Urgent
Chamber Application
ZHOU
J:
This
is an urgent application for an order interdicting the first
respondent from carrying on mining operations on the applicant's
mineral claims described in the papers as Contrica 9 Registered
Number 23331BM; Contrica 21 Registered Number 24482BM; Contrica 45
Registered Number 24866BM; and Contrica 46 Registered Number 24867BM.
The
order also seeks the barring of the first respondent from coming
within two hundred metres of the mining claims referred to above.
The
terms of the final order, in addition to seeking the interdict as
recited above and costs of suit, asks the court to set aside the
first respondent's mining claims under Registration numbers 41334BM
and 42332BM.
The
mining claims in dispute in an area falling under the Pfura Rural
District Council.
The
application is opposed by the first respondent.
The
second applicant through his legal practitioner advised that he would
abide by this court's decision.
The
brief facts upon which the application is founded are as set out
below:
The
third applicant is the holding company in the first applicant. The
first applicant is the holder of the mining claims described above.
It registered the claims in 1996. The current certificates of
registration and inspection are attached to the applicants papers.
At
some point the applicants and first respondent had business dealings
involving minerals from those claims. It appears that the agreement
was not pursued.
The
respondent went on to register mining claims over a piece of land
which included the claims already registered under the applicants
names.
The
applicants became aware of the first respondent's intention to
carry on mining operations on the claims in dispute on 19 February
through an article which appeared in The
Herald
newspaper
of 14 February 2018.
The
first respondent does not dispute that it has registered the claims
in dispute. It, however, contests the relief being sought in this
application.
The
first respondent in its opposing affidavit took the point that the
matter should not be heard on an urgent basis.
No
submissions were made in support of that objection at the hearing.
Clearly
this is a matter which is urgent.
The
applicants acted quickly by instituting the instant application
within four days after becoming aware of the applicant's claims to
the disputed mining claims.
Further,
if the matter is not dealt with urgently and the applicant ultimately
succeeds there will be irreparable prejudice as the first respondent
has not stated that it will not proceed with carrying on mining
activities on the disputed claims.
The
fact that it has not yet started carrying on the mining work is not
relevant as there is no undertaking that mining activities will not
be undertaken pending the determination of the dispute.
The
matter is therefore urgent.
The
second ground of objection which is set out in the opposing affidavit
is that the relief sought in the draft order is incompetent because,
according to the respondent, it is final in its effect.
That
submission is incorrect as clearly the relief is being sought pending
the determination of this matter on the return date.
On
the merits, the relief sought is an interim interdict. The
requirements for such an interdict are settled. They are:
(a)
A clear right, or a prima
facie
right
though open to some doubt. Where a clear right is established the
applicant does not need to establish a well-grounded apprehension of
irreparable harm. But where the right is only prima
facie
established,
the second requirement must be established, namely;
(b)
That there is a well-grounded apprehension of irreparable harm to the
applicant if the interim relief is not granted and the applicant
ultimately succeeds in establishing the right; and
(c)
The balance of convenience favours the granting of interim relief;
and
(d)
The applicant has no other satisfactory remedy.
See
Watson
v Gilson Enterprises (Pvt) Ltd
1997
(2) ZLR 318 (H).
The
applicants have produced the relevant documents to show title in the
mining claims in dispute. The certificates of registration of
transfer of the claims as well as the inspection certificates show
that the applicants hold rights in the claims in question.
Their
right is therefore clearly established.
The
respondents have not placed any evidence before the court to
contradict the title established by those documents.
The
first respondent clearly intends to mine on the same claims which are
subject to the applicants rights.
The
fact that the first respondent has registered claims over the same
area does not take away the extant rights of the applicants.
It
is the policy of the law to give priority the first in title unless
there are special reasons.
No
such special reasons have been shown by the first respondent but, in
any event, that is a matter that is better left for a determination
on the return date.
The
first respondent suggested without evidence that the applicants
probably failed to maintain their title in the claims as required by
section 173 of the Mines and Mineral Act [Chapter
21:05].
The second respondent would not have issued the applicants with the
documents of title and inspection certificates referred to above if
that was the case.
Even
if the documents were to be taken as only prima
facie
evidence
establishing the applicants rights, it is clear that the fear of
irreparable prejudice is properly founded.
The
first respondent evinces an intention to mine on the claims even
though no actual mining activities have commenced. The applicants
cannot wait until actual mining starts when there is evidence of an
intention to mine on the disputed claims.
In
deciding whether the balance of convenience favours the granting of
the interim interdict the court weighs the prejudice to the applicant
if the interim relief is not granted against the harm to the
respondent if the relief is granted.
The
present situation is that the first respondent is not carrying on any
mining activities on the claims. It is therefore not prejudiced by
the granting of the interim relief being sought which is essentially
the maintenance of the status
quo.
The
first respondent through its legal practitioner suggested in the
alternative that an interdict could be granted stopping all mining
activity by both parties until the dispute is resolved.
Such
an order would unduly prejudice the applicant whose title to the
claims has not been challenged, let alone set aside.
Mr
Mataruka
for
the first respondent submitted that there is an alternative remedy of
approaching the Mining Commissioner.
The
remedy is not an alternative remedy to the interdict being sought in
the present case as it does not achieve the same result. It is
doubtful that the suggested recourse would afford the applicants the
relief of ensuring that the first respondent's employees should not
be allowed within two hundred metres of the mining claims.
In
the result, the application is granted in terms of the draft
provisional order as amended.
Muhlekiwa
Legal Practice,
applicants legal practitioners
Gill
Godlonton & Gerrans,
first respondent's legal practitioners
Civil
Division of the Attorney-General's Office,
second respondent's legal practitioners
