Locus standi in environmental litigation

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

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                                                                                                                                                                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.

Grandwell Holdings (Pvt) Ltd (HH 193-16 HC 1977/16) [2016] ZWHHC 193 (16 March 2016);

 

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HH 193-16

HC 1977/16

GRANDWELL HOLDINGS [PRIVATE] LIMITED

versus

MINISTER OF MINES & MINING DEVELOPMENT

and

ZIMBABWE MINING DEVELOPMENT CORPORATION

and

MARANGE RESOURCES [PRIVATE] LIMITED

and

ZIMBABWE CONSOLIDATED DIAMOND COMPANY

and

MBADA DIAMONDS [PRIVATE] LIMITED

and

COMMISSIONER-GENERAL, ZIMBABWE REPUBLIC POLICE

 

 

 

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 29 February 2016; 2, 4, 8 & 16 March 2016

 

 

This was an application for an order of remedy of spoliation and an interdict.

The applicantĺs main argument was that the actions of the respondentsĺ occupation of the diamond mining site at the Chiadzwa Concession amounted to an act of spoliation against the fifth respondent.

Firstly, the court determined whether the applicant (a foreign company) was required to furnish security for the costs of the respondents before the application could proceed. The court noted that such orders are matters of its discretion and are only issued when there is a reason to believe that a company will be unable to pay the costs of the suit.

Secondly, the court found that the second to fourth respondents had come to court with Ĺdirty handsĺ but had cleansed themselves.

Thirdly, it was held that the applicant (a shareholder of the fifth respondent) had the locus standi to bring the derivative action as an exception to the rule in Foss v Harbottle [1843] 2 Hare 461, 67 ER 189.

Finally, the court found that the applicant had proved the elements of spoliation: peaceful and undisturbed possession and the act of spoliation on a balance of probabilities. However, the court held that allowing the fifth respondent to resume mining operations as before, when the right to do so expired, would be contrary to public policy. Nevertheless, the court noted that the applicant was entitled to a final order and ordered the restoration of its rights when the validity of the special grants was regularized.

Core Mining And Minerals Resources (Pvt) Ltd v Zimbabwe Mining Development Corporation and Others (HC 8410/10) [2011] ZWHHC 280 (04 January 2011);

                                                                                              

This case concerned a preliminary point raised that the first and second respondents’ legal practitioner should be prohibited from appearing on their behalf. The applicant contended that the legal practitioner who was present at a meeting where the Mining Development Board discussed the shareholding of the respondents, was intimately interested in the subject matter of the proceedings. The applicant further contended that the same legal practitioner should not be allowed to appear for the fifth respondent, the minister of mines and mining development, who ought to be represented only by the Attorney-General as the principal legal advisor to the Government. 

In response, the practitioner contended that there was no evidence to determine the depth of his alleged involvement in the matters referred to and that the allegations were based on speculation. He further submitted that he had authority to represent the Attorney-General. 

The court had to determine whether it was proper for the legal practitioner to appear for the first, second and fifth respondents.

The court observed that it was important that a legal practitioner should at all times retain his independence in relation to his client and the litigation. On account of the practitioner’s previous involvements with the first and second respondents, the court determined that he could not be allowed to serve as their legal practitioner.

With regard to the representation of the fifth respondent, the court did not make any pronouncement on the basis that it lacked sufficient information. Accordingly, the court upheld the preliminary objection.

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