Fidelis Munyoro
Chief Court Reporter
THE High Court has struck off an urgent application by TN Gold Arcturus Mine (Private) Ltd seeking to reclaim disputed mining claims, ruling that its case was fatally undermined by hearsay evidence that failed to identify who allegedly dispossessed it.
Judge President Isaac Muzenda upheld a preliminary objection by the first three respondents, finding that the founding affidavit was riddled with second-hand information and did not establish who among the five cited respondents had allegedly taken control of the mining claims.
“The application is struck off with costs,” the judge ordered, ending the mine’s bid for spoliation and an interdict without determining the substantive merits of the dispute.
The application concerned Mining Claims Kambanje 3 (10783), Kambanje 4 (10784) and Venus 15 (11596), which the applicant alleged had been occupied by a group of men who were erecting wooden cabins and putting up a security fence.
The mine sought to recover possession through spoliation proceedings, a legal remedy aimed at restoring property or rights taken without due legal process.
Its case was presented through an affidavit by Tendai Shiri, the company’s head of security, who told the court that he had received a call on September 27 from mining surveyor Isaac Senos.
Senos had reportedly been contacted by Kathy Moyo, who was making enquiries about a place called Council in Arcturus, within the area covered by Mining Lease 33.
Shiri said he subsequently conducted a patrol and encountered men occupying the disputed claims.
He attached aerial photographs to his affidavit and reported that the respondents’ names emerged during his interactions with the group.
He also recounted efforts to report the matter to the police, which he said yielded no assistance, prompting the company to approach the court.
However, the respondents’ lawyer, Advocate Reginald Mutero, challenged the evidential foundation of the entire application, arguing that Shiri relied heavily on information supplied by third parties who had not filed supporting affidavits.
The respondents contended that the affidavit did not provide a reliable, firsthand account connecting the individual respondents to the alleged dispossession.
The judgment states: “If material allegations in the affidavit are hearsay, the affidavit is defective and the application is bad.”
Opposing the objection, the applicant’s counsel, Adv Fadzayi Mahere, maintained that Shiri’s affidavit contained direct evidence linking the respondents to the events.
She urged the court to dismiss the preliminary objection, arguing that the security chief had personally witnessed relevant developments.
But Justice Muzenda found that the affidavit did not establish the necessary connection between the alleged occupation and the five respondents.
The judge noted that Shiri did not directly identify any exchange between himself and the respondents, did not explain how they came to occupy the site and relied on information from other people.
“He does not disclose in his founding affidavit who among the five respondents invaded or despoiled the applicant,” the judge said.
The court further observed that Shiri had not witnessed the formation or termination of the tribute arrangement involving Tapiwa Munozogara and Mr Nyambirai, nor could he provide direct evidence concerning the registration certificates for the disputed claims.
Justice Muzenda said the nature of Shiri’s position as head of security did not, by itself, equip him to establish the company’s administrative and operational rights over the mining claims.
“I am persuaded by the first to third respondents’ contention that the founding affidavit is replete with hearsay evidence,” the judge ruled.
He added that, where unlawful dispossession is alleged, the applicant must establish its case on a balance of probabilities and identify the person or persons responsible.
“The use of the phrase ‘group of men’ is not specific enough to point with certainty to the five respondents,” the judge said.
The court dismissed a separate objection over the 24-hour period given to respondents to file opposing affidavits, finding no prejudice because they had appeared and been heard.
The decisive hearsay objection, however, proved fatal. The court held that the defective affidavit left it without a proper application to consider, striking the matter off with costs.
