This
was an urgent chamber application for an interdict against the
respondents. The applicants wanted the respondents barred from
interfering with their mining activities.
The
history of this case is as follows;
The
applicants collectively formed a mining syndicate by the name Crevixs
Mining Syndicate. The syndicate was issued with a prospecting licence
by the Ministry of Mines on 25 October 2014.
On
4 November 2014, after having completed all the necessary procedures,
the syndicate applied to the first respondent for a certificate of
registration to mine a base block measuring 25 hectares situated at
Pitlochry Estates in Hurungwe Rural District in Mashonaland West
Province. Two other syndicates, namely, Value James Mining Syndicate
and Chando Kupisa Mining Syndicate also submitted competing
applications for mining rights in respect of the same base block.
Of
the three applications, it is the applicants' application which was
successful.
The
first respondent passed a verdict that Crevixs Mining Syndicate be
awarded the certificate of registration as it was the only one that
had followed all the necessary procedures and had all the necessary
documentation. In that verdict, the first respondent made a
pronouncement that the two other applications had been rejected. This
verdict was communicated to all the three competing applicants by way
of a letter dated 3 December 2014. The same letter was copied to the
Permanent Secretary, Legal Advisor, ZRP Karoi (second respondent) and
CID Minerals Chinhoyi/Karoi.
Having
been disgruntled with the verdict of the first respondent, Chando
Kupisa Mining Syndicate proceeded to lodge an appeal with the
Minister of Mines and Mining Development on 4 December 2014. The
appeal is in the form of a letter which is addressed to the Minister.
Following the letter of appeal, the first respondent, on 5 December
2014, wrote a letter to the second respondent instructing him to
enforce a suspension of mining activities in the area of contest
until a determination had been made by the Minister.
It
is the suspension order which prompted the present application by the
applicants.
In
their application, the applicants indicated that it is this verdict
by the first respondent which fully entitled them to proceed with
mining at the said claim. It is the applicants' averment that in
terms of the law no appeal lies with the Minister. The Mines and
Minerals Act does not provide for such a procedure, and, as such, the
purported appeal is a nullity.
The
applicants submitted that following the verdict of the first
respondent they made significant capital and technical investment on
the mining block and had employed a number of people who were now
entitled to their remuneration in terms of the labour laws. It was
submitted that the decision by the first respondent to suspend all
operations has an effect of causing serious irreparable harm to the
respondents.
The
first respondent filed a notice of opposition before the hearing, but
the second respondent did not. At the hearing, the second respondent
submitted that, as the police, they would abide by whatever decision
would be made by the judge.
In
the opposing affidavit, the first respondent stated that after having
considered the three applications he made a recommendation that the
registration for the mining block should be in favour of Crevixs
Mining Syndicate. He said that although this was communicated to the
contestants, by way of the letter dated 3 December 2014, this did not
grant the applicants title to mine. The applicants would need a
certificate of registration to commence any mining activity. The
first respondent further stated that by proceeding to invest in a
project to which title had not yet been granted the applicants took a
personal risk which they cannot hold the Ministry of Mines to ransom.
However, he made a concession that there is no provision in the Mines
and Minerals Act [Chapter 21:05] which provides for an appeal to the
Minister. A further concession was that there is no provision that
provides for suspension of operations pending appeal. He stated that
this appeal procedure to the Minister is just a standard practice
that has been adopted by the Ministry over the years for purposes of
expediency and convenience. It had been discovered that the courts
would find the matters too technical and refer them back to the
Ministry for conclusion. He also stated that it had become the
Ministry's policy to stop all mining operations pending appeal in
view of the fact that minerals are finite and deplete in quantity by
each extraction. Since appeal processes take long, it is only fair
and just to stop extraction until the appeal is determined in order
to avoid prejudicing the appellant in the event that the appellant
wins on appeal.
Let
me hasten to point out that although the first respondent said his
was only a recommendation that Crevixs Mining Syndicate be issued
with a certificate of registration he did not say, in the opposing
affidavit, to whom he had made that recommendation. He also did not
say who had the authority to issue the certificate of registration.
At
the hearing, counsel for the applicants
took
issue with the so-called recommendation and argued that the first
respondent was hiding behind a finger because his letter of 3
December 2014 was categorical that it was a verdict as he used that
word. After the word 'verdict', the first respondent wrote;
“By
copy of this letter, it is my ruling that Crevixs be awarded their
Certificate of Registration and all the others competing on this
particular place are hereby rejected.”
It
was argued, on behalf of the first respondent, that despite the
wording in the letter, the first respondent was not the issuing
authority, but the Permanent Secretary of the Ministry. It was also
submitted that all the first respondent could do, by virtue of his
position as the Provincial Mining Director, was to recommend. The
Permanent Secretary would exercise his discretion on whether or not
to grant the certificate of registration as recommended by the first
respondent.
Looking
at section 45(1) of the Mines and Minerals Act [Chapter 21:05], it is
apparent that the person who is vested with the powers to receive
applications for registration of mining blocks and issuing the
certificates of registration is the Mining Commissioner. So, he is
the authority who grants mining rights. In terms of section 346, the
Mining Commissioner, again, has the duty to preside over disputes and
issue orders. However, in terms of section 341(2), the Permanent
Secretary can assume the powers of the Mining Commissioner both
administratively and judicially. This, therefore, means that it is
either the Mining Commissioner or the Permanent Secretary who can
grant mining rights.
Now,
turning to what transpired in the present case, what is apparent is
that it is the first respondent who considered the applications for
registration - even though he is neither a Mining Commissioner nor a
Permanent Secretary. Coming to the analysis of the letter dated 3
December 2014, which he wrote after he had considered all the three
(3) applications, I come to the conclusion that he gave a verdict not
a recommendation - even though he was not the Mining Commissioner. If
it was a recommendation, the first respondent would have simply
indicated so instead of saying it was a verdict. Even the wording of
the letter is very clear that this was a ruling which was final. He
said;
“By
copy of this letter, it is my ruling that Crevixs be awarded their
Certificate of Registration and all the others competing on this
particular place are hereby rejected.”
I
believe that if it was a recommendation the wording would have been
different. This letter did not sound like there was yet another
authority other than the first respondent himself who had the
authority to issue the certificate of registration.
What
further confirms my finding is the fact that in his opposing
affidavit the first respondent failed to mention the authority to
whom he had made this recommendation. That the issuing authority was
the Permanent Secretary was only mentioned during the hearing after I
had asked who this authority was. During the hearing, I asked if the
so-called recommendation had been forwarded to the Permanent
Secretary for him to consider whether or not to issue the certificate
of registration to Crevixs Mining Syndicate. The first respondent's
counsel submitted that that had been done but failed to produce proof
of such correspondence. So, it is just the first respondent's word
without any tangible proof. This seems to confirm the applicants'
counsel's argument that no other authority other than the first
respondent was going to issue the certificate of registration.
When
Chando Kupisa lodged an appeal, defective as it might be, the first
respondent immediately wrote to the police, in particular, the second
respondent, saying;
“RE:
DISPUTE
(i)
Chando Kupisa Mining Syndicate Special Grant Application.
(ii)
Crevixs Mining Syndicate Base Block Application.
(iii)
Value Gems Mining Syndicate Special Grant Application.
Kachichi-Piltochry
Estate (Karoi)
Following
a determination on above arrived at by this office on 3rd
December 2014, Chando Kupisa Mining Syndicate has lodged an appeal
with the Minister of Mines and Mining Development on 4th
December 2014.
The
effect of this is that any previous communication(s) is nullified
pending determination by Minister's Office.
All
operations on the area of contest are therefore suspended pending
resolution by Minister's office.
All
parties to the dispute are to observe this instruction.
Request
is made to ZRP Karoi to ensure enforcement.”
This
letter says it all.
The
first respondent had made a determination not a recommendation and he
was aware that, by virtue of his determination, the applicants had
commenced operation. He was directing the police to ensure that all
operation was suspended pending determination of the appeal by the
Minister. This was despite the fact that the applicants had not yet
received the certificate of registration which gave them title to
carry out mining activities.
At
law, a person can only appeal against a determination not a
recommendation. If no determination had been made by the first
respondent there is no way he would have ordered suspension of
operations pending appeal. In the first place, there would not have
been any appeal to talk about.
An
analysis of the whole matter brings me to the conclusion that the
first respondent made a determination that a certificate of
registration should be issued in favour of the applicants'
syndicate. The applicants were notified of this determination by way
of the letter dated 3 December 2014. Although no certificate of
registration had been issued, by virtue of that letter, the
applicants' syndicate commenced mining activity. It would also
appear that the first respondent was aware that the applicants would
commence, or had already commenced, mining activities on the strength
of the letter he had written on 3 December 2014, otherwise he would
not have written to the second respondent to enforce a suspension of
mining activities in the area of contest.
Although
the first respondent made a determination, as the Provincial Mining
Director, that the certificate of registration should be awarded to
the applicants, the Mines and Minerals Act makes no mention of the
post of a Mining Director. According to the submissions made at the
hearing by counsel for the first respondent this is a post which was
created recently within the Ministry after the post of the Mining
Commissioner had been abolished.
Suffice
to say, no amendments have been made in the Act to this effect.
It
was submitted that as a result, the person who is presently vested
with the powers of issuing certificates of registration is the
Permanent Secretary. The first respondent only issues certificates of
registration if he is delegated authority to do so by the Permanent
Secretary. It was said that in the present case he was not given any
authority to issue the certificate of registration hence none was
issued….,.
The
applicants' prayer is that pending the return date the respondents
be interdicted from interfering with or suspending their mining
activities at Pitlochry Estates.
However,
as already explained above, other than the prospecting licence, the
applicants have no certificate of registration which confers them
with mining rights. Section 27(2) of
the Mines and Minerals Act [Chapter 21:05] makes
it clear that a prospecting licence does not confer mining rights.
There
is no way the applicants can seek to rely on the letter that was
written by the first respondent on 3 December 2014 because an
ordinary letter cannot confer mining rights and replace a certificate
of registration. That letter never said the applicants now had mining
rights. However, it mentioned that the applicants be issued with a
certificate of registration.
So,
the applicants should have insisted on the issuance of that
certificate before they commenced mining.
These
are people who had obtained a prospecting licence before and had now
applied for a certificate of registration. So they knew that it was a
requirement of the law to have a certificate of registration before
they could start mining activities. That they went on to commence
preparatory work in anticipation of the issuance of the certificate
of registration is a personal risk they took and cannot blame anyone
other than themselves. It is not for me to say who was supposed to
issue the certificate of registration under the circumstances, but,
even if it was the first respondent who had that duty since he is the
one who had considered the applications and had made a determination,
the fact remains that he had not yet issued them with one. So they
did not have any mining rights as yet. The least the applicants
should have done was to insist on being issued with a certificate of
registration before they commenced any mining work.
For
an interim interdict to be granted, the applicants need to show that;
(a)
They have a prima
facie
right;
(b)
There is a well-grounded apprehension of irreparable harm if the
relief is not granted;
(c)
The balance of convenience favours the granting of an interim
interdict; and
(d)
They have no other satisfactory remedy.
See
Universal
Merchant Bank of Zimbabwe v The Zimbabwe Independent and Another
2000 (1) ZLR 234 (HC).
In
the absence of a certificate of registration, the applicants have not
shown that they have locus
standi
to make this application for an interdict. They have no prima
facie
right to carry out mining activities or even to start mining
preparations. So, they cannot be entitled to the relief they are
seeking.
The
application is therefore dismissed with costs.
