Chengbao Mining (Private) Limited v Anesu Gold (Private) Limited and Others

The applicant (Chengbao Mining) and 1st respondent (Anesu Gold) entered into two tribute agreements regarding C-Mine in Mberengwa District. The first agreement was signed on 3 May 2024 and approved as Non-Standard Tribute Agreement Number UR Tribute 4 of 2024. The second agreement was signed on 17 October 2024 and approved as Standard Tribute Number UR Tribute 26 of 2024. The applicant obtained an Environmental Impact Assessment Certificate on 2 January 2025. On 23 December 2024, the 1st respondent purported to cancel the first agreement and subsequently claimed both agreements were cancelled. The 1st respondent then entered into a tribute agreement with the 2nd respondent (Allen Sibanda), who occupied the mine with illegal miners. The applicant disputed the cancellation, arguing the second agreement superseded the first and remained valid. The 1st respondent claimed the second agreement was only for obtaining the EIA certificate. The applicant sought declaratory relief and an interdict to protect its mining rights.

• Whether there was a valid and subsisting tribute agreement between the applicant and 1st respondent concerning C-Mine
• Whether the second tribute agreement superseded the first agreement
• Whether the 1st respondent validly cancelled the tribute agreement(s)
• Whether the respondents should be interdicted and restrained from dealing with C-Mine
• Whether the applicant was properly before the court given the dispute resolution clause in the first agreement
• Whether there was proper service of process
• Whether there was a material dispute of fact precluding relief on motion proceedings

The court granted the applicant's application in full. It declared that the Tribute Agreement of 17 October 2024 (Standard Tribute Number UR Tribute 26 of 2024) was valid, effective and binding. The respondents were interdicted from dealing with C-Mine in any manner prejudicial to the applicant's interests. The 2nd respondent was ordered to remove all equipment from the mining site, failing which the applicant or Sheriff could do so with police assistance. The 1st and 2nd respondents were ordered to account within 14 days for all minerals disposed and moneys received since 1 November 2024. A Chartered Accountant with over 15 years' experience was to be appointed by the Chairman of the Commercial Arbitration Centre to debate the account, with fees to be paid by the respondents. The respondents were ordered to immediately pay all moneys shown to be due to the applicant. The 1st and 2nd respondents were ordered to pay the applicant's costs jointly and severally, one paying the other to be absolved.

The binding principles established are: (1) Where parties enter into successive written agreements concerning the same subject matter, and the later agreement does not reference the earlier agreement and deals comprehensively with the subject matter, the later agreement supersedes and invalidates the earlier agreement by way of implied novation; (2) Courts will not read into a written contract terms that contradict what has been expressly stated, nor will they assist a party in evading a contract written in clear language that it entered into freely and voluntarily; (3) Where parties to a contract have agreed upon procedures for terminating an agreement, they are bound by those procedures - departure from the agreed procedures will not result in effective termination of the contract; (4) A party who has taken a further step in a cause with knowledge of an alleged irregularity cannot subsequently complain about that irregularity under Rule 43(2)(a) of the High Court Rules; (5) A material dispute of fact only arises where conflicting accounts cannot be resolved without oral evidence - where discrepancies can be resolved by examining the documentary evidence, the matter can proceed on motion proceedings; (6) The holder of mining claims who has granted a tribute agreement cannot grant another tribute agreement to a third party in respect of the same claims while the first tribute agreement remains valid and subsisting - any such purported agreement is void; (7) A tributor who has been unlawfully dispossessed is entitled to an accounting of all minerals extracted and moneys received during the period of unlawful dispossession.

The court observed that points in limine should only be raised where they are not only meritorious but also capable of disposing of the matter (citing Telecel Zimbabwe (Pvt) Ltd vs Potraz & Otrs HH446-15). The court noted that a point in limine that touches on the merits of the matter is generally inappropriate. The court also observed that the purported tribute agreement between the 1st and 2nd respondents had not been approved by the 3rd respondent (Provincial Mining Director), thereby rendering it null and void, though this was not strictly necessary for the decision given the finding that the first tribute agreement remained valid. The court's reference to the caveat subscriptor rule and the quotation from Christie's Business Law in Zimbabwe emphasizing that the business world relies on signatures binding parties to contracts reflects broader policy considerations about commercial certainty. The court's citation of the Constitutional Court of South Africa case Barkhuizen v Napier 2007 (5) SA 323 (CC) on sanctity of contracts, while obiter in this context, reflects the influence of South African jurisprudence on Zimbabwean contract law principles.

This case is significant in Zimbabwean mining law and contract law for several reasons: (1) It clarifies the principle of contractual supersession where parties enter into successive agreements regarding the same subject matter - where a later agreement does not reference an earlier one and deals comprehensively with the subject matter, it supersedes the earlier agreement; (2) It reinforces the doctrine of pacta sunt servanda (sanctity of contracts) and the principle that courts will not rewrite contracts or read in terms contradicting express provisions; (3) It confirms that parties must follow the cancellation procedures stipulated in their contracts - unilateral purported cancellation without proper notice is invalid; (4) It establishes that a mining claim holder cannot grant a valid tribute agreement to a third party while a subsisting tribute agreement remains in force; (5) On procedural matters, it clarifies that electronic service is permissible under the High Court (Amendment) Rules 2023, and that parties who file substantive responses are estopped from later complaining about service irregularities under Rule 43(2)(a); (6) It demonstrates the remedies available to tribute holders whose rights are unlawfully interfered with, including interdicts, eviction orders, and accounting remedies.