Zimbabwe: High Court Rules Minister Offside

10 April 2020

Mines and Mining Development Minister Winston Chitando's decision to cancel a Mutoko granite mining company's registration certificate has been nullified in a High Court composite judgement dealing with two interrelated applications.

The protracted ownership wrangle involves two mining companies, in which Quarrying Enterprises (Pvt) Ltd sued Southern Granites (Pvt) Ltd on one side and Southern Granites that sued Minister Chitando, Quarrying Enterprises and the Provincial mining director, in the fight over the same mining claim.

Both firms had approached the High Court seeking confirmation of provisional orders that had been separately issued in the long-drawn dispute over ownership of a claim known as Mutuwi in Mutoko. Although the two applications were dealt with in a composite judgement, Justice Christopher Dube-Banda considered and decided each application separately in view of the legal principles applicable and peculiar to each case.

In the first case, Quarrying Enterprises, through its lawyer Advocate Taona Nyamakura, brought an urgent application seeking to bar Southern Granites from extracting the granite stone from the disputed claim. But Justice Dube-Banda threw out the request after the firm failed on a balance of probabilities to prove the right, which is sought to protect.

"My view is that, taking into account the facts of this case, Quarrying Enterprises has not met the requirements of a final interdict," he said.

Quarrying Enterprises wanted to bar Southern Granites from mining granite from the boundaries of the claim and further from exporting, selling or in any way disposing of the granite whether in its raw form or processed state.

The interdict sought was anchored on allegations that in April 2018, Mashonaland East acting provincial director made a decision that Southern Granites had over pegged on a granite claim Number 26736BM belonging to Quarrying Enterprises. This formed the basis for its application for an interdict against Southern Granites. However, aggrieved by this decision Southern Granite appealed to Minister Chitando, but lost.

This prompted Southern Granite to approach the High Court seeking to review and setting aside of the Minister's decision in the second case Number HC11561/18.

Mr Sternford Moyo of Scanlen and Holderness argued the matter for Southern Granites. Justice Dube-Banda found that the Quarrying Enterprises' granite claim had been confiscated along the way and the company failed to prove that the forfeiture was later revoked.

The court also ruled that when Minister Chitando threw out Southern Granites' appeal, he had information that the claim was forfeited and was not reinstated. In this regard, Justice Dube-Banda found that Minister Chitando's reasons to disallow the Southern Granites appeal, were inconsistent with the facts.

"The decision of the Minister is irrational and does not pass the rationality test," ruled the judge. To this end, Justice Dube-Banda quashed Minister Chitando's decision and discharged Quarrying Enterprises' application for a final interdict.

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