Berks 5 Mine and Elizabeth Mavunga v Laston Sadya and The Provincial Mining Director, Ministry of Mines and Mining Development N.O

The second applicant (Elizabeth Mavunga) is the registered owner and holder of title of the first applicant (Berks 5 Mine) with mining claims, operating peacefully since 1989. The first respondent (Laston Sadya) owns and operates Berks 13 Mine, which is adjacent to Berks 5 Mine. The first respondent allegedly extended his mining operations into the second applicant's mining claim by removing surveyor's beacons that demarcated Berks 5 mine boundaries, fencing off the encroached area which included 3 mining shafts, and setting up buildings. Efforts to resolve the matter amicably failed. The applicants brought an urgent chamber application seeking an interdict. The first respondent, despite proper service, was in default. The second respondent (Provincial Mining Director) did not oppose and abided by the court's decision.

• Whether the applicants established a prima facie right to the mining claim
• Whether there was a reasonable apprehension of irreparable harm warranting an interim interdict
• Whether the applicants had an alternative satisfactory remedy
• Whether the balance of convenience favoured granting the interim interdict
• Whether the requirements for an interim interdict were satisfied

The court granted a provisional order with the following terms: (1) The first respondent and all persons acting through him were interdicted from carrying on any milling or mining operations at Berks 5 mine; (2) The second respondent was directed to institute the dispute resolution mechanism as directed by section 346 of the Mines and Minerals Act (Chapter 21:05) within 7 days; (3) The first respondent was ordered to produce sales sheets to the second respondent of all gold sold from 10 July 2019 to date. The matter was set down for a return date to show cause why a final order should not be made directing cessation of operations, restoration of ore removed, and costs on a legal practitioner and client scale.

A registered mining claim holder has more than a prima facie right to the claim and is entitled to interim interdict protection against encroachment by adjacent mine operators where: (1) the mining claim is properly registered; (2) there is evidence of encroachment through removal of boundary beacons and unauthorized mining operations; (3) continued unauthorized mining would cause irreparable harm that cannot be adequately remedied by damages; and (4) the balance of convenience favours protection of the registered claim holder's rights. All four requirements for an interim interdict (prima facie right, reasonable apprehension of irreparable harm, absence of satisfactory alternative remedy, and balance of convenience) must be satisfied.

The court observed that two individuals (Mr B. Mugadza and Z. Chibondo) attempted to represent the first respondent but failed to show any authority to stand in for him, and accordingly the matter proceeded in default of the first respondent. The court also noted that despite the absence of opposition from the second respondent, the court still required the applicants' counsel to move the application and properly establish the requirements for the interdict, rather than simply granting the order unopposed.

This case is significant in Zimbabwean mining law as it demonstrates the application of interdict principles in mining disputes, particularly where mining rights are registered and there is alleged encroachment by adjacent mine operators. The case confirms that registered mining rights constitute more than a prima facie right and that courts will protect such rights through interim interdicts where encroachment and unlawful mining operations threaten irreparable harm. The judgment also highlights the role of the Provincial Mining Director in dispute resolution under section 346 of the Mines and Minerals Act.