ROCK CHEMICAL FILLERS (PVT) LTD v BRIDGE RESOURCES (PVT) LTD & ORS 2014 (2) ZLR 30 (H)

Flynote

Court — High Court — jurisdiction — mining dispute — court having jurisdiction to determine dispute — no requirement to refer dispute first to mining commissioner

Legal practitioner — conduct and ethics — affidavits — practitioner signing affidavit in absence of purported deponent — dishonourable and dishonest conduct

Mines and minerals — mining dispute — mining commissioner — referral of dispute to — whether such dispute must be referred to mining commissioner — right of complainant to approach High Court for relief

Headnote

While a mining commissioner has judicial powers, conferred upon him by s 346 of the Mines and Minerals Act [Chapter 21:05], to hold a court in any part of the mining district to which he is appointed and to determine disputes in the simplest, speediest and cheapest manner possible, and also to authorise a survey (s 353) for the purpose of ascertaining whether an encroachment has occurred, the High Court still enjoys jurisdiction over such matters. An application to the High Court arising out of a mining dispute cannot be defeated by a failure to refer the dispute to a mining commissioner. It is, however, important to note that it is within the province of the court to direct the mining commissioner to commission a survey. Indeed the mining commissioner to whom a complaint has been made has a duty to investigate the complaint thoroughly.

Quite often legal practitioners indulge in the unfortunate and unbecoming behaviour of signing "affidavits" in their capacities as ex officio commissioners of oath, not only without satisfying themselves that an oath is taken but also in the absence of the "deponent". They do this as a favour to colleagues racing against time. Not only is such conduct disdainful, it is clearly dishonourable. It is the height of dishonesty for a commissioner to authenticate a signature he has not seen the signatory sign, but even worse for him to sign a blank document, hoping that the intended deponent's signature would be appended later. It is a serious dereliction of duty on the part of the commissioner of oaths. The deponent must always appear before the commissioner and be duly sworn. His signature must be appended in the presence of the commissioner whose signature is an assurance to the court that all these procedures have been complied with.