A MHONDORO-NGEZI resident unsuccessfully challenged giant platinum mine, Zimplats, to cede 10% of its shares to a local community share ownership trust after it backtracked on its promise made in 2019 during the peak of the indigenisation drive.
Tatenda Gwinji had cited Zimplats, Mhondoro-Ngezi-Chegutu-Zvimba Community Share Ownership Trust, Zimbabwe Platinum Mines (Pvt) Ltd, Industry and Commerce minister, Small and Medium Enterprises Development minister, Sibusisiwe Revai Chindove and Godfrey Havatitue Sigobodhla as respondents.
Chindove and Sigobodhla are trustees of the community share ownership trust.
In the matter which was heard by High Court judge Justice Jacob Manzunzu, Gwinji had sought a declaratory and consequential relief that the judge declares that the trust was entitled to subscribe to and Zimplats Mine was obliged to allot to the trust ordinary shares in the share capital of 10%.
Gwinji had also sought an order declaring that Zimplats’ failure and/or neglect to comply be ultra vires the Constitution of Zimbabwe.
According to the indigenisation laws, Zimplats was required to submit an indigenisation implementation plan which it did by expressing its intention to allot 10% of its issued shares to the local community.
On October 13, 2011, a memorandum of understanding (MoU) was signed between the government and Zimplats.
The MoU recorded that a community share ownership trust would be set up for the benefit of the various communities affected by Zimplats activities.
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It was further recorded that Zimplats would dispose 10% of its issued share capital to the trust for fair value, on terms and conditions to be agreed upon.
The MoU further acknowledged that the disposal of the shares was subject to the execution of definitive agreements relating to the disposal of the shares to the trust, including a share sale agreement between Zimbabwe Platinum and the trust.
On December 11, 2011, a trust deed was registered at the Deeds Registry, which effectively gave birth to the ownership trust.
It was Gwinji’s contention that despite Zimplats making profits and declaring dividends, it had refused and/or neglected to allot to the trust, ordinary shares in its share capital constituting 10% of the issued share capital.
Gwinji instituted this action in his personal capacity as a resident and beneficiary of the trust and in the public interest on behalf of other residents and communities who are beneficiaries.
However, Zimplats and the Mines and Mining Development ministry raised their exception to the summons and declaratory in that they do not disclose a cause of action.
They also raised special pleas, that of prescription, lack of locus standi on Gwinji, further arguing that the court had no jurisdiction to deal with the action, which is not a commercial dispute.
The respondents further argued that it was improper for Gwinji to ask the court to compel the parties to enter into an agreement.
However, Justice Manzunzu in his disposition dismissed Gwinji’s application and upheld the exception by the Zimplats and the ministry.
