SANDAWANA Mine, owned by Kuvimba Mining House (KMH), has been granted temporary relief after a private mining company, Avoseh Investments(Pvt) (Ltd), was interdicted from extracting lithium ore in its territory.
The two companies are squabbling over boundaries, with Sandawana claiming that Avoseh is mining lithium from a 25-hectare block falling within its mining claim.
Sandawana and Avoseh have two other cases filed separately pending before the High Court. In the latest development, Sandawana filed an urgent application at the High Court seeking an interdict against Avoseh, arguing that it is encroaching onto its claim.
Sandawana, cited as the applicant in the court papers, has a registered mining claim ‘Lith 15’ (Registration Claim GM 8172 BM). On the other hand, Avoseh has a registered mining claim ‘Sandawana AV8’ (Registration Number 17332BM).
As a result of the encroachment squabble, there is a mining area which is disputed between the two parties which each party claims to be its area. When the confrontation began, Sandawana approached the Midlands mining commissioner.
This was after noticing that Avoseh was still extracting lithium from a disputed area. The provincial mining director then investigated the case and gave a determination in favour of Avoseh. This was on 24 April 2023.
The commissioner said Sandawana had failed to maintain its beacons in breach of section 51(7) (beaconing of locations) of the Mines and Minerals Act. Sandawana was then ordered to confine itself to its original beacons. Sandawana then took the matter to the High Court for review.
Sandawana in its appeal argued that the provincial mining director has no jurisdiction to determine the dispute and that his findings were grossly unreasonable. The mine also filed a court application for a declaratory order under case number HC 3572/23 seeking a nullification of the Avoseh claim.
On the other hand, Avoseh also filed an application for a declaratory order under HC 4766/23 wherein it is seeking an order for the nullification of Sandawana’s ‘Lith 15’ mining claim. The three matters were consolidated under HC 4770/23 and are pending. It is on this basis that the applicant is seeking an anti-dissipation interdict in order to bar Avoseh from continuing with the extraction of lithium pending the determination of these matters.
“The ground for this is that Avoseh’s claim was registered on ground which was not open to prospecting and pegging and that the registration was done in violation of the environmental management laws,” read court papers.
Sandawana said it risks being prejudiced if Avoseh continues mining its lithium. In a recent judgment High Court judge, Justice Esther Muremba ordered Avoseh to stop its mining activities on the claim.
“The applicant is perfectly entitled to bring an application for review to this court.
“I am therefore satisfied that the applicant has thus established that it has a prima facie right to have the dispute between the parties determined to finality. “Clearly the interdict that the applicant is seeking is justified. The interdict is also important in that it protects the applicant’s interests in the mineral pending the outcome of the review application.
“It is common cause that right now the first respondent is continuing to mine on the disputed area. “If this continues, lithium being a finite resource will be exhausted. It means that if the judgment in the review matter turns in favour of the applicant, that judgment will be a brutumfulman (an ineffectual legal judgement).
“Therefore, it is my considered view that it is necessary to grant the application so as to preserve the reslitigiosa pendente lite.
“I am satisfied that there is no other satisfactory remedy other than the interdict being sought which will preserve the reslitigiosa (interim interdict for stay of execution) and immediately arrest the harm that the first respondent is causing,” she ruled.
In opposing the application, Avoseh said it is carrying out all its mining operations lawfully.
Avoseh said Sandawana must establish that it has “a prima facie right, even if open to doubt; that an infringement of such a right is imminent; that it will suffer irreparable harm if the interim relief is not granted; that there is no other satisfactory remedy and that the balance of convenience favours the grant of such an interdict.”
Avoseh also said for it to carry out mining operations on its mining claim, it satisfied all the requirements set out in the Mines and Minerals Act.
It said as such it is carrying out all its mining operations lawfully. The respondent also submitted that an interdict cannot be granted to stop lawful conduct.
Through its lawyers, Avoseh also argued that it has a clear right to the lithium ore that it is mining on its registered claim. Also cited as respondents in the matter were Mines permanent secretary, Mines minister and the Environmental Management Agency.-STAFF WRITER