Yolanda Mututuma v Minister of Mines and Mining Development and Others

Yolanda Mututuma's husband, Jonah Shereni, passed away on 23 October 2021 following injuries sustained in a road traffic accident on 13 October 2021. An estate was registered under DR 1414/22 but no executor had yet been appointed. On 30 April 2022, the applicant was despoiled of her homestead and Rosa 10 mine (Registration No. 43086) in Glendale, Chiweshe by her late husband's relatives, led by Lawrence Shereni and Brian Gombera. The applicant obtained a spoliation order by consent under HC 2978/22 on 10 May 2022, restoring her to the property and allowing her to exercise control of the mine in consultation with Lawrence Shereni pending appointment of an executor. On 13 May 2022, barely three days later, gold panners (Mashurugwis) hired by the relatives violently took over the mine and homestead. The applicant reported the matter to the Zimbabwe Republic Police at ZRP Chombiro and wrote to the Minister of Mines and Mining Development on 16 May 2022, but received no effective response. The Police stated it was a civil matter and refused to enforce the court order.

• Whether the Minister of Mines and Mining Development should be compelled to issue a stoppage order to suspend illegal mining activities at the deceased estate property
• Whether the Commissioner General of Police was obligated to enforce such a stoppage order and maintain law and order at the mine
• Whether the applicant had established the requirements for an urgent chamber application seeking a mandamus
• Whether the applicant's failure to disclose other pending litigation constituted material non-disclosure showing mala fides
• Whether the applicant had a clear right to protection of the estate assets pending appointment of an executor

The court granted the provisional order with the following terms: (1) The second respondent's refusal or failure to act on the applicant's report of illegal mining activities was declared unlawful; (2) The first respondent was ordered to suspend all mining activities at Rosa 10 Mine (Registration No. 43086) until an executor was appointed; (3) The first respondent was ordered to assist the applicant to conduct mining activities orderly and in terms of the law; (4) Respondents were ordered to pay costs jointly and severally. As interim relief pending confirmation or discharge: (1) The first respondent was ordered to issue a stoppage order within 24 hours; (2) The second respondent was ordered to enforce the directive; (3) The applicant was ordered to provide security services once the ZRP had cleared illegal panners. Leave was granted to serve the respondents with the order.

A surviving spouse who has been restored to possession of deceased estate property by court order has a real right (not merely prima facie right) to protect those assets pending appointment of an executor. The Minister of Mines has a constitutional duty to issue stoppage orders to prevent illegal mining activities on deceased estate property when reported, and the Police have a corresponding duty to enforce such orders and maintain law and order. Failure or refusal by these state organs to act on such reports is unlawful. The non-disclosure of pending litigation involving different parties and seeking different reliefs does not constitute material non-disclosure demonstrating mala fides in an urgent application. In applications seeking a mandamus to compel state organs to perform prescribed duties, the applicant must establish a clear right, which can be satisfied by a previous court order granting possession and control.

The court observed that it would be 'absurd if any party opposes an order protecting the estate pending the appointment of an executor.' The court also noted that 'it is usually the norm with greedy relatives' that disputes arise over deceased estates. The court commented that the Police Officer-in-Charge was under a misapprehension in stating he could not enforce the court order but that the Master should, noting that 'the Master of High Court does not enforce Court orders, he administers estates.' The court implied criticism of the Police for characterizing illegal panners as the applicant's workers, suggesting the Police were 'compromised' or 'conniving with the people looting at the mine.' The court emphasized that the stoppage order would affect the applicant as well, demonstrating she was not seeking to prejudice other potential beneficiaries but merely to protect estate assets for proper administration.

This case is significant in Zimbabwean law for: (1) Clarifying the duties of state organs (Minister of Mines and Police) to protect deceased estate assets pending appointment of an executor; (2) Establishing that the Minister of Mines, not the Sheriff or Master, has authority to issue and enforce stoppage orders under the Mines and Minerals Act; (3) Recognizing the surviving spouse's right and duty to protect estate assets pending executor appointment; (4) Addressing the intersection of mining law, estate administration, and enforcement of court orders; (5) Demonstrating judicial willingness to grant mandamus orders compelling state organs to perform constitutional mandates; (6) Clarifying that non-disclosure of related litigation involving different parties and different reliefs does not necessarily constitute material non-disclosure or mala fides in urgent applications.