Blackgate Investments (Private) Limited v Minister of Mines and Mining Development N.O and 3 Others (64 of 2025) [2025] ZWSC 64 (28 July 2025)

Judgment No SC 64/25 Civil Appeal No. SC 326/24 7 REPORTABLE (64) BLACKGATE INVESTMENTS (PRIVATE) LIMITED v (1) MINISTER OF MINES AND MINING DEVELOPMENT N.O (2) THE MINING COMMISSIONER MASHONALAND CENTRAL PROVINCE N.O (3) RAN MINE (PRIVATE) LIMITED (4) G & P INDUSTRIES (PRIVATE) LIMITED SUPREME COURT OF ZIMBABWE UCHENA JA, MAKONI JA & MUSAKWA JA HARARE: 24 JANUARY 2025 & 28 JULY 2025 C Damiso, for the appellant P. Chibanda, for the first and second respondents D. Tivadar, for the third and fourth respondent UCHENA JA: [1] This is an appeal against the whole judgment of the High Court (court a quo) dated 17 May 2024 wherein it dismissed the appellant’s application to compel the first and second respondents to do the following: “3. To carry out a survey of the disputed mining locations, being applicant’s Kimberly 18 registration number 37375 BM, Kimberly 19 under registration number 37353, Kimberly 20 under registration number 37354, Kimberly 21 under registration number 37355 and fourth respondent’s Kimberly 18, under registration number 21288 within 30 days of the granting of this order. 4. To produce a survey diagram indicating the locations beacons and boundaries of the disputed claims and the physical positions of the applicant and the third and fourth respondents on the surface within seven days of carrying out a survey in terms of order 3 above”. FACTUAL BACKGROUND [2] The first respondent is the Minister of Mines and Mining Development, (the Minister) cited in his official capacity. The second respondent is the Mining Commissioner of Mashonaland Central Province, (the Commissioner) also cited in his official capacity. The appellant, Blackgate Investments (Pvt) Ltd (Blackgate), the third respondent, Ran Mine (Pvt) Ltd (Ran Mine) and the fourth respondent G & P Industries (Pvt) Ltd (G & P Industries), are companies duly registered in terms of the laws of Zimbabwe. Blackgate, Ran Mine and G & P Industries have since 2009, had a long-standing dispute over their adjacent mining claims. The dispute in this case, is in relation to Blackgate, Ran Mine and G & P Industries’ mining claims known as Kimberly 18, 19, 20 and 21 situated in the district of Bindura (hereinafter referred to as “the mining claims.”). The facts of this case can be summarised as follows: [3] Ran Mine and G & P Industries claimed that Blackgate had over-pegged and encroached onto their mining claims known as Kimberly 18. 19, 20 and 21. It is common cause that the Commissioner registered Blackgate’s, Ran Mine’s and G & P Industries’ claims as Kimberly 18. This contributed to the confusion leading to this litigation. On 11 November 2009, Ran Mine and G & P Industries filed a complaint of over pegging against Blackgate to the Commissioner. [4] Following the complaint, the Commissioner compiled a report, in which he recommended that Blackgate be allowed to resuscitate the old RAN Mine. Further, that the claims held by Ran Mine and G & P Industries be cancelled because of their failure to comply with the provisions of ss 382 and 383 of the Mines & Minerals Act [Chapter 21:05] (the Act). [5] On 12 February 2010, after the recommendations, Ran Mine and G & P Industries appealed against the intended cancellation of their claims to the Minister. They submitted that cancellation of their mining claims was against the law, as the failure to abide by s 382 of the Act only attracted a fine not exceeding level five or imprisonment for a period of not exceeding six months. [6] Seized with the appeal, the Minister, sought the Attorney General’s opinion on whether or not Ran Mine and G & P Industries’ mining claims could be cancelled. The Attorney General concluded that the Mining Commissioner’s report did not provide sufficient grounds backed by statute to justify the recommendation to the Minister to cancel Ran Mine and G & P Industries’ certificates of registration of their mining claims. The Attorney General opined that it was not legally correct to cancel Ran Mine and G & P Industries’ mining claims. In compliance with the Attorney General’s advice the Minister did not cancel Ran Mine and G & P Industries’ certificates of registration. [7] Aggrieved by the Minister’s decision, Blackgate filed an application for review in the High Court under case number HC7376/10. The application was dismissed. Blackgate appealed to this Court under SC 236/11. On 28 January 2013, this Court upheld the appeal and remitted the case to the Minister for a hearing and determination of the question whether or not Ran Mine and G & P industries’ claims in dispute had been forfeited at the time; Blackgate’s claims were registered. [8] The Minister constituted a Dispute Resolution Committee (“the committee”), to resolve the dispute in terms of the Supreme Court’s order in SC 236/11. On 24 November 2020, the committee went to Bindura to conduct beacon verifications, and checks on various documents held by the Commissioner’s office, in order to resolve the disputes between the parties as had been ordered by the Supreme Court. However, the committee could not conduct the verifications and inspections on that day, because Ran Mine had not produced geological maps and inspection certificates. A second inspection was convened on 5 May 2021, with the consent of all parties. After the inspections and verifications of 5 May 2021, the following findings relevant to these proceedings were made: “Blackgate’s mining claim, Kimberly 18, which was pegged as Copper Base block, over pegs Ran Mine’s claim also known as Kimberly 18. (Reg. No. 4957).According to records at the Ministry, there was no information showing that Ran Mine’s Kimberly 18 was ever forfeited. The purported re-pegging of Ran Mine’s Kimberly 18, was not even within the area that was pegged by Blackgate. That Kimberly 18 belonged to Ran Mine.Upon inspection of Ministry’s records forfeiture, No. 10 of 1997 established that Kimberly 18 of Ran Mine had been forfeited on 19 November 1997, however the same records also indicate that a revocation of the forfeiture was made by Ran Mine on 18 November 1997.” [9] The report did not, as had been ordered by this Court, include survey maps and diagrams indicating the parties’ mining locations of their respective Kimberly 18. It further held that although both Blackgate and Ran Mine had mining claims labelled Kimberly 18, these were in different locations. As indicated in para (e) of the findings of the Committee it is illogical to find that a revocation of a forfeiture dated 19 November 1997 was revoked on 18 November 1997, a day before the forfeiture. The findings of the Committee were therefore not capable of resolving the disputes between the parties. [10] Thereafter the Minister made a finding that the ground on which Blackgate pegged its Kimberly 18 was not open for prospecting and pegging in terms of s 31 of the Act. He further made a finding that Kimberly 18, belonged to Ran Mine and G & P Industries. In light of these findings, the Minister held that the certificates issued to Blackgate were issued in error. He consequently, cancelled Blackgate’s certificate of registration in respect of Kimberly 18. [11] Aggrieved by the decision of the Minister, Blackgate applied for review in the High Court (court a quo). It sought the review of the cancellation of its registration certificates. It alleged that the mining claims were lawfully issued to it. Blackgate further; sought the review of how the Minister arrived at his decision and whether he complied with the order of the Supreme Court in SC 236/11. The court a quo held that Blackgate ought to have appealed against the decision of the Minister, instead of applying for its review. It therefore dismissed the application for a review of the Minister’s decision. [12] After the dismissal of its review application Blackgate applied for a compelling order in the court a quo. It sought to compel the Minister and the Commissioner to conduct a survey of the mining claims and produce survey diagrams indicating the respective coordinates of the said mining claims and their actual locations. Blackgate also sought an order directing the Minister to reinstate its rights, title, and interest in its Kimberly 18. [13] Ran Mine and G & P Industries opposed the application. They raised two preliminary points to the effect that the appellant’s claim did not raise any cause of action and that the issues between the parties were res judicata. In respect of the first point in limine, Ran Mine and G & P Industries submitted that although Blackgate was seeking a mandamus, it did not satisfy the requirements of such a remedy. In relation to the second point, in limine Ran Mine and G & P Industries submitted that there was an extant order which related to the same parties, regarding the same issues, which was not appealed against, hence the matter was res judicata. [14] On the merits, Ran Mine and G & P Industries submitted that there was no legal basis for the appellant to seek an order compelling the first and second respondents to conduct a survey at the mining claims as this had already been done. They further submitted that the reinstatement of Blackgate’s rights, title, and interest in their Kimberly 18 claim was contrary to the provisions of s 177 (3) of the Act. They prayed that the application be dismissed with costs on the legal practitioner and client scale. [15] The court a quo made a finding that the answering affidavit was improperly before it, as it was filed without the leave of the court. The answering affidavit was therefore expunged from the record. In respect of the issue that the matter was res judicata, the court held that the judgment issued by Katiyo J was not final and definitive. It held that the judgment was founded on adjectival law, which regulated how the court should have been approached for the determination of the merits of the matter. On that basis, the preliminary issue relating to the issue of res judicata was dismissed. [16] In respect of the point in limine, relating to the cause of action, the court a quo held that Blackgate had indeed canvassed the requirements of a mandamus, though not in a clear way. The preliminary issue was dismissed on that basis. Regarding the issue of the compliance of the Committee’s report with the order of this Court in SC 236/11, the court held that it was not the duty of the court to direct an administrative authority on the nitty-gritties of the reports, maps and diagrams to be produced from the survey. It held that the survey had been duly conducted for its intended purposes. The court further held that s 177 (8) of the Act sought to be relied on by Blackgate related to a sketch plan or survey lodged with the mining Commissioner by the holder of a mining location, and it was not directly relevant to the determination of the application before it. The court held that the presence of coordinates in the committee’s report is proof that a survey was done. It further held that the survey was done to establish the question whether or not the claims in dispute had been forfeited at the time Blackgate registered its Kimberly 18 claim. In addition, the court held that the data produced by the survey was sufficient to enable the Minister to make the decision in respect of the Supreme Court’s order. In conclusion, the court a quo dismissed Blackgate’s application for a compelling order. [17] In relation to costs, the court held that the further filing of the application when the issues had been dealt with on countless times was an abuse of court process. The court a quo also held that the application be dismissed as it should never have been enrolled. Further, the court awarded costs on a higher scale for the reason that Blackgate was abusing court process. Aggrieved by the judgment of the court a quo Blackgate appealed to this Court on the following grounds:- GROUNDS OF APPEAL The court a quo erred at law in dismissing the application before it on the basis of the disputed conclusion of the Dispute Resolution Committee; namely that Kimberly 18 of Blackgate was pegged as a copper base block over pegs Ran Mine’s Reg No 4957, Kimberly A Reg No M1165, Kimberly DBIE Reg N M1168, Kimberly IE No M1167, Kimberly D Reg No. 10400 of RAN Mine, notwithstanding that the certificates and paperwork in respect of these claims were not before it and, in any case, had been forfeited under forfeiture notice 16 of 1999 and forfeiture notice 5 and 10 of 1997.The court a quo grossly misdirected itself on facts, to an extent that such misdirection amounted to a point of law, in concluding that the appellant had gone beyond the allowed limits in the process of pegging its claims notwithstanding that there was no basis for such a conclusion and, in any case, the supposedly affected mining claims were forfeited in 1999 under forfeiture notice 16 of 1999 and forfeiture notice 5 and 10 of 1997.The court a quo grossly misdirected itself on facts by, as it can be taken to have done, ignoring the immutable position that the Dispute Resolution Committee’s decision was based on an incomplete survey that did not map all the coordinates to show a complete mine.The court a quo erred at law in holding that the sketch plan or survey map was not relevant in determining the dispute between the parties notwithstanding that s 177 (8) of the Mines and Minerals Act specifically requires that a sketch plan be produced in settling a mining dispute.The court a quo erred in finding that the data produced was sufficient to satisfy the requirements of s 177 (8) of the Mines and Minerals Act in the absence of a survey map and diagram when the peremptory language of the provision required that such a survey or sketch plan be lodged with the Mining Commissioner in the determination of the original position of the disputed claims.The court a quo erred in holding that the applicant was abusing the court’s process when the law affords a party a remedy for an infringement of the right pursuant to the ubi jus ibi remedium, principle that operates to obligate a superior court to fashion an appropriate remedy and consequently erred when it awarded costs on a higher scale. RELIEF SOUGHT WHEREFORE the appellant prays for the following relief: The appeal is allowed with costs.The judgment of the High Court be set aside.Consequently, having exercised this court’s powers in terms of s 22 (1) (b) (ix) and 22 (1) (c) of the Supreme Court Act [Chapter 7:23], judgment a quo is substituted with the following: “(a). In the result the decision under HC 7617/23 be and is hereby set aside and substituted with the following: ‘The application for a compelling order in HC 7617/23 is granted with costs.” (Emphasis added) SUBMISSIONS ON APPEAL On the preliminary Issue. [18] Mr Tivadar, counsel for Ran Mine and G & P Industries submitted that the relief sought by the appellant which referred to the compelling order in HC7617/23, was not exact and rendered the notice of appeal fatally defective and the appeal a nullity. He further submitted that the matter should be struck off the roll. [19] In response, Ms Damiso, counsel for Blackgate conceded that the prayer could have been couched differently, but argued that the relief sought was exact as the exact order sought could be ascertained by reference to the order sought in HC7617/23. (b) On the Merits. [20] Ms Damiso, submitted that counsel for the Minister and Commissioner; was barred and did not have the right of audience before the Court. Mr Chibanda, counsel for the Minister and the Commissioner conceded and indicated that his clients would abide by the decision of the court. [21] On the merits, counsel for Blackgate submitted that the dispute arose from the findings by the Dispute Resolution Committee, which was set up to implement the order of the Supreme Court in case number SC 236/11. She submitted that the Committee was ordered to establish whether or not the claims in dispute had been forfeited and whether there was over pegging into each other’s claims and indicate through diagrams and maps the positions of the parties’ claims. Counsel further submitted that there was no clarity regarding the status of the claims, hence the need for survey maps and diagrams, to place beyond dispute the positions of the claims. Ms Damiso clarified that the dispute was over Kimberly 18, and did not relate to Kimberly 19-21. [22] In addition, counsel submitted that the dispute was in relation to where the boundary of each claim lay. She made the submission that the dispute could have been resolved by the production of survey maps and diagrams. Ms Damiso argued the parties disagreed on the respective locations of Blackgate’s Kimberly 18 and Ran Mine and G & P Industries’ Kimberly 18 were in different locations. It was Blackgate’s argument that it pegged on Ran Mine’s forfeited mining claims. On the issue of costs, Ms Damiso submitted that there was no basis for awarding costs on a higher scale as there was no abuse of court process. [23] Per contra, Mr Tivadar, submitted that the claim verification was conducted in the presence of all parties. On that basis, he argued that there was no need for the maps and diagrams as the verification produced the required results. In addition, Mr Tivadar submitted that Blackgate’s Kimberly 18 used to overlap Ran Mine, and G & P Industries’ other claims. Counsel further submitted that the ministerial decision was taken on review in 2021, which culminated in a judgment by Katiyo J, which is still extant, and was not appealed against. Counsel further, submitted that the application for a compelling order a quo was disguised as a review, an act which amounts to abuse of court process. ISSUES FOR DETERMINATION [24] The following issues arise for determination in this appeal. Whether or not the relief sought is exact.Whether or not the court a quo grossly misdirected itself in concluding that the appellant exceeded pegging limits without evidence and in the context of claims that were forfeited.Whether or not the court a quo erred in failing to recognize that the Dispute Resolution Committee did not comply with the Supreme Court’s order. APPLICATION OF THE LAW TO THE FACTS Whether or not the relief sought is exact. [25] Mr Tivadar, counsel for Ran Mine and G & P Industries submitted that the relief sought by the appellant was not exact as required by r 37 (1) (e) of the Supreme Court Rules, 2018 (the rules). He argued that the relief sought not being exact rendered the notice of appeal fatally defective and the appeal a nullity. Rule 37 (l) (a) to (f) of the rules provides as follows: (1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his or her legal practitioner which shall state: “(a) The date on which, and the court by which, the judgment appealed against was given; (b) If leave to appeal or condonation and extension of time to appeal was granted, the date of such grant; (c) Whether the whole or part only, and if so which part, of the judgment is appeal against; (d) The grounds of appeal in accordance with the provisions of r 44. (e) The exact relief sought; (f) The address for service of the appellant or his or her legal practitioner.” (Emphasis added). [26] The ordinary grammatical meaning of r 37 (1) (a) to (f) means a Notice of Appeal can only be compliant if it is in the form of a Notice of Appeal signed by the appellant or his/her legal practitioner and if it states the requirements stated in paras (a) to (f) of the rule. In respect to r 37 (1) (e) the Notice of Appeal should state the exact relief sought. It cannot be stated by reference to the contents of another document other than the notice of appeal itself. What should be stated is what paras (a) to (f) say should be stated in the notice of appeal itself not some other document. [27] During the hearing counsel for the parties confirmed to the court that the issue in this case was failure to state the exact relief sought in the notice of appeal and not the competence of the relief sought. It became common cause that the dispute was over whether or not the relief sought can be stated through reference to some other document. [28] In the case of Sobuza Gula Ndebele v Chinembiri Energy Bhunu SC 34/10 this Court at pp 4 to 5 of the cyclostyled judgment said: “The Rule requires simply that the exact nature of the relief sought be stated in the notice of appeal. Thus, in so far as the prayer is for the appeal to be allowed and the application to be dismissed with costs, there is prima facie compliance with the Rule. However, it was submitted on behalf of the respondent that the relief sought must be one which the Court can grant and that a prayer which the court cannot competently grant renders the notice of appeal null and void. I do not agree. In my view, once the prayer clearly sets out the nature of the relief sought, as it does in this case, r 29 (1) (e) has been complied with. This being so, the court can and may amend the notice of appeal upon application being made before the hearing subject to the rules governing applications of this nature.” (Emphasis added} [29] This Court in Sobuza Gula Ndebele (supra) clearly stated that the exact nature of the relief sought should be stated in the notice of appeal and that once that is done r 29 (1) (e) now r 37 (1) ( e) is complied with. This means if the exact nature of the relief sought is not stated in the notice of appeal the rule will not have been complied with. [30] Similarly, in the case of Ndlovu & Anor v Ndlovu & Anor SC 133/02 at p 2 of the judgment, Malaba JA (as he then was) stated that: “In this case there was no mention of whether the whole or part only of the judgment was being appealed against. The exact nature of the relief sought was not stated. What was prayed for in the notice of appeal was that the judgment of the court a quo be dismissed with costs. It is the appeal which is dismissed or allowed. If the appeal is allowed the judgment or decision appealed against is then set aside and a new order substituted in its place. In this case it was not known what order the appellants wanted this Court to make in the event the appeal succeeded.” (Emphasis added) [31] Rule 37 (1) is couched in peremptory or mandatory terms. In Zimbabwe Newspapers (1980) Limited v Tembani Kufa SC 137/21 at p 7, this Court stated that: “It has been stated repeatedly by the courts that a failure to comply with the mandatory provisions of the rules when lodging an appeal renders the appeal a nullity. See Matanhire v BP Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S). Generally, where a notice of appeal does not comply with the rules, the matter ought to be struck off the roll. This is because a nullity cannot be amended. See Chikura N.O & Anor v Al Shams Global BVI Ltd SC 40/17. The belated application for an amendment is meant to bring the appeal within the remit of r 37 (1) which requires that every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his or her legal practitioner which shall state inter alia “the exact relief sought.” (Emphasis added) [32] Accordingly the court finds that the relief sought is not exact, rendering the notice of appeal fatally defective and the appeal a nullity. Ms Damiso, counsel for Blackgate during submissions conceded that the relief sought in the notice of appeal is not exact if it cannot be referred to by reference to the order in another document. Therefore, the matter must be struck off the roll for failure to comply with the mandatory provisions of r 37 (1) (e) of the Supreme Court Rules, 2018. [33] In view of the court’s findings on the preliminary issue there is no need to determine the matter on the merits as it is a nullity. [34] There is no reason why costs should not follow the result. The court is however of the view that costs should be on the ordinary scale as the Minister and the Commissioner have for several years failed to comply with the Supreme Court’s order in SC 236/11 resulting in the parties having to make other applications to resolve the disputes between them . [35] It is therefore ordered that: “The matter be and is hereby struck off the roll with costs.” MAKONI JA : I agree MUSAKWA JA : I agree Lawman Law Chambers, appellant’s legal practitioners Civil Division of the Attorney General, 1st and 2nd respondents’ Legal Practitioners Atherstone & Cook, 3rd and 4th respondents’ Legal Practitioners Judgment No SC 64/25 Civil Appeal No. SC 326/24 7 Judgment No SC 64/25 Civil Appeal No. SC 326/24 7 Judgment No SC 64/25 Civil Appeal No. SC 326/24 7 REPORTABLE (64) BLACKGATE INVESTMENTS (PRIVATE) LIMITED v (1) MINISTER OF MINES AND MINING DEVELOPMENT N.O (2) THE MINING COMMISSIONER MASHONALAND CENTRAL PROVINCE N.O (3) RAN MINE (PRIVATE) LIMITED (4) G & P INDUSTRIES (PRIVATE) LIMITED SUPREME COURT OF ZIMBABWE UCHENA JA, MAKONI JA & MUSAKWA JA HARARE: 24 JANUARY 2025 & 28 JULY 2025 C Damiso, for the appellant P. Chibanda, for the first and second respondents D. Tivadar, for the third and fourth respondent UCHENA JA: [1] This is an appeal against the whole judgment of the High Court (court a quo) dated 17 May 2024 wherein it dismissed the appellant’s application to compel the first and second respondents to do the following: “3. To carry out a survey of the disputed mining locations, being applicant’s Kimberly 18 registration number 37375 BM, Kimberly 19 under registration number 37353, Kimberly 20 under registration number 37354, Kimberly 21 under registration number 37355 and fourth respondent’s Kimberly 18, under registration number 21288 within 30 days of the granting of this order. 4. To produce a survey diagram indicating the locations beacons and boundaries of the disputed claims and the physical positions of the applicant and the third and fourth respondents on the surface within seven days of carrying out a survey in terms of order 3 above”. FACTUAL BACKGROUND [2] The first respondent is the Minister of Mines and Mining Development, (the Minister) cited in his official capacity. The second respondent is the Mining Commissioner of Mashonaland Central Province, (the Commissioner) also cited in his official capacity. The appellant, Blackgate Investments (Pvt) Ltd (Blackgate), the third respondent, Ran Mine (Pvt) Ltd (Ran Mine) and the fourth respondent G & P Industries (Pvt) Ltd (G & P Industries), are companies duly registered in terms of the laws of Zimbabwe. Blackgate, Ran Mine and G & P Industries have since 2009, had a long-standing dispute over their adjacent mining claims. The dispute in this case, is in relation to Blackgate, Ran Mine and G & P Industries’ mining claims known as Kimberly 18, 19, 20 and 21 situated in the district of Bindura (hereinafter referred to as “the mining claims.”). The facts of this case can be summarised as follows: [3] Ran Mine and G & P Industries claimed that Blackgate had over-pegged and encroached onto their mining claims known as Kimberly 18. 19, 20 and 21. It is common cause that the Commissioner registered Blackgate’s, Ran Mine’s and G & P Industries’ claims as Kimberly 18. This contributed to the confusion leading to this litigation. On 11 November 2009, Ran Mine and G & P Industries filed a complaint of over pegging against Blackgate to the Commissioner. [4] Following the complaint, the Commissioner compiled a report, in which he recommended that Blackgate be allowed to resuscitate the old RAN Mine. Further, that the claims held by Ran Mine and G & P Industries be cancelled because of their failure to comply with the provisions of ss 382 and 383 of the Mines & Minerals Act [Chapter 21:05] (the Act). [5] On 12 February 2010, after the recommendations, Ran Mine and G & P Industries appealed against the intended cancellation of their claims to the Minister. They submitted that cancellation of their mining claims was against the law, as the failure to abide by s 382 of the Act only attracted a fine not exceeding level five or imprisonment for a period of not exceeding six months. [6] Seized with the appeal, the Minister, sought the Attorney General’s opinion on whether or not Ran Mine and G & P Industries’ mining claims could be cancelled. The Attorney General concluded that the Mining Commissioner’s report did not provide sufficient grounds backed by statute to justify the recommendation to the Minister to cancel Ran Mine and G & P Industries’ certificates of registration of their mining claims. The Attorney General opined that it was not legally correct to cancel Ran Mine and G & P Industries’ mining claims. In compliance with the Attorney General’s advice the Minister did not cancel Ran Mine and G & P Industries’ certificates of registration. [7] Aggrieved by the Minister’s decision, Blackgate filed an application for review in the High Court under case number HC7376/10. The application was dismissed. Blackgate appealed to this Court under SC 236/11. On 28 January 2013, this Court upheld the appeal and remitted the case to the Minister for a hearing and determination of the question whether or not Ran Mine and G & P industries’ claims in dispute had been forfeited at the time; Blackgate’s claims were registered. [8] The Minister constituted a Dispute Resolution Committee (“the committee”), to resolve the dispute in terms of the Supreme Court’s order in SC 236/11. On 24 November 2020, the committee went to Bindura to conduct beacon verifications, and checks on various documents held by the Commissioner’s office, in order to resolve the disputes between the parties as had been ordered by the Supreme Court. However, the committee could not conduct the verifications and inspections on that day, because Ran Mine had not produced geological maps and inspection certificates. A second inspection was convened on 5 May 2021, with the consent of all parties. After the inspections and verifications of 5 May 2021, the following findings relevant to these proceedings were made: “Blackgate’s mining claim, Kimberly 18, which was pegged as Copper Base block, over pegs Ran Mine’s claim also known as Kimberly 18. (Reg. No. 4957). According to records at the Ministry, there was no information showing that Ran Mine’s Kimberly 18 was ever forfeited. The purported re-pegging of Ran Mine’s Kimberly 18, was not even within the area that was pegged by Blackgate. That Kimberly 18 belonged to Ran Mine. Upon inspection of Ministry’s records forfeiture, No. 10 of 1997 established that Kimberly 18 of Ran Mine had been forfeited on 19 November 1997, however the same records also indicate that a revocation of the forfeiture was made by Ran Mine on 18 November 1997.” [9] The report did not, as had been ordered by this Court, include survey maps and diagrams indicating the parties’ mining locations of their respective Kimberly 18. It further held that although both Blackgate and Ran Mine had mining claims labelled Kimberly 18, these were in different locations. As indicated in para (e) of the findings of the Committee it is illogical to find that a revocation of a forfeiture dated 19 November 1997 was revoked on 18 November 1997, a day before the forfeiture. The findings of the Committee were therefore not capable of resolving the disputes between the parties. [10] Thereafter the Minister made a finding that the ground on which Blackgate pegged its Kimberly 18 was not open for prospecting and pegging in terms of s 31 of the Act. He further made a finding that Kimberly 18, belonged to Ran Mine and G & P Industries. In light of these findings, the Minister held that the certificates issued to Blackgate were issued in error. He consequently, cancelled Blackgate’s certificate of registration in respect of Kimberly 18. [11] Aggrieved by the decision of the Minister, Blackgate applied for review in the High Court (court a quo). It sought the review of the cancellation of its registration certificates. It alleged that the mining claims were lawfully issued to it. Blackgate further; sought the review of how the Minister arrived at his decision and whether he complied with the order of the Supreme Court in SC 236/11. The court a quo held that Blackgate ought to have appealed against the decision of the Minister, instead of applying for its review. It therefore dismissed the application for a review of the Minister’s decision. [12] After the dismissal of its review application Blackgate applied for a compelling order in the court a quo. It sought to compel the Minister and the Commissioner to conduct a survey of the mining claims and produce survey diagrams indicating the respective coordinates of the said mining claims and their actual locations. Blackgate also sought an order directing the Minister to reinstate its rights, title, and interest in its Kimberly 18. [13] Ran Mine and G & P Industries opposed the application. They raised two preliminary points to the effect that the appellant’s claim did not raise any cause of action and that the issues between the parties were res judicata. In respect of the first point in limine, Ran Mine and G & P Industries submitted that although Blackgate was seeking a mandamus, it did not satisfy the requirements of such a remedy. In relation to the second point, in limine Ran Mine and G & P Industries submitted that there was an extant order which related to the same parties, regarding the same issues, which was not appealed against, hence the matter was res judicata. [14] On the merits, Ran Mine and G & P Industries submitted that there was no legal basis for the appellant to seek an order compelling the first and second respondents to conduct a survey at the mining claims as this had already been done. They further submitted that the reinstatement of Blackgate’s rights, title, and interest in their Kimberly 18 claim was contrary to the provisions of s 177 (3) of the Act. They prayed that the application be dismissed with costs on the legal practitioner and client scale. [15] The court a quo made a finding that the answering affidavit was improperly before it, as it was filed without the leave of the court. The answering affidavit was therefore expunged from the record. In respect of the issue that the matter was res judicata, the court held that the judgment issued by Katiyo J was not final and definitive. It held that the judgment was founded on adjectival law, which regulated how the court should have been approached for the determination of the merits of the matter. On that basis, the preliminary issue relating to the issue of res judicata was dismissed. [16] In respect of the point in limine, relating to the cause of action, the court a quo held that Blackgate had indeed canvassed the requirements of a mandamus, though not in a clear way. The preliminary issue was dismissed on that basis. Regarding the issue of the compliance of the Committee’s report with the order of this Court in SC 236/11, the court held that it was not the duty of the court to direct an administrative authority on the nitty-gritties of the reports, maps and diagrams to be produced from the survey. It held that the survey had been duly conducted for its intended purposes. The court further held that s 177 (8) of the Act sought to be relied on by Blackgate related to a sketch plan or survey lodged with the mining Commissioner by the holder of a mining location, and it was not directly relevant to the determination of the application before it. The court held that the presence of coordinates in the committee’s report is proof that a survey was done. It further held that the survey was done to establish the question whether or not the claims in dispute had been forfeited at the time Blackgate registered its Kimberly 18 claim. In addition, the court held that the data produced by the survey was sufficient to enable the Minister to make the decision in respect of the Supreme Court’s order. In conclusion, the court a quo dismissed Blackgate’s application for a compelling order. [17] In relation to costs, the court held that the further filing of the application when the issues had been dealt with on countless times was an abuse of court process. The court a quo also held that the application be dismissed as it should never have been enrolled. Further, the court awarded costs on a higher scale for the reason that Blackgate was abusing court process. Aggrieved by the judgment of the court a quo Blackgate appealed to this Court on the following grounds:- GROUNDS OF APPEAL The court a quo erred at law in dismissing the application before it on the basis of the disputed conclusion of the Dispute Resolution Committee; namely that Kimberly 18 of Blackgate was pegged as a copper base block over pegs Ran Mine’s Reg No 4957, Kimberly A Reg No M1165, Kimberly DBIE Reg N M1168, Kimberly IE No M1167, Kimberly D Reg No. 10400 of RAN Mine, notwithstanding that the certificates and paperwork in respect of these claims were not before it and, in any case, had been forfeited under forfeiture notice 16 of 1999 and forfeiture notice 5 and 10 of 1997. The court a quo grossly misdirected itself on facts, to an extent that such misdirection amounted to a point of law, in concluding that the appellant had gone beyond the allowed limits in the process of pegging its claims notwithstanding that there was no basis for such a conclusion and, in any case, the supposedly affected mining claims were forfeited in 1999 under forfeiture notice 16 of 1999 and forfeiture notice 5 and 10 of 1997. The court a quo grossly misdirected itself on facts by, as it can be taken to have done, ignoring the immutable position that the Dispute Resolution Committee’s decision was based on an incomplete survey that did not map all the coordinates to show a complete mine. The court a quo erred at law in holding that the sketch plan or survey map was not relevant in determining the dispute between the parties notwithstanding that s 177 (8) of the Mines and Minerals Act specifically requires that a sketch plan be produced in settling a mining dispute. The court a quo erred in finding that the data produced was sufficient to satisfy the requirements of s 177 (8) of the Mines and Minerals Act in the absence of a survey map and diagram when the peremptory language of the provision required that such a survey or sketch plan be lodged with the Mining Commissioner in the determination of the original position of the disputed claims. The court a quo erred in holding that the applicant was abusing the court’s process when the law affords a party a remedy for an infringement of the right pursuant to the ubi jus ibi remedium, principle that operates to obligate a superior court to fashion an appropriate remedy and consequently erred when it awarded costs on a higher scale. RELIEF SOUGHT WHEREFORE the appellant prays for the following relief: The appeal is allowed with costs. The judgment of the High Court be set aside. Consequently, having exercised this court’s powers in terms of s 22 (1) (b) (ix) and 22 (1) (c) of the Supreme Court Act [Chapter 7:23], judgment a quo is substituted with the following: “(a). In the result the decision under HC 7617/23 be and is hereby set aside and substituted with the following: ‘The application for a compelling order in HC 7617/23 is granted with costs.” (Emphasis added) SUBMISSIONS ON APPEAL On the preliminary Issue. [18] Mr Tivadar, counsel for Ran Mine and G & P Industries submitted that the relief sought by the appellant which referred to the compelling order in HC7617/23, was not exact and rendered the notice of appeal fatally defective and the appeal a nullity. He further submitted that the matter should be struck off the roll. [19] In response, Ms Damiso, counsel for Blackgate conceded that the prayer could have been couched differently, but argued that the relief sought was exact as the exact order sought could be ascertained by reference to the order sought in HC7617/23. (b) On the Merits. [20] Ms Damiso, submitted that counsel for the Minister and Commissioner; was barred and did not have the right of audience before the Court. Mr Chibanda, counsel for the Minister and the Commissioner conceded and indicated that his clients would abide by the decision of the court. [21] On the merits, counsel for Blackgate submitted that the dispute arose from the findings by the Dispute Resolution Committee, which was set up to implement the order of the Supreme Court in case number SC 236/11. She submitted that the Committee was ordered to establish whether or not the claims in dispute had been forfeited and whether there was over pegging into each other’s claims and indicate through diagrams and maps the positions of the parties’ claims. Counsel further submitted that there was no clarity regarding the status of the claims, hence the need for survey maps and diagrams, to place beyond dispute the positions of the claims. Ms Damiso clarified that the dispute was over Kimberly 18, and did not relate to Kimberly 19-21. [22] In addition, counsel submitted that the dispute was in relation to where the boundary of each claim lay. She made the submission that the dispute could have been resolved by the production of survey maps and diagrams. Ms Damiso argued the parties disagreed on the respective locations of Blackgate’s Kimberly 18 and Ran Mine and G & P Industries’ Kimberly 18 were in different locations. It was Blackgate’s argument that it pegged on Ran Mine’s forfeited mining claims. On the issue of costs, Ms Damiso submitted that there was no basis for awarding costs on a higher scale as there was no abuse of court process. [23] Per contra, Mr Tivadar, submitted that the claim verification was conducted in the presence of all parties. On that basis, he argued that there was no need for the maps and diagrams as the verification produced the required results. In addition, Mr Tivadar submitted that Blackgate’s Kimberly 18 used to overlap Ran Mine, and G & P Industries’ other claims. Counsel further submitted that the ministerial decision was taken on review in 2021, which culminated in a judgment by Katiyo J, which is still extant, and was not appealed against. Counsel further, submitted that the application for a compelling order a quo was disguised as a review, an act which amounts to abuse of court process. ISSUES FOR DETERMINATION [24] The following issues arise for determination in this appeal. Whether or not the relief sought is exact. Whether or not the court a quo grossly misdirected itself in concluding that the appellant exceeded pegging limits without evidence and in the context of claims that were forfeited. Whether or not the court a quo erred in failing to recognize that the Dispute Resolution Committee did not comply with the Supreme Court’s order. APPLICATION OF THE LAW TO THE FACTS Whether or not the relief sought is exact. [25] Mr Tivadar, counsel for Ran Mine and G & P Industries submitted that the relief sought by the appellant was not exact as required by r 37 (1) (e) of the Supreme Court Rules, 2018 (the rules). He argued that the relief sought not being exact rendered the notice of appeal fatally defective and the appeal a nullity. Rule 37 (l) (a) to (f) of the rules provides as follows: (1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his or her legal practitioner which shall state: “(a) The date on which, and the court by which, the judgment appealed against was given; (b) If leave to appeal or condonation and extension of time to appeal was granted, the date of such grant; (c) Whether the whole or part only, and if so which part, of the judgment is appeal against; (d) The grounds of appeal in accordance with the provisions of r 44. (e) The exact relief sought; (f) The address for service of the appellant or his or her legal practitioner.” (Emphasis added). [26] The ordinary grammatical meaning of r 37 (1) (a) to (f) means a Notice of Appeal can only be compliant if it is in the form of a Notice of Appeal signed by the appellant or his/her legal practitioner and if it states the requirements stated in paras (a) to (f) of the rule. In respect to r 37 (1) (e) the Notice of Appeal should state the exact relief sought. It cannot be stated by reference to the contents of another document other than the notice of appeal itself. What should be stated is what paras (a) to (f) say should be stated in the notice of appeal itself not some other document. [27] During the hearing counsel for the parties confirmed to the court that the issue in this case was failure to state the exact relief sought in the notice of appeal and not the competence of the relief sought. It became common cause that the dispute was over whether or not the relief sought can be stated through reference to some other document. [28] In the case of Sobuza Gula Ndebele v Chinembiri Energy Bhunu SC 34/10 this Court at pp 4 to 5 of the cyclostyled judgment said: “The Rule requires simply that the exact nature of the relief sought be stated in the notice of appeal. Thus, in so far as the prayer is for the appeal to be allowed and the application to be dismissed with costs, there is prima facie compliance with the Rule. However, it was submitted on behalf of the respondent that the relief sought must be one which the Court can grant and that a prayer which the court cannot competently grant renders the notice of appeal null and void. I do not agree. In my view, once the prayer clearly sets out the nature of the relief sought, as it does in this case, r 29 (1) (e) has been complied with. This being so, the court can and may amend the notice of appeal upon application being made before the hearing subject to the rules governing applications of this nature.” (Emphasis added} [29] This Court in Sobuza Gula Ndebele (supra) clearly stated that the exact nature of the relief sought should be stated in the notice of appeal and that once that is done r 29 (1) (e) now r 37 (1) ( e) is complied with. This means if the exact nature of the relief sought is not stated in the notice of appeal the rule will not have been complied with. [30] Similarly, in the case of Ndlovu & Anor v Ndlovu & Anor SC 133/02 at p 2 of the judgment, Malaba JA (as he then was) stated that: “In this case there was no mention of whether the whole or part only of the judgment was being appealed against. The exact nature of the relief sought was not stated. What was prayed for in the notice of appeal was that the judgment of the court a quo be dismissed with costs. It is the appeal which is dismissed or allowed. If the appeal is allowed the judgment or decision appealed against is then set aside and a new order substituted in its place. In this case it was not known what order the appellants wanted this Court to make in the event the appeal succeeded.” (Emphasis added) [31] Rule 37 (1) is couched in peremptory or mandatory terms. In Zimbabwe Newspapers (1980) Limited v Tembani Kufa SC 137/21 at p 7, this Court stated that: “It has been stated repeatedly by the courts that a failure to comply with the mandatory provisions of the rules when lodging an appeal renders the appeal a nullity. See Matanhire v BP Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S). Generally, where a notice of appeal does not comply with the rules, the matter ought to be struck off the roll. This is because a nullity cannot be amended. See Chikura N.O & Anor v Al Shams Global BVI Ltd SC 40/17. The belated application for an amendment is meant to bring the appeal within the remit of r 37 (1) which requires that every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his or her legal practitioner which shall state inter alia “the exact relief sought.” (Emphasis added) [32] Accordingly the court finds that the relief sought is not exact, rendering the notice of appeal fatally defective and the appeal a nullity. Ms Damiso, counsel for Blackgate during submissions conceded that the relief sought in the notice of appeal is not exact if it cannot be referred to by reference to the order in another document. Therefore, the matter must be struck off the roll for failure to comply with the mandatory provisions of r 37 (1) (e) of the Supreme Court Rules, 2018. [33] In view of the court’s findings on the preliminary issue there is no need to determine the matter on the merits as it is a nullity. [34] There is no reason why costs should not follow the result. The court is however of the view that costs should be on the ordinary scale as the Minister and the Commissioner have for several years failed to comply with the Supreme Court’s order in SC 236/11 resulting in the parties having to make other applications to resolve the disputes between them . [35] It is therefore ordered that: “The matter be and is hereby struck off the roll with costs.” MAKONI JA : I agree MUSAKWA JA : I agree Lawman Law Chambers, appellant’s legal practitioners Civil Division of the Attorney General, 1st and 2nd respondents’ Legal Practitioners Atherstone & Cook, 3rd and 4th respondents’ Legal Practitioners