Pioneer Mining & Prospecting (Pvt) Ltd v Farayi Ngulube N.O. and Others

The applicant, Pioneer Mining & Prospecting (Pvt) Ltd, filed an urgent chamber application on 8 May 2019 seeking to stay the 1st respondent's decision of 20 April 2019 and to interdict the 2nd and 3rd respondents (Mpumelelo Mining Syndicate) from carrying out mining activities in a disputed production shaft pending determination of a review application (HC 1038/19). The application was served on the respondents on 15 May 2019. The respondents alleged they had been mining in the disputed area since 2009, a period of over 10 years. The applicant's agent was also alleged to have been mining in close proximity to the disputed shafts for a long time. Applicant had not paid inspection fees for its claims for over 10 years and only paid such fees in January 2019. Mining rights are governed by the Mines and Minerals Act (Chapter 21:05), which requires inspection fees to be paid every 12 months to preserve mining rights under sections 197 and 198.

• Whether the matter was urgent within the meaning of the High Court rules
• Whether urgency arising from deliberate or careless inaction qualifies for urgent relief
• Whether the applicant had laid proper foundation for the grant of an interdict
• Whether the applicant had been candid with the court regarding its failure to protect its claims

1. The matter is not urgent. 2. The matter is removed from the roll of urgent matters. 3. The applicant shall bear the costs of suit on the ordinary scale.

Urgency arising from deliberate or careless absenteeism from action is not the urgency contemplated by the court rules. A party who fails to protect its mining claims by not paying inspection fees for over 10 years and who fails to act when mining operations commence in disputed areas cannot later claim urgency. The test for urgency is whether the matter simply cannot wait at the time the need to act arises, and this must be assessed objectively based on when the applicant became aware or should have been aware of the circumstances giving rise to the application. The mere filing of a review application does not itself create urgency warranting urgent relief.

The court observed that the applicant sought the remedy of an interdict without laying the proper foundation for the grant of such relief, though the court did not delve into this aspect given its finding on urgency. The court also noted that the applicant had not been candid with the court by failing to disclose that it had not protected its claims in the Hope Fountain area for over 10 years. The court referenced but did not need to deal with other preliminary issues that had been raised by the respondents.

This case reinforces the strict approach Zimbabwean courts take to urgent applications, particularly the principle that litigants cannot create their own urgency through inaction or neglect. It is significant in mining law for emphasizing that mining rights must be actively protected through compliance with statutory requirements such as payment of inspection fees. The case demonstrates that failure to protect one's mining claims over an extended period (10 years in this case) will disentitle a party from claiming urgency when belatedly seeking to enforce those rights. The judgment upholds the principle that the law protects the vigilant and not the sluggard, and that courts will scrutinize whether applicants have been candid about their own conduct when assessing urgency.