Betmon Investments (Private) Limited v The Provincial Mining Director Mashonaland Central Province and G & W Industrial Minerals (Private) Limited

The appellant and second respondent were involved in a dispute over mining claims bearing registration numbers 41445BM and 41446BM. The disputed blocks were a re-peg of blocks 29680BM and 29681BM which had been forfeited on 3 June 2006 (Forfeiture 5/2006). The appellant obtained registration over the disputed blocks in 2017. A ground survey conducted in July 2018 by the first respondent's officials found that the mining sites of the two parties were 2.9 kilometres apart and that the second respondent was encroaching on the appellant's claims, with the second respondent's ground position not conforming to its registration position. The first respondent determined that the second respondent was first in title because its claims were pegged in 1996, while the appellant only obtained registration in 2017. Consequently, the first respondent ordered that the appellant's registration be cancelled in respect of the disputed blocks, with the cancellation to take effect on 9 April 2025. The appellant appealed this decision to the High Court under section 361 of the Mines and Minerals Act.

• Whether the High Court had jurisdiction to entertain the appeal notwithstanding the availability of an appeal to the Minister under section 50(2) of the Mines and Minerals Act
• Whether the first respondent erred in disregarding the findings of the ground survey conducted in July 2018
• Whether the first respondent erred in failing to uphold the forfeiture of 3 June 2006 (Forfeiture 5/2006) of blocks 29680BM and 29681BM
• Whether the first respondent correctly applied the 'first in time, first in right' principle (qui prior est tempore potior est jure) in circumstances where there was no double allocation of claims

The appeal was allowed. The determination of the first respondent that the appellant's blocks or claims under registration numbers 41445BM and 41446BM be cancelled was set aside and substituted with an order: (a) recognizing Betmon Investments (Private) Limited as having lawfully acquired mining rights over the claims with registration numbers 41445BM and 41446BM; and (b) interdicting and restraining G & W Industrial Minerals (Private) Limited and all persons acting through it or on its behalf from interfering in any manner with the mining operations of Betmon Investments (Private) Limited at the claims under registration numbers 41445BM and 41446BM. The second respondent was ordered to pay the costs of the appeal.

The binding legal principles established are: (1) The right of appeal to the High Court under section 361 of the Mines and Minerals Act is not ousted by the right to appeal to the Minister under section 50(2), and the High Court retains discretion to entertain matters before domestic remedies are exhausted, particularly where the matter involves compliance with High Court orders. (2) Administrative decisions in mining disputes must be based on empirical evidence, particularly ground surveys, and cannot be made in contradiction of such evidence without contrary scientific evidence. (3) The principle 'first in time, first in right' (qui prior est tempore potior est jure) applies only in situations of double or multiple allocations of mining claims, not in cases of encroachment where a ground survey establishes that claims are located at different positions. (4) Mining registrations acquired after a forfeiture cannot be cancelled without setting aside or addressing the validity of the underlying forfeiture.

The court observed that the principle qui prior est tempore potior est jure applies to double or multiple sales and any other double or multiple allocation situation, and its effect is that in a situation of double or multiple sales or allocations the first purchaser must be given priority unless there are special circumstances affecting the balance of equities. The court cited several authorities for this proposition (Barros & Anor v Chimphomda, Crundall Brothers (Pty) Ltd v Lazarus NO & Anor, Guga v Moyo & Ors, and Mwayipaida Family Trust v Madoroba & Ors) but noted that the principle had no application in the case before it. The court also noted that the appeal to the Minister is 'at best a domestic remedy provided by law', suggesting a hierarchical view of remedies with judicial review being superior to administrative appeals.

This case is significant in Zimbabwean mining law as it clarifies the jurisdictional relationship between administrative appeals to the Minister and judicial appeals to the High Court under the Mines and Minerals Act. It affirms that the High Court retains discretion to entertain matters before domestic remedies are exhausted, particularly where compliance with court orders is at issue. The judgment reinforces the importance of empirical evidence, particularly ground surveys, in mining disputes and establishes that administrative decisions must be based on factual and scientific evidence. It clarifies the application of the 'first in time, first in right' principle (qui prior est tempore potior est jure) in the mining context, holding that it applies only in cases of double or multiple allocations, not in cases of encroachment. The case also emphasizes that mining rights acquired after forfeiture cannot be set aside without addressing the validity of the forfeiture itself.