LUNGISANI Ncube, the Zanu PF candidate who lost in the 2023 Gwanda North parliamentary race, has failed in his High Court challenge to claim ownership of a mining site previously held by the late Michael J Van Rooyen.
Ncube filed a summons in September 2024 against Rainas Gambiza and the Matabeleland South provincial mining director, seeking recognition as the lawful owner of the mine. He claimed the mine was promised to him as a commission for facilitating the sale of Van Rooyen’s mining claims. Ncube asked the court to compel the provincial mining director to reverse the transfer of the claim and evict Gambiza from the site.
Gambiza opposed the summons and filed an exception to the summons on the basis that the claim was vague and embarrassing while failing to disclose a cause of action.
Bulawayo High Court judge Justice Mpokiseng Dube upheld Gambiza’s objection, ruling that Ncube’s summons was vague, failed to disclose a cause of action and was procedurally incompetent since the executor of Van Rooyen’s estate was not joined as a party. Ncube was ordered to pay Gambiza’s legal costs on an attorney-and-client scale.
“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.
Represented by a lawyer from Masamvu and Da Silva Gustavo, Ncube filed summons for an order declaring him the lawful owner of a mine, which claim he acquired as commission for facilitating the sale of the mine claims of the late Van Rooyen.
Ncube sought an order compelling the provincial mining director to cancel and reverse the transfer of the claim from Gambiza, his agent, assignee, syndicate, association or any other third party and register the claim in his name within seven days of the granting of the order.
He submitted that if the above have not been complied with, the sheriff of the High Court or his lawful deputy should be authorised to sign all the necessary papers to effect the transfer within 14 days of the order.
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He prayed for an order evicting Gambiza and all those claiming occupation and possession through him from the mine claim within seven days, and for the respondents to pay costs of the suit on the scale of attorney and client.
Ncube’s case was based on an agreement allegedly entered into sometime in 2020 and court papers stated that Ncube facilitated the sale of mining claims.
“The plaintiff (Ncube)’s role was that of an intermediary, introducing a buyer, Philisani Ncube, to the seller. 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,” read the court papers.
“The plaintiff further asserts that he later discovered that the 1st defendant had assumed control over the mining location and states that this occupation is an unlawful invasion based on fraud, forgery and misrepresentation.
“He further alleges that the 1st defendant possesses documentation that is not only illegitimate but is a deliberate attempt to bypass the plaintiff’s prior contractual rights.”
Ncube said that on reporting the unlawful invasion to the provincial mining director, the official records indicated lack of any paperwork justifying Gambiza’s presence at the mining claim.
Gambiza, in his exception to the summons, said Ncube’s claim did not disclose a cause of action recognisable at law against him.
“The plaintiff’s claim is essentially a request for specific performance and a declaratory order based on a contract for commission.
“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.
“The 1st defendant is described as an invader or a person who has transferred through fraudulent means. The plaintiff’s pleading, however, fails to establish a causal link between the plaintiff’s personal right under the commission agreement and the 1st defendant’s current title or occupation.”
He said the fact that he holds title to property that Ncube believes he was promised by a third party did not create a cause of action for eviction or transfer against that third party.
“The plaintiff’s declaration is silent on whether the alleged commission agreement was ever reduced to a written contract for the transfer of mining interests, whether such an agreement was lodged with the Mining Commissioner or whether the necessary duties were paid,” Gambiza noted.
