FORMER Zimbabwean gold heavyweight Falcon Gold has been barred from carrying out mining operations at its 11 gold claims by the High Court.
NATHAN GUMA
This follows a successful urgent court application by Mines minister Winston Chitando seeking an interdict barring Falcon and Nyamazane Gold (Pvt) from conducting operations at the disputed mines.
The mines were identified as Antelope East 2, Antelope 9, Antelope East Extension, Antelope East Extension 2, Antelope East, Antelope 2, 3, 4, 5, and 6, and Antelope 11.
Chitando sought an interdict pending determination of a Supreme Court appeal filed under Case No. SC 398/22.
Justice Happias Zhou sitting at the Harare High Court granted the interim relief.
“Pending determination of this matter, the applicant is granted the following relief, that the respondents forthwith stop carrying on mining operations at the mining claims known as Antelope East 2, Antelope 9, Antelope East Extension, Antelope East Extension 2, Antelope East, Antelope 2, 3, 4, 5 and 6, and Antelope 11,” ruled the judge.
Falcon Gold was the holder of certificates of registration in respect of the mining claims referred to above.
The said mining claims were given to Nyamazane Gold to work on in terms of a tribute agreement between the parties.
Nyamazane was thus carrying out mining on the claims.
According to court papers, in April 2022 the applicant cancelled Falcon Gold’s certificates in respect of the claims, placing reliance on the provisions of section 400 (1) of the Mines and Minerals Act [Chapter 21:05].
Falcon Gold and Nyamazane Gold cited as the respondents then approached the High Court challenging the minister’s decision to cancel the certificates under Case No. HC 2952/22.
The application was dismissed on 10 August 2022.
On 15 August 2022, the two noted an appeal to the Supreme Court HH 403-23 HC 4038/23 against the judgment in HC 2952/22.
The appeal was filed under Case No. HC 398/22.
The judgment in the Supreme Court appeal has not yet been delivered but the parties advised that the appeal has since been argued.
In response to the filing of the notice of appeal, the applicant filed a chamber application for leave to execute the judgment in HC 2952/22 pending the determination of the appeal noted against it. The application was filed under Case No. HC 6416/22.
The application was dismissed in default of the minister, properly so because there was no judgment in his favour which the applicant could possibly have sought to execute upon.
Chitando states that the respondents had advised that they were not carrying on any mining activities.
He said the respondents were actually carrying out mining activities and that they were not declaring the output from such activities.
Chitando then instituted an investigation following which a report was produced showing, among other revelations, that there was mining taking place at the mine and, also, that the milling plant was operational and processing ore from some of the claims.
In opposition, the respondents objected in limine to consideration of the merits of the application on the grounds that the certificate of urgency is invalid by reason of having been done and signed by a legal practitioner from the civil division of the Attorney-General’s Office; and (b) the matter was, in any event not urgent.
The objection based on the ground that the applicant had approached the court with dirty hands was not persisted with.
On the merits, Falcon and Nyamazane stated that they only commenced the actual mining in May 2023.
They produced returns on output and disposal forms for the period from which they commenced mining, as well as the returns for the period prior to the commissioning of the plant.
The respondents also produced labour returns. The documents produced and the averments made were meant to show that the respondents were rendering the returns in respect of output.
“I heard arguments on both the objections in limine and the substantive merits of the matter and advised that my determination on the preliminary objections would inform whether or not I would proceed to consider the merits of the application. In other words, if any of the objections in limine was upheld then the merits would not be considered,” said Justice Zhou in his determination.
The respondents’ second ground of objection was that the matter is not urgent.
The respondents postulate three possible dates when, in their contention, the need for the applicant to act arose.
The first date alleged is 20 July 2022 when the applicant wrote a letter to the respondents ordering them to cease mining operations.
The second asserted date is 15 August 2022 which was when the applicant filed an application for leave to execute under Case No. HC 6416/22.
Finally, the respondents referred to their notice of 16 January 2023 in terms of which they notified the applicant of their intention to commence operations at the site.
The minister said that the need to act arose on or about 13 June 2023.
This was after it had received information that the respondents were conducting mining operations at the mines notwithstanding previous assertions that no such mining was underway.
Following receipt of that information, the minister instituted an investigation which resulted in the report that confirmed that indeed the respondents were mining at the disputed sites.
The respondents have also confirmed that they are carrying out mining activities on the claims, and have been conducting such activities from May 2023.
“Accordingly, the matter satisfies the requirements for an urgent hearing. The objection to its urgent hearing is therefore dismissed,” said the judge.
The judge also said the respondents’ counsel made no meaningful submissions in respect of the issue of the right, understandably because the applicant is the authority who is responsible for the administration of the Mines and Minerals Act [Chapter 21:05], and has the authority to issue and cancel title to mining claims.
“He exercised that right. The challenge to the exercise of the right failed. While an appeal against a judgment has the effect of suspending the operation of the judgment appealed against, such an appeal does not prior to its determination nullify the judgment.
“The dismissal of the respondents’ application means that the cancellation of the certificates remains extant. It was not disturbed by the outcome of the judgment; neither was it affected by the noting of the appeal.
“This means that the applicant has a clear right in relation to the mining claims in question.
“Given that the applicant has proved and the respondents have confirmed that they are carrying on mining operations, the injury has not only been shown to have been committed, it is continuing.
“As shown by the authorities, there is no need to show irreparable harm or the risk thereof. This renders misplaced the submission made on behalf of the respondent which focused predominantly on the issue of the risk of irreparable harm,” said Zhou.
The judge also said the prejudice is occasioned by the continued mining on claims over which the respondents have no title.
“The prejudice is irreparable because once mined the mineral is exhausted. If the respondents’ appeal is dismissed yet they have continued mining the applicant will not be able to recover the minerals that they would have extracted,” he said.
Falcon and Nyamazane had submitted that the minister has an alternative remedy, because if the respondents fail to produce the returns it can impose a fine. The judge however said the alternative remedy must be satisfactory in the sense of achieving the desired result.
He said a fine, even if subsequently imposed, does not have the effect of stopping the respondents from carrying on the mining operations.
“There is therefore no alternative remedy to the injunction that is being sought herein.
He said in considering the balance of convenience the court must weigh the prejudice to the minister if the interim relief is refused against the harm to the respondents if the relief is granted.
