Opposed
Matter
MUZOFA
J:
This
is an application for a final interdict in which the relief sought is
the following:
“1.
The respondent, his employees, invitees, friends and/or relatives be
and hereby permanently interdicted from carrying out any farming
activities at Ascot 168 Mine situated on Subdivision 19, Knockmallch
Farm, Norton.
2.
The respondent shall pay costs of this application on a legal
practitioner and client scale.”
The
following facts are common cause in this matter:
1.
On the 2nd
of June 2014 the applicant made an application for a prospecting
licence which was issued on the 12th
of June 2014.
2.
The district administrator was duly notified.
3.
The applicant was subsequently issued with a Certificate of
Registration as a registered holder of a block of reef claims called
Ascort 168 situate on Knockmalloch Farm on the 4th
of January 2016.
4.
On the 4th
of December 2014 the Minister of Lands and Rural Resettlement offered
subdivision 19 Knockmalloch to the respondent.
5.
The land offered to the respondent included 1.8 hectares inside
Ascort 168 mine where the applicant's mining block is situate.
According
to the applicant's founding affidavit, both parties have rights
over the land.
The
applicant has mining rights and respondent has farming rights. His
mining rights are superior to the respondent's rights.
Further
to that it claims that on the 2nd
of October 2016 the respondent instructed his employees to plough on
the 1.8 hectares of the portion of land inside the Ascort 168 mine.
Such presence of the respondent's workers disturbs its mining
operations.
In
his opposing affidavit the respondent confirms that both parties hold
rights over the same piece of land. The respondent claims that the
land was not open for prospecting in terms of section 30 of the Mines
and Minerals Act (“the Act”). Therefore the applicant was
required to comply with Part V and VII of the Act.
In
essence the respondent challenged the propriety of the certificate of
registration.
Further
he claims he was offered the land before the registration of the
claims therefore his rights supersede the applicant's rights.
In
an application for a final interdict as the one sought by the
applicant the applicant has to establish firstly a clear right,
secondly an actual or a reasonably apprehended injury and, thirdly,
absence of any other remedy: Setlogelo
v Setlogelo
1914
AD 221.
A
prima
facie
right can only suffice in an application for a final interdict where
there is a likelihood of irreparable harm being suffered if the
relief is not granted; Molteno Bros and Other SA v Rlys and Others
1936 AD 321 at 332 cited in Boadi
v Boadi and Anor 1992
(2) ZLR 22 (HC).
In
consideration of those factors the court exercises its discretion.
In
Eriken
Motors (Welkom) Ltd v Proten Motors, Warrenton and Anor
1973
(2) SA 685 (A) HOLMES JA, dealing with the issue on how to assess the
factors said the following at 691G:
“In
exercising its discretion the court weighs, inter alia, the prejudice
to the applicant, if the interdict is withheld, against the prejudice
to the respondent if it is granted. This is sometimes called the
balance of convenience. The foregoing considerations are not
individually decisive but are interrelated, for example, the stronger
the prospects of success the less this need to rely on prejudice to
himself. Conversely, the more the element of 'some doubt; the
greater the need for the other factors to favour him…'”
Bearing
in mind the requirements set out for an interdict I will consider the
merits of this case.
Whether
the applicant has a clear right is a matter of substantive law. It
must be a right that exists at law and can be protected. A clear
right is one that is not open to doubt whatsoever.
The
applicant in its founding affidavit indicate that it obtained a
prospecting licence on 2 June 2014.
It
is not in dispute that this licence was obtained before the
respondent was offered the land forming the subject of the dispute.
Section
26 of the Act sets out the land open to prospecting:
“Subject
to the provisions and limitations contained in section thirty-one the
following land is open to prospecting:
(a)
all state land and communal land.
(b)
all private land in the title to which there has been reserved either
to the British South Africa Company or to the Government of Zimbabwe
the right to all minerals or the power to make grants at the right to
prospect for minerals.
(c)
all enactment or agreement whereby such person is entitled to obtain
from the state title thereto on the fulfilment by him of the
conditions prescribed by such enactment or agreement.”
The
applicant armed with the prospecting licence had the right to
prospect on land as defined in section 26. The land in dispute was
open for prospecting.
Respondent
argued that it was not open for prospecting because if was land under
cultivation in terms of section 31 of the Act.
I
do not agree with this interpretation.
According
to section 30 of the Act “land under cultivation” is defined as:
“(a)
land which has been bona
fide
cleared or ploughed or prepared for the growing of farm crops;
(b)
ploughed land on which farm crops are growing;
(c)
ploughed land from which farm crops have been reaped, for a period of
three years from the date of completion of such reaping;
(d)
land which has been bona
fide
prepared
for the planting of such permanent crops as orchards or tree
plantations, and land on which such crops have been planted and are
being maintained;
(e)
ploughed land on which grass has been planted and maintained for
harvesting rotation of crops or stock feeding, for a period of six
years from the date of planting;
Provided
that if any land such as is described in paras (a) and (d) is not
utilized for the growing of farm crops or of such permanent crops as
orchards or tree plantations within two years of its having been bona
fide
cleared
or ploughed or prepared for such crops, such land shall forthwith
became open for prospecting.”
In
casu,
it was not shown that by 2 June 2014 the land was under cultivation
in terms of section 30.
In
fact by the respondent was not a holder of any rights in respect of
the land in dispute.
There
was a suggestion by the respondent that the land was under
cultivation of a plantation. No proof was provided to support this
averment, it remained a bare allegation.
On
the other hand the applicant attached a map of Ascot 168 showing that
the area “F” the disputed land was a forfeited mine.
I
accept therefore that at the time of prospecting there was no
plantation. The land was open for prospecting.
To
that extent there was no requirement for the applicant to comply with
Part V and VII of the Act as submitted for the respondent.
Consequent
upon getting a prospecting licence, the applicant had the right to
prospect and search for minerals, mineral oils and natural gases and
of pegging inter
alia
in terms of section 27 of the Act.
It
is trite that such processes, to prospect, search for minerals and
peg precede the granting of the certificate of registration in terms
of the Act. See also Zimba
v Mining Commissioner & Ors
HH
10/16.
However
the prospecting licence itself gives certain rights which respondent
cannot dispute for it is a matter of law.
For
the respondent therefore to argue that he was supposed to be advised
of these processes is untenable.
By
then he had no rights.
The
land in dispute was prospected before he was offered the land by the
Minister.
Clearly
the respondent was offered the land when all the preliminary work for
a certificate of registration had been done. What was outstanding was
the actual certificate. This is clear from the dates. The certificate
of registration is dated 4 January 2016 and the offer letter is dated
4 December 2014. The prospecting licence was issued on 2 June 2014,
which licence was the first step towards the acquisition of the
certificate of registration.
Even
the priority argument raised by the respondent cannot succeed. It was
the applicant who pegged the land for mining first.
The
respondent's defence that his right is superior is also without
merit.
Indeed
it is not in dispute that the respondent has farming rights over the
land in dispute. The question which exercises the court's mind is
which right supersedes the other.
Section
179 of the Act settles the matter, it provides:
“Saving
of rights of landowner over mining location
Subject
to subs (12) of section one hundred and eighty, the owner or the
occupier of land on which a registered mining location is situated
shall retain
the right to graze stock upon or cultivate the surface of such
location in so far as such grazing or cultivation does not interfere
with the proper working of the location for mining purposes.”
(my emphasis)
Section
180(12) speaks to a situation where a scheme to cultivate the surface
of mining location has been approved by the board.
In
casu
there
is no scheme referred to by the applicant.
For
the avoidance of doubt, section 179 of the Act gives a landowner
lesser rights than the miner's rights. In other words the miner's
rights are superior to the farmer's rights; thus where two
competing rights on a piece of land exist, one of a miner and a
farmer the farmer's rights are subordinate or should accede to the
miner's rights. The farmer can only exercise his rights as long as
such exercise does not interfere with the mining activities.
In
casu
the applicant therefore has a clear right that is not open to doubt
in terms of section 179 of the Act.
It
does not matter that the offer letter is still extant.
It
being extant, the land belongs to the state and was open to
prospecting and therefore susceptible to be a mining location. The
right held by the respondent is therefore a limited right in terms of
section 179 of the Act.
Irreparable
Harm
The
applicant demonstrated that it will suffer irreparable harm if the
respondent is not interdicted. In paragraph 11 of the applicant's
founding affidavit, it is stated;
“On
or about the 2nd
of October 2016, the respondent instructed his employees to plough on
the 1.8 hectares of the portion of land inside Ascort 168 Mine.”
This
fact was not disputed, therefore it is taken as admitted.
The
applicant further averred that the presence of the respondent's
employees at the mining location disturb the smooth operation of its
business.
This
too was not disputed.
To
that extent clearly where the mining operations are being disturbed
there is a threat or a real likelihood of irreparable harm.
Remedy
Mr
Madzoka
for the respondent submitted that an interdict is not the only
remedy.
He
said the applicant should have proceeded in terms of section 32 of
the Act.
Section
32 of the Act does not envisage a dispute between a landowner and a
miner. It envisages a dispute between a landowner and a prospector,
this is before the prospecting, pegging and the issuance of the
certificate of registration.
In
this case the dispute is between a landowner and a holder of a
certificate of registration, a miner so to speak.
In
terms of section 345(1) of the Act, the High Court has original
jurisdiction in every civil matter, complaint or dispute arising
under the Act, unless the parties agree in writing to the mining
commissioner's jurisdiction.
Clearly
an interdict is the only remedy to protect the applicant's interest
in the mining location. There is no alternative remedy.
Mr
Madzoka
for the respondent argued that lawful conduct cannot be interdicted.
Can
respondent's conduct be said to be lawful in light of section 179
of the Act?
I
do not think so.
Clearly
the respondent's right must give way to the applicant's mining
rights to the extent that the respondent's rights interfere with
the mining business of the applicant.
It
is my considered view that, that which is unlawful, is that which
goes against the tenets of an applicable law.
In
the circumstances of this case, the applicable law is the Mines and
Minerals Act.
The
Minister of Lands offered state land to the respondent. That land was
open to prospecting in terms of the Mines and Minerals Act. That Act
regulates the relationship of a landowner and a miner. To the extent
therefore that the landowner does not comply with the Act, his
conduct becomes unlawful.
The
respondent as the landowner is interfering with the mining operations
by cultivating the land pegged for mining. His conduct is therefore
unlawful.
The
founding affidavit therefore meets the order sought.
From
the foregoing, the applicant has satisfied the requirements for an
interdict.
The
applicant seeks costs on a legal practitioner client scale. There was
no justification for such costs. I will therefore grant costs on an
ordinary scale.
Disposition
It
is ordered that;
1.
The respondent, his employees, invitees, friends and/or relatives be
and are hereby permanently interdicted from carrying out any farming
activities at Ascot 168 Mine situated on subdivision 19 Knockmallch
Farm, Norton.
2.
The respondent shall pay costs of this application.
Mangwiro
Law Chambers,
applicant's legal practitioners
Wintertons,
respondent's
legal practitioners
