Dexter Tawona Nduna v Rio Zim Limited and Others

The applicant held two prospecting licences issued by Government on 25 January 2021. He claimed to be the holder of exclusive prospecting rights and in peaceful and undisturbed possession of mining claims at Danley Mine in Chakari, Kadoma. On 24 August 2021, he alleged that the first and third respondents despoiled him of the mining claims, and that the second respondent had commenced illegal mining activities on his claim. The police (third respondent) removed and arrested thirty-two persons for illegal mining at Brilliant 2 and 4 Mines belonging to the first and second respondents. These persons were charged with criminal trespass and remanded. The applicant did not mention these thirty-two miners in his founding papers but later referred to them as his workers during oral submissions. The prospecting licences produced by the applicant made no reference to any specific mining area or claims at Danley Mine.

• Whether a provisional/interim order can be granted in a spoliation application
• Whether the applicant established the requirements for mandament van spolie relief
• Whether the applicant had possession of mining claims from which he could be despoiled
• Whether prospecting licences confer the right to mine or occupy specific mining claims
• Whether the applicant's founding papers contained sufficient coherent evidence to support his case

The application was dismissed with costs.

1. A spoliation order cannot be granted as a provisional or interim order - spoliation relief is final in nature (following Blue Rangers Estate (Pvt) Ltd v Munduvuri & Anor 2009 (1) ZLR 368). 2. Prospecting licences do not confer rights to specific mining claims or mining locations - they only authorize the holder to prospect for minerals generally. 3. A prospecting licence is separate and distinct from a mining claim - the right to prospect is not synonymous with the right to mine. 4. To succeed in a mandament van spolie application, the applicant must demonstrate actual possession of the property from which he was allegedly despoiled - one cannot be despoiled of what one does not possess. 5. An application stands or falls on its founding papers, which must contain a coherent and consistent account of the facts.

The court made several non-binding observations: (1) Legal practitioners cannot alter or amend their clients' affidavits from the bar - the deponent must swear to the contents. (2) Statements made by counsel during oral submissions without being under oath do not constitute evidence and cannot supplement defective founding papers. (3) The court expressed strong disapproval of the applicant's conduct, suggesting he abused his prospecting licences by acting as a silent partner (partner en commandite) to facilitate illegal mining operations through intermediaries. The court characterized this as dishonourable conduct. (4) The court noted the dangers of allegations made by litigants who have not properly considered their statements, often resulting in incoherent and contradictory papers when analyzed. (5) The court observed that attempts to "panel-beat" or reshape a case during argument cannot rescue an application based on fundamentally defective founding papers.

This case clarifies important principles in Zimbabwean mining and procedural law: (1) it reaffirms that spoliation orders are final in nature and cannot be granted as provisional/interim relief; (2) it distinguishes between prospecting licences and mining claims/rights - prospecting licences do not confer rights to specific mining locations or the right to mine; (3) it emphasizes that mandament van spolie requires actual possession, and one cannot be despoiled of rights or property never possessed; (4) it demonstrates the court's intolerance for applications based on incoherent, contradictory founding papers that amount to fabricated cases; and (5) it serves as a warning against abuse of prospecting licences to facilitate illegal mining operations.