Come Again Mines (Pvt) Ltd v Parks and Wildlife Management Authority and Others

Come Again Mines (Pvt) Ltd held mining rights to seven mining claims (Come Again Reefs 4, 5, 9, 10, 11, 12 and Mzingwe 5) registered in September 1994 and February 1995, situated within the Mfurudzi Safari Area in Shamva District. The applicant produced fifty tonnes of gold ore from its claims and piled it up at Come Again Reef 4. The Parks and Wildlife Management Authority (first respondent) refused to allow the applicant to remove its ore, demanding payment of fees prescribed under Part IX of the Parks and Wildlife Management Authority (Tariff of Fees) By-Laws S.I. 05/13. The applicant was charged US$28,000.00 (US$4,000.00 per claim) in terms of S.I. 5/2013. The applicant contended that these fees were ultra vires the Parks and Wildlife Act and unlawful, and sought a declaratory order that it was not liable to pay the fees and that the first respondent should allow it unhindered access to its mining claims.

• Whether the fees fixed by the first respondent under Part IX of the Parks and Wildlife Management Authority (Tariff of Fees) By-Laws S.I. 05/13 were ultra vires section 129A of the Parks and Wildlife Act
• Whether the applicant was entitled to relief despite failing to pay the prescribed fees (the 'dirty hands' doctrine)
• Whether the first respondent was entitled to prohibit the applicant from accessing its mining claims and removing mineral-bearing products for non-payment of fees
• Whether the founding affidavit was fatally defective for referring to the 'Parks and Wildlife Management Act' instead of the correct title and for failing to particularise relevant sections

The application was dismissed with costs.

The binding legal principles established are: (1) Section 129A of the Parks and Wildlife Act confers wide discretion on the Parks and Wildlife Management Authority to fix appropriate fees for activities within national parks, including mining activities; (2) Section 129A(1)(a) and section 129A(1)(b) are not mutually exclusive – the Authority may charge fees both for general entry and activity within parks under subsection (a) and specific mining-related fees under subsection (b); (3) A holistic interpretation of enabling legislation is required when determining whether delegated legislation is ultra vires; (4) The 'dirty hands' doctrine applies to prevent parties in open defiance of the law from obtaining relief, even where the validity of the law is challenged; (5) Where mining rights are exercised within a national park area under section 119 of the Parks and Wildlife Act, such rights are subject to payment of prescribed fees, and non-payment entitles authorities to prohibit disposal of mineral-bearing products under section 253(1) of the Mines and Minerals Act.

Chigumba J made important obiter observations about the mining sector in Zimbabwe, noting with concern the rising propensity for illegal mining activities, including reports of illegal gold panners ('makorokoza') who allegedly dug tunnels underneath buildings in mining towns, compromising structural integrity. The judge emphasized that 'it is therefore important that the correct message be sent to all mining practitioners, that the courts will not countenance, condone, or sanction self-help, or defiance of Acts of Parliament designed to regulate this industry, for whatever reason.' The judge also observed that while the dirty hands objection succeeded in principle and should have resulted in dismissal without consideration of the merits (following the approach in Associated Newspapers), the court proceeded to address the merits to avoid wasteful future litigation since parties had already argued the substantive issues. The judge further noted that defects in the founding affidavit (such as referring to a non-existent Act name) were not fatal where the correct Chapter reference was cited and the Act was identifiable, though such deficiencies could attract costs orders de bonis propriis.

This case is significant in Zimbabwean law for several reasons: (1) it affirms the principle that litigants must comply with the law before challenging its validity ('obey and argue afterwards'); (2) it provides guidance on the interpretation of enabling legislation and delegated legislation, requiring a holistic reading of statutory provisions rather than a piecemeal approach; (3) it reinforces the 'dirty hands' doctrine in Zimbabwean jurisprudence, following Associated Newspapers of Zimbabwe v Minister of State for Information, that parties engaged in open defiance of the law should not be granted relief; (4) it clarifies the relationship between mining rights under the Mines and Minerals Act and conservation obligations under the Parks and Wildlife Act, particularly in designated protected areas; and (5) it sends a clear message to the mining sector that courts will not countenance self-help or defiance of regulatory legislation.