Abigail Nyarota v Mutare Board and Paper Mills Limited and Others

The first respondent, Mutare Board and Paper Mills Limited, owned an estate plantation (Nyagari Estate) where it planted and grew pine trees for timber. The appellant, Abigail Nyarota, took occupation of a portion of the estate and commenced mining operations based on a certificate of registration of mining location number G5207 dated 4 June 2019, issued by the second respondent (Mining Commissioner). The appellant did not seek the first respondent's consent nor consult for an environmental impact assessment report before commencing operations. The first respondent alleged the mining operations disturbed its business through deep shaft excavations posing fire risks to pine trees, and that the appellant operated without an environmental impact assessment certificate. The first respondent sought a declaratur to nullify the appellant's mining certificate. The appellant argued she had operated for twelve years, was 500-800 meters away from cultivated land, had not caused damage, and that the matter was time-barred under section 58 of the Mines and Minerals Act. The High Court granted the declaratur in favor of the first respondent, finding the certificate of registration was null and void.

• Whether the High Court erred in finding that the appellant's mining certificate was invalid and that section 58 of the Mines and Minerals Act did not apply to time-bar the challenge
• Whether an environmental impact assessment certificate is a prerequisite to the issuance of a certificate of registration for a mining location
• Whether the Environmental Management Act takes precedence over the Mines and Minerals Act in cases of conflict
• Whether the High Court erred in not exercising its discretion under section 14 of the High Court Act regarding mootness, public policy, and alternative remedies

The appeal was dismissed with costs. The judgment of the High Court nullifying the appellant's certificate of registration of mining location number G5207 was upheld.

An environmental impact assessment certificate issued under section 97 of the Environmental Management Act is a mandatory prerequisite to the registration of a mining claim under the Mines and Minerals Act. The EMA and the Mines and Minerals Act must be read together in a complementary manner, with section 3 of the EMA providing that the EMA prevails in cases of conflict. Where a mining claim is registered without a valid environmental impact assessment certificate, the registration is null and void ab initio. Section 58 of the Mines and Minerals Act, which prohibits challenges to mining titles after two years based on invalid pegging, does not apply to protect registrations made in the absence of the statutory prerequisite of an EIA certificate, as there is effectively no valid mining claim to which section 58 can apply. Administrative practices that are inconsistent with clear statutory requirements cannot override the law.

The Court observed that the admission by counsel for the second to fourth respondents that in practice certificates of registration were issued before environmental impact assessment certificates (contrary to the law) in order to obtain coordinates for the mining location did not sanitize the unlawful practice. The Court emphasized that "the law is law, whether good or bad" and that when a law is codified, courts apply the law as written, not what is merely practicable. The Court also reiterated the established principle that the Supreme Court as an appellate court will not deal with issues not raised in the court below, as this would improperly treat the Supreme Court as a court of first instance. The Court noted that the issue of mootness raised for the first time on appeal could not be entertained, and that even if the appellant had subsequently obtained an EIA certificate after commencing operations, this would not cure the initial invalidity of the registration.

This case reinforces and clarifies the relationship between the Mines and Minerals Act and the Environmental Management Act in Zimbabwean mining law. It establishes definitively that an environmental impact assessment certificate is a mandatory prerequisite to the registration of any mining claim, not merely a condition for commencing operations. The judgment emphasizes that the two statutes must be read together in a complementary manner, with the EMA taking precedence where there is conflict. It also clarifies that section 58 of the Mines and Minerals Act, which time-bars challenges based on invalid pegging, does not protect mining titles obtained without the statutory prerequisite of an EIA certificate. The case has important implications for mining administrative practice and highlights that administrative practices inconsistent with statutory requirements cannot override the law. It also reaffirms the principle that appellate courts will not entertain issues not raised in the court below, absent exceptional circumstances.