Declaratory Relief

Debshan (Pvt) Ltd. v Provincial Mining Director, Mat. South Province & Others (HB 11-17 , HC 538-16) [2017] ZWBHC 11 (26 January 2017);

1

 

                                                                                                                                                                HB 11-17

                                                                                                                                                              HC 538-16

 

DEBSHAN (PRIVATE) LIMITED

versus

THE PROVINCIAL MINING DIRECTOR,

MATABELELAND SOUTH PROVINCE

and

THE PROVINCIAL MINING DIRECTOR,

MATABELELAND NORTH PROVINCE

In this High Court case, the applicant owned a ranch where it was engaged in cattle ranching and wildlife safari operations. Many people desired to conduct mining activities on the ranch-land. The applicant sought a declaratory order against the mining authorities that any mining rights issued targeting the ranch, without conducting an environmental impact assessment, would be void. The first and second respondents opposed the application on the basis that an environmental impact assessment certificate was not a prerequisite for the issuance of a mining certificate but only for the commencement of mining operations. 

In court, the first issue for determination was whether the applicant had the legal capacity to challenge the issuing of the licenses; the second whether the permits were properly issued to the holders.

The court held that for the applicant to obtain the declaratory order sought it needed to establish that it had a direct and substantial interest in the subject matter. Since the licenses affected the applicant rights over the ranch, he had the legal capacity to seek the orders. On whether the first and the second respondents were discharging their duties lawfully in issuing the mining licenses, the court held that s3 and s97 of the Environmental Management Act of 2002 prohibit the issuing of mineral rights without conducting an environmental impact assessment. Since the environmental impact assessment report was not issued, the applicant was accordingly entitled to the declaratory order sought.

Mugomba v Rimbo & Others (HH380-16 HC 8811/13) [2016] ZWHHC 380 (29 June 2016);

1

HH380-16

HC 8811/13

 

FRANCIS MUGOMBA

versus

MAYOR RIMBO

and

RIMBO MINERALS (PVT) LTD

and

MINING COMMISSIONER

 

 

 

HIGH COURT OF ZIMBABWE

MATANDA-MOYO J

HARARE, 30 September 2015 & 29 June 2016

 

 

 

Trial

 

 

 

F Chauke, for the plaintiff

F Musihairambwe, for the 1st & 2nd defendants

 

 

This was an application by the plaintiff seeking an order declaring the first and second defendants’ construction of a milling plant and prospecting activities as unlawful, for interfering with the plaintiff’s agricultural activities. 

The first defendant opposed the reliefs sought, on grounds that he was the lawful owner of the mining blocks.

The court first assessed the evidence and concluded that the defendants were not in compliance of the procedures set out under the Mines and Minerals Act, for registering the claims and the subsequent conversion into blocks. The court further held that the defendants failed to show any plan lodged with the Commissioner of Mines, as required under the Mines and Minerals Act. 

Lastly, the court determined whether the land in dispute was cleared on or before the registration of the blocks and whether such land is the only portion, suitable of for farming. After outlining the rights of various parties, the court concluded that the plaintiff had no right to clear the land pegged for mining. However, the court could not make a holding on whether the prospecting operations were interfering with the plaintiff’s agricultural activities. This is because the plaintiff failed to
clarify whether the cleared field was located 450 metres from the principal homestead. The court therefore referred this issue to the Mining Commissioner for investigation and report, according to s 345 of the Mines and Minerals Act.

The court ordered the defendants to stop mining operations without complying with the law and to pay costs.

ZELA & Others v Anjin Inv. (Pvt) Ltd & Others (HC 9451/12) [2015] ZWHHC 523 (16 June 2015);

1

HH 523/15

HC 9451/12

 

ZIMBABWE ENVIRONMENTAL LAW ASSOCIATION

and

ZAKEU NHACHI

and

ROSEMARY MARUWA JENA

and

ELIAS MATSVERUKA

and

MAYIMBOTI MAYIMBOTI

and

ISAAC ZIWENJERE

versus

ANJIN INVESTMENTS (PRIVATE) LIMITED

and

MARANGE RESOURCES (PRIVATE) LIMITED

and

DIAMOND MINING COMPANY (PRIVATE) LIMITED

The court considered an application for a declaratory order and an interdict, declaring the defendants’ waste discharges unlawful and constituting pollution, and prohibiting the defendants from discharging their waste material.

The first and third defendants were mining companies and in conducting their business, they discharged their untreated waste material and effluence into a river. The plaintiffs were inhabitants on the banks of the river and relied on it for their subsistence. The plaintiffs contended that the discharge had polluted the water, aquatic life and disturbed the ecosystem.

The defendants opposed the application by bringing a special plea alleging that the court lacked jurisdiction to hear the matter and it ought to be heard by the Environmental Management Agency. Further, that an interdict should not be granted as there was an alternative remedy available under the Environmental Management Act. 

The court found that the argument that the court lacked jurisdiction was without merit. The court observed that there was a glaring need for a declaration as to the existence of a legal right claimed by the plaintiffs but this was not argued nor the fact that the EMA could not issue the declaratory orders sought by the plaintiffs although the plaintiffs were interested persons in the subject matter of the suit. The court found the plaintiffs had a direct and substantial interest in the matter and that there was a need for a declaration to the right claimed by the plaintiffs. Accordingly, the application for special plea was dismissed.

Chiroswa Minerals (Pvt) Ltd & Another v Min. of Mines & Others (HC 801/09) [2011] ZWHHC 261 (14 November 2011);

HH 261-2011

HC 801/09

 

CHIROSWA MINERALS (PRIVATE) LIMITED

and

BASE MINERALS (PRIVATE) LIMITED

versus

MINISTER OF MINES

and

MORRIS TENDAYI NYAKUDYA

and

VAMBO MILLS (PRIVATE) LIMITED

 

HIGH COURT OF ZIMBABWE

PATEL J

 

Civil Trial

 

HARARE, 16 June 2011 and 15 November 2011

 

F.M. Katsande, for the plaintiffs

The first plaintiff concluded a tribute agreement with the second and third defendants that was to last for ten years. The Mining Commissioner rejected this agreement since it was not registrable. This agreement was replaced by a three-year tribute agreement. When this agreement expired, the first plaintiff entered into another agreement with the second plaintiff and they sought an order registering this agreement and the eviction of the second and third defendant. The eviction order was opposed on grounds that the first agreement was still valid.

In interpreting s289 and 290 of the Mines and Minerals Act on tribute agreements, the court made a distinction between directory and peremptory provisions. The court noted that it is impossible to lay down any conclusive test to distinguish the two provisions. However, provisions in negative form and containing penal sanctions are to be regarded as peremptory rather than directory. The court also noted that the intention of the legislature is to be considered when distinguishing the two.

The court found that the provisions were couched in negative form and that their contravention was to be visited with penal sanctions, hence peremptory. Additionally, it was found that the approval was meant to protect the interests of the tributor and to avoid premature cessation of mining operations.

Accordingly, the court declared that the first agreement was invalid and unenforceable; and that the second agreement was valid but had expired. Consequently, the second and third defendants were ordered to vacate or be evicted.

MIDKWE Minerals Ltd v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Others (Civil Appeal No. SC 358/12) [2013] ZWSC 54 (01 September 2013);

Judgment No. SC 54/13

Civil Appeal No. SC 358/12

 

 

REPORTABLE (40)

 

 

 

MIDKWE     MINERALS     (PRIVATE)     LIMITED             

The first and second respondents, were parties to a contract in respect of a gold plant for three years with the option to renew. At the end of this period, the second respondent did not renew the contract but recommended the applicant to take over its operations. However, the second respondent continued to mine at the plant and refused to hand the plant over to the first respondent thereby prompting it to seek an interdict to stop the continued mining by the second respondent and applicant. This was granted by the High Court.

The appellant immediately, filed an urgent application to the High Court seeking a provisional order to stop the first and second respondents from disturbing its operations at the gold plant. The two matters went before the High Court for confirmation of the provisional orders. The first order, to stop the first respondent and associates mining, was confirmed. However, the second order, to stop the respondents’ disturbance in the mine, was discharged.  This appeal was against the judgment.

The court found that the first order included all business associates of the second respondent and the applicant was a business associate of the second respondent, as evidenced by the joint venture agreement concluded between the two. 

In conclusion, the court held that the appellant was mining in contravention of the contract when it approached the court for the second provisional order and as a result, the provisional order granted in that case was discharged. The appeal was accordingly dismissed.

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