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MPs Madodana Sibanda of Gwanda North and Soul Ncube of Matobo South and their supporters are part of Ndabankulu Mining Syndicate that is being accused of wresting Ndabankulu Mine from Sibanda’s Qalo Syndicate which had reportedly pegged the claim first and submitted papers for registration with the Bulawayo mining commissioner.
The legislators were alleged to be working in cahoots with the mining commissioner in grabbing the claim from Sibanda.
Sibanda then approached the Bulawayo High Court seeking recourse.
In February last year, Bulawayo judge Justice Maxwell Takuva ordered the syndicate to stop mining until Sibanda’s application for review of the awarding of the claim to the Zanu-PF group was concluded.
However, the Zanu-PF syndicate failed to file heads of argument opposing the matter, leading to a default judgment being granted by the same judge, granting the right to Sibanda.
The syndicate then rushed back to the court seeking rescission of the default judgment and also applied to have their late filing of opposing papers condoned arguing that there was a communication breakdown between them and their lawyers and was not in willful default.
In an affidavit filed by their representative, Ethel Linda Ndlovu, the group said they were not aware that they were in default.
“On the 17th of March 2014, we duly filed and served our notice of opposition to the application for review by the 1st respondent (Qalo Mining Syndicate) under case number HC441/14. We were advised by our legal practitioners and our then representative, Thulani Ndlovu that we would be advised of when the matter would be going to court,” said Ndlovu.
“It appears from the perusal of the record that the 1st respondent served our then legal practitioner with their answering affidavit as well as heads of argument on the 20th of March. From the record we did not file any heads of argument in opposition and on the 17th of April, the Honourable Mr Justice Takuva granted an order in default in favour of the 1st respondent.”
She said they were not aware firstly that they were in default and secondly that there was already a default judgment.
“We only became aware of the default judgment on the 22nd of April 2014. We were not in wilful default in the matter. As stated there are a number of members in our syndicate and at the time this dispute arose we chose Mr Thulani Ndlovu to be our representative in this matter where we were called upon to contribute for our lawyers’ fees for the opposition which we duly did,” she said.
“At all material times we believed that the matter was opposed and we happily awaited our day in court for the hearing of the matter. We only knew that the legal fees were not paid during the days for filing heads of argument had expired and the applicants had already been barred for want of filing of head of arguments and a default judgment had already been issued against them.”
The group asked the court to reverse the judgment and also allow them to file their opposing papers late.
However, Sibanda has opposed the application which he described as improperly before the court.
The matter is still to be set down for hearing where the Zanu-PF syndicate is being represented by Dube-Banda, Nzarayapenga and Partners while Sibanda is being represented by Job Sibanda and Associates.
In his founding affidavit, the businessman Sibanda, on behalf of his Qalo Mining Syndicate, said on January 31 last year using his prospecting licence he identified the claim and pegged it before he went to register it on February 3.
Sibanda said he was surprised at a meeting of miners in Bulawayo with officials from the mines ministry on 14 February to learn that the claim had been given to Ndabankulu Mining Syndicate.
Sibanda then approached the court for redress arguing that claims were registered on a first-come first-serve basis, hence the claim was supposed to be registered to him.
However, the Zanu-PF officials, through their syndicate, have filed opposing papers to Sibanda’s application through their lawyer Solomon Mguni arguing that their certificate was not obtained through misrepresentation of facts or fraud, but after having satisfied the requirements of the mining commissioner. by Richard Muponde. Source: sundaynews