Exmin Syndicate v Luke Dube and Others

The applicant (Exmin Syndicate) holds mining claims known as Tigress, registration number 10098BM. The first respondent (Luke Dube) has been conducting mining operations on adjacent claims known as Lion West 25, registration number 9133BM, since 2005, extracting gold ore. In February 2022, a dispute arose between the parties over alleged encroachment. The applicant claimed it was lawfully handed possession by the Deputy Sheriff on 1 February 2022, but on 16 February 2022, the first respondent allegedly recruited 15-20 individuals who forcibly removed the applicant from the mining claims. The first respondent denied the spoliation, claiming he was operating from his own mining location under a court order (HC 190/22) that restored Lion West 25 to him. The parties were engaged in multiple concurrent litigations regarding the mining claims. The Provincial Mining Director (2nd respondent) found that the first respondent had encroached onto the applicant's claims, but advised the applicant to seek an interdict from the court as matters were pending. The first respondent held gold mining rights while the applicant held base mineral (nickel) rights, which were mutually exclusive.

• Whether the applicant used the correct procedure by filing spoliation proceedings while contempt of court proceedings were pending
• Whether there were material disputes of fact precluding determination on the papers
• Whether the draft order sought was competent, particularly paragraph 3 requiring the 2nd respondent to identify the mining location
• Whether the draft order was fatally defective in seeking to elevate base metal mining rights over exclusive gold mining rights
• Whether there was material non-disclosure of pending related matters
• Whether the matter was urgent
• Whether the applicant satisfied the requirements for spoliation: (a) peaceful and undisturbed possession, and (b) forcible or wrongful deprivation against consent

The application for spoliation was dismissed. The applicant was ordered to pay the costs of suit.

To succeed in spoliation proceedings, an applicant must prove by clear evidence (not merely prima facie): (a) that the applicant was in peaceful and undisturbed possession of the property, and (b) that the respondent deprived the applicant of possession forcibly or wrongfully against consent. A spoliation order is a final order requiring the same cogency of proof as a final interdict. Where paragraph of a draft order seeks to have a third party identify the "correct mining location" for purposes of executing the spoliation order, such paragraph is incompetent as it demonstrates that the mining claim to be restored is not easily ascertained and undermines the basis of spoliation (restoration to property that has been despoiled). Where a respondent is armed with an extant court order restoring the disputed property to the respondent, and has been in undisturbed possession for a substantial period under a valid certificate of registration, the applicant has not established a clear right to spoliation relief.

The court noted that while there may be nothing preventing parties from proceeding with contempt of court proceedings while simultaneously pursuing spoliation, this inundates the court with a multiplicity of actions and is not encouraged. The court observed that the applicant had filed contempt proceedings (HC 325/22) on 23 February 2022 but had not prosecuted that matter to conclusion, instead filing the spoliation application two weeks later on 14 March 2022, suggesting the urgent spoliation application was an afterthought. The court also noted in general terms that it is always entitled to make reference to its own records and proceedings and to take note of their contents, following Mhungu v Mtindi. The court observed that the competing mining rights of the parties (gold vs. base minerals) were mutually exclusive, but emphasized that the determination of those substantive rights was not before the court and it would not make any determination regarding those competing rights, as spoliation does not concern substantive rights but only restoration of possession.

This case is significant in Zimbabwean mining law as it clarifies the application of spoliation principles in the context of competing mining claims. It establishes that: (1) where boundaries of mining locations are not clearly established, an order for spoliation seeking identification of the "correct" location is incompetent; (2) spoliation orders require clear proof of possession and deprivation, not merely prima facie evidence, as they constitute final orders; (3) the existence of an extant court order in favor of the alleged spoliator militates against granting a spoliation order; (4) section 58 of the Mines & Minerals Act provides that mining locations registered for over two years cannot be challenged on grounds of invalid pegging or non-compliance with the Act; (5) the principle that spoliation does not concern substantive rights does not assist an applicant where the very fact of possession and deprivation is disputed and not clearly proven; and (6) mutually exclusive mining rights (gold vs. base minerals) create complexities that may prevent clear establishment of spoliation.