Nephutal Maonde &1 other V The Environmental Mnagement Agency &1 other [2025] ZWCHHC 10 (24 March 2025)

2 HCC 18/25 HCCC 51/25 NEPHUTAL MAONDE And BO ZHANG Versus THE ENVIRONMENTAL MANAGEMENT AGENCY And HUXIANG GOLD MINING (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI, 24 March 2025 Urgent Chamber Application Mr. Mbala, for the applicants Ms. Zvimba & Mr Homera, for the 2nd respondent No appearance for the 1st respondent BACHI MZAWAZI J: The applicants and the 2nd respondent have in common certain rights and interests in Cardigan Farm, Kadoma, Mashonaland. The 1st applicant claims to be the owner of the farm in question. In addition, he jointly owns some registered mining rights with the 2nd applicant. On the other hand, the 2nd respondent is a registered holder of 10 gold reef mining claims on the same farm. The 1st respondent is the Environmental Management Authority, responsible for the issuance of environmental impact assessment certificates to prospective miners as a prerequisite for all mining operations. It has not been disputed that the mining concession has been in existence for a long period, predating both litigants’ presence on the farm. The applicants have approached this court on an urgent basis, alleging that the 1st respondent issued an environmental impact assessment certificate to the 2nd respondent, unprocedurally. It is their submission that the failure of the Authority to consult them before the issuance of the impugned document was a procedural irregularity. True to form, they have instituted the appropriate review proceedings in case HCCC 49/24 with this court. The basis of the interdict sought in this urgent chamber application is detailed in the founding affidavit and the attendant documents. They seek, firstly, an interim interdict suspending the Environmental Impact Assessment Certificate issued by the 1st respondent in favour of the 2nd respondent over 10 gold reef claims, namely Rolex 9, under registration number 20481, located at Cardigan farm in Kadoma. Secondly, an interim interdict prohibiting the 2nd respondent from continuing mining activity, as read in their application for review under case number HCC 49/25, filed on the 13th of March 2025. In their opposing affidavit and submissions, the 2nd respondent raised two preliminary points. They submit that the cause of action, as presented in the applicants’ founding affidavit, arose sometime in August 2024, when they first noticed the fencing of the 2nd respondent’s mining claim. They argue that this was the time the applicants should have sought an interdict. They do not agree that the applicants took any action as they claim, evidenced by a letter dated 2 September 2024. This letter has not been provided to support that averment. Therefore, without that proof, there was inaction or a failure to act by the applicants. The 2nd respondent also contends that, even if the cause of action was to be that of mid-January, when it is alleged the 2nd respondent commenced mining operations, the applicants did not act expediently. They waited until March to write to the 1st respondent, enquiring about the certificate in question. In their view, the 2nd respondent argues that this inaction shows a lack of urgency on the part of the applicants. Thirdly, it is submitted that even if the cause of action may have arisen on the 6th of March 2025, judging from the response to the applicants’ enquiry, they had an option to apply for an interdict before the institution of the review proceedings. The second point in limine is that the 2nd respondent alleges that there are triable issues pertaining to the ownership of the farm and the authenticity of the agreement of sale. Referring to the founding affidavit, they argue that the applicants’ prima facie right is advanced as emanating from the agreement of sale, which they have questioned. As such, there is a need for a trial where evidence has to be led as to the authenticity of the signatures, among other issues they submitted. In response the applicants did not emphasize their right to interdict as emanating from their farming rights but their mining rights. They maintain that the matter is urgent for the reasons detailed in their application. On analysis, the law on urgency has been well tabulated in many cases within our jurisdiction see Pickering v Zimbabwe Newspapers (1980) Ltd 1991 (1) ZLR 71(H); Dilwin Investments (Pvt) Ltd t/a Formscaff v Jopa Engineering Company (Pvt) Ltd HH 116-98 at p 1; Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H) at 193 F-G; Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 232 (H) at 242G-243A In the locus classicus case on what constitutes urgency, Kuvarega v Registrar General & Anor 1998(1) ZLR 188(HC) it was stated: “What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless absentantion from action until the deadline draws near is not the type of urgency contemplated by the rules.” In the circumstances of this case the question is if the relief sought is not granted on an urgent basis or there and then will the applicants suffer irreparable harm or prejudice? Will they be in a position to say that if the court fails to act now it must forever hold its peace? In Document Support Center Pvt Ltd v Mapurure 2006 (2) ZLR 240 (1) the court two points consideration in applications of this nature, in determining the urgency of a situation were highlighted as: nature of the cause of action.relief sought. In casu, after a thorough analysis of the documents placed before me, in particular the founding affidavit as well as the arguments in court, I am not persuaded that this matter is urgent. This is a typical farmer and miner dispute. The applicant is not clear as to the actual harm that has been done on the land, for instance, several factors ranging from dangerous mining methods, introduction of dangerous chemicals and hazardous land degradation. There is no proof that these harmful activities are being done warranting immediate intervention by the courts. Paragraph 22 to 24 of the applicant’s affidavit are of note. It is my considered view that the cause of action arose when the applicants first became aware of the existence of the rival miner in August 2024. The fact that there is a mining dispute pending before the Provincial Mining Director did not qualify to act as a bar to the applicants from seeking an interdict to stop the 2nd respondent, pending the resolution by the Provincial Mining Director. Further, the relief sought as per the Document Support Centre case does not reflect any urgency. Firstly, the 1st respondent initiates a lawful process whose authenticity can only be determined by the review court. They operated within the ambits of the laws governing that conduct or process. See the case of Magaya v Zimbabwe Gender Commission (105 of 2021) 2021 ZWSC 105 (5 October 2021) (4) The court can therefore not interdict a lawful process. I therefore find that even the relief sought does not reflect any urgency. This preliminary point disposes the application without the need of going into the second point. The application is struck off the roll. It lacks urgency. Nyawo Ruzive Attorneys at Law, the applicants’ legal practitioners Zvimba Law Chambers, the 2nd respondent’s legal practitioners 2 HCC 18/25 HCCC 51/25 2 HCC 18/25 HCCC 51/25 NEPHUTAL MAONDE And BO ZHANG Versus THE ENVIRONMENTAL MANAGEMENT AGENCY And HUXIANG GOLD MINING (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI, 24 March 2025 Urgent Chamber Application Mr. Mbala, for the applicants Ms. Zvimba & Mr Homera, for the 2nd respondent No appearance for the 1st respondent BACHI MZAWAZI J: The applicants and the 2nd respondent have in common certain rights and interests in Cardigan Farm, Kadoma, Mashonaland. The 1st applicant claims to be the owner of the farm in question. In addition, he jointly owns some registered mining rights with the 2nd applicant. On the other hand, the 2nd respondent is a registered holder of 10 gold reef mining claims on the same farm. The 1st respondent is the Environmental Management Authority, responsible for the issuance of environmental impact assessment certificates to prospective miners as a prerequisite for all mining operations. It has not been disputed that the mining concession has been in existence for a long period, predating both litigants’ presence on the farm. The applicants have approached this court on an urgent basis, alleging that the 1st respondent issued an environmental impact assessment certificate to the 2nd respondent, unprocedurally. It is their submission that the failure of the Authority to consult them before the issuance of the impugned document was a procedural irregularity. True to form, they have instituted the appropriate review proceedings in case HCCC 49/24 with this court. The basis of the interdict sought in this urgent chamber application is detailed in the founding affidavit and the attendant documents. They seek, firstly, an interim interdict suspending the Environmental Impact Assessment Certificate issued by the 1st respondent in favour of the 2nd respondent over 10 gold reef claims, namely Rolex 9, under registration number 20481, located at Cardigan farm in Kadoma. Secondly, an interim interdict prohibiting the 2nd respondent from continuing mining activity, as read in their application for review under case number HCC 49/25, filed on the 13th of March 2025. In their opposing affidavit and submissions, the 2nd respondent raised two preliminary points. They submit that the cause of action, as presented in the applicants’ founding affidavit, arose sometime in August 2024, when they first noticed the fencing of the 2nd respondent’s mining claim. They argue that this was the time the applicants should have sought an interdict. They do not agree that the applicants took any action as they claim, evidenced by a letter dated 2 September 2024. This letter has not been provided to support that averment. Therefore, without that proof, there was inaction or a failure to act by the applicants. The 2nd respondent also contends that, even if the cause of action was to be that of mid-January, when it is alleged the 2nd respondent commenced mining operations, the applicants did not act expediently. They waited until March to write to the 1st respondent, enquiring about the certificate in question. In their view, the 2nd respondent argues that this inaction shows a lack of urgency on the part of the applicants. Thirdly, it is submitted that even if the cause of action may have arisen on the 6th of March 2025, judging from the response to the applicants’ enquiry, they had an option to apply for an interdict before the institution of the review proceedings. The second point in limine is that the 2nd respondent alleges that there are triable issues pertaining to the ownership of the farm and the authenticity of the agreement of sale. Referring to the founding affidavit, they argue that the applicants’ prima facie right is advanced as emanating from the agreement of sale, which they have questioned. As such, there is a need for a trial where evidence has to be led as to the authenticity of the signatures, among other issues they submitted. In response the applicants did not emphasize their right to interdict as emanating from their farming rights but their mining rights. They maintain that the matter is urgent for the reasons detailed in their application. On analysis, the law on urgency has been well tabulated in many cases within our jurisdiction see Pickering v Zimbabwe Newspapers (1980) Ltd 1991 (1) ZLR 71(H); Dilwin Investments (Pvt) Ltd t/a Formscaff v Jopa Engineering Company (Pvt) Ltd HH 116-98 at p 1; Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H) at 193 F-G; Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 232 (H) at 242G-243A In the locus classicus case on what constitutes urgency, Kuvarega v Registrar General & Anor 1998(1) ZLR 188(HC) it was stated: “What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless absentantion from action until the deadline draws near is not the type of urgency contemplated by the rules.” In the circumstances of this case the question is if the relief sought is not granted on an urgent basis or there and then will the applicants suffer irreparable harm or prejudice? Will they be in a position to say that if the court fails to act now it must forever hold its peace? In Document Support Center Pvt Ltd v Mapurure 2006 (2) ZLR 240 (1) the court two points consideration in applications of this nature, in determining the urgency of a situation were highlighted as: nature of the cause of action. relief sought. In casu, after a thorough analysis of the documents placed before me, in particular the founding affidavit as well as the arguments in court, I am not persuaded that this matter is urgent. This is a typical farmer and miner dispute. The applicant is not clear as to the actual harm that has been done on the land, for instance, several factors ranging from dangerous mining methods, introduction of dangerous chemicals and hazardous land degradation. There is no proof that these harmful activities are being done warranting immediate intervention by the courts. Paragraph 22 to 24 of the applicant’s affidavit are of note. It is my considered view that the cause of action arose when the applicants first became aware of the existence of the rival miner in August 2024. The fact that there is a mining dispute pending before the Provincial Mining Director did not qualify to act as a bar to the applicants from seeking an interdict to stop the 2nd respondent, pending the resolution by the Provincial Mining Director. Further, the relief sought as per the Document Support Centre case does not reflect any urgency. Firstly, the 1st respondent initiates a lawful process whose authenticity can only be determined by the review court. They operated within the ambits of the laws governing that conduct or process. See the case of Magaya v Zimbabwe Gender Commission (105 of 2021) 2021 ZWSC 105 (5 October 2021) (4) The court can therefore not interdict a lawful process. I therefore find that even the relief sought does not reflect any urgency. This preliminary point disposes the application without the need of going into the second point. The application is struck off the roll. It lacks urgency. Nyawo Ruzive Attorneys at Law, the applicants’ legal practitioners Zvimba Law Chambers, the 2nd respondent’s legal practitioners