MANGOTA
J:
On 22 February 2016, the first respondent summoned and ordered the
applicant and others who were mining diamonds in Marange District to
cease their operations as at that date. The first respondent's
directive was followed by a letter which his permanent secretary
addressed to the applicant's chief executive officer. The applicant
attached the letter to its application. It marked it Annexure B. The
annexure is dated 22 February 2016. It reads, in part, as follows:
“RE:
EXPIRATION OF SPECIAL GRANT 4765 AND 5247.
The above matter refers.
It has come to our attention that
special grants 4765 and 5247 that were issued to you have since
expired. … It is trite law that a
special grant is issued upon application
and its issuance is
done in terms of section 291 of the Mines and Minerals Act [Chapter
21:05] which demands that a
period for the subsistence of the Special Grant shall be specified,
failure of which renders the Special Grant void. …..
Since you no longer hold any
title we do hereby notify you to cease all mining activities with
immediate effect and to vacate the areas covered by Special Grants
4765 and 5247 for diamonds. You are given 90 days within which to
remove your equipment and other valuables [22 February to 22 May,
2016] and during this period access to the premises will be approved
upon request to the Ministry.” [emphasis added].
The
conduct of the first respondent and his permanent secretary together
with that of the other respondents triggered this application. It was
the applicant's contention that the mentioned conduct prejudiced it
in a substantial way. It submitted that the conduct jeopardized its
operations and resulted in what it termed significant financial harm
to it. It stated that the first respondent's decision adversely
affected and infringed upon its rights.
The
applicant submitted that it invested into the mining project more
than $100 million in capital, plant and equipment as well as
technology transfer and specialised skills development,
infrastructure and social responsibility programs and it created
thousands of jobs in its investment in the mining area. It said its
expectation was that the special grants would remain valid for as
long as mining operations were viable to enable it to recoup its
investment. It stated that the first respondent was using the
pretext of the invalidity of the special grants to punish other
diamond mining companies and it for their refusal to enter into a
merger which the first respondent was compelling them to enter into.
It recounted the harm which it said it suffered and continues to
suffer at the hands of the respondents in the following words:
“Debts are being incurred by
the applicant which have to be paid; its employees and creditors have
to be paid. A notice from the first respondent, wrongly issued, has
resulted in the applicant not being able to carry out the ordinary
functions and responsibilities of a company. Applicant is being
prejudiced in its right and is therefore compelled to seek recourse
from this Honourable Court to protect its interests and those of the
applicant's employees affected by the actions of the respondents.”
It,
therefore, moved the court to grant interim relief to it by way of
setting aside the first respondent's directive and having the
parties return to the status quo
ante
22 February, 2016.
The
respondents opposed the application. The first respondent submitted,
among other matters, that:
-
the
mining grant was issued to the Zimbabwe Mining Corporation [“the
corporation”] and not to the applicant;
-
the
fact that no deed
of cession
was
attached to the application showed that no cession was ever made in
favour of the applicant;
-
the
applicant's right was derived from the title of the corporation
which neglected to renew the grant as a result of which it lapsed;
-
the
special grant was invalid on the basis that it did not have a
termination date as the law required of it;
-
unauthorised
lis
i.e. annexure A which the applicant attached to the application was
defective;
-
the
application was not urgent – and
-
the
relief which the applicant prayed for sought to establish an
illegality.
The
second respondent stated that his mandate was to deal with policy
matters which related to the operations of the police. He said he did
not direct or control the police to act as the applicant alleged. He
submitted that he was not involved in the police's presence at the
applicant's mining site. He moved the court not to make an order
against him.
The
third respondent contended that the Constitution of Zimbabwe
conferred authority upon him to preserve law and order. He referred
the court to s 219 (1) (c) and (d) of the Constitution in the
mentioned regard.
The
following observed matters are pertinent:
-
On
6 December 2006, Government issued special grant 4765 [“the
grant”] to Zimbabwe Mining development Corporation [“the
corporation”]. The grant covered an area of 63548 hectares. It is
situated within the Reserved Area No. 1518 in Muatre Mining
District.
(ii)
The terms and conditions of the grant were spelt out for the
corporation's observance as well as compliance. Those were stated
at the time that the grant was issued to the corporation.
(iii)
On 2 February, 2010 the corporation addressed a letter to the first
respondent's chief mining commissioner. The letter reads, in part,
as follows :
“Dear Sir
RE: SPECIAL GRANT NO.4765 MARANGE
DIAMOND FIELD SEGMENTATION OF SPECIAL GRANT (FIRST LOT)
We wish to apply for the
segmentation of SPECIAL GRANT NO.4765 located in the Marange Communal
Lands.
We wish to transfer title of the
Southern Portion of the SG 4765 measuring 3731 hectares as shown in
the attached plan. The title of that portion is to be transferred to
ANJIN INVESTMENTS (PVT) LTD a joint venture between ZMDC & local
companies and Chinese Company.”
(iv)
The first respondent's Permanent Secretry replied to the
abovementioned application. His letter which was dated 2 February,
2010 made reference to SPECIAL
GRANT NO.4765AND Anjin Investments. It reads:
“Dear Sirs
CESSION OF PART OF SPECIAL GRANT
4765 FROM ZIMBABWE MINING DEVELOPMENT CORPORATION (ZMDC) TO ANJIN
INVESTMENS (PVT) LTD.
The above mentioned matter
refers.
We are pleased to confirm that
cession of part of SPECIAL GRANT 4765 measuring 3731 hectares from
ZMDC to Anjin Investments has been approved by the secretary for
Mines and Mining Development.
Anjin Investments (Pvt) Ltd is a
Joint Venture between Matt Bronze (Pvt) Ltd and Anhui Economic
Construction Group Co.”
(v)
The above correspondence between the corporation and the first
respondent resulted in the endorsement which appears in Special Grant
4765. The endorsement reads:
“3731
hectares of Special Grant 4765 have been ceded to Anjin Investments
(Pvt) Ltd w.e.f. 2nd
February, 2010.”
(iv)
The grant as issued to the corporation has a total area of 63 548
hectares. The area was reduced to 59, 817 hectares after the cession
to the applicant of 3731 hectares on 2 February, 2010. The applicant
made mention of special grant 5247. It, however, stated that its
application did not have any bearing on that special grant. It said
its application related to the respondents' conduct vis–a-vis
special grant 4765 only. It was for the mentioned reason that the
observations which the court made in the foregoing paragraphs centred
on special grant 4765 to the total exclusion of special grant 5247.
The
applicant did not say the conduct of the respondents infringed its
rights in the ceded
portion of the grant. It said the conduct in question infringed its
rights in special grant 4765. It, in that regard, acknowledged as
well as accepted the fact that its rights in the ceded
portion of grant did not, and do not exist, independently of the
grant itself. It, in other words, portrayed the correct view which
was that its rights in the ceded
portion of the grant exists in, and were exercised by it through,
special grant 4765 which the first respondent issued to the
corporation on 6 December, 2006. The applicant's reliance on
clauses 8 and 10 of Special Grant 4765 fortified the view which the
court held and still holds on this aspect of the matter. Those
clauses came into existence before the applicant was born. They were
incorporated into the grant at the time that the first respondent
issued special grant 4765 to the corporation. The applicant cannot,
under the stated set of circumstances, be heard to argue, on the one
hand, that the ceded
portion
of the grant existed or exists independently of the grant and, on the
other, that the clauses which relate to Special Grant 4765 also
relate to it. It cannot, in short, blow both hot and cold.
Clause
8 upon which the applicant rested its case reads:
“The holder shall mine this
special grant as long
as is feasible
provide inspection fees are paid as provided in the Mines and
Minerals Act [Chapter
21:05]” [emphasis
added].
Whilst
the definition of the phrase “The holder” is not available in the
grant, the fact that the clause pre-existed the birth of the
applicant supports the proposition that the phrase, by way of
deductive logic, refers to the corporation as the
holder
and not the applicant. The applicant, on its part, did not produce
any evidence which showed that the “ceded”
portion of the grant existed outside that grant itself. All it was
able to show was the endorsement which appeared in the grant. The
endorsement is not evidence of the existence of the applicant's
mining rights outside the grant.
The
applicant's assertion which was to the effect that clause 8 of the
grant allowed it to work the sites which were ceded
to it for an indefinite period of time was misplaced. It ran contrary
to s 291 of the Mines and Minerals Act [Chapter
21:05]
[“the Act”]. The section is peremptory in form and nature. No
special grant nor agreement can supercede it.
The
applicant stated, and in the court's view correctly so, that the
permanent secretary for the Ministry of Mines and Mining Development
has a discretion to cancel a special grant if the holder thereof
fails to comply with any provision of the grant or with the
provisions of the Act. Clause 10 of the grant has words to a similar
effect. Section 291 of the Act is one provision which the applicant
and the corporation failed to comply with. The section reads:
“ISSUE
OF SPECIAL GRANTS
1. The Secretary may issue to
any person –
(a) a special grant to carry
out prospecting operations; or
(b) a special grant to carry
out mining operations for mining purposes;
upon a defined area situated
within an area which has been reserved against prospecting or pegging
under section
'thirty-five'
for a period which shall be specified in such special grant
and on such terms and conditions….” [emphasis
added].
It
was on the basis of the section that the Secretary for Mines and
Mining Development wrote and advised the applicant, on 22 February
2016, that Special Grant 4 765 had expired. He did not say the ceded
portion of the grant had expired. He referred to Special Grant 4765
as a whole as, in his opinion, no real cession had occurred as the
applicant continued to submit.
In
writing as he did, the Secretary was acknowledging that the holders
of the ceded
and 'residual'
portions of the grant were operating outside the law. He advised them
that their conduct in continuing to mine on an expired grant was
unlawful. He also acknowledged that the holders of the rights which
appeared in the grant were, in the past, compliant with the law in
that they had, or at least one of them – the corporation – had,
from time – to – time, applied for the renewal of its, or their,
title in the grant. Reference is made in this regard to Annexures C
and E which the first respondent attached to his opposing papers.
It
is recorded that, notwithstanding the existence in the grant of
clause 8 which said the holder of the grant would mine in perpetuity,
the corporation applied, on its behalf as well as on behalf of the
applicant, for the renewal of the grant. Annexure C, for instance,
showed that the grant which was issued to the corporation on 6
December, 2006 was given a lifespan of four years. Its initial expiry
date was 4 December, 2010. Annexure E showed that Special Grant 4765
which expired on 4 December, 2010 remained unrenewed from that date
todate. The appendix to that annexure is pertinent. It showed that
the corporation should have renewed the whole grant and not the
residual portion of the same as the applicant contended. Column 3 of
the appendix is relevant. It makes reference to the area of 63 548,
and not to the residual area of 59 817, hectares.
It
requires little, if any, effort to observe that special grant 4765
had expired for five (5) years running before the first respondent
declared it to have been invalid on 22 February, 2016. The special
grant had been allowed to operate outside the law for that stated
period of time. The corporation and the applicant took no steps at
all to keep the grant within the confines of the law. The obligation
to renew the grant rested upon them or upon one of them on behalf of
the other and not upon the first respondent. The first respondent
gave them a very long rope with which they hanged themselves as has
occurred in
casu.
The
applicant stated that its expectation was that the grant would remain
valid for as long as the mining operations were viable to enable it
to recoup the investment it made in the mining project. Whilst its
expectation was noble, the same did not permit it to live and
continue to operate its mining of diamonds outside the law.
It
is the duty of every person who resides in any country to comply with
the laws of the country from which he conducts his business. Where a
person whose business interests run in conflict with the laws of the
territory from which he conducts his business is adversely affected
by his unwholesome conduct vis-à-vis
the territory's laws, the person cannot receive the sympathy of the
offended country's courts which he approaches with dirty hands. He
should first purge his quilt before he runs to the courts of the
territory to seek relief of whatever form or nature.
The
applicant, in the court's view, is not an exception to the above
stated position. It continued to conduct its mining operations with a
special grant which had expired. It was aware from as far back as
December 2010, that the grant which was issued to the corporation
with a portion having been ceded
to it, was no longer valid. It made no effort to have it renewed. It,
in fact, took pleasure in operating outside the law for five
consecutive years. The law cannot support its unwholesome conduct in
the mentioned regard.
The
sworn duty of any court the world over is to ensure that parties who
bring matters to it have, in the first place, complied with the
letter and spirit of any law which applies to their cases. It is not
the duty of a court to perpetuate an illegality. To do so would run
contrary to judicial ethics, the court's rules, procedures as well
as practice and above all, the law itself which every person is bound
to observe and obey without exception.
In
the instant case, it is evident that the letter, Annexure E, which
the corporation addressed to the first respondent's Permanent
Secretary on 30 September, 2015 was an attempt by the corporation to
have the grant further renewed. The corporation wrote the letter on
behalf of the applicant and on its own behalf, so it would appear.
The fact that the letter was written five (5) years after the event
goes to show that the corporation and the applicant suffered an
inexcusable dereliction of duty towards the first respondent and,
through him, the Government of Zimbabwe as a whole. The applicant,
through the corporation, was candid enough to acknowledge, in the
letter, that Special Grant 4765 had expired. Various reasons were
advanced for the non-renewal of the grant. In the letter, the
corporation appealed to the Ministry of the first respondent to
“reconsider its earlier position not to extend the exemption of its
payment of renewal of Special Grant fees and grant ZMDC exemption to
update its diamond Special Grant fees for a further period of 3 years
up to 2016, to …..”.
It
is evident that the corporation had, earlier on, requested the first
respondent's Ministry to extend to it an exemption of payment of
fees for the renewal of the Special Grant. The first respondent, it
is clear, had turned down the corporation's request. The letter of
30 September, 2015 was, therefore, an appeal to the Ministry to
reconsider its earlier position.
The
request and the appeal of the corporation and the applicant would, in
the court's view, have made sense if the applicant and the
corporation were not conducting mining operations in terms of the
expired grant or an expired part of the grant. They advanced as a
reason for the non-renewal of the grant that they were financially
constrained. They stated that they were not able to raise the
necessary fees which related to the renewal of the grant.
The
attitude which the first respondent took towards them would appear to
be understandable. It was, so it would appear, premised on the
question as to where they were channeling the money which they were
receiving from their operations which they continued to conduct on
the strength of an invalid special grant. The Permanent Secretary's
letter of 22 February, 2016 spelt out the attitude of the first
respondent's Ministry to the request and the appeal to a point
where no further debate of the same was required. The permanent
secretary exercised his discretion against the applicant and the
corporation. He acknowledged the fact that both of them had breached
the condition upon which the special grant was issued to them as well
as s 291 of the Act. The manner in which he used his discretion
cannot be faulted.
The
conduct of the first respondent could not, under the stated
circumstances, be said to have been unlawful, unreasonable or
disproportionate as the applicant alleged. He simply pronounced what
the law says. He could not cancel the grant which ceased to exist
five years ago by operation of the law. What he did was to declare
the position as it was and to direct that the corporation and the
applicant do cease forthwith their operations which they continued to
engage upon a special grant which had expired.
The
applicant's statement which was to the effect that the first
respondent did not follow due process of law when it directed
companies which were in the same boat with it to cease operations did
not hold. It would have held if the grant from which it derived its
authority to work the site(s) was valid. The grant was unfortunately
invalid. The first respondent did not, therefore, have any obligation
to the applicant or to anyone who was in the same position as the
latter to have directed in any manner other than what he did.
The
corporation and the applicant have only themselves to blame for the
unfortunate position in which they found themselves. They took solace
in continuing to break the law with impugnity. They could not be
heard to cry foul when the law descended upon them as it did.
It
is important that a comment be made as regards the resolutions which
accompanied the applicant's application. The resolutions purport to
confer authority upon one Zhang Shibin to depose to the founding
affidavit. The first resolution is dated 2 March, 2016. The one which
was attached to the applicant's answering affidavit was dated 25
February 2016. It is an expanded version of the resolution of 2
March, 2016. The contents of the two resolutions are totally
dis-similar although they purported to portray the view that Mr
Shibin did have the authority to depose to the applicant's
affidavit. The court was left in an invidious position as to which of
the two resolutions was more authentic than the other.
The
applicant's attempt to unprocedurally introduce into the record, at
the eleventh hour, a document which it never referred to in its
papers or during submissions was received with displeasure. The
document appeared to have aimed at influencing the court to view the
applicant's case from a perspective which was different from the
one it had, earlier on, presented. The court drew the attention of
the applicant's legal practitioner to the matter and the latter
tendered an apology after which he withdrew the document onto which
was attached another document which resembled Special Grant 4765.
On
11 March, 2016 the applicant filed a chamber application with the
court. The application aimed at introducing into the record the
document which it attempted to introduce outside the rules of court
on 9 March, 2016. Its application was in terms of r 235 of the rules
of court. It sought leave of the court to introduce the document into
the record. It moved the court to exercise its discretion in terms of
r 4 C of the same riles.
The
first respondent opposed the application. He filed his opposing
papers on 21 March, 2016. The other respondents did not. The first
respondent's opposition to the application notwithstanding, the
court granted the application. It did so in the interests of justice.
The
applicant marked the document which was the subject of its chamber
application Annexure AA4. It said the annexure contained evidence
which was critical to the determination of the urgent chamber
application. It said the annexure was not available to it when the
answering affidavit and submissions were made. It stated that the
annexure was the special grant which was issued to the corporation on
6 December, 2016. Its position was that the annexure was different
from Annexure E which it attached to its founding affidavit.
The
first respondent objected to the admission of the supplementary
affidavit and the annexure. He stated that the applicant's position
was that the corporation ceded a portion of the special grant to
itself. He submitted that the source of the rights that were ceded
to the applicant should have been brought before the court. He stated
that the applicant had a duty to prove its claim in the mentioned
regard. He argued that the applicant was endeavoring to rebuild its
case which, according to him, had crumpled. He observed that the
grant was dated 6 December, 2006. His further observation was that
para 2 of the annexure stated that the grant would remain valid for
only twelve (12) months. He submitted that the annexure's validity
expired on 6 December, 2007. He said the annexure had already expired
when cession
of rights to the applicant allegedly took place on 2 December, 2010.
He stated that the applicant could not have derived any rights from
an expired grant.
Both
Annexures E and AA4 relate to Special Grant 4765. Annexure E has 10
clauses and Annexure AA4 has 8 clauses. It is curious to observe that
the permanent secretary of the first respondent issued those two
annexures on 6 December, 2006. The Ministry's date-stamp which
appears on the face of Annexure E resonates with the purported
cession of 3731 hectares of Special Grant 4765 to the applicant. The
applicant did not explain why the date of issue as is stated in
Annexure E was allowed to remain reading 6 December, 2006 when the
alleged cession occurred on 2 February, 2010.
It
may be accepted, for argument's sake, that the secretary made an
error in not correcting the date to read 2 February, 2010. However,
the Ministry's date-stamp which appears underneath the secretary's
signature in Annexure E would not have read 6 December, 2006 which it
is reading. It should have read 2 February, 2010 which is the date of
the alleged cession. One is, therefore, left to wonder whether or not
the two annexures are capable of being reconciled to allow them to
tell a story about themselves. It is evident that they cannot tell
any meaningful story.
Condition
3 of Annexure E is relevant. It reads:
“In terms of section 295 of the
Act the holder shall beacon
the area of the grant
to the direction of the Mining Commissioner and shall
maintain such beacons
until a certificate of quittance has been issued in terms of the
Act.” [emphasis added]
The
applicant's statement was that Annexure E was issued to it. It,
however, produced no evidence to show that it complied with the above
condition which is peremptory in nature and form. All what it was
able to show was the endorsement which appears on the face of the
annexure.
The
first respondent's observations as regards condition number 2 of
Annexure AA4 cannot be glossed over. The annexure, according to the
applicant, was issued to the corporation on 6 December, 2006. The
Annexure had a lifespan of only one year from its date of issue. It,
accordingly, remained valid up to 6 December, 2007. The applicant
produced no evidence to show that the annexure was renewed after 6
December, 2007. The first respondent's assertion which was to the
effect that the corporation could not, in February 2010, cede what it
did not have therefore holds.
The
introduction into the record of Annexure AA4 left the applicant's
case in a more confused state than it had concluded it. The annexure
raised material disputes of fact which could not be resolved on the
papers. The application cannot succeed under the stated set of
circumstances.
The
respondents raised a number of in limine
matters
which the court chose not to consider. It remained of the view that
the application should be disposed of on the basis of its substance
and not on technical issues which had been placed before the court.
The applicant's case was unsustainable. It could not prove its case
on a balance of probabilities. The application is, accordingly
dismissed with costs.
Hussein
Ranchhod and Company,
applicant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
