THE case of the Esigodini miners who were trapped at Matshetshe Mine had a false start at the High Court as Justice Christopher Dube Banda indicated that the court has no jurisdiction in the matter before postponing it to this month.
But, the applicant's lawyer Dumisani Dube, insisted that the court is enjoined to deal with the matter.
Six artisanal miners, namely Nkosilathi Ndlovu (29), Christopher Dube (23), Ndumiso Dube (19), Blessed Ncube (24), Nduduzo Ntini (28) and another only identified as Mlilo have been trapped underground since November 10, 2020 after the shaft they were working on collapsed.
Government has since given up on rescue operations citing the mine was flooded with water which could pose more danger to the rescue teams and cause more loss of life.
Riled by government's move , Patience Ncube, the mother of one of the trapped miners, Nkosilathi, represented by lawyer Dube filed an urgent chamber application at the Bulawayo High Court seeking an order directing President Emmerson Mnangagwa and other government departments to implement an emergency rescue operation.
She submitted that the mine accident must be declared a national disaster to kindle support mechanisms and efforts for the retrieval of bodies so as to allow relatives to heal and to find closure.
This was after an assessment of the mine vicinity done by chief government mining engineer Michael Munodawafa who declared the mine as unapproachable due to water flooding.
Munodawafa also noted that it would take over a year of continuous work before any successful rescue efforts were realised as the area "is characterised with friable ground, loose rock material and debris posing danger of further collapse".
Ncube cited mine owner Sakhile Ndlovu, Umzingwane Rural District Council, Provincial Coordinator for Matabeleland South province, Local Government ministry (Civil Protection Unit), Mines and Mining Development ministry and Mnangagwa as the first to sixth respondents respectively.
Appearing before Dube Banda, mine owner Ndlovu submitted to the court that she was not against the application.
The representative of the Umzingwane District Development Coordinator asked for the postponement. This prompted an argument with the lawyer over the postponement. However, the Judge said the state cannot be sued on the matter and the court has no authority to deal with the matter.
"In terms of the Civil Protection Act, the court is enjoined to deal with this matter," Dube submitted.
Dube, however, noted in court that since the respondent had asked to postpone the matter, it would be better for it to be back in court at the end of January.
The next setdown date is yet to be revealed, however, indications are that the matter would be handled by a different judge, as the lawyer and his client felt that Dube-Banda based on his remarks was not willing to deal with it.
Ncube in her application asked that the fith respondent (Mnangagwa) declares the Matshetshe mine collapse a disaster within the meaning of section 27 of the Civil Protection Unit (CPU).
"That the provincial civil protection officer, Matabeleland South province must within 48 hours of this order direct the fourth respondent within his area to prepare an emergency plan for the rescue/excavation of the trapped miners or their bodies," reads in part the application.
"That such emergency plan, referred to in 1, be compiled and submitted to the Provincial Civil Protection Officer, Matabeleland South within 24 of his direction. Implementation of the emergency plan must begin subject to the availability of resources within 48 hours of such submission to the Provincial Civil Protection Officer, Matabeleland South."
According to the family, the miners or their bodies have to be retrieved to enable them to find closure.
"One of the mothers of my sons' fellow co-workers has actually developed psychological illness and is currently admitted at Ingutsheni mental hospital as a result of this accident. It is therefore important for us as families to find closure in this issue and possibly be allowed to do traditional family rites," the application reads.
The Parliamentary Portfolio Committee on Mines and Mining Development recently visited the mine on a fact-finding mission to establish what transpired and to come up with recommendations to deal with the situation.