Magret Kasongo and Others v Murowa Diamonds (Pvt) Ltd and Others

The four applicants were parents or guardians of learners at two schools (Danhamombe Secondary School and St Simon Zhara Primary School) located in the Chivi communal lands in Zimbabwe. The first respondent, Murowa Diamonds (Pvt) Ltd, was conducting mineral prospecting activities on land adjacent to or on the premises of these schools pursuant to 286 registered diamond mining blocks registered between 2000 and 2001. The applicants alleged that the prospecting activities generated unbearable noise incompatible with a proper learning environment and damaged critical school infrastructure such as water pipes. After efforts to resolve the matter amicably failed, the applicants sought an interdict to stop the prospecting activities. The applicants initially also challenged the first respondent's failure to obtain consent as required by section 31 of the Mines and Minerals Act, but this ground was abandoned during proceedings. The first respondent's activities enjoyed support from the Ministry of Mines and Mining Development, various education authorities, school headmasters, other government organs, and traditional leaders as evidenced by minutes of consultative meetings.

• Whether the applicants had the requisite mandate to bring the application on behalf of all learners at the two schools
• Whether the dispute could be resolved on the papers or whether material disputes of fact existed requiring oral evidence
• Whether the requirements for granting a final interdict were satisfied, namely: (1) a clear right; (2) actual or reasonably apprehended injury; and (3) absence of any other remedy
• Whether the applicants had established sufficient evidence of noise nuisance to warrant judicial intervention

The application was dismissed with costs awarded to the respondents.

For a final interdict based on noise nuisance to succeed, applicants must establish: (1) a clear right on an objective basis, not merely subjective complaints; (2) actual or reasonably apprehended injury proven through concrete evidence including empirical measurements where appropriate and supporting evidence from those directly affected; and (3) absence of alternative remedy. The test for noise nuisance is objective - not the reaction of a highly sensitive person, but that of a reasonable person who would find the noise a serious impediment to reasonable enjoyment of property according to ordinary standards of comfort and convenience. Applicants seeking to represent others must establish a clear mandate and cannot arrogate to themselves the power to act on behalf of all affected persons without showing those persons have an interest and their representatives are incapacitated. Where material disputes of fact exist that cannot be resolved on the papers, and the applicant should have realized such disputes would arise from the opposition papers, the court may dismiss the application rather than referring it to trial.

The court observed that the parties incorrectly used the term "exploration" to refer to prospecting activities. The court noted it was strange that applicants sought complete ejectment of the first respondent rather than merely abatement of the noise. The court commented on the danger of granting an application based on unsubstantiated complaints by only four disgruntled students and their parents when the prospecting activities enjoyed widespread support from education authorities, school heads, government ministries, and traditional leaders. The court emphasized that rights claimed by applicants should not be viewed in abstract but against other compelling rights enjoyed by respondents, citing Natural Stone Export Co v Director, National Parks that one party cannot deprive another of rights conferred by statute unless specifically authorized to do so.

This case illustrates the evidentiary requirements for establishing a noise nuisance claim in the context of mining/prospecting activities near schools. It demonstrates the courts' application of the objective test for nuisance claims and the need for concrete, empirical evidence rather than generalized complaints. The case also addresses the interplay between mining rights granted under the Mines and Minerals Act and competing interests in educational environments. It reinforces procedural requirements for applications involving material disputes of fact and the limitations on representative standing in the absence of clear mandate. The judgment emphasizes that mining rights lawfully granted cannot be easily displaced without substantial evidence of actual harm.