. On 28 December 2020 the applicant filed the present application. It is the applicant’s averment in the founding affidavit that the respondent has no legal basis for carrying out mining activities on its claim. It averred that the matter is urgent because the respondent’s continued mining activities are detrimental to its financial interest. In response to the application the respondent raised a point in limine that the Minister of Mines and Mining Development had not been joined in the proceedings. The respondent averred that he doubted the authenticity of the notice of intention to cancel his certificate of registration the applicant furnished. He gave a number of reasons for disputing its authenticity. A further objection was that this notice was not served on him by the Ministry of Mines and Mining Development in terms of s 50 (3) of the Mines and Minerals Act. On this basis the respondent applied that the application be dismissed. Rule 87 (1) of the High Court Rules, 1971 says that no cause or matter shall be defeated by reason of non -joinder of any party and that the court may determine the issues in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter. Cognisant of this rule, I decided that it was not necessary to dismiss the application on the basis of non-joinder of the Minister of Mines and Mineral Development. I postponed the matter and asked the parties to get a report from the Ministry with regards to the authenticity of the notice of intention to cancel the respondent’s certificate of registration. On 5 January 2021, the Provincial Mining Director of Mashonaland Central wrote confirming that the notice was authentic. He however stated that the respondent had not yet been served with it as he had not yet collected it from their office. The respondent’s contact details were said to be either unavailable or unanswered. With the confirmation of the notice from the Ministry, the respondent’s counsel Mr Chiturumani abandoned the argument that the notice was not authentic. He however, persisted HH 20-21 HC 7682/20 with the argument that the notice had not been served on the respondent as is required in terms of s 50 (3) of the Mines and Minerals Act which provides that: “Such notice shall be given by registered letter addressed to the holder of the block or site at the postal address recorded in the office of the Mining Commissioner or, if no such address is recorded by publication thereof in the Gazette.” Mr Chiturumani argued that since the applicant’s application is premised on the notice of intention to cancel the respondent’s certificate of registration, it was mandatory for that notice to have been served in compliance with the law. He submitted that if it was not served as is prescribed in terms of s 50 (3) of the Act, the present application was prematurely filed. His argument was that as long as the notice has not been delivered to the respondent by the Ministry, it is not yet a notice, but a letter which is still on the Provincial Mining Director’s desk. It was Mr Chiturumani’s argument that the use of the word ‘shall’ in s 50 (3) means that service of the notice is peremptory and non-compliance thereof is fatal. He submitted that the matter was therefore not urgent and should be removed from the roll of urgent matters or be dismissed because there is no notice to talk about as yet. Mr Mutero for the applicant submitted that the whole purpose of or the mischief in s 50 (3) of the Act is to ensure that service of the determination is made to the person who is affected by it. He submitted that although s 50 (3) was not complied with, Annexure B to the respondent’s notice of opposition shows that he got to know about the determination on the very day the notice was written, on 20 November 2020. Annexure B is a letter which was written by the respondent’s legal practitioner, Mr Chiturumani to the Provincial Mining Director on 20 November 2020. The relevant part reads: “Our client is a holder of a certificate of registration title of the mining claim consisting of 10 (ten) gold reef in Shamva ……We have learnt through our client that there is a third party claiming and purporting to own the same mining claim. We are further advised that you have already convened a meeting of the alleged dispute and you summoned our client and the third party for a hearing. We have learnt that you have already taken position stemming from the meeting to cancel our client’s certificate of registration of the mining claim. It is on that basis that we have instructions to seek clarification on your administrative conduct to cancel the mining title. We would want to know the reasons for your drastic decision ….”(my underlining) Mr Mutero submitted that the Act does not state the sanctions for non-compliance with s 50 (3). Citing the case of Moyo v Zvoma and Ors SC 28/10 he argued that where there is no penalty for non-compliance, substantial compliance suffices. He submitted that in casu since the HH 20-21 HC 7682/20 respondent knew about the determination as at 20 November 2020, there was substantial compliance with s 50 (3). He also submitted that the use of the word ‘shall’ in the provision does not mean that service in the manner prescribed is peremptory but merely directory. He argued that what is important is that by 20 November 2020 the respondent already had knowledge of the determination. Although Mr Mutero submitted that the mischief in s 50 (3) is to ensure that the person affected by a determination has knowledge of it and that in the present matter there was substantial compliance with the provision, he could not explain in what way the Ministry of Mines had substantially complied with s 50 (3). He admitted that the application did not show how the determination/notice had been served on the respondent by the Ministry. The applicant did not know how the respondent got to know about the determination. With that, Mr Mutero’s submission that there was substantial compliance with s 50 (3) was misplaced. He was not making any sense at all. It cannot be argued that there was substantial compliance with the provision when the ministry itself says that the notice has not yet been served on the respondent because he has not yet collected it from its offices. The fact that the respondent got to know about the determination through some other means which he did not disclose, does not mean that s 50 (3) was substantially complied with by the ministry. I am therefore in agreement with the respondent that the notice was not served on him as is required in terms of s 50 (3) of the Mines and Minerals Act. However, it is my considered view that the fact that the notice was not served on the respondent in compliance with s 50 (3) of the Act by the ministry cannot defeat the applicant’s rights. It is not the applicant’s mandate to serve the notice on the respondent. I thus dismiss the point in limine that the application should be dismissed for the reason that the notice was not served on the respondent in compliance with s 50 (3) of the Act. The bottom line is that there is a valid notice of intention to cancel the respondent’s certificate of registration for the purpose of the applicant’s case. The issue of its service is neither here nor there. I declined to deal with the issue of urgency that the respondent raised. I declined because in the notice of opposition it was raised as part of the merits and not as a preliminary point. Even at the hearing Mr Chiturumani sought to argue it as part of the merits. I found that approach very confusing. For that reason, I declined to hear the issue of urgency. HH 20-21 HC 7682/20 I move on to the merits of the application. What is clear from the papers is that the applicant has valid certificates of registration in respect of its mining locations. The applicant attached proof thereof. The Provincial Mining Director of Mashonaland Central also confirmed this position in its notice of intention to cancel the respondent’s certificate of registration dated 20 November 2020. He reiterated this position in his letter of 5 January 2021 when I asked to be furnished with a report from the Ministry of Mines and Mining Development. In the notice of intention to cancel the certificate of registration of 20 November 2020, he said that Shamva ‘X’ was registered on ground which was not open to prospecting and pegging as it was pegged on top of Ganja mining locations which were registered prior to it. The respondent was therefore allocated a mining location over an area belonging to the applicant. The Ministry of Mines admitted that the respondent’s certificate of registration was issued in error. This is the reason why the notice of intention to cancel the respondent’s certificate of registration was then issued. Whilst what I have outlined above is very clear from the papers, what is so glaring about the applicant’s application is that it is premised on a wrong cause of action. Throughout the founding affidavit its deponent made averments that it is seeking an interdict against the respondent on the basis that the respondent’s certificate of registration was revoked by the Ministry of Mines, a fact which is not true. In para 5 the deponent averred that: “This is an application for an interdict. To prevent the respondent ... from carrying out mining activities … pending the final determination of the fate of the respondent’s mining certificate which was provisionally cancelled on 20 November 2020.”(my underlining) This averment is not correct because the respondent’s certificate was not provisionally cancelled on 20 November 2020. In para 10 the deponent averred that, “On 20 November 2020, the Commissioner made a finding that the respondent’s certificate was erroneously issued. He proceeded to cancel the respondent’s certificate. A copy of the letter cancelling the certificate is attached hereto and marked as Annexure B” Contrary to the averment, there was no cancellation of the certificate of registration. Annexure B is a notice of intention to cancel the certificate of registration. It is not a letter cancelling the certificate of registration. In paras 14, 15 and 16 the deponent further averred that, “The respondent has no legal basis of carrying out mining activities on the applicant’s claim. Its legal basis of being on the land having been revoked by the mining commissioner. HH 20-21 HC 7682/20 Despite the revocation, the respondent continues to carry out mining activities to the detriment of the applicant’s financial interest. The applicant has no choice but to approach the court on an urgent basis. Any delay in determining the matter will allow the respondent to continue to reap where they have no legal basis.”(my underlining for emphasis) As was correctly averred by the respondent, his certificate of registration was not cancelled. There is only a notice of intention to cancel it. An intention to cancel is not the same as a cancellation or revocation. A notice of intention to cancel does not even have the effect of provisional cancellation as it is not tantamount to a cancellation or revocation. The applicant’s averment that the respondent’s licence was cancelled or revoked is untrue since there was no revocation of the certificate of registration. It is wrong for the applicant to say that the respondent has no legal basis to carry out mining activities. The legal basis is there and it is the certificate of registration which has not yet been cancelled. It is on the basis of the wrong factual averments that I say that the applicant filed its application based on a wrong cause of action. A cause of action is a fact or facts that enable a person to bring an action against another. The fact(s) should be sufficient to justify suing or seeking judicial redress against another. The facts form the heart of the complaint. A wrongly stated cause of action results in the dismissal of the applicant’s case. Supporting facts for the remedy must be correct. If they are not correct, the relief being sought cannot be granted even if the applicant seems to have a good case. It is not for the court to make a case for the applicant. In casu the whole case of the applicant was wrongly pleaded. Annexure B (the notice of intention to cancel the respondent’s certificate of registration) which is the cornerstone of its application does not speak to the factual averments made in its founding affidavit that the respondent’s certificate of registration was cancelled/ revoked. It tells a different story. The two are inconsistent. With that, the application cannot be granted. Put differently, I cannot grant an interdict barring the respondent from continuing with mining activities on the basis that his certificate of registration was cancelled or revoked when evidence adduced shows that there has not been such cancellation or revocation. Even if the applicant seems to have a good case on the basis that the respondent was issued with a certificate of registration in respect of a location which was not open for prospecting and pegging, it is not for the court to make a case for the applicant. It is trite that an application stands or falls on its founding affidavit and the averments alleged HH 20-21 HC 7682/20 therein. See Fuyana v Moyo & Ors SC 54-06; Muchini v Adams & Ors SC 47-13 and Yunus Ahmed v Docking Station Safaris Private t/a CC Sales SC 70-18. This is because these are the facts the respondent is called upon to affirm or deny. See Herbestein & Van Winsen The Civil Practice of the Superior Courts in South Africa 3rd ed p80. In the result, it be and is hereby ordered that the application is dismissed with costs. Mhishi Nkomo Legal Practice, applicant’s legal practitioners Chiturumani, Zvavanoda, respondent’s legal practitioners