Fidelis Munyoro Chief Court Reporter
PROMINENT Kadoma gold dealer Kevin Magwaza has filed a US$1,9 million claim against his erstwhile business partner Spencer Tshuma, who had booted him out of a joint business venture and assumed control of the rich gold mine on the strength of an unlawful court order.
Magwaza spent a year away from his mining business fighting Tshuma in the courts to regain control of his Etna Estate Mine, on the outskirts of the gold mining town of Kadoma.
Magwaza is the owner of the mine by virtue of a certificate of registration issued on April 5, 2019 in accordance with the provisions of Mines and Minerals Act.
In a claim filed at the High Court last week, Magwaza is seeking an order compelling Tshuma to pay him US$1 693 200 being the net value of gold the former would have realised from his lawful mining operations at his mine from July 22, 2019 to the June 18, 2020 when Tshuma unlawfully barred him from accessing his mining location.
In addition, he wants Tshuma to pay him another US$244 800 being the monetary value of the 4 800 grams of gold Magwaza would have realised from his 400 tonnes of gold ore stockpile at Etna mine, which was unlawfully appropriated Tshuma when he unlawfully took control of the mine.
Before he was ejected from the mine, Magwaza said he was in peaceful and undisturbed productive occupation and carrying out mining operations at Etna Mine producing an average of 120 grammes of gold per day.
At the time he was evicted he had also accumulated 400 tonnes of gold ores at the mining location. On average the gold ore at the mining location yields an average of 12 grammes per tonne.
However, around the July 22, 2019 Magwaza’s operations were abruptly stopped by Tshuma after messenger of court had served an ex-parte order obtained at Kadoma magistrate’s court under case number CGK 718/19 relating to a claim and dispute exclusively between Tshuma and one Sebastian Magodo.
“Subsequent to the service of the ex-parte order, the defendant (Tshuma) on his own accord forcibly ejected and barred the plaintiff (Magwaza) and all his employees from the mining location, notwithstanding the fact that defendant neither had any registered mining rights over the mine nor an enforceable court order against the plaintiff,” said Magwaza in the summons prepared by his lawyers Mutamangira and Associates.
“From the 22nd of July 2019 the defendant was in effective control and carrying out mining operations at Etna Mine registration number 16014 at the exclusion and expense of the plaintiff.
“The defendant also processed all the 400 tonnes of gold ore left at the mine by plaintiff and sold all the gold retrieved there from for his sole benefit.”
Magwaza said he instituted proceedings for the return of his mining location which were vigorously defended and delayed by Tshuma, but ultimately won all his cases to have control and occupation of the mine returned to him on June 18, 2020 through an order granted in his favour by the High Court in case number HC 6272/19.
“As a result of the defendant’s action, the plaintiff lost business as he could not carry out mining operations at his own mining location wherein he had exclusive rights to do so,” argued Magwaza.
“The defendant had no right at law, whatsoever to stop the lawful mining operations of the plaintiff. Furthermore, the defendant had no lawful right to carry out mining operations at plaintiff’’s mine and deplete the mineral resources to his benefit.”
To this end, Magwaza urged the court to allow his claim to the total sum of US$ 1 938 000at the prescribed rate calculated from the date of issue of summons to date of full and final settlement.