San He Mining Zimbabwe (Private) Limited v Lizzie Gwasira and Keith Gwasira

On 13 August 2022, the applicant (San He Mining Zimbabwe) entered into a mining cooperation agreement with the respondents (Lizzie and Keith Gwasira), paying consideration for the right to conduct mining operations on two mining claims held under Special Grants SG 8340 and SG 8341. The respondents undertook to obtain all necessary regulatory approvals, including an Environmental Impact Assessment (EIA) certificate. The Special Grants expired on 21 March 2023. In a prior proceeding (HCH 5342/24), DEME J refused relief because the grants had lapsed, making the agreement impossible to perform. The respondents subsequently renewed the Special Grants in October 2025. The applicant now sought to compel the respondents to apply for an EIA certificate to enable mining operations. The respondents opposed on grounds of: (a) res judicata; (b) illegality for contravening Section 302 of the Mines and Minerals Act (no ministerial consent obtained for the transfer); (c) non-joinder of the Minister and EMA; and (d) that the court cannot compel obtaining an EIA certificate from EMA.

• Whether the renewal of special grants rendered a previously impossible mining agreement valid and enforceable again
• Whether the matter was res judicata based on DEME J's earlier judgment refusing enforcement when grants had lapsed
• Whether the agreement was illegal and void ab initio for contravening Section 302 of the Mines and Minerals Act by transferring mining rights without ministerial consent
• Whether non-joinder of EMA and the Minister of Mines was fatal to the application
• Whether the court can competently order a party to apply for (but not guarantee issuance of) an EIA certificate
• Which party (title-holder respondents or investor applicant) bears the duty to apply for the EIA certificate

The application was granted. The court declared the mining agreement valid and binding. The respondents were ordered to: (1) submit a complete EIA application to EMA within 10 days; (2) take all necessary steps to obtain the EIA certificate in cooperation with the applicant; and (3) keep the applicant informed of progress. The court granted the applicant leave to approach the court for further relief (including contempt proceedings) if the respondents failed to comply within 10 days. The respondents were ordered to pay the applicant's costs on the ordinary scale, jointly and severally.

The binding legal principles established are: (1) A temporary impossibility of performance (such as lapse of mining titles) suspends but does not terminate a contract; when the impossibility is removed (through renewal of titles), contractual obligations revive and become enforceable again. (2) A mining cooperation agreement that lacks ministerial consent under Section 302 of the Mines and Minerals Act is not automatically void ab initio as between the contracting parties where one party (particularly the title-holder responsible for obtaining consent) seeks to avoid obligations after receiving consideration; the in pari delicto exception applies to prevent unjust enrichment. (3) Res judicata does not bar a subsequent application founded on materially changed facts that arose after the prior judgment, even where the same agreement is at issue. (4) A court may order a party to apply for (but not guarantee issuance of) a statutory licence or regulatory approval where: (a) doing so is within that party's power; (b) it constitutes a contractual or legal duty; and (c) the order does not impinge on the regulatory authority's discretion. (5) The holder of a mining title bears the legal duty to apply for environmental approvals (EIA certificates) for mining operations on that title, as they are the recognized "developer" under environmental legislation. (6) Pacta sunt servanda applies to enforce lawful mining agreements, and parties cannot approbate and reprobate by accepting contractual benefits while refusing to perform contractual obligations.

MAMBARA J made several non-binding observations: (1) The court noted that the respondents would be "well advised to regularize their arrangement with the applicant by obtaining the Minister's retrospective approval as soon as possible" under Section 302, though this was not made a condition of the order. (2) The court observed that mining tribute agreements and partnerships are "not uncommon in the mining sector and are not per se forbidden" provided requisite approvals are obtained. (3) The judge emphasized broader policy considerations that "agreements must be honoured and enforced as far as possible in accordance with the parties' original intent" and that "temporary setbacks or technical lapses should not automatically defeat genuine agreements." (4) The court commented that pacta sunt servanda "is not an empty slogan in our jurisprudence; it is a cornerstone of commercial certainty" and that parties who receive what they bargained for are expected to perform what they promised. (5) The judgment noted that if EMA ultimately refuses the EIA certificate, "that would be a different matter for another day" but there was presently nothing preventing the respondents from taking the necessary steps. (6) The court observed that damages would be inadequate remedy because "the applicant bargained for a mining opportunity, not just a refund; the real benefit of the contract lies in the ability to extract minerals under the special grants."

This case is significant for establishing several important principles in Zimbabwean law: (1) It clarifies the distinction between temporary and permanent impossibility of performance in mining contracts, holding that renewal of lapsed mining titles can revive contractual obligations that were suspended (not terminated) by the lapse. (2) It applies and develops the in pari delicto exception to illegality, refusing to allow a party responsible for regulatory non-compliance to escape contractual obligations by invoking their own failure to obtain statutory consent. (3) It affirms that courts can order specific performance requiring a party to apply for (though not guarantee receipt of) statutory licences and regulatory approvals where this is within the party's power and constitutes a contractual or legal duty. (4) It reinforces the sanctity of contracts (pacta sunt servanda) in the mining sector, preventing parties from accepting payment and then using technical regulatory non-compliance as a shield against performance. (5) It provides guidance on when res judicata applies, holding that changed factual circumstances (here, renewal of grants) can create a new cause of action not barred by a prior judgment based on different facts. The judgment is particularly important for mining investors and joint venture partners in Zimbabwe.