Zanu-PF official loses Gwanda mine

LUNGISANI Ncube, the Zanu-PF candidate who lost the 2023 Gwanda North parliamentary election, has failed in his bid to claim ownership of a mining site previously held by the late Michael J Van Rooyen after the High Court dismissed his case.

Ncube approached the court in September 2024, filing summons against Rainas Gambiza and the Matabeleland South provincial mining director, seeking to be declared the lawful owner of the mine. He claimed the mining claim had been promised to him as commission for facilitating the sale of Van Rooyen's mining claims.

In his application, Ncube asked the court to compel the provincial mining director to reverse the transfer of the mining claim and to evict Gambiza from the site.

However, Gambiza opposed the summons and raised an exception, arguing that Ncube's claim was vague, embarrassing and failed to disclose a cause of action recognised at law.

Bulawayo High Court judge Justice Mpokiseng Dube upheld Gambiza's objection, ruling that the summons was vague, did not disclose a cause of action and was procedurally defective because the executor of Van Rooyen's estate had not been cited as a party to the proceedings.

"In the premises, I make the following order: The 1st defendant's exception to the plaintiff's summons and declaration be and is hereby upheld. The plaintiff shall pay the 1st defendant's costs of suit on an attorney-and-client scale," Justice Dube ruled.

Ncube, who was represented by lawyers from Masamvu and Da Silva Gustavo, had sought an order declaring him the lawful owner of the mine, which he said he acquired as commission for facilitating the sale of Van Rooyen's mining claims.

He further requested the court to compel the provincial mining director to cancel and reverse the transfer of the claim from Gambiza, his agent, assignee, syndicate or any third party, and to register the claim in his name within seven days of the order.

In the alternative, Ncube asked that the sheriff of the High Court be authorised to sign all necessary documents to effect the transfer if the respondents failed to comply within the stipulated time. He also sought an eviction order against Gambiza and anyone occupying the mine through him, as well as costs on an attorney-and-client scale.

Ncube's case was based on an agreement allegedly entered into in 2020. Court papers stated that he acted as an intermediary in the sale of mining claims.

"The plaintiff's role was that of an intermediary, introducing a buyer, Philisani Ncube, to the seller," the court papers read.

"The plaintiff states that an understanding was reached among the seller, the buyer and himself, whereby his facilitation fee would be satisfied through the transfer of the mining claim Van Roo 3."

Ncube further alleged that Gambiza had unlawfully taken over the mining location through fraud, forgery and misrepresentation, and that documents held by Gambiza were illegitimate and intended to defeat his alleged contractual rights.

He claimed that when he reported the matter to the provincial mining director, official records showed no paperwork justifying Gambiza's occupation of the claim.

In his exception, Gambiza argued that Ncube's claim did not disclose a cause of action against him, as any alleged commission agreement was between Ncube and the late Van Rooyen, who was not a party to the proceedings.

"The plaintiff's claim is essentially a request for specific performance and a declaratory order based on a contract for commission," Gambiza submitted.

"However, the contract alleged by the plaintiff was entered into with a third party, the late Michael J Van Rooyen, who is not a party to this litigation."

He further argued that holding title to property that Ncube believed he had been promised by a third party did not give rise to a cause of action for eviction or transfer against him.

Gambiza also pointed out that Ncube's declaration was silent on whether the alleged commission agreement was reduced to writing, lodged with the Mining Commissioner or whether the necessary statutory requirements had been met.

The High Court agreed with Gambiza's submissions, bringing Ncube's claim to an end and ordering him to pay the defendant's legal costs on a punitive scale.