Urgent
Chamber Application
MAWADZE
J: This
urgent chamber application for a provisional interdict is anchored on
an appeal filed with this court on 22 March 2018.
The
applicant is a mining syndicate involved in chrome mining in the
Lalapanzi area in Gweru. The 1st
respondent ZIMASCO (Pvt) Ltd is a duly registered company in terms of
the laws of Zimbabwe and also involved in the mining of chrome.
The
2nd
and 3rd
respondents are individuals contracted by the 1st
respondent to engage in chrome mining on behalf of the 1st
respondent at the disputed chrome mining claims known as Mackenzies
11 in Lalapanzi.
The
4th
respondent the Provincial Mining Director for Midlands Province, the
5th
respondent the Officer in Charge of Lalapanzi Police Station and the
6th
respondent the Officer in Charge CID Minerals are cited in their
official capacities and for the purpose of ensuring that the
provisional order, if granted, is complied with.
The
facts giving rise to this urgent chamber application are largely
common cause. They can be summarised as follows;
A
dispute has arisen between the applicant and the 1st
respondent in relation to the chrome mining claims known as
Mackenzies 11 in Lalapanzi near Gweru. Both the applicant and the 1st
respondent are holders of certificates of registration in respect of
the said mining claims issued by the 4th
respondent. The dispute is centred on over pegging by either party.
The
said dispute was referred to the 4th
respondent for adjudication sitting as a Mining Commissioner's
Court. On 19 January 2018 the 4th
respondent pronounced its ruling in favour of the 1st
respondent. A finding was made that the applicant had violated
section 177 of the Mines and Minerals Act [Cap
21:05]
[The Act]. As a result, the 4th
respondent proposed as a penalty to cancel the applicant's
certificate of registration in accordance with the provisions of
section 50 of the said Act. The applicant was further advised to
appeal to the Minister of Mines and Mines Development if it so wished
within the prescribed period against the penalty proposed. The
applicant did not take that advice.
The
applicant, irked by the decision of the 4th
respondent, appealed to this court on 22 March 2018. It is the
applicant's contention now that despite the noting of this appeal
against the 4th
respondent's decision the 1st
respondent through the 2nd
and 3rd
respondents has continued mining activities at the disputed claims.
The applicant on the other hand has suspended all its mining
activities at the disputed claims pending the determination of the
appeal. This has not been disputed by the respondents, especially the
1st
to 3rd
respondents.
The
applicant contends that it is still the registered owner of the
disputed claims known as Mackenzies 11 Lalapanzi and that the
continued mining activities by the 1st
respondent through the 2nd
and 3rd
respondents is prejudicial to its interests as the chrome deposits
would be depleted or exhausted before the pending appeal is
finalised. This would render the outcome of the appeal an exercise in
futility. This is what has caused the applicant to approach this
court through the urgent chamber book seeking a temporary interdict
pointing out that it has no other remedy.
At
the commencement of the hearing both Ms
Takandesa
for the 1st
to 3rd
respondents and Mr
Undenge
for the 4th
to 6th
respondents took points in
limine.
I
now revert to the points in
limine.
Mr
Undenge
raised the point that this matter is not urgent. He submitted that
the ruling by the 4th
respondent was served on the applicant on 19 January 2018 and that
the applicant only noted the appeal against that ruling some two
months later on 22 March 2018. He reasoned that the applicant did not
treat this matter as urgent and has not bothered to explain in its
founding affidavit the reason for this apparent inordinate delay.
Consequently, he argued that the applicant cannot be allowed to jump
the queue as it were as it did not treat the matter as urgent.
What
constitutes urgency in matters of this nature is now settled in our
law and should not really detain this court too much. The locus
classicus
is the case of Kuvarega
v Registrar
General
& Anor.
1998 (1) ZLR 188 at 193 (H) see also Grifford
v
Mazarire
& Ors
2007 (2) ZLR 131 at 134 – 135 A (H) and Boniface
Denenga & Anor.
v Ecobank
(Pvt) Ltd. and 2 Ors
HH117/14.
I
understand the applicant's contention to be that what has triggered
this urgent chamber application is the 1st
respondent's actions through the 2nd
and 3rd
respondents to continue mining activities at the disputed area after
the applicant has noted an appeal to this court on 22 March 2018. It
is trite that generally the noting of an appeal suspends the order
appealed against. It logically follows that what triggered the
urgency in this matter is the noting of an appeal by the applicant.
Put differently, the urgency in this matter arose after the applicant
noted the appeal and not before. The applicant stated that it only
became aware of the 1st
respondent's adverse activities on 25 March 2018 and proceeded to
file this application on 3 April 2018. That delay cannot be said to
be inordinate. Indeed, Mr
Undenge
could not continue with this argument and grudgingly accepted that
the point in
limine
he had raised had not been properly taken. Even his colleague Ms
Takaendesa
for the 1st
to 3rd
respondents was clearly unwilling to fight in Mr
Undenge's
corner on this point.
The
point in
limine
raised by Mr
Undenge
is clearly untenable in the circumstances. It is improperly taken and
cannot succeed.
Ms
Takaendesa
for the 1st
to 3rd
respondents raised two points in
limine
which I now proceed to deal with.
The
first point in
limine
taken by Ms
Takaendesa
is that the appeal upon which this urgent chamber application is
predicated was lodged to the wrong forum. She submitted that the 4th
respondent had acted in terms of section 50 of the Act hence the
applicant could only competently note an appeal to the Minister of
Mines and Mines Development and not the High Court. She further
argued that the relief sought by the applicant cannot be granted in
the circumstances.
I
am not persuaded by this reasoning.
A
proper reading of the applicant's notice and grounds of appeal
shows that the grounds of appeal are not solely restricted to the
proposed cancellation of the applicant's certificate of
registration as provided for in section 50 of the Act. The applicant
raises four grounds of appeal which include, inter
alia,
the failure by the 4th
respondent to properly adduce relevant evidence, the failure to
properly assess the evidence placed before the 4th
respondent, arriving at a wrong finding of fact and prescribing an
improper penalty. Clearly the grounds of appeal are not solely
predicated or restricted to the provisions of section 50 of the Act
which relates to the proposed cancellation of the applicant's
certificate of registration. My perception is that the applicant has
noted an appeal in terms of section 361 of the Act which provides as
follows;
“361.
Appeal from Mining Commissioner's Court to High Court
Any
party who is aggrieved by any decision of a Mining Commissioner's
Court under this Act may appeal against such decision
to the High Court, and that court may make such order as it deems fit
on such appeal.” (my emphasis)
The
applicant's appeal is therefore in respect of the 4th
respondent's decision on a number of issues and not necessarily on
the issue relating to the proposed cancellation of the applicant's
certificate of registration for which an appeal would lie to the
Minister of Mines and Mines Development. It is my finding that the
applicant's appeal is properly before this court and the point in
limine
taken in this respect lacks merit.
The
second point in
limine
raised by Ms
Takaendesa for
the 1st
to 3rd
respondents is that the applicant's appeal to this court was noted
out of time. She submitted that no application for condonation for
late noting of the appeal has been made nor granted. She argued that
on this basis alone the applicant's case should be dismissed.
In
support of this argument Ms
Takaendesa
relied on section 360 of the Act which provides as follows;
“360.
Magistrates Court procedure to be observed in Mining Commissioner's
Court
Save
as otherwise provided in this Act, the procedure to be observed by a
Mining Commissioner's Court and fees chargeable in respect of any
proceedings therein shall, so far as practicable, be in accordance
with the law and rules governing procedure and fees in civil cases in
the Magistrates Court.”
Ms
Takaendesa
further submitted that that the appeal against the decision of the
Mining Commissioner's Court to the High Court should necessarily be
governed by the Magistrates Court (Civil Rules) 1980. In that vein
she argued rather convincingly that in terms of Order 31 Rule 2(1)(a)
of the Magistrates Court (Civil) Rules 1980 the applicant should have
noted this appeal within 21 days from the date applicant was served
with the 4th
respondent's ruling which is on 19 January 2018. Instead the appeal
was only noted on 22 March 2018 well outside the dias
induciae
of 21 days. Ms
Takaendesa
therefore contended that the applicant's purported appeal is
invalid and that in the absence of such a valid appeal applicant
cannot be granted the relief sought.
Despite
the aromatic scent exuded from Ms
Takaendesa's
argument, my appetite is not aroused by such an argument.
It
is incorrect to say that an appeal noted in terms of section 361 of
the Act is governed by the provisions of section 360 of the same Act.
To my mind section 360 of the Act simply deals with the procedure the
Mining Commissioner's Court should observe during hearings related
to disputes and the fees chargeable. It does not provide for what
happens ipso
facto
such hearings. It does not provide for the period within which an
aggrieved party should note an appeal to the High Court. It is
section 361 of the Act which deals with the appeals to the High Court
against the decision of the Mining Commissioner's Court. Further
section 361 of the Act is silent on the time within which such an
appeal should be made. The inference I can draw is that such an
appeal should simply be noted within a reasonable time. In my view
what amounts to a reasonable time depends on the circumstances of
each case and the court should be guided by the interests of justice
and fairness. I am therefore inclined to dismiss the second point in
limine
taken by Ms
Takaendesa.
I
now turn to the merits of the application.
The
law in relation to temporary interdicts is again well settled. The
requirements of an interdict are as follows;
(i)
a prima
facie
right, even if it is open to some doubt;
(ii)
a well-grounded apprehension of irreparable harm if relief sought is
not granted;
(iii)
that the balance of convenience favours the granting of the interim
interdict;
(iv)
that there is no other satisfactory remedy;
(v)
that there are reasonable prospects of success in the merits of the
main case.
See
Setlogelo
v Setlogelo
1914 AD 221, Universal
Merchant Bank Zimbabwe Ltd
v The
Zimbabwe Independent & Another
2000 (1) ZLR 234 (H).
The
above requirements, in my view, are applied conjunctively and not
disjunctively.
I
now proceed to apply these requirements to the facts of this case.
The
applicant has a prima
facie
right on account of the fact that it has a certificate of
registration issued by the 4th
respondent in respect of the disputed mining claim. It matters not
that such a prima
facie
right is now open to some doubt as the 4th
respondent has expressed an intention to cancel the certificate of
registration.
It
has not been refuted by the 1st
to 3rd
respondents that mining activities are continuing at the disputed
mining claims despite the noting of an appeal by the applicant.
Mineral resources like chrome are a finite resource hence the
applicant's apprehension of irreparable harm is well grounded.
What
other remedy would the applicant have in the circumstances in order
to stop the activities of the 1st
to 3rd
respondents after noting the appeal? None. The only remedy available
to the applicant is to stop the mining operations through the interim
interdict.
It
cannot be said that the applicant's prospects of success in the
merits of the main case are not reasonable. All what the applicant
has to show is that they have an arguable case on appeal or a
fighting chance. It matters not if the applicant is subsequently
knocked out in the last rounds of the fight. The question really is
whether the appeal is simply a hopeless one, not whether the
applicant has an unassailable case on appeal.
This
court is mindful of the fact that it is not sitting as an Appeal
Court. I should therefore simply have a glancing view of the grounds
of appeal to assess the applicant's prospects of success on appeal.
As
per the grounds of appeal the nature of the evidence relied upon by
the 4th
respondent in making the decision which is being impugned by the
applicant is an issue clearly articulated by the applicant. The
applicant further submits that such evidence was also not properly
assessed. While I admit that where there is a dispute relating to
over pegging the only remedy available would be to cancel the
certificate of registration of one of the competing parties and that
in
casu
the 4th
respondent has religiously adhered to the procedure relating to
cancellation of such certificate of registration as provided for in
section 50 of the Act, I still hold the view that the applicant has
an arguable case on the other grounds of appeal which relate to the
inadequacy of evidence adduced and assessment of such evidence. Those
issues are food for the Appeal Court to chew and digest not this
court.
In
the circumstances the balance of convenience would favour the halting
of all mining activities at the disputed area until all remedies
available are exhausted. I would not hesitate therefore to state that
this is classic case for granting an interim interdict. I am amazed
why the 1st
to 3rd
respondents strenuously opposed this application. I am left asking
myself whether miners at times lose their senses as soon as they go
underground as it were.
In
the result the application for an interim interdict is granted as
amended.
Kwande
Legal Practitioners,
applicant's legal practitioners
Danziger
& Partners,
1st
– 3rd
respondent's legal practitioners
Civil
Division of the Attorney General's office,
legal practitioners for 4th
to 6th
respondents.
