The Environmental Case Law Index is a collection of judgments from 10 African countries on topics relating to environmental law, both substantive and procedural. The collection focuses on cases where an environmental interest interacts with governmental or private interests.
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This Supreme Court case revolved around a compromise agreement between the fourth respondent and the appellant. The fourth respondent, a registered mining company, was going bankrupt and its management was entrusted to the liquidator. The liquidator then granted the appellant the right to treat stockpiles of ore at the mine to raise money to pay the creditors. The appellant then attempted to have all mining activities registered under its name. In doing so, the appellant misrepresented the facts to the third respondents without involving the fourth respondent stating that it paid the creditors their dues and as such, it was entitled to have mining activities registered under its name. However, the fourth respondent succeeded in establishing that the appellant was lying. This led the third respondent to cancel the appellant’s falsely obtained mineral rights. The High Court agreed with the respondents that the appellant's mineral rights over the plot in dispute were justifiably cancelled. The appellant felt aggrieved by the court’s judgement and appealed to the Supreme Court.
The issue for determination was whether the appellant was allowed to register mining rights under its name and whether the third respondent erred in cancelling its rights.
The Supreme Court held that agreements cannot be valid if consent was obtained through misrepresentation. Consequently, it found that the appellant was unjustified and supported the third respondent’s decision to cancel the falsely obtained rights.
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.
This was a bail appeal against the decision of the magistrate that denied the appellants bail on grounds that they were likely to abscond trial.
The appellants were charged with unlawful prospecting for minerals, oil and natural gas without a valid license contrary to s 368 (1)(a) as read with s 4 of the Mines and Minerals Act 1 of 2006.
The court noted that the magistrate condemned the applicants to imprisonment where the state was not opposing bail, without evidence that the appellants were likely to abscond trial and without any defence from the appellants on the bail issue.
The court found that the state could not oppose the appeal since they had already conceded that the appellants were good candidates for bail.
It was held that the magistrate misdirected himself. Accordingly, bail was granted subject to conditions. The appellants were required to deposit US$20 with the clerk of Court Bindura Magistrate Court, to continue residing at their places of residence until finalization of the matter and to report to respective police stations as directed by the court.
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.
This was an appeal against the decision of the Magistrates Court, dismissing the appellant’s application for bail. The appellant was arrested for possessing gold without a licence.
At the initial bail hearing, the Magistrate questioned the issue of abscondment and held that the appellant was unlikely to stand trial for various reasons such as him being a “a man of means” who “could use that status to abscond”. The magistrate further held that the stipulated mandatory penalty “could certainly ignite motives of abscondment” and that “the onus was now on the accused to show on a balance of probabilities that his admission to bail would not prejudice the interests of justice”.
The court, therefore, had to decide whether the magistrate’s approach to onus was erroneous in light of the evidence placed before him.
The court held that the magistrate a quo did not misdirect himself as to the approach to follow but had failed to exercise due diligence. He made unfounded allegations which did not indicate whether the appellant was likely to abscond for those reasons. He had also left a lot of issues open ended such as the severity of the penalty, the issue of passports and had ultimately failed to assess the strength of the evidence forwarded by the appellant.
Therefore, the magistrate a quo misdirected himself his evaluation of the likelihood of abscondment by the appellant and the evidence did not indicate that the appellant would abscond. Accordingly, his decision to decline bail was set aside.
This was an application seeking an order setting aside the sale of granite blocks to the second respondent. The application also sought to compel the first respondent to offer the blocks to the applicant in terms of a ‘right of first refusal’ agreement between them. The application was filed following reception of information that the first respondent was moving granite after a sale to the second respondent without their knowledge.
The application was brought on an urgent basis by the applicant.
The court had to determine whether the matter was urgent and whether the applicant had a claim against the second respondent for granite sold and whether to interdict further movement of the granite in question.
The court held that at the time of the hearing, the granite had not been removed from Zimbabwe and if the applicant was entitled to protection of its rights, it was the duty of the court to ensure that the matter was determined urgently.
It also held that any claim that the applicant had to the right of first refusal would depend on whether it can show that the second respondent was aware or ought to have been aware of its prior right or claim to the stone. The claim fell away as the conduct of the second respondent did not show any mala fide intention.
The interdict application was thus denied because the applicant had no rights to enforce against the second respondent.
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.
Revenue and public finance – income tax – deduction – assessed loss – special mining lease – assessed loss may only be deducted once and not carried forward
The court considered an application for an interdict to restrain the respondents from interfering with its mining operations. In response the respondents filed a counter-application to stop the applicant from mining on its registered mining claim.
The applicant contended that the respondents illegally encroached on its claims and was effectively stealing ore. The respondents alleged that it was the applicant who, through the shafts which were registered in their name, entered their area of activity and stole ore from them. Both prayed that the court interdict the other from accessing the claim and interfering with their mining activities.
The court in considering both applications, held that for an interdict to be granted, the right which was the subject matter of the main action and which was to be protected by means of interim relief must be clear or prima facie established. The court stated that if the right was only prima facie established, there should be a well-grounded apprehension of irreparable harm if the interdict was not granted and that proof of harm ultimately succeeded in establishing the right.
The court found that the applicant led no evidence to show that it suffered any harm let alone irreparable harm. The respondents on the other hand, satisfied the court that the disputed claim was registered in its name. The court, therefore, found that the applicant had no clear right to the claim. Accordingly, the application was dismissed with costs and the counter-application was upheld.
The court considered a criminal appeal against the sentence imposed on the accused, who was sentenced to a mandatory 2-year imprisonment for contravening s 368 (1), which dealt with the illegal mining of gold, under the Mines and Minerals Act
Before imposing a mandatory sentence, the court asked the accused if there were any special circumstances relating to the commission of the offence which would result in the requisite sentence not being imposed.
The accused held that his special circumstances were that he did not have enough money for a bus fare. The court found that this did not constitute a special circumstance as poverty desperation could not be excused for the commission of a crime.
The court found that a special circumstance is within the court’s discretion and thus it should be taken to be any extenuating circumstance. Further, that the court should enquire into all circumstances put forward by an accused to validate the aspect of a special circumstance.
The court held that a trial court had to ensure that economic situations leading to commission of crimes under economic circumstances at the time did not operate differently for the rich and for the poor. The court found that the court below should have performed a proper enquiry and that the accused should be given the benefit of the doubt. Accordingly, the appeal succeeded.
The court considered an application for an interim interdict preventing the respondents from interfering with the applicant’s business and to remove their security personnel.
The applicant held a licence to deal in scrap metal, particularly to acquire, sell or deal in copper. Police officers, accompanied by the 1st respondent attended at the applicant’s warehouse and advised of its intention to search for certain materials which were suspected to have been stolen from the 1st respondent. The 1st respondent ensured that security were placed at the premises to guard the warehouse until such time as the warrant had been obtained.
The court stated that the requirements for an interim interdict were: 1) a clear right, 2) a well-grounded apprehension of harm if the relief was not granted, 3) balance of convenience, and 4) absence of any alternative remedy.
The court found that there was an alternative remedy available since dealing in copper was a closely controlled trade and that a holder was obliged to keep proper records of the copper in its possession, thus it should have no difficult in accounting for any loss.
The court weighed the prejudice to the applicant if the relief was refused against the prejudice to the respondent if granted. It observed that the purpose of placing the security was to ensure that the premises was safe and no items were lost. If relief was granted, this protection would be lost. Thus, the balance of convenience did not favour the applicant. Accordingly, the application was dismissed.
The court considered an application for review concerning the decision handed down by the Magistrate’s Court on whether the accused’s case should have been discharged. The facts were that whilst the complainant was being investigated by the police for theft by finding of gold, the accused, a magistrate, approached the complainant and solicited him for a bribe to dispose of his case. The complainant made a report to the police who set a trap to arrest the accused, after she had received the money.
The defence applied for a discharge of the case, which was granted on the basis that the state witnesses were not truthful.
The court considered whether the magistrate’s decision to the discharge the case was exercised judicially. The court found that the trial court had a discretion to discharge or continue with the trial, and that such discretion ought to have be exercised judicially.
The court stated that a discharge was appropriate where: there was no evidence to prove an essential element of the offence; or no evidence on which a reasonable court would convict; or where the evidence was so unreliable that no reasonable court could act on it. The court held that there was nothing indicating that the witnesses had been discredited and that it was a misdirection for the magistrate to treat the assertions made by the accused as though they were evidence. Accordingly, the court set aside the accused’s discharge and referred the matter back to court for continuation of trial.
The case was in the High Court where the applicant sought to interdict the respondent from entering its diamond processing plant and from coming within 100 meters of the plant because the respondent was interfering with its operations.
The issue before the court was to determine if indeed the respondent interfered with the operations of the respondent. In this case, the judge accepted that the applicant had shown prima facie right over the diamond plant, as it set up the plant which it had been mining and operating from for three years. The court held that the right to mine there would have been in doubt but that did not disentitle the applicant to peaceful and undisturbed possession.
The judge also agreed with counsel for the applicant that the respondent had transgressed or disparaged the existing state of affairs by constantly forcing himself onto the plant claiming ownership of same and even attempting to take over the applicant’s employees which amounted to an infringement of the applicant’s rights. The court held that there could be no other remedy except to prevent the respondent from continuing with his unwarranted misadventures at the plant.
Consequently, the respondent, his agents and anyone acting on his instructions were permanently interdicted from entering the applicant’s diamond processing plant or coming within 100 meters of the said plant. The respondent was ordered to bear the costs of the application.
This was a review in the High Court concerning two accused persons who had been charged with and convicted for contravening s 368(2) as read with s 368 (4) of the Mines and Minerals Act [Chapter 21:05] for prospecting for minerals when they were not holders of licences or permits.
The issue facing the court was to determine whether the accused persons, being widows with minor children, were acting under special circumstances, as the trial magistrate had found. The court held that the learned trial magistrate completely misdirected himself in holding that the circumstances of the accused persons amounted to special circumstances, as there was nothing out of the ordinary about being a widow with minor children to look after. The court also held that the learned magistrate’s line of reasoning was faulty in calling that widows and widowers with minor children should be excused when they break the law so as to fend for the minor children, since it was a recipe for anarchy as there were so many widows and widowers in the country.
Consequently, the sentence imposed by the trial magistrate was not allowed to stand and, therefore, set aside. The matter was sent back to the trial court to recall the two accused persons and impose the sentence of two years imprisonment as mandated by law. Since both accused persons had already served four months imprisonment in the form of community service, they were to serve an effective term of 20 months imprisonment.
The court considered an application for a provisional order seeking an interim interdict restraining the respondents from interfering in the applicant’s mining operations. A dispute arose between the parties concerning the boundary between their two claims. It was argued that the commissioner found that the respondent was working outside one of his claims and inside one claim belonging to the applicant.
The court considered whether the interim relief sought should be granted. The court found that the respondent acknowledged that the claim belonged to the applicant but that the commissioner erred in determining that the boundary was within the applicant’s claim. The court held that the applicant had established a prima facie right which required legal protection and that the respondent was entitled to challenge the commissioner’s determination.
The court found further that the respondent did not exercise their right to challenge the determination by the commissioner but rather chose to write letters of complaint which were not sufficient. The court stated that the respondent ought to have formally challenged the commissioner’s boundary determination and in the circumstances could not legally resist the interdict sought by the applicant. The court therefore granted the interdict.
The court considered an application to review a sentence imposed on the accused. The accused was charged with contravening s 3(1) of the Gold Trade Act by virtue of being found in possession of 0.62g of gold valued at $20.62. The accused pleaded guilty and was convicted. The lower court imposed a short sentence whereas as the act stipulated of not less than 5 years for persons found guilty of the offence, unless special circumstances existed showing cause why the mandatory sentence should not be imposed. The magistrate relied on special circumstances pleaded in mitigation.
The special circumstances referred to by the accused were that his wife was in hospital and was going to undergo surgery and that he committed the offence to raise hospital fees and money for the surgery
The court found that these were not special circumstances as envisaged by the act but that what the accused relied on was a common occurrence and did not entail that persons in such situations ought to resort to crime. The court held further, that his illegal action was not a solution to this problem nor would $20 be enough to pay the hospital bills.
The court held that there was no reason why the mandatory sentence should not be imposed. Accordingly, the court set aside the sentence imposed by the trial court and remitted it back to impose the mandatory sentence.
This was a case in the High Court where two accused persons were convicted on their own pleas of guilty to contravening s 368 of the Mines and Minerals Act by the Provincial Magistrate.
Having found special circumstances as would entitle the trial court to impose a sentence other than the mandatory one provided in the act; the magistrate sentenced each of the accused persons to 24 months imprisonment of which 12 months imprisonment were suspended for 5 years on condition of good future behaviour. The remaining 12 months were suspended on condition they each complete 420 hours of community service.
The issue before the court was to determine the special circumstances as found by the trial court. The judge applied the rule of Judge J Ebrahim in S v Mbewe and others 1988 (1) ZLR 7(H) to make the determination. The judge’s view was that the trial court erred because the issues put up by the accused were mitigating factors of general application which clearly did not amount to special circumstances at all.
Consequently, the judge ordered that the conviction of the two accused persons stood, and set aside the finding of the trial magistrate that there were special circumstances; and the sentence. The judge also ordered the matter to be sent back to the trial court for it to recall the accused persons and impose the appropriate sentence according to law by deducting from it 53 days equivalent to 420 hours community service already served.
The court considered an application for the granting of an order to evict the respondent pending the hearing of an appeal. The applicant was the registered title holder of four mineral claims. It instituted action seeking an eviction of the respondent from its registered claims, which was subsequently granted. The dispute between the parties related to ownership and mining claims of the minerals. It was not disputed that the mineral claims were registered in the name of the applicant.
The court considered the parties’ rights of ownership of the minerals. These rights were governed by s 172 of the Mines and Minerals Act, which stated that every holder of a registered block of claim would possess the exclusive right of mining or deposit of the mineral in respect of which the block was registered which occurred within the vertical limits of his block. The court found that the applicant had the exclusive right as the registered holder of the claim.
The court found that to suspend the eviction pending the appeal would entitle the respondent to continue mining, which was an untenable situation and would create a judicial anomaly where the court became a party to the respondent’s unlawful conduct. Accordingly, the court granted the application.
The court considered an application for review concerning the forfeiture of gold whereby the respondent was found guilty of contravening s 8(1) of the Gold Trade Act. The accused owned a jewelry shop whereby he traded gold. The Zimbabwe Republic Police Gold Squad regularly visited the accused’s shop to ensure that he was complying with the act. On one visit, it became clear that the accused had not registered 8.59g of gold into the register as required by the act.
The court found that after the conviction of the accused, a review of the record revealed that the learned magistrate had not made an order for the forfeiture of the gold. Despite the accused attempting to secure the return of the gold, he was informed it had been forfeited to the state. Pursuant to the accused’s investigation, and obtaining the record again, the record appeared to make reference to the forfeiture of the gold.
The court found that the only explanation was that the trial magistrate entered the forfeiture clause well after the sentence had been imposed and the accused started claiming the gold. In conclusion, the court found that the conviction and sentence were adequate but held that the forfeiture clause contained in the record be set aside and the accused be sentenced afresh.
In the High Court, an appellant was applying for bail pending his appeal against both conviction and sentence by the trial court, having been convicted of contravening s368(2) as read with s368(4) of the Mines and Minerals Act [Chapter 21:01] that is, prospecting for gold without a licence. He had been sentenced to two years, being the mandatory minimum penalty for that offence after the magistrate failed to find any special circumstances.
The issue before the court was to exercise its discretion on whether to grant bail to the appellant. The court held that in exercising the discretion on whether or not to grant bail pending appeal, the court must be guided by the prospects of success on appeal and whether there is risk that the applicant would abscond. The judge held that from the court record there was a problem with the rebuttal of the applicant’s defence in the trial court. The applicant had argued that he was carrying a pot and a lid when the police pounced, but state witnesses alleged that he carried a shovel.
The judge was satisfied that the applicant had discharged the responsibility upon him and that the court should indeed exercise its discretion in the applicant’s favour. Accordingly, the judge granted the application on condition that he deposited a sum of $100.00 with the Clerk of Court, he resided at a particular village and to report at a police station twice a week on Mondays and Fridays between 6.00 am and 6.00 pm.
In this case, the High Court considered a murder charge and whether the defence of private defence and/or the defence of property was sufficient to warrant an acquittal.
The accused was employed as a security guard by a private security company. While on duty he shot and killed an illegal diamond panner. Against the murder charge, the accused raised the defence of private defence and the defence of property. The facts were not disputed that the accused and his colleague were attacked by a mob of illegal panners who threatened to kill them. The accused fired a warning shot but the mob persisted until he fired the deadly shot which dispersed the mob.
The court held that the accused was lawfully employed to protect the employer’s assets from theft and entitled by law to protect himself. The court found that in this case a warning shot had been given and the life of the accused was in danger. The court held further that the action in self-defence was not disproportionate or unreasonable. Accordingly, the court found the accused not guilty and he was acquitted.
The court considered a criminal appeal against the sentence imposed on the accused.
The accused was convicted, on his own guilty plea, for contravening s 3(1)(a) of the Gold Trade Act by being in possession of 0.15 grams of gold without authorisation.
The evidence revealed that the accused was asked whether there were any special circumstances, which the court below established did not exist and sentenced him to the mandatory minimum sentence.
The accused argued that the trial judge did not explain in full what special circumstances meant and the inadequate explanation prejudiced him. The respondent agreed and stated that the explanation was “special or extraordinary mitigating factors” where it should have referred to special circumstances.
The court found that the Act did not define special circumstances, and it was on a case by case basis. However, the court below took all necessary steps to explain the meaning and import of special circumstances, which was given in clear unambiguous terms.
The court found that the accused was not an illiterate person and appreciated what was taking place and there was nothing preventing him from asking the magistrate for clarity. Further, that the accused’s conduct once arrested, in running away illustrated a guilty state of mind.
The court found that the accused’s special circumstance of “being the only breadwinner” was clear that he was aware of the offence being committed. As such, the court found no merit in the appeal.
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  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.
This was an application for an interim relief of setting aside the first respondent’s directive that ordered the applicant to cease their diamond mining operations after the applicant’s rights in a ceded portion of a special grant 4765 expired.
The applicant argued that clause 8 of the grant allowed it to work the sites which were ceded to it for an indefinite period of time. The first respondent countered this on the basis of s 291 of the Mines and Minerals Act that requires special grants to be issued for a specified period of time.
Further, the first respondent argued that no real cession had occurred since the applicant as the holder of the ceded and ‘residual’ portions of the grant were operating outside the law.
The court noted that the first respondent gave the applicants a 5-year period to renew the grant when they allowed the grant to operate outside the law before declaring it invalid, and the applicants still failed to renew it. For this reason, the applicant was found to have approached the court with ‘dirty hands’ since it was in breach of the condition of the special grant and s 29 of the act.
The applicant failed to prove that the first respondent acted unlawfully, unreasonably or disproportionately for the court to apply its review discretion. The court, therefore, held that the first respondent was right in exercising its administrative discretion and pronouncing what the law said.
Accordingly, the application was dismissed with costs.
The applicant instituted proceedings by urgent chamber applications seeking interim relief against the respondents relating to mining activities in Antelope 68 Mine.
The court ruled on three preliminary objections by the first and second respondents that opposed the validity of the certificate of urgency, the urgency of the matter and that domestic remedies provided in the Mines and Minerals Act were not exhausted.
Firstly, the court noted that a certificate of urgency differs from an affidavit. It was held that the rules allowed the execution of a certificate of urgency by a legal practitioner who is employed by the firm of attorneys which represents the applicant. It was further noted that the validity of the certificate urgency is a cause of concern only when a chamber application is not served to the respondent.
Secondly, the court found that a party must show good cause for preferential treatment that comes with certifying a matter as urgent. The court held that the applicant failed to account for his failure to seek relief on an urgent basis at the very latest soon after the early March invasion when the respondents continued to go to the mine. Consequently, it was held that the matter lost its urgency when the applicant failed to treat it as urgent.
Accordingly, the court ordered that the matter be struck off the roll of urgent matters and did not find it necessary to deal with the third objection. The applicant was also ordered to pay costs.
This was an application for the discharge of the accused persons for lack of evidence pursuant to s 198 (3) of the Criminal Procedure and Evidence Act. The state had alleged that the accused persons were acting in common purpose through a series of fraudulent misrepresentations to the Government of Zimbabwe, the Ministry of Mines and Mining Development and Zimbabwe Mining Development Corporation (ZMDC) and induced ZMDC to enter into a joint venture agreement of diamond mining with Core Mining (Pvt) Ltd. They fronted Benny Steinmeitz Group Resources (BSGR) as its guarantor and on that representation, the government approved a contract, it never would have otherwise approved.
Relying on the parole evidence rule that posits that parties are strictly bound by the four corners of the contractual document and nothing outside it, the court held that both government and ZMDC cannot be heard to complain that they were duped into signing the contractual document under the mistaken belief that BSGR was standing as guarantor for Core Mining when the contractual document makes no mention of BSGR at all.
Court further held that the state closed its case without leading any evidence pertaining to the misrepresentations allegedly made by the accused concerning the due diligence exercise on Core Mining. That misrepresentation is a vital component of the crime of fraud without which the crime cannot be committed. The state having failed to establish a prima facie case against the accused, it was accordingly ordered that both accused be acquitted and discharged.
The origin of the application is an interim interdict prohibiting the first, second and third respondents from carrying out mining activities and ordering the fourth and fifth respondents to clear illegals who were working at the mine. The first respondent sought a review of this order and got an interim interdict that ordered for the eviction of the applicant and prohibition from mining.
This application arose when the applicant sought direction from the judges in chambers for anticipation of a return date and also rescinding the eviction order.
The court applied Order 33 of the High Court Rules and held that the pending review suspended the operation of the order issued in the magistrate court. Consequently, the applicant could not exercise the rights conferred upon him unless the review was determined in his favor.
The court found that the mine lies in the applicant’s plot. However, the court found it important for peace to prevail at the mine and that both parties be removed from the mine pending resolution of their dispute.
The court held that the applicant was able to prove all the requirements of an interdict: he had a right to mine; he would suffer irreparable damage if the respondent continued with their mining operations; he had no alternative remedy and he proved his case on a balance of probabilities against the respondent.
Accordingly, the interdict was granted pending the resolution of the dispute and the security guards of both parties were ordered to guard the mine jointly.
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.
This was an urgent chamber application by the applicant in the High Court to interdict the first respondent from carrying out mining operations on its claim; from interfering with its lawful mining operations; and to desist from acts of uncontrolled violence they had unleashed at the site.
The issue before the court was to determine whether the Mining Commissioner should revisit the same dispute. The first respondent contended that the matter was not urgent since the dispute between the parties had been resolved in favour of the first respondent by the Mining Commissioner. However, it was found that the respondent had been ordered to stop but had allegedly resumed illegal activity.
The court held that in terms of s345(1) of the Mines and Minerals Act [Chapter 21:05] where both parties have agreed in writing, the Mining Commissioner should resolve the dispute regardless of the original jurisdiction of the High Court. It was also found that s346 confers upon the Mining Commissioner judicial power to hold a court in order to determine a dispute in the simplest, speediest and cheapest manner possible. The court held that the Mining Commissioner exercised judicial power including the rules of natural justice and that once he pronounced himself on a matter, he became functus officio and so cannot revisit the same dispute in order to review his own decision.
The court held that the applicant had exhibited proof of lawful registration of the mining claims. Consequently, the appeal succeeded.