Mudiwa Mining Syndicate v San He Mining and Others

The applicant applied for a special grant for mining in 2017, which was still pending determination. The first to third respondents held Special Mining Grant No. 6850 and were conducting mining operations in that area where they had stockpiled chrome ore. A dispute arose when the applicant sought to block the respondents' access to their mining location. The Provincial Mining Director (PMD) for Mashonaland Central Province directed the police to ensure the respondents were not denied access to their registered mining location. The applicant then approached the court seeking spoliation relief, alleging it had been in peaceful and undisturbed possession of a reserved site (coded MSC001) and approximately 65,000 tonnes of chrome ore which the respondents had wrongfully removed on 6 August 2024. The respondents disputed this, claiming they only removed ore from their own Special Grant 6850 area, and that the applicant was illegally occupying their area. The court ordered an inspection in loco by the PMD, whose report revealed that: (1) San He's activities were within Special Grant 6850; (2) Mudiwa had only a pending application, not a grant; (3) Mudiwa's application overlapped with ZIMASCO's prior registered claims; (4) Mudiwa's mining activities and processing facilities were outside their application position; and (5) the alleged ore stockpile site within Mudiwa's application position showed no signs of ore having been stockpiled or loaded from it.

• Whether the applicant had established the requirements for a spoliation order
• Whether the applicant was in peaceful and undisturbed possession of the chrome ore in question
• Whether the respondents had unlawfully deprived the applicant of possession of the chrome ore

The application for spoliation was dismissed with costs.

In a spoliation application, the applicant bears the onus of proving on a balance of probabilities that: (1) they were in peaceful and undisturbed possession of the property in question, and (2) they were deprived of that possession forcibly or wrongfully. Where there are multiple mining sites in close proximity and the precise location from which ore was removed is disputed, the applicant must provide concrete evidence linking the removed material to their specific site. The mere presence of trucks removing ore from a general area is insufficient where the respondents have legitimate access rights to adjoining areas. Expert evidence from a Provincial Mining Director following an inspection in loco at which all parties are present is entitled to weight, and an applicant who participates in such inspection must take the opportunity to gather evidence to prove their case. A pending application for a special grant, or designation of a "reserved area," does not by itself establish peaceful and undisturbed possession for spoliation purposes.

The court commented that the differences between diagrams produced by the PMD and those allegedly in the Ministry's cadastral system did not affect the determination of who had peaceful possession. The court also observed that the relationship between the first respondent (San He Mining) and Caftanise Investments, while raised as an issue by the applicant, was not material to the determination as it had been clarified in the pleadings and did not impact the question of possession. The court further noted that applicant's criticism that the PMD assumed the court's role by making findings of fact was unfounded, as the conclusions were derived from records and observations made during the site visit with all parties present. The court stated that it had no reason to doubt the credibility of the PMD and his team.

This case illustrates the application of spoliation principles in Zimbabwean mining law, particularly in disputes between competing claimants where mining locations are in close proximity. It emphasizes the strict requirements for spoliation relief and the importance of proving actual peaceful and undisturbed possession with concrete evidence. The case demonstrates the court's reliance on technical expert evidence (the PMD's report and survey) in determining factual disputes about possession of mineral resources. It also highlights that the right to spoliation relief is independent of ownership rights - the court will not summarily restore possession unless the applicant first proves they were in peaceful possession, regardless of pending applications or reserved areas. The judgment underscores that where an applicant bears the onus of proof, they must take advantage of opportunities (such as inspections in loco) to gather documentary evidence to support their case on a balance of probabilities.