MUKONOWENGWE v MAKA MINING SYNDICATE and Others (117 of 2025) [2025] ZWHHC 117 (20 February 2025)

3 HH 117-25 HCH 6590/23 FELIX NATHAN MUKONOWENGWE versus MAKA MINING SYNDICATE and ENVIROMENTAL MANAGEMENT AGENCY AND MINISTER OF MINES & MINING DEVELOPMENT AND MINING COMMISSIONER HIGH COURT OF ZIMBABWE TAKUVA J HARARE; 1 July 2024 & 20 February 2025 Court application for an Inter Dict T S Musundire, for the applicant L Matapura, for the 1st respondent & 2nd respondent in default A Maqunde, for the 3rd &4th respondent TAKUVA J: This is an application for an interdict in terms of rule 59 and s 345of the Mines and Minerals Act [Chapter 21: 05]. Background Facts On 24th of May 2023, Dr Aikurauone an agent of the first respondent informed applicant that first respondent was granted a special Grant (SG) no 9039 to commence mining activities on applicant’s NANTERA FARM. Applicant noticed that 1st respondent had already commenced mining activities on the part of applicant’s farm that included applicant’s plantation, grazing areas and paddocks. Applicant alleges he was never advised about the S G as the owner of the farm. Also, first respondent started mining operations without an Environmental Impact Assessment Certificate. Aggrieved by first respondent’s conduct applicant filed this application seeking the following relief: “ 1. The application for an interdict be and is hereby granted and that the first respondent be and is here by ordered to stop or refrain from carrying out mining activities on applicant’s farm. 2. The special Grant 9039 be and is here by cancelled. 3. The first respondent be and is here by ordered to pay costs of suit. The application was opposed by the first respondent which raised a number of points in limine. It further submitted that the special grant to prospect for minerals was properly and lawfully granted in terms of the provisions of the Act. No valid legal ground has been pleaded let alone proved, which would entitle the issuing authority to cancel the special Grant. First respondent together in compliance with the provisions of the Act as read together with the conditions of the S.G and the Environmental Management Regulations, did take all the procedural steps necessary to carry on the mining activities in terms of the laws applicable in Zimbabwe including but not limited to paying the necessary statutory fees, applying for an Environmental Impact Assessment Report. The first respondent raised the following points in limine. The Applicant failed to exhaust domestic remedies.The relief prayed for is defective. Exhausting of Domestic Remedies Before a litigant approaches the court with a dispute, he must have exhausted the domestic remedies available to him. In Girjac Services (Pvt) Ltd v Mudzingwa (1999(1) ZLR 2&3 (S) at 249 C-F Gubbay CJ stated; “In Tutain v Minister of Labour & Ors 1987(2) ZLR 88 (H) at 95D Mutambanengwe J observed that where domestic remedies are capable of providing effective redress in respect of the complaint and secondly where the unlawfulness alleged has not been undermined by the domestic remedies themselves a litigant should exhaust his domestic remedies before approaching the courts unless there are good reasons for not doing so.” The underling is mine). In terms of the provisions of the Environmental Management Act the Applicant is entitled to petition the Agency and request it to issue an order against the first respondent to stop any mining operations if they are carrying out any without an Environmental Impact Assessment Report. In African Consolidated Resources PLC & Ors v Minister of Mines & Mining Development & Ors HH 57 /10, the court stated that; “My Understanding of s. 7 is that this court can decline to hear an application based on an alleged failure to comply with the provisions of the AJ Act, if it is of the view that the applicant ha s other legal remedies through which he can obtain the remedy sought before it and it considers that such remedy should first be exhausted. The court can exercise its discretion but should not do so in a manner that terminates pending domestic remedies unless there are compelling reasons for it to do so. The intention of the legislature in providing domestic remedies must be respected by the courts , and the officials charged with the authority, to determine, domestic appeals or reviews must be allowed to do their work before this court intervener. In my view this court should only intervene in cases where it is obvious that domestic remedies will not do justice in the case before it.” In casu, the applicant has not demonstrated that he explored the domestic remedies afforded in terms of the Environmental Management Act [ Chapter 20: 27] specifically s 10 & 114. In the case of Auriga Minerals Exploitation pvt (ltd) v Orzim Strategic Minerals (Pvt) Ltd & 2 Ors HH 639/23, it was held that; “As for other remedies, having looked at the provisions cited by the first responded, I am inclined to agree that the applicant has not taken action to exhaust local remedies before coming to court. Section 10 of the EMA outlines amongst the functions and powers of EMA the power to “serve written orders on any persons requiring them to undertake or adopt such measures as a re specified in the orders to protect the environment.” The Minister too in terms of s 114 of the same Act may make orders for the protection of the environment including requiring the rehabilitation of a mining site. Section 136 also enjoins the Minister, the Secretary, the Agency and the Director- General and any other person or authority to follow the rules of natural justice in particular the right to be heard. It can not be that a party such as the applicant can seek to shut down a mine whilst neglecting to have the relevant authorities play their part. It is also not right for agencies with the expert know how such as EMA to a abrogate their responsibilities by simply referring a matter to court without taking any action themselves. What is the point of having expert institutions there if indeed as alleged they simply refer matters to court without so much as an effort to solve a problem from their expert vantage point? It is only proper that the court declines to be abused in such circumstances.” In my view the application in casu has failed to exhaust the domestic remedies which are available to him. Those remedies would provide effective remedy to the applicant. In the result the current application is prematurely before me. For the above reasons, the application is struck off the roll with no order as to costs. ......................................................., applicant’s legal practitioner ........................................................, respondent’s legal practitioner 3 HH 117-25 HCH 6590/23 3 HH 117-25 HCH 6590/23 FELIX NATHAN MUKONOWENGWE versus MAKA MINING SYNDICATE and ENVIROMENTAL MANAGEMENT AGENCY AND MINISTER OF MINES & MINING DEVELOPMENT AND MINING COMMISSIONER HIGH COURT OF ZIMBABWE TAKUVA J HARARE; 1 July 2024 & 20 February 2025 Court application for an Inter Dict T S Musundire, for the applicant L Matapura, for the 1st respondent & 2nd respondent in default A Maqunde, for the 3rd &4th respondent TAKUVA J: This is an application for an interdict in terms of rule 59 and s 345of the Mines and Minerals Act [Chapter 21: 05]. Background Facts On 24th of May 2023, Dr Aikurauone an agent of the first respondent informed applicant that first respondent was granted a special Grant (SG) no 9039 to commence mining activities on applicant’s NANTERA FARM. Applicant noticed that 1st respondent had already commenced mining activities on the part of applicant’s farm that included applicant’s plantation, grazing areas and paddocks. Applicant alleges he was never advised about the S G as the owner of the farm. Also, first respondent started mining operations without an Environmental Impact Assessment Certificate. Aggrieved by first respondent’s conduct applicant filed this application seeking the following relief: “ 1. The application for an interdict be and is hereby granted and that the first respondent be and is here by ordered to stop or refrain from carrying out mining activities on applicant’s farm. 2. The special Grant 9039 be and is here by cancelled. 3. The first respondent be and is here by ordered to pay costs of suit. The application was opposed by the first respondent which raised a number of points in limine. It further submitted that the special grant to prospect for minerals was properly and lawfully granted in terms of the provisions of the Act. No valid legal ground has been pleaded let alone proved, which would entitle the issuing authority to cancel the special Grant. First respondent together in compliance with the provisions of the Act as read together with the conditions of the S.G and the Environmental Management Regulations, did take all the procedural steps necessary to carry on the mining activities in terms of the laws applicable in Zimbabwe including but not limited to paying the necessary statutory fees, applying for an Environmental Impact Assessment Report. The first respondent raised the following points in limine. The Applicant failed to exhaust domestic remedies. The relief prayed for is defective. Exhausting of Domestic Remedies Before a litigant approaches the court with a dispute, he must have exhausted the domestic remedies available to him. In Girjac Services (Pvt) Ltd v Mudzingwa (1999(1) ZLR 2&3 (S) at 249 C-F Gubbay CJ stated; “In Tutain v Minister of Labour & Ors 1987(2) ZLR 88 (H) at 95D Mutambanengwe J observed that where domestic remedies are capable of providing effective redress in respect of the complaint and secondly where the unlawfulness alleged has not been undermined by the domestic remedies themselves a litigant should exhaust his domestic remedies before approaching the courts unless there are good reasons for not doing so.” The underling is mine). In terms of the provisions of the Environmental Management Act the Applicant is entitled to petition the Agency and request it to issue an order against the first respondent to stop any mining operations if they are carrying out any without an Environmental Impact Assessment Report. In African Consolidated Resources PLC & Ors v Minister of Mines & Mining Development & Ors HH 57 /10, the court stated that; “My Understanding of s. 7 is that this court can decline to hear an application based on an alleged failure to comply with the provisions of the AJ Act, if it is of the view that the applicant ha s other legal remedies through which he can obtain the remedy sought before it and it considers that such remedy should first be exhausted. The court can exercise its discretion but should not do so in a manner that terminates pending domestic remedies unless there are compelling reasons for it to do so. The intention of the legislature in providing domestic remedies must be respected by the courts , and the officials charged with the authority, to determine, domestic appeals or reviews must be allowed to do their work before this court intervener. In my view this court should only intervene in cases where it is obvious that domestic remedies will not do justice in the case before it.” In casu, the applicant has not demonstrated that he explored the domestic remedies afforded in terms of the Environmental Management Act [ Chapter 20: 27] specifically s 10 & 114. In the case of Auriga Minerals Exploitation pvt (ltd) v Orzim Strategic Minerals (Pvt) Ltd & 2 Ors HH 639/23, it was held that; “As for other remedies, having looked at the provisions cited by the first responded, I am inclined to agree that the applicant has not taken action to exhaust local remedies before coming to court. Section 10 of the EMA outlines amongst the functions and powers of EMA the power to “serve written orders on any persons requiring them to undertake or adopt such measures as a re specified in the orders to protect the environment.” The Minister too in terms of s 114 of the same Act may make orders for the protection of the environment including requiring the rehabilitation of a mining site. Section 136 also enjoins the Minister, the Secretary, the Agency and the Director- General and any other person or authority to follow the rules of natural justice in particular the right to be heard. It can not be that a party such as the applicant can seek to shut down a mine whilst neglecting to have the relevant authorities play their part. It is also not right for agencies with the expert know how such as EMA to a abrogate their responsibilities by simply referring a matter to court without taking any action themselves. What is the point of having expert institutions there if indeed as alleged they simply refer matters to court without so much as an effort to solve a problem from their expert vantage point? It is only proper that the court declines to be abused in such circumstances.” In my view the application in casu has failed to exhaust the domestic remedies which are available to him. Those remedies would provide effective remedy to the applicant. In the result the current application is prematurely before me. For the above reasons, the application is struck off the roll with no order as to costs. ......................................................., applicant’s legal practitioner ........................................................, respondent’s legal practitioner