Elliot Mlalazi v Ernest Green and Officer in Charge, Zimbabwe Republic Police, Inyathi

The applicant alleged he purchased Cottage 5 Mine, Inyathi on 9 June 2017 from Thadeus Ndawana of Rook Syndicate for US$14,000, paying a US$10,000 deposit. He claimed to have taken possession and operated the mine undisturbed until 1 November 2017 when the 1st respondent, accompanied by police officers, demanded documentation proving his claims. The applicant conceded he had not secured certificates of registration because outstanding amounts were owed to the Mines Department. The 1st respondent, acting on behalf of Tapiwa Mining Syndicate, averred that the syndicate purchased the mining claims from Rook Syndicate (comprising Ndawana, Nondulo Khono, and Sabelo Sibanda), and that Tapiwa Mining Syndicate held valid certificates of registration dated 6 December 2007. Documentary evidence from the Provincial Mining Director confirmed transfer of the claims from Rook Syndicate to Tapiwa Syndicate on 6 September 2011. Thadeus Ndawana died on 2 November 2017.

• Whether the court could grant interim relief that would sanction illegal mining activities
• Whether the applicant had established peaceful and undisturbed possession necessary for a spoliation order
• Whether the applicant had established a prima facie right to the mining claims
• Whether the requirements for an interim interdict had been satisfied

The application was dismissed with costs.

A court cannot grant interim relief, including a spoliation order, whose effect would be to sanction illegal activities. Possession tainted with illegality cannot constitute peaceful and undisturbed possession as required for spoliation relief. An applicant who fails to establish a prima facie right, particularly where mining operations are conducted without valid registration certificates and in violation of the Mines and Minerals Act, is not entitled to an order for spoliation or interim interdict.

The court observed that in recent times it has been inundated with claims revolving around mining disputes and that courts must exercise extreme care in granting orders that may 'innocently' appear as orders for spoliation when the applicant has not established a prima facie right in terms of law. The court noted that gold is a finite resource capable of depletion fairly quickly and cannot be replaced once extracted from underground, making it particularly important that mining operations be conducted legally.

This case is significant in Zimbabwean mining law jurisprudence as it establishes clear boundaries for spoliation relief in mining disputes. It confirms that courts will not grant interim relief, including spoliation orders, where the applicant's activities are tainted with illegality or conducted without proper licensing and registration under the Mines and Minerals Act. The judgment serves as a warning against attempts to use spoliation remedies to perpetuate illegal mining activities and emphasizes the importance of proper documentation and compliance with mining regulations.