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Abednico Ncube sucked into mine wrangle

by Staff reporter
13 Mar 2020 at 06:16hrs | Views
MATABELELAND South Provincial Affairs Minister Abednico Ncube has been sucked in a wrangle involving a mining company and a community share ownership trust from the province which is accusing the company of fraudulently acquiring gold claims from the community.

Simalu Mining (Pvt) Limited, its principal directors Cosmas Nyathi, Ntokozo Hlongwane, Racheal Ncube and Naphtal Nthala through their lawyer Mclean Mahaso of Tanaka Law Chambers, filed summons at the Bulawayo High Court under case Number 324/ 20 challenging a default judgement which was granted on 3 February in favour of nine Gwanda small-scale miners operating as Lushonkwe Nqama Small-Scale.

The ruling which they are arguing was fraudulently obtained barred them from conducting business at the following mining claims: Orient 1, Orient 2, Lady Annah 4, Lady Annah 5, Lady Annah 6, Lady Annah 7, Lady Annah 8, Lady Annah 9, Lady Annah 10 and Lady Annah 11.

In their application they cited Zibion Sibanda, Sifiso Ndlovu, Angelina Dube, Ntokozo Ngwenya, Misheck Nyathi, Zodwa Moyo, Tshinyiwe Ncube and Nozipho Sibanda, Lushongwe Nqama Small Scale Miners Association, Limited, the provincial mining director Matabeleland South, Scrap Crushers (Pvt) Limited, the Matabeleland South Province Affairs Minister Abednico Ncube, the officer commanding Matabeleland South police and the Sheriff of the High Court as respondents.

In their particulars of the claim, they submitted that on 27 December 2019 the 1st to 9th respondents Ndlovu, Dube, Ngwenya, Nyathi, Moyo, Ncube, Sibanda, Lushongwe Nqama Small Scale Miners Association "clandestinely and nicodemously" filed an urgent application seeking to be allowed unhindered access to mining claims in question.

They argued that mining claims: Orient 1, Orient 2, Lady Annah 4, Lady Annah 5, Lady Annah 6, Lady Annah 7, Lady Annah 8, Lady Annah 9, Lady Annah 10 and Lady Annah 11, are all registered under Simalu Mining (Pvt) Limited.

"The above urgent chamber application was deemed not urgent by this honourable court on the 30th December 2019. The 1st to 9th respondents (Ndlovu, Dube, Ngwenya, Nyathi, Moyo, Ncube, Sibanda, Lushongwe Nqama Small Scale miners Association) then proceeded to enrol it on the ordinary roll of chamber applications. Service was supposedly effected upon one Stephen Nyoni.

"It is trite to categorically state that 1st applicant (Simalu Mining (Pvt) Limited) does not have any Stephen Nyoni within its rank and file either as a director or an employee. Resultantly applicants never got to know of the chamber application," the claim read in part.

They argued that the 1st to 9th respondents have demonstrated a penchant of secretly prosecuting matters in the cover of darkness adding that the summons which were issued on 16 December 2019 were yet to be served upon the applicants yet they were used to procure the subsequent default judgement which exudes malice.

The applicants stated that they got wind of the summons after investigations by their legal practitioner while trying to get to the bottom of the default judgement.

"1st to 9th respondents clearly pulled the wool over the honourable's court's eyes. The default judgement in question can further not be sustained on the basis that it was fraudulently procured. This is so as the deponent to the founding affidavit of the chamber application, Mr Patrick Dube has denied ever disposing the said affidavit.".

They further argued that the 1st to 9th respondents clearly adopted an approach synonymous with a rogue litigant and should not be beneficiaries of a fraudulently obtained court order.

"The 1st to 9th respondents have sought to mislead this honourable court through shocking and reprehensible conduct of non-service of court processes to the other party and unfortunately to the miscarriage of justice procure a default judgement which is no uncertain terms unacceptable in a professional and ethical practice of litigation".

In praying for the dismissal of the default judgement which was granted by Bulawayo High Court judge Justice Evangelista Kabasa, the applicants argued that the guerilla warfare-like prosecution of matters had long been frowned upon by courts and usually resulted in special punitive cost of the highest nature.

The respondents are yet to respond to the summons.

Source - the independent - dailynews

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