ZVAREVASHE v ZIMBABWE HANJIN MINING (PRIVATE) LIMITED and OTHERS (37 of 2025) [2025] ZWMTHC 37 (18 July 2025)

3 HCMTJ37/25 HCMTC 106/25 LEONARD ZVAREVASHE versus ZIMBABWE HANJIN MINING (PRIVATE) LIMITED and BO ZHANG and EDSON TENDAI VUNYUNGWI and PROSPER MAVATA and SIMBARASHE VUNYUNGWI and TRUST MINING SYNDICATE and MINISTRY OF MINES AND MINING DEVELOPMENT HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 14 & 18 July 2025 OPPOSED APPLICATION Mr W. Madzimbamuto, for the applicant Mr T. Mareanadzo, for the 1st, 2nd, 3rd, 4th, 5th and 6th respondents No appearance for the 7th respondent SIZIBA J: The applicant filed this application as an urgent chamber application seeking an urgent interdict against the respondents on the terms whereof he sought to have the first and second respondents to cease their activities at the mine which is the sixth respondent. He also sought to bar the third respondent from dealing in any way with his shares in the sixth respondent which is their mining syndicate. After hearing from the parties, I held that the case was not urgent and struck it off from the roll of urgent matters. The parties then proceeded to file further pleadings and the case then came before me as an ordinary application. The applicant seeks a final interdict against the respondents in the following terms: “1. 1st and 2nd Respondents and all those acting through them be and are hereby interdicted, barred from occupying and carrying out any mining activities at 6th Respondent. 2. 1st and 2nd Respondents and all those claiming or acting through them be and are hereby ordered to remove or cause to be removed assets, equipment or materials of any kind or description which they may have placed or caused to be placed at the mine. 3. 1st and 2 Respondents, its assignees, invitees and all those claiming right of occupation through them be and are hereby ordered to vacate from the mine, 4. The 3rd Respondent be and is hereby barred from disposing or entering into any arrangement with regards to his former shares in the 6th Respondent. 5. The Sheriff of Zimbabwe with the assistance of the Zimbabwe Republic Police be and are hereby ordered and authorized to give effect to this order. 6. 1st to 5th Respondents shall pay costs of suit.” The critical issue for determination is whether the applicant is entitled to the final interdict that he seeks. The requirements of a final interdict are a clear right, irreparable harm actually committed or reasonably apprehended and the absence of an alternative remedy. See Movement for Democratic Change (T) and Others v Timveos and Others SC 09/22, Masimba Charity Huni Fuels (Pvt) Ltd v Kadurira & Anor SC39/22. Mr Mareanadzo raised two points in limine. The first was the argument about the non-joinder of estates of deceased members of the syndicate. The second one related to alleged material disputes of fact regarding the questions of shareholding. He did not pursue the point in limine regarding new material allegedly contained in the applicant’s answering affidavit. Counsel then made a concession that non-joinder was not fatal to the case. The concession was proper to this extent but he then prayed that the matter should be removed from the roll to allow a joinder of the representatives of the deceased parties to the syndicate. I do not agree. The dispute before this court can be resolved without the joinder of the representatives of the deceased estates. Furthermore, Mr Madzimbamuto was correct in his submission that the case can be resolved on facts that are common cause. The facts that are disputed are not material to the resolution of this matter. A dispute of fact that is not material or relevant to the issues for determination cannot detain a court of law in resolving the dispute before it on the basis of relevant material facts which are not disputed. Both points in limine are therefore without merit. What is common cause is that the sixth respondent is a mining syndicate which was registered with four members being the applicant, third respondent, the late Elijah Mativhu and the late Egness Gwazhi. It is also common cause that each of these syndicate members held shares of 25 percent. It is common cause that the third respondent is the Mine Manager and Agent in relation to the seventh respondent. It is common cause that there was a transaction that occurred between the applicant and third respondent in December 2024 whereupon the applicant was to purchase the third respondent’s shares. He paid an initial deposit of US$1 500. Whether the sale transaction was perfected or not and the agreed purchase price of those shares is disputed. It is also disputed by the third respondent that he has sold any shares to the first and second respondents. It is undisputed that the first and second respondents moved into the mining site around February 2025 to do some repairs or to refurbish the mine shafts. The correspondence between the parties also show that the first and second respondents were also doing some exploration work at the mine. The applicant alleges that these Chinese investors are also doing some mining activities while the respondents are denying this allegation. According to the second respondent’s opposing affidavit, they were invited by the third respondent as the representative of the sixth respondent to repair the dilapidated shafts on the terms whereof they would buy 75 percent of the shareholding in the sixth respondent when the shafts have been repaired. The second respondent’s sworn testimony is that the shaft has now been repaired. This fact is also confirmed by the third respondent in his opposing affidavit. The applicant protested against the first and second respondent’s presence in the mine. He never consented to their involvement in any way. According to Mr Mareanadzo, the applicant cannot interdict the majority shareholders. Counsel also submitted that the third respondent as a Mine Manager is entitled to engage the first and second respondents to do what they are doing for the benefit of the syndicate. He equated him to a company director who is authorized to represent a company. I do not think this submission is correct. Firstly, the third respondent only holds 25 percent shares in the syndicate. Secondly, he has not obtained the consent of the applicant to engage third parties concerning a critical issue of engaging third parties to do some work in the mine. Thirdly, the other 50 percent shares belong to deceased estates who are not lawfully represented by anyone for now. The second respondent is very clear in his position as well as that of the first applicant that they are not doing work for free at the mine. They will want some shares from the syndicate and yet they were only engaged by the third respondent who has a quarter of the shares. They claim that he promised them 75 percent shares which he does not have in the syndicate. Mr Madzimbamuto submitted that the third respondent cannot be interdicted from selling his shares. He, however, has no right to authorize actions that affect applicant’s rights without applicant’s consent. Consequently, counsel submitted that the issue is not about the shares but about the third respondent’s unlawful conduct in doing what is detrimental to the interests of other members of the syndicate without their authorization. I agree. As a result, if the issue was about shareholding, I would say that the applicant has alternative relief in mounting an action to enforce his rights concerning the shares. Since the third respondent denies having sold any shares to the first and second respondents, it means that the first and second respondents are not shareholders. They are not part of the syndicate. They have finished repairing the shaft and they say that they are not mining. The question then is as to what they are now doing at the mine. I am satisfied that what the third respondent is doing in engaging the first and second respondent to do work at the mine without any consent from the applicant and the lawful representatives of the two deceased estates is detrimental to the interests of the applicant and those deceased estates. The claim that the third respondent is acting for the majority of the shareholders is unsupported by the evidence before me. His illusion that he is doing such in his capacity as Mine Manager runs contrary to the provisions of s 61(2) of the Mines and Minerals Act [Chapter 21:05] which lays obligations and liabilities to all the syndicate members with applicant included. The papers before this court indicate that the first and second respondents have always been aware that the applicant did not consent to their being engaged to do any work at the mine. They sought his authorization but he declined. In view of the unlawful conduct of the third respondent which poses risk of irreparable harm to the applicant and the clear rights of the applicant as a share holder and also bearing into account the fact that there is no other efficacious alternative remedy to address applicant’s precarious position, I am inclined to grant the relief sought in a way that does not take away the third respondent’s right to deal with his own shares in the syndicate. There is nothing important to say concerning the rights of the fourth and fifth respondents who have not demonstrated any lawful interest in the syndicate. They have not claimed that they are executors of those deceased estates. They have no rights that can stand in the way of the applicant in obtaining the relief that he seeks from this court. The costs shall follow the successful party against all the respondents who have opposed this application. It is the first to the fifth respondents who must bear the costs. It is therefore ordered as follows: All the respondents’ points in limine are hereby dismissed for lack of merit.The first and second respondents and all those acting through them be and are hereby interdicted and barred from occupying and carrying out any mining activities at sixth respondent being Trust Mining Syndicate.The first and second respondents and all those claiming or acting through them be and are hereby ordered to remove or cause to be removed assets, equipment or materials of any kind or description which they may have placed or caused to be placed at the said mine.The first and second respondents, their assignees, invitees and all those claiming right of occupation through them be and are hereby ordered to vacate from the mine.The third respondent be and is hereby interdicted from entering into any arrangement with any party with a potential for incurring liability to the sixth respondent and thereby affecting applicant’s rights in the sixth respondent without the consent of the applicant.The Sheriff of Zimbabwe with the assistance of the Zimbabwe Republic Police be and are hereby ordered and authorized to give effect to this order.The first to the fifth respondents shall bear applicant’s costs of suit. Mabuye Zvarevashe Evans, applicant’s legal practitioners Chikamhi Mareanadzo, 1st, 2nd, 3rd, 4th ,5th & 6th respondents’ legal practitioners 3 HCMTJ37/25 HCMTC 106/25 3 HCMTJ37/25 HCMTC 106/25 LEONARD ZVAREVASHE versus ZIMBABWE HANJIN MINING (PRIVATE) LIMITED and BO ZHANG and EDSON TENDAI VUNYUNGWI and PROSPER MAVATA and SIMBARASHE VUNYUNGWI and TRUST MINING SYNDICATE and MINISTRY OF MINES AND MINING DEVELOPMENT HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 14 & 18 July 2025 OPPOSED APPLICATION Mr W. Madzimbamuto, for the applicant Mr T. Mareanadzo, for the 1st, 2nd, 3rd, 4th, 5th and 6th respondents No appearance for the 7th respondent SIZIBA J: The applicant filed this application as an urgent chamber application seeking an urgent interdict against the respondents on the terms whereof he sought to have the first and second respondents to cease their activities at the mine which is the sixth respondent. He also sought to bar the third respondent from dealing in any way with his shares in the sixth respondent which is their mining syndicate. After hearing from the parties, I held that the case was not urgent and struck it off from the roll of urgent matters. The parties then proceeded to file further pleadings and the case then came before me as an ordinary application. The applicant seeks a final interdict against the respondents in the following terms: “1. 1st and 2nd Respondents and all those acting through them be and are hereby interdicted, barred from occupying and carrying out any mining activities at 6th Respondent. 2. 1st and 2nd Respondents and all those claiming or acting through them be and are hereby ordered to remove or cause to be removed assets, equipment or materials of any kind or description which they may have placed or caused to be placed at the mine. 3. 1st and 2 Respondents, its assignees, invitees and all those claiming right of occupation through them be and are hereby ordered to vacate from the mine, 4. The 3rd Respondent be and is hereby barred from disposing or entering into any arrangement with regards to his former shares in the 6th Respondent. 5. The Sheriff of Zimbabwe with the assistance of the Zimbabwe Republic Police be and are hereby ordered and authorized to give effect to this order. 6. 1st to 5th Respondents shall pay costs of suit.” The critical issue for determination is whether the applicant is entitled to the final interdict that he seeks. The requirements of a final interdict are a clear right, irreparable harm actually committed or reasonably apprehended and the absence of an alternative remedy. See Movement for Democratic Change (T) and Others v Timveos and Others SC 09/22, Masimba Charity Huni Fuels (Pvt) Ltd v Kadurira & Anor SC39/22. Mr Mareanadzo raised two points in limine. The first was the argument about the non-joinder of estates of deceased members of the syndicate. The second one related to alleged material disputes of fact regarding the questions of shareholding. He did not pursue the point in limine regarding new material allegedly contained in the applicant’s answering affidavit. Counsel then made a concession that non-joinder was not fatal to the case. The concession was proper to this extent but he then prayed that the matter should be removed from the roll to allow a joinder of the representatives of the deceased parties to the syndicate. I do not agree. The dispute before this court can be resolved without the joinder of the representatives of the deceased estates. Furthermore, Mr Madzimbamuto was correct in his submission that the case can be resolved on facts that are common cause. The facts that are disputed are not material to the resolution of this matter. A dispute of fact that is not material or relevant to the issues for determination cannot detain a court of law in resolving the dispute before it on the basis of relevant material facts which are not disputed. Both points in limine are therefore without merit. What is common cause is that the sixth respondent is a mining syndicate which was registered with four members being the applicant, third respondent, the late Elijah Mativhu and the late Egness Gwazhi. It is also common cause that each of these syndicate members held shares of 25 percent. It is common cause that the third respondent is the Mine Manager and Agent in relation to the seventh respondent. It is common cause that there was a transaction that occurred between the applicant and third respondent in December 2024 whereupon the applicant was to purchase the third respondent’s shares. He paid an initial deposit of US$1 500. Whether the sale transaction was perfected or not and the agreed purchase price of those shares is disputed. It is also disputed by the third respondent that he has sold any shares to the first and second respondents. It is undisputed that the first and second respondents moved into the mining site around February 2025 to do some repairs or to refurbish the mine shafts. The correspondence between the parties also show that the first and second respondents were also doing some exploration work at the mine. The applicant alleges that these Chinese investors are also doing some mining activities while the respondents are denying this allegation. According to the second respondent’s opposing affidavit, they were invited by the third respondent as the representative of the sixth respondent to repair the dilapidated shafts on the terms whereof they would buy 75 percent of the shareholding in the sixth respondent when the shafts have been repaired. The second respondent’s sworn testimony is that the shaft has now been repaired. This fact is also confirmed by the third respondent in his opposing affidavit. The applicant protested against the first and second respondent’s presence in the mine. He never consented to their involvement in any way. According to Mr Mareanadzo, the applicant cannot interdict the majority shareholders. Counsel also submitted that the third respondent as a Mine Manager is entitled to engage the first and second respondents to do what they are doing for the benefit of the syndicate. He equated him to a company director who is authorized to represent a company. I do not think this submission is correct. Firstly, the third respondent only holds 25 percent shares in the syndicate. Secondly, he has not obtained the consent of the applicant to engage third parties concerning a critical issue of engaging third parties to do some work in the mine. Thirdly, the other 50 percent shares belong to deceased estates who are not lawfully represented by anyone for now. The second respondent is very clear in his position as well as that of the first applicant that they are not doing work for free at the mine. They will want some shares from the syndicate and yet they were only engaged by the third respondent who has a quarter of the shares. They claim that he promised them 75 percent shares which he does not have in the syndicate. Mr Madzimbamuto submitted that the third respondent cannot be interdicted from selling his shares. He, however, has no right to authorize actions that affect applicant’s rights without applicant’s consent. Consequently, counsel submitted that the issue is not about the shares but about the third respondent’s unlawful conduct in doing what is detrimental to the interests of other members of the syndicate without their authorization. I agree. As a result, if the issue was about shareholding, I would say that the applicant has alternative relief in mounting an action to enforce his rights concerning the shares. Since the third respondent denies having sold any shares to the first and second respondents, it means that the first and second respondents are not shareholders. They are not part of the syndicate. They have finished repairing the shaft and they say that they are not mining. The question then is as to what they are now doing at the mine. I am satisfied that what the third respondent is doing in engaging the first and second respondent to do work at the mine without any consent from the applicant and the lawful representatives of the two deceased estates is detrimental to the interests of the applicant and those deceased estates. The claim that the third respondent is acting for the majority of the shareholders is unsupported by the evidence before me. His illusion that he is doing such in his capacity as Mine Manager runs contrary to the provisions of s 61(2) of the Mines and Minerals Act [Chapter 21:05] which lays obligations and liabilities to all the syndicate members with applicant included. The papers before this court indicate that the first and second respondents have always been aware that the applicant did not consent to their being engaged to do any work at the mine. They sought his authorization but he declined. In view of the unlawful conduct of the third respondent which poses risk of irreparable harm to the applicant and the clear rights of the applicant as a share holder and also bearing into account the fact that there is no other efficacious alternative remedy to address applicant’s precarious position, I am inclined to grant the relief sought in a way that does not take away the third respondent’s right to deal with his own shares in the syndicate. There is nothing important to say concerning the rights of the fourth and fifth respondents who have not demonstrated any lawful interest in the syndicate. They have not claimed that they are executors of those deceased estates. They have no rights that can stand in the way of the applicant in obtaining the relief that he seeks from this court. The costs shall follow the successful party against all the respondents who have opposed this application. It is the first to the fifth respondents who must bear the costs. It is therefore ordered as follows: All the respondents’ points in limine are hereby dismissed for lack of merit. The first and second respondents and all those acting through them be and are hereby interdicted and barred from occupying and carrying out any mining activities at sixth respondent being Trust Mining Syndicate. The first and second respondents and all those claiming or acting through them be and are hereby ordered to remove or cause to be removed assets, equipment or materials of any kind or description which they may have placed or caused to be placed at the said mine. The first and second respondents, their assignees, invitees and all those claiming right of occupation through them be and are hereby ordered to vacate from the mine. The third respondent be and is hereby interdicted from entering into any arrangement with any party with a potential for incurring liability to the sixth respondent and thereby affecting applicant’s rights in the sixth respondent without the consent of the applicant. The Sheriff of Zimbabwe with the assistance of the Zimbabwe Republic Police be and are hereby ordered and authorized to give effect to this order. The first to the fifth respondents shall bear applicant’s costs of suit. Mabuye Zvarevashe Evans, applicant’s legal practitioners Chikamhi Mareanadzo, 1st, 2nd, 3rd, 4th ,5th & 6th respondents’ legal practitioners