Court nullifies eviction order

Fidelis Munyor Chief Court Reporter
The High Court has nullified a magistrates’ court order sanctioning the eviction of a Kadoma gold dealer involved in a bitter wrangle with his business partner over control of Etna Mine.

The dispute pitting Kevin Magwaza and Spencer Tshuma imploded after the latter obtained an ex parte order from the magistrates’ court seeking to evict the former from the mining site.

An ex-parte refers to motions for orders that can be granted without waiting for a response from the other party.

After being served with the ex-parte order, Magwaza rushed to the High Court contesting the legality of the order. Justice Webster Chinamora granted the application by Magwaza to stop the eviction.

This was after the court discovered that Kadoma resident magistrate Mr Shane Kubonera acted beyond his legal power, in view of limited jurisdiction of the magistrate court, in such orders.

The court also noted that the rights which Magwaza wanted to protect were not abstract, as the order obtained against him interfered with his exclusive mining rights at the mine.

“The ex parte order granted by Hon magistrate (Shane) Kubonera sitting in Kadoma in case number GCK718/19 and subsequently confirmed on 18 October, 2019 be and is hereby declared null and void and of no force and effect,” said Justice Chinamora.

“The provisional order granted by Hon Justice (Happias) Zhou on 2 August shall remain unaffected by the ex parte order granted and confirmed by the magistrates’ court sitting at Kadoma in case number GCK718/19.”

The court found against Tshuma that he failed to produce a registration certificate in his name to buttress his claim to the mining location, but found that his right to occupy and mine the claim hinged on a five-year joint venture agreement he purportedly entered into with one Sebastian Magodora.

In terms of the agreement, Tshuma was to finance the mining operations and occupy the mine. Magodora sold the mine to Magwaza.

Tshuma took occupation of the mine on the strength of an interim order granted by the magistrates’ court, effectively suspending Magwaza’s active mining operations.

Magwaza made his case after demonstrating through documentary evidence that he was the rightful owner of registration certificates for the mining claim in dispute.