Midkwe Minerals (Pvt) Ltd v Kwekwe Consolidated Goldmines (Pvt) Ltd and The Deputy Sheriff – Kwekwe

On 1 February 2006, Kwekwe Consolidated Gold Mines (Pvt) Ltd (KCGM) entered into a standard tribute agreement and rental agreement for Chaka Gold Plant with the Reserve Bank of Zimbabwe (RBZ) under the Mines and Minerals Act. The agreement had an initial 3-year term expiring on 2 February 2009, renewable for another 3 years to 2 February 2012. RBZ operated through its subsidiary Carslone Enterprises (Pvt) Ltd. When RBZ shifted policy to shed quasi-fiscal operations, Carslone continued under the agreement until expiration on 2 February 2012. On 15 December 2011, Carslone notified KCGM that the tributes and plant rental would expire in February 2012 and recommended Midkwe Mining Services as a replacement. After the agreements expired on 2 February 2012, Midkwe Minerals (Pvt) Ltd continued mining operations without any legal agreement. The Mining Commissioner confirmed on 29 February 2012 that the tribute agreement had lapsed and any person mining under the former agreement was contravening mining law. Two consolidated cases arose: HC 683/12 (KCGM v Carslone seeking to interdict unauthorized mining) and HC 800/12 (Midkwe seeking to interdict KCGM from disturbing its operations).

• Whether Midkwe Minerals had any legal right to conduct mining operations on KCGM's mining claims after the expiration of the tribute agreement on 2 February 2012
• Whether Midkwe Minerals had a prima facie right to obtain a permanent interdict against the legitimate mine owners (KCGM)
• Whether KCGM was entitled to an interdict preventing unauthorized mining operations on its claims and at Chaka Gold Plant
• Whether punitive costs on an attorney and client scale were warranted given the unlawful conduct

(1) Carslone Enterprises (Pvt) Ltd (respondent in HC 683/12) and Midkwe Mining Minerals (Pvt) Ltd (applicant in HC 800/12) were interdicted from carrying out any mining operations on Kwekwe Consolidated Gold Mines (Pvt) Ltd's mining claims or conducting any operations at Chaka Gold Plant located at 4.5km peg along the Kwekwe-Gokwe Road. (2) The Deputy Sheriff Kwekwe, with assistance of Zimbabwe Republic Police if necessary, was ordered to ensure compliance with the interdict. (3) The provisional order granted under case number HC 800/12 was discharged. (4) The applicant (Midkwe) was ordered to pay costs of suit on an attorney and client scale for both cases HC 683/12 and HC 800/12.

A party conducting mining operations without a valid tribute agreement or other legal authorization under the Mines and Minerals Act has no prima facie right or real right to obtain an interdict preventing legitimate mine owners from retaking their mining claims. Where a tribute agreement has expired and lapsed, any person mining under the former agreement is doing so in contravention of mining law. A party seeking an interdict must demonstrate a legal right from which the relief sought can be derived; absent any such documented right, an application for a permanent interdict must fail and any provisional order granted must be discharged.

The court expressed strong disapproval of Midkwe Minerals' conduct, characterizing it as having 'audacity' to seek to interdict legitimate owners while operating unlawfully. The court observed that such conduct 'cannot be countenanced by this court which must show its displeasure by making an award of costs on an attorney and client scale.' This reflects the court's view that parties who abuse court processes while engaging in unlawful conduct deserve punitive cost orders as a deterrent and to mark the court's displeasure with such behavior.

This case is significant in Zimbabwean mining law as it reinforces the principle that mining operations conducted without a valid tribute agreement or other legal authorization constitute unlawful mining in contravention of the Mines and Minerals Act. It demonstrates that courts will not countenance attempts to obtain interdicts or other remedies by parties who lack any legal basis for their operations, particularly in the mining context where clear statutory registration requirements exist. The case also illustrates the court's willingness to impose punitive costs on an attorney and client scale where parties engage in audacious and unlawful conduct, acting to protect legitimate property rights of mine owners. It underscores the importance of proper documentation and compliance with mining law, and confirms that expired tribute agreements confer no rights on former tributors or their recommended successors.