Tambanashe Enterprises Private Limited v Two Flags Private Limited and Provincial Mining Director Masvingo

Tambanashe Enterprises and Two Flags disputed rights to various mining claims collectively known as Lennox Mine in Mashava, Masvingo Province. The claims were originally registered to Reedbuck Investments, which went into liquidation. In 2003, Two Flags entered into an agreement of sale with Reedbuck's liquidator to purchase the mine. In 2006, the Ministry of Mines closed Lennox Mine due to alleged illegal operations by Knobthorn Investments and appointed Lamorna Investments as operator. Tambanashe claimed the claims were forfeited to the State during 2006-2007, re-pegged them, and obtained mining certificates in 2011. Two Flags obtained a declaratory order from the High Court in January 2016 (HC11857-15) confirming its rights to Lennox Mine and directing the Ministry of Mines to transfer the claims. In November 2016, a consent order (HC2901-16) was registered directing transfer to Two Flags. Transfer certificates were issued to Two Flags in January 2017. Two Flags then obtained an eviction order against Tambanashe in March 2017. After being evicted, Tambanashe obtained a restoration order from the Harare High Court, which Two Flags appealed. The parties appeared before a judge in chambers, and a disputed "consent order" was issued in April 2017. Six consolidated applications resulted from this dispute.

• Whether the court can grant a declaratory order that would nullify another declaratory order previously issued by a judge of parallel jurisdiction that remains extant
• Whether the mining claims constituting Lennox Mine were forfeited to the State and became subject to re-pegging
• Whether Tambanashe acquired legitimate title to the mining claims through re-pegging
• Whether section 58 or section 59 of the Mines and Minerals Act applies to the certificates issued to Two Flags
• Whether the consent order issued in MSV 102-17 was validly granted when the parties did not actually consent to its terms
• Whether the matter is res judicata given the previous declaratory orders in favor of Two Flags
• Whether a court can exercise parallel jurisdiction to set aside or vary an order made by a judge of coordinate jurisdiction

HC5409-17 (MSV81-17): The application for a declaratory order brought by Tambanashe dismissed with costs on a Legal Practitioner-Client scale. HC5410-17 (MSV121-17): Execution of court order HC5407-17 (MSV102-17) stayed with costs on a Legal Practitioner-Client scale. HC5408-17 (MSV117-17): (1) The consent order filed under MSV102-17 set aside with costs on a Legal Practitioner-Client scale; (2) The consent order declared to have no validity from the date of judgment by effluxion of time in accordance with its own stipulated period of validity.

A court of coordinate jurisdiction cannot grant a declaratory order that would have the effect of nullifying or setting aside a declaratory order previously issued by another judge of parallel jurisdiction while that order remains extant and has not been set aside on appeal or review. To do so would be an incompetent exercise of parallel jurisdiction. The proper remedy for a party aggrieved by a declaratory order to which it was not a party is to seek to set aside that order through appropriate procedures (rescission, appeal, or review), not to seek a competing declaratory order from the same court. A "consent order" that was not actually consented to by the parties is afflicted by a procedural irregularity constituting an error that justifies rescission under Rule 449 or the common law. The doctrine of res judicata applies to prevent re-litigation of matters already finally determined by a competent court. An application for declaratory relief regarding mining rights stands or falls on the founding affidavit, which must establish the chain of title and how the applicant acquired legitimate rights.

The court observed that the proliferation of litigation between the parties, with multiple applications and counter-applications filed in different registries (Harare and Masvingo), reflected undue acrimony and waste of judicial resources. Some interlocutory applications brought on an urgent basis were superfluous and unnecessary. The court commented that punitive costs orders on a legal practitioner-client scale are appropriate to discourage such conduct. The court noted that if Tambanashe had legitimate grievances about the registration of certificates in Two Flags' name, it should have objected during the 30-day notice period after publication in the government gazette as required by section 59 of the Mines and Minerals Act, or pursued remedies against the Ministry of Mines. The court observed that "the left hand cannot take away what the right hand has already awarded" - a vivid metaphor for the principle that one judge cannot undo what another judge of coordinate jurisdiction has decided. The court emphasized the importance of finality in litigation and the public interest in respecting the authority of judicial decisions even if erroneous, noting that corrections must come from courts of superior jurisdiction.

This case is significant in South African and Zimbabwean law for establishing important principles regarding: (1) The limits of parallel jurisdiction - a High Court judge cannot set aside, vary, or nullify orders made by another judge of coordinate jurisdiction; (2) The doctrine of res judicata and the principle that there must be finality in litigation; (3) The requirements for consent orders - a court cannot issue a "consent order" when parties have not actually consented to its terms; (4) The impropriety of seeking competing declaratory orders from the same court to circumvent existing judgments; (5) The application of sections 58 and 59 of the Mines and Minerals Act in mining title disputes; (6) The evidentiary burden in applications for declaratory orders regarding mining rights - applicants must establish the chain of title in founding papers. The judgment reinforces the integrity of judicial decisions and the principle that litigants dissatisfied with court orders must pursue proper appellate remedies rather than seek conflicting orders from courts of parallel jurisdiction. It also discourages the proliferation of unnecessary interlocutory applications through punitive costs orders.