FALCON GOLD ZIMBABWE Ltd and Another v MOYO and Others (373 of 2025) [2025] ZWHHC 373 (26 June 2025)

4 HH 373 - 25 HCH 6672/23 X REF: HC 2952 SC 398/22 FALCON GOLD ZIMBAMBWE Ltd and INYAMAZANE GOLD (PVT) LTD versus FISANI MOYO and IRVINE NGWENYA and SAMSON NGWENYS and ANDILE DHLAMINI and SHINGAI MOYO and TAKUNDA HATINA and ELVIS MOYO and DECENT MOYO and LONDILE MOYO and PHILANI NCUBE HIGH COURT OF ZIMBABWE **MAMBARA J** HARARE; 5 & 26 June 2025 Application for absolution from the instance _D. Tivadar_ , for the plaintiffs _N. Ncube_ with _B Mupatsi_ , for the defendants MAMBARA J: The first plaintiff, Falcon Gold Zimbabwe Ltd, together with the second plaintiff, Inyamazane Gold (Pvt) Ltd (hereinafter collectively “the plaintiffs”), sued the defendants – Fisani Moyo, Irvine Ngwenya, Samson Ngwenya Andile Dhlamini, Shingai Moyo, Takunda Hatina, Elvis Moyo, Decent Moyo, Londile Moyo and Philani Ncube for their eviction from certain gold mining claims. The plaintiffs allege that they are the registered owners of mining locations known as Antelope East and Antelope East Extension 2 in Matabeleland, and that the defendants have unlawfully entered upon and conducted mining operations on these claims without consent. The defendants, on the other hand, deny mining on the plaintiffs’ ground. They maintain that they are mere employees of a third party, Lucky Heather (Pvt) Ltd, and that any mining activities they conduct are on Lucky Heather’s own claims known as Stella City A and B Mines, and not on the plaintiffs’ claims. The dispute has a protracted history. At a Pre-Trial Conference, by consent of the parties, Foroma J ordered an inspection in loco to clarify the positions of the respective mining claims on the ground. A provincial mining surveyor from the Ministry of Mines and Mining Development attended the inspection and later prepared a survey report detailing his findings. Notably, that report, though referred to throughout testimony, was never formally produced as an exhibit at trial, nor was the surveyor called to testify. The inspection report itself indicates that the dispute in question is essentially between Falcon Gold Zimbabwe Ltd, holders of Antelope East and its Extension and Lucky Heather (Pvt) Ltd, holders of Stella City A & B, over the location of their respective claim boundaries. Tellingly, the report does not name the individual defendants at all, reinforcing the defendants’ assertion that they are simply agents or employees of Lucky Heather. At trial, the plaintiffs led evidence from a single witness, one Shelton Mpinyuri, one of their mine officials. He testified that the plaintiffs hold the certificates for Antelope East and Antelope East Ext. 2, and that the defendants were found working within those claim areas. Under cross-examination, however, this witness conceded significant gaps in his knowledge. He was unable to confirm with any specificity where on the ground the defendants’ mining activities were located relative to the surveyed claim boundary coordinates. He heavily relied on the unproduced survey report for descriptions of shafts and beacons, yet he could not personally verify the GPS coordinates or beacon positions referred to therein. He also admitted he had no direct knowledge whether the defendants acted independently or under the auspices of Lucky Heather. In their defendant’s plea and throughout, the defendants maintained that they only worked under Lucky Heather’s authority on Stella City A/B claims, and not on the plaintiffs’ mining locations. After the plaintiffs closed their case, the defendants moved for absolution from the instance, arguing that the plaintiffs had not established a _prima facie_ case that could justify putting the defendants to their defence. In essence, the defendants contend that the plaintiffs failed to prove a fundamental element of their claim, namely, that the defendants are mining on the plaintiffs’ side of the boundary and not on Lucky Heather’s side. Given the evidentiary deficiencies, especially the absence of the surveyor’s testimony or official confirmation of claim boundaries, the defendants submit that no reasonable court could find for the plaintiffs on the evidence led thus far. _**Preliminary Objections**_ Before delving into the merits of the absolution application, it is pertinent to dispose of certain preliminary points raised by the defendants at the commencement of trial. The defendants had objected to the proceedings based on the grounds below; 1. The defendants argued that the summons was issued without proper authority from the plaintiff companies, for example, alleging the absence of a company resolution authorizing the action. 2. The defendants contended that the plaintiffs’ witness had no authority to represent the company in giving evidence. These objections were devoid of merit and were dismissed at the start of the trial. On the issue of authority to institute the action, the Court was satisfied that the proceedings were properly authorized. It is trite that a company may appoint officers or agents to represent it in litigation, and the mere failure to attach a formal resolution is not fatal if it is clear the company has ratified or is aware of the lawsuit. In this case, both Falcon Gold and Inyamazane Gold have actively participated in the litigation, demonstrating their assent to the proceedings. Any technical argument about authority in the issuing of summons was rightly treated as frivolous. Similarly, the attack on the witness’s authority to testify on behalf of the companies was misconceived. A duly employed mine manager or officer can give evidence on matters within his knowledge concerning the company’s operations. The Court found no bar to the plaintiff’s witness testifying. The Court also noted in passing that Lucky Heather (Pvt) Ltd is indeed a central figure in the dispute. Ideally, the holder of the adjacent Stella City claims (Lucky Heather) should have been joined to ensure all interested parties are before the Court. Non-joinder of a material party can be a ground for procedural objection, but it is not an absolute bar; the court may in appropriate cases order joinder or proceed if no prejudice is felt. Here, although Lucky Heather was not joined, the matter proceeded with the understanding that the Court would focus on whether the defendants personally trespassed on the plaintiffs’ claims. The absence of the Minister of Mines or his official at trial to produce the survey report was a strategic misstep by the plaintiffs, but not a preliminary point of law. Rather, it goes to the sufficiency of evidence, which is the very issue in the absolution application. In sum, the preliminary objections were dismissed and the trial proceeded to hear the plaintiffs’ evidence. At the close of the plaintiff’s case, a defendant is entitled to seek absolution from the instance, essentially a request for the court to dismiss the claim on the ground that the plaintiff has not made out even a _prima facie_ case. The test to be applied is settled both in our jurisdiction and in South African jurisprudence from which our law is derived. The question the court must ask is this: Is there evidence upon which a court, directing its mind reasonably to such evidence, could find for the plaintiff? If the answer is no, in other words, if no _prima facie_ case has been made out on which a reasonable court might (not ought to, but might) rule in the plaintiff’s favour then the court must grant absolution from the instance. Conversely, if there is some evidence which, if believed, could sustain the claim, then the matter should proceed for the defence to answer. The Supreme Court has enunciated this test in _United Air Charters (Pvt) Ltd_ v _Jarman_ 1994 (2) ZLR 341 (S). Gubbay Cj, in that case, approved the classic formulation from the _South African Decision Gascoyne_ v _Paul & Hunter_ 1917 TPD 170, that _“the question is whether the plaintiff has adduced evidence upon which a court, applying its mind reasonably to such evidence, could or might find for the plaintiff”_. This standard has been consistently applied in our courts. It means that the court does not need to be satisfied that the plaintiff’s case is proved on a balance of probabilities at this stage; rather, the court simply needs to determine whether enough evidence has been presented that, if unrebutted and believed, would justify a judgment in the plaintiff’s favour. Two further points must be borne in mind. First, absolution from the instance is no reflection on the merits of the case beyond the insufficiency of the evidence as presented. An order of absolution is not an outright dismissal on the merits, but a finding that the plaintiff failed to pass the threshold to require the defendant to present a case. The plaintiff whose claim is absolved (non-suited) may, in principle, re-institute proceedings on the same claim if and when better evidence becomes available provided the claim has not prescribed. The rationale is to spare the defendant the time and expense of defending a claim that has not been made out, without permanently closing the courthouse doors to the plaintiff should they later cure the evidential deficiencies. Second, in deciding an application for absolution, the court must take the plaintiff’s evidence at face value, without making determinations of credibility or weight in the defendant’s favour. The evidence must be assessed in the light most favourable to the plaintiff. The court should be cautious about granting absolution too readily. As was stated in Supreme _Service Station (1969) (Pvt) Ltd_ v _Fox & Goodridge (Pvt) Ltd_ 1971 (1) RLR 1 (A), a trial court should be “extremely chary” of granting absolution at the close of the plaintiff’s case, because doing so deprives the court of hearing the defendant’s side of the story. If the plaintiff has made out “some case” calling for an answer, especially on matters peculiarly within the knowledge of the defendant, the application should be refused. The court’s role at this stage is not to weigh conflicting evidence or resolve factual disputes, but simply to determine if there is a minimum evidentiary foundation to proceed. However, where the plaintiff’s evidence is so hopelessly inadequate or untenable that no reasonable juror or court could possibly find for the plaintiff, it is the court’s duty to grant absolution. As the Supreme Court noted in the Jarman case _supra_ , a plaintiff will withstand absolution only if he has put forward evidence on which a court might reasonably find for him on all essential elements of the claim. If an essential element of the cause of action has not been established at all, then “due to the insufficiency of the plaintiff’s evidence and failure to establish an essential element of its claim, the defendant should be spared the trouble… of continuing to mount a defence to a hopeless claim.” In the present matter, the claim is essentially one for ejectment/trespass from a mining location. To successfully obtain an eviction order in this context, the plaintiffs needed to establish the following elements on a _prima facie_ basis: 1. That the plaintiffs are the holders of valid mining rights (registration certificates) for Antelope East and Antelope East Ext. 2. 2. Unlawful occupation or mining by defendants – that the defendants have entered into or are working on the area covered by the plaintiffs’ mining locations. 3. Absence of right or consent – that the defendants have no lawful right to be on that mining location (for example, they are not licensees or employees of the plaintiffs, and their presence is without the permission of the plaintiffs or any superior title). If there is a bona fide dispute of fact on these matters, normally the case should proceed to hear both sides. But if the plaintiffs’ own evidence fails to cover these basics, absolution is justified. Having reviewed the plaintiffs’ evidence, the Court finds that the plaintiffs failed to establish a _prima facie_ case on the critical second and third elements identified above. While the plaintiffs demonstrated their title to the claims (element 1) by producing the registration details of Antelope East and its Extension, they fell far short of showing that the defendants are unlawfully mining on those specific claims. The evidence adduced by the plaintiffs was deficient in several key respects. No Expert Survey Evidence: The plaintiffs did not call the government surveyor (or any official from the Ministry of Mines) to testify about the claim boundary and the location of the defendants’ activities in relation to that boundary. The surveyor’s inspection report, which was the best available evidence pinpointing where each party’s shafts lie, was never produced as an exhibit. Thus, the Court was deprived of an independent, authoritative mapping of the claims. Reliance on Hearsay Coordinates: The plaintiffs’ sole witness could not personally verify the GPS coordinates or beacon locations delineating Antelope East vs. Stella City A/B. He merely “understood” from the report (and hearsay) that the defendants’ workings fell inside the Antelope East block, but he could not reconcile the coordinates on the ground. In fact, he admitted he lacked the technical expertise to interpret the survey diagram appended to the report. This is a fundamental gap. Without establishing where the defendants were mining, one cannot conclude it was on the plaintiffs’ side of the line. Identity of Defendants’ Principal: The plaintiffs did not meaningfully rebut the defence’s claim that the defendants are employees or agents of Lucky Heather (Pvt) Ltd. If indeed the defendants were acting under Lucky Heather’s instructions on Lucky Heather’s claim (Stella City), then the wrong party was before the court. The uncontroverted evidence is that Lucky Heather holds the Stella City A and B claims adjacent to the plaintiffs’ mine. The survey report excerpts explicitly framed the dispute as one between Falcon Gold and Lucky Heather with no mention of Moyo or the Ngwenyas. This strongly suggests that any alleged encroachment is institutional, claim-vs-claim, rather than personal. Yet Lucky Heather was neither cited nor was its connection to the defendants fully explored through evidence. Failure to Prove Trespass: Even assuming the defendants were found in the vicinity, the plaintiffs produced no direct evidence, such as photographs, site sketches, or specific compass bearings to show that a particular working shaft or pit being used by the defendants lies within the surveyed coordinates of Antelope East/Ext.2. No witness testified from first-hand knowledge, “I walked the boundary with the surveyor and saw the defendants digging 20 meters inside our pegs.” Instead, the plaintiffs’ case rested on inferences drawn from the incomplete inspection process. In effect, the plaintiffs asked the Court to infer trespass based on the unresolved “long-standing dispute” mentioned in the report, rather than on solid proof of incursion. In light of these deficiencies, the Court is compelled to agree with the defendants that the plaintiffs have not established the essential elements of their claim. There is no _prima facie_ proof that the defendants are mining on the plaintiffs’ mining locations as opposed to land falling under Lucky Heather’s title. It would be pure speculation to conclude, on the state of the record, that the defendants are trespassers. The plaintiffs needed to furnish cogent evidence of the boundary and the defendants’ transgression thereof which they failed to do. Counsel for the plaintiffs urged that the matter should proceed so that the defendants could be cross-examined and perhaps forced to admit their wrongdoing. This submission misconstrues where the onus lies at this stage. It is a fundamental principle that a plaintiff must succeed on the strength of his own case, not on the weakness of the defendant’s. The burden was on the plaintiffs to lay out facts which, if left unanswered, would entitle them to relief. They cannot cure the paucity of their evidence by hoping something useful might emerge under cross-examination of the defendants. The Court cannot compel the defendants to disprove a case that has not been made against them in the first place. Moreover, even if the defendants were to take the stand, it is hard to see how their testimony could compensate for the lack of survey evidence. The precise location of the disputed mining activities is a technical question best answered by official records and expert testimony. The defendants asserting “we believe we are on Lucky Heather’s side” versus the plaintiffs insisting “we believe they are on our side” would lead to an impasse without an objective survey. The plaintiffs bore the responsibility to provide that objective evidence, yet they chose not to call the very official whose survey was done at the court’s behest. This omission is fatal to the plaintiffs’ case. The Court is mindful of the caution in _Supreme Service Station (1969) (Pvt) Ltd_ v _Fox & Goodridge_ that absolution should be granted sparingly. However, this is a clear case where the plaintiff’s evidence, even if taken as true, falls short of establishing a _prima facie_ case. There is not a scintilla of admissible evidence locating the defendants inside the boundaries of Antelope East or its Extension. An essential element of the cause of action, the defendants’ unlawful presence on the plaintiffs’ land, remains unproved. In the words of Malaba J (as he then was) in _Mazibuko_ v _Santam Insurance Co Ltd_ (quoted in _Lourenco_ v _Raja Dry Cleaners (Pvt) Ltd_ 1984 (2) ZLR 151 (S), the evidence is such that no court “ _might reasonably sustain a verdict”_ for the plaintiff. Accordingly, the only proper course at this juncture is to grant absolution from the instance. Requiring the defendants to enter upon a defence in the hope that the plaintiffs’ case might somehow be bolstered would be an unjustified prolonging of a hopeless claim. The dispute over claim boundaries is better addressed with the participation of the correct parties (such as Lucky Heather and the Ministry responsible) and with proper evidence (survey plans, expert testimony). As the case stands, the plaintiffs have dismally failed to present a _prima facie_ case before the court. _**Conclusion**_ In the final result, the defendants’ application for absolution from the instance is granted. The plaintiffs’ claim is accordingly dismissed at this stage for want of evidence. Given that the defendants have prevailed in their application, and there is no special reason to depart from the usual rule on costs, the plaintiffs shall bear the costs of suit. Accordingly, it is ordered as follows; 1. The application for absolution from the instance is granted. 2. The plaintiffs’ claim is absolved from the instance (dismissed). 3. The plaintiffs shall pay the defendants’ costs. **Mambara J** : ……………………………………………………. _Gill, Godlonton and Gerrans_ , plaintiffs’ legal practitioners _Dube Legal Practice_ , defendants’ legal practitioners