The
applicant is a mining concern which is the registered owner of
certain mining claims known as Riverclay 101 located on Redfields
Farm in Kwekwe District where it mines Barytes on 18 claims.
The
first respondent is also into mining, and, in that regard, it was
issued with a Special Prospecting Licence to prospect and search for
any minerals, mineral oils and natural gases in pursuance of which on
15 May 2014 it gave a prospecting notice which it posted at a spot
adjacent to the applicant's registered mining claims. Upon
prospecting and discovering baryte deposits, the first respondent
gave a discovery notice and a registration notice demonstrating a
clear intent to peg and register 130 baryte claims.
A
mining dispute has now erupted as a result of the first respondent's
activities. The applicant complains, bitterly, that its hitherto
successful and undisturbed mining activities are being threatened by
the first respondent, who, on 16 June 2014, set up mining machinery
on mining claims adjacent to those it owns and commenced mining
activities, drilling underground into the applicant's mining claims
and extracting barytes. When the applicant's Site Manager
confronted the first respondent, who had the second and third
respondents on site, demanding that they cease operations, the
applicant claims that they threatened violence and also claimed to
have “powerful people” behind them.
A
complaint to the Mining Commissioner has yielded nothing. The
applicant, however, does not state how the complaint was made and has
not attached any documentation substantiating the complaint. As
attempts to reason with the first respondent's representatives have
not been fruitful and the Mining Commissioner has elected not to take
any action, the applicant says it has been forced to approach this
court seeking provisional relief stopping the first respondent's
mining activities.
In
making the approach, the applicant has not cited the Mining
Commissioner and a significant lacunae exists in the papers on the
nature and extent of the applicants' engagement with the Mining
Commissioner…,.
The
first respondent is opposing the application….,.
The
plot that is developing in this matter exhibits a boundary dispute
where the applicant complains of encroachment on its duly registered
mining claims.
Counsel
for the respondents submitted that the boundary dispute should have
been referred to the Mining Commissioner
for resolution instead of burdening this court without the
involvement of the Mining Commissioner. He submitted, further, that
the application lacks merit given that the first respondent is
entitled to prospect up to a radius of 300 meters from the posting
point of its notice suggesting, while at the same time denying
encroachment, that the first respondent can prospect onto the
applicant's mining claims. Counsel for the respondents submitted,
further, that recourse to the court of the Mining Commissioner
presented the applicant with an alternative remedy thereby
dis-entitling it from making this application. In addition, the first
respondent has suggested that the parties enlist the services of
surveyors to determine the boundaries especially as the first
respondent has a right, in terms of its prospecting licence, to
prospect around the applicant's mining claims and is in the process
of registering its own baryte mining claims.
Counsel
for the applicant insisted that this was not a boundary dispute but a
clear case of encroachment and illegal extraction of a mineral
belonging to the applicant by a party with no mining rights
whatsoever….,.
The
first respondent admits that it has been drilling and excavating at
the site since 16 June 2014. In terms of section 27 of the Mines and
Minerals Act [Chapter 21:05];
“(1)
Subject to sections 21 and 368, every holder of a prospecting licence
shall be entitled to the following rights -
(a)
The right, subject to the provisions and limitations hereinafter
contained, of prospecting and searching for any minerals, mineral
oils and natural gases on land open to prospecting, but not of
removing or deposing of any mineral discovered save for the bona fide
purpose of having it assayed or of determining the nature thereof or
with the permission of the Mining Commissioner;
(b)
The right, subject to the provisions hereinafter contained, of
pegging –
(i)
One block of precious metal claims; or
(ii)
One block of precious stones claims; or
(iii)
One block of base mineral claims.
(2)
No drilling or excavation work, whether at the surface or
underground, shall be undertaken by the holder of a prospecting
licence, save in the exercise of exclusive rights conferred on him by
subsection (5) of section 41 or subsection (2) of sub-section 42.
(3)…,.”
…,.
Section
41 of the Mines and Minerals Act [Chapter 21:05] allows the holder of
a prospecting licence who desires to drill or excavate to post a
prospecting notice on ground open to prospecting while section 42
provides that upon discovery of precious metals or precious stones he
shall mark the point of discovery by a peg.
The
first respondent says the drilling and excavation were conducted in
accordance with these provisions.
The
question of a referral of the dispute to the Mining Commissioner must
be considered in conjunction with the provisions of section 345(1) of
the Mines and Minerals Act [Chapter 21:05] which provides:
“Except
where otherwise provided in this Act, or except where both the
complainant and defendant have agreed, in writing, that the complaint
or dispute shall be investigated and decided by the Mining
Commissioner
in the first instance, the High Court shall have and exercise
original jurisdiction in every civil matter, complaint or dispute
arising under this Act and if in the course of any proceeding and if
it appears expedient and necessary to the court to refer any matter
to a mining commissioner for investigation and report, the Court may
make an order to that effect.”
Therefore,
while the Mining Commissioner has judicial powers conferred upon him
by section 346 of the Mines and Minerals Act [Chapter 21:05], to hold
a court in any part of the mining district to which he is appointed
and determine disputes in the simplest, speediest and cheapest manner
possible, and also to authorise a survey (section 353), for the
purpose of ascertaining whether an encroachment has occurred, this
court still enjoys jurisdiction over such matters. The application
can therefore not be defeated by a failure to refer the dispute to a
Mining Commissioner. It is, however, important to note that it is
within the province of this court to direct the Mining Commissioner
to commission a survey. Indeed, the Mining Commissioner to whom a
complaint has been made, as was done by the applicant in this case,
has a duty to investigate the complaint thoroughly; BMG Mining (Pvt)
Ltd v Mining Commissioner, Bulawayo and Ors 2011 (1) ZLR 74 (H)…,.;
Mazuva v Simbi; Simbi v Mazuva 2011 (2) ZLR 319 (H)…,.
To
my mind, it should not be difficult to determine whether an
encroachment onto the applicant's mining claims has occurred. Those
registered claims should be clearly marked with beacons easy to
locate. If the first respondent's activities are being carried out
within those claims, the first respondent should stop that
immediately. There is, however, nothing preventing the first
respondent from pursuing its endeavours in an area outside the marked
domain of the applicant in accordance with its prospecting licence
for it cannot lawfully do so on registered claims as it is precluded
by section 31 of the Mines and Minerals Act [Chapter 21:05] from
doing so. It would be safe to grant interim relief protecting the
applicant's demarcated mining area from any interference while
directing the Mining Commissioner to investigate the matter and
compile a report. That way the dispute may be brought to a close.
Accordingly,
I grant the provisional order, as amended, the interim relief of
which reads:
“INTERIM
RELIEF GRANTED
Pending
the determination of this matter, the applicant is granted the
following relief:
1.
The first and third respondents, or any of their agents and/or
employees, or anyone acting on their behalf, are hereby directed to
forthwith cease all mining activities on the mining claims of the
applicant known as Riverclay 101 on Redfields Farm as demarcated on
the regional map attached to the application immediately upon service
of this order.
2.
The dispute over the boundaries of the applicant's mining claims is
referred to the Mining Commissioner for Gweru/Kwekwe who shall,
within 14 days from the date of this order, commission a survey to
identify and clearly mark the boundaries of the applicant's mining
claims.
3.
The Mining Commissioner shall prepare a report which shall forthwith
be filed in the court record, and, in any event, before the return
date of this provisional order.
