Jin Yang Africa v Estate Late George Makurira (Represented by Angela Chandaengerwa) and Others

The applicant (Jin Yang Africa) and the 1st and 2nd respondents (Estate Late George Makurira and Ben Makurira) owned adjacent mining claims. The applicant owned Bonsor South and Bonsor South West mines, registered in the 1960s. The 1st respondent owned Olympia 7 mine, registered in 2003. A long-standing dispute arose over encroachment, with the parties filing no less than 8 applications between 2018 and 2021. The applicant obtained a provisional order interdicting the respondents from mining operations. A comprehensive survey and ground verification exercise was ordered and conducted by the Provincial Mining Director. The survey report revealed that beacons had been successively shifted in contravention of section 51 of the Mines and Minerals Act, resulting in over 5 versions of the mine positions since 2015. A critical 1965 letter from the Assistant Mining Commissioner to G.P. Arnott warned that the area now known as Olympia 7 encroached on Bonsor South (registration number 5643 BM), which had been registered in May 1965. Despite this warning, Olympia 7 was registered in 2003 and allowed to exist for years, creating ongoing conflict between the parties.

• Whether the applicant satisfied the requirements for a final interdict
• Whether section 177(3) of the Mines and Minerals Act protecting prior peggers applied to the applicant
• Whether section 58 of the Mines and Minerals Act (preventing disputes after 2 years of registration) could protect the respondents' rights
• Whether Olympia 7 mine registration should be cancelled for encroachment on ground not open for prospecting

1. The provisional order was confirmed. 2. The 1st and 2nd respondents and all those acting through them were ordered to cease mining operations on Bonsor South and Bonsor South West. 3. The 1st and 2nd respondents and all those acting through them were interdicted from interfering in any way with the applicant's mining operations on Bonsor South and Bonsor South West. 4. Olympia 7 Mine (registration number 24678) was cancelled for having been pegged on ground not open for prospecting, as it encroached into Bonsor South Mine (registration number 5643 BM) which was pegged prior to it. 5. The 1st and 2nd respondents were ordered to bear the costs of suit.

Under section 177(3) of the Mines and Minerals Act (Chapter 21:05), priority of acquisition of title to a mining location determines rights between various peggers, and the rights of subsequent peggers that conflict with prior peggers must be subordinated to those of prior peggers. Section 58 of the Mines and Minerals Act, which prevents disputes regarding validity of pegging after two years of registration, cannot be applied to protect rights of a claim pegged in an area not open for pegging where a prior pegger's superior rights are established. A mining claim registered on ground that encroaches on a prior registered claim is liable for cancellation under section 50 of the Act as it was pegged on ground not open for prospecting. For a final interdict to be granted, an applicant must establish: (i) a clear right on a balance of probabilities; (ii) irreparable injury actually committed or reasonably apprehended; and (iii) the absence of similar protection by another remedy. The extraction of finite mineral resources from another's registered mining claim constitutes irreparable harm justifying interdictory relief.

The court made several non-binding observations: (1) It commended the Provincial Mining Director for undertaking a thorough, balanced, fair and factual ground verification exercise that provided forensic evidence on the historical origins of the dispute. (2) The court observed that it would not serve any useful purpose to apportion blame on who allowed the encroachment to continue over the years. (3) The court noted the frustrating outcome of inconsistent and varying results from successive field verification exercises over the years, whether due to ineptitude of survey teams or "moving targets" by disputing parties. (4) The court emphasized the need to bring finality to litigation by correcting an error allowed to continue for several years, with parties repeatedly taking each other to court over the same dispute. (5) The judgment highlighted the challenges created by pegging done in an era before Global Positioning Systems (GPS), which explained some anomalies in ground positions. (6) The court noted significant "information decay" resulting in loss of critical information during subsequent transfers, with registered claims changing location, size and orientation from one holder to another.

This case is significant in Zimbabwean mining law jurisprudence as it clarifies and reinforces the principle of priority of peggers under section 177(3) of the Mines and Minerals Act. It establishes that prior peggers have superior and protected rights that cannot be eroded by subsequent registration or the passage of time. The case demonstrates that section 58 (preventing disputes after 2 years of registration) cannot be used to protect rights acquired through illegal pegging or encroachment on ground not open for prospecting. The judgment provides clear authority for the cancellation of mining claims registered on encroached ground, even where such claims have existed for extended periods. The case also highlights the importance of proper administration and verification of mining claims by regulatory authorities and the courts' willingness to correct long-standing administrative errors. It serves as a warning against the shifting of beacons in contravention of section 51 and emphasizes the need for accurate surveying and record-keeping in mining claims registration.