Midkwe Minerals (Private) Limited v Kwekwe Consolidated Gold Mines (Private) Limited & Others

In February 2006, KCGM (first respondent) as grantor and the Reserve Bank of Zimbabwe as tributor entered into a standard tribute agreement and rental agreement for Chaka Gold Plant under the Mines and Minerals Act. The agreement had a three-year term ending 2009, renewable for another three years to expire on 2 February 2012. The Reserve Bank operated through its subsidiary Carslone Enterprises (second respondent). Following a policy shift, the Reserve Bank decided to shed quasi-fiscal operations and the renewal was concluded between KCGM and Carslone. On 15 December 2011, Carslone wrote to KCGM advising that the tribute and rental agreements would expire in February 2012 and recommended that Midkwe Mining Services (the appellant) take over from Carslone. However, no tribute or rental agreements were concluded between the appellant and KCGM. Despite the expiry of the lease on 2 February 2012, Carslone and the appellant continued mining operations at Chaka Gold Plant. On 29 February 2012, KCGM obtained an interim interdict from the High Court restraining Carslone and its business associates from carrying out mining operations. On 5 March 2012, the Deputy Sheriff closed down Chaka Gold Plant. On 9 March 2012, the appellant obtained a counter-order purporting to interdict KCGM from disturbing the appellant's operations. The two matters were consolidated before the High Court.

• Whether the appellant had a legal right to occupy and mine on KCGM's premises after the expiry of the tribute agreement between KCGM and Carslone
• Whether the interim interdict of 29 February 2012 applied to the appellant as a business associate of Carslone
• Whether the High Court was correct in confirming the interdict in favour of KCGM and discharging the appellant's counter-order
• Whether an order for punitive costs on the higher scale of legal practitioner and client was appropriate

The appeal was dismissed with costs on the higher scale of legal practitioner and client. The High Court's order confirming the interdict in favour of KCGM and discharging the appellant's counter-order was upheld.

A party cannot establish a right to mine on another's mining claims in the absence of a valid tribute agreement or other legal authority. Mining rights under tribute agreements expire automatically on the specified expiry date. A party mining in contravention of mining law after the expiry of a tribute agreement has no prima facie right or real right to interdict the lawful owners from retaking their mining claims. An interdict restraining mining operations extends to business associates and partners of the named parties where those associates are carrying out mining operations under arrangements with the named parties. Where a party persists in litigation despite the absence of any legal justification and contrary to clear legal advice from regulatory authorities, an order for punitive costs on the legal practitioner and client scale is appropriate.

The Court expressed strong disapproval of the conduct of the appellant's legal practitioners at the hearing. The Court noted that at the commencement of the hearing, counsel for the appellant applied to have the matter struck off the roll on the basis that the instructed advocate was 'attending to family matters' without providing further details. The Court observed that the appellant had not paid costs of preparation of the record or security for costs, and it was KCGM who had applied to have the matter set down. The Court commented that the conduct of the appellant's legal practitioners exhibited 'disdain and disrespect for the Court which had travelled to Bulawayo from Harare to hear the appeal, only to be told at the hearing that the appellant wanted the appeal to be postponed sine die.' The Court emphasized that a legal practitioner must be prepared, in the event of a refusal to grant a postponement, to proceed with the hearing if so ordered. The Court stated that to appear before the Court totally unprepared and totally ignorant of the merits of the case 'smacks of negligence on the part of the legal practitioner.' The Court held that counsel ought to have come prepared to argue the matter in the event that the application for deferment was refused.

This case is significant in South African and Zimbabwean jurisprudence for several reasons: (1) It clarifies that mining rights under tribute agreements are strictly time-limited and expire automatically on the specified date without any right of continued occupation or mining in the absence of a new agreement. (2) It confirms that interdicts restraining mining operations apply not only to named parties but also to their business associates and partners. (3) It establishes that mining without a valid tribute agreement or other legal authority constitutes mining in contravention of mining law. (4) It affirms the principle that a party lacking any legal right to mine on another's premises cannot obtain or maintain an interdict to continue such unlawful activities. (5) It provides guidance on when punitive costs on the legal practitioner and client scale are appropriate, particularly where a party persists in litigation despite the absence of any legal justification. (6) It emphasizes the professional obligations of legal practitioners to come prepared to court and demonstrates judicial disapproval of dilatory tactics and lack of preparation.