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

The Applicant concluded a written agreement on 13 August 2022 with the first and second respondents to acquire alluvial chrome-mining rights over Special Grants SG8340 and SG8341 in Mutorashanga for US$31,000. On 20 November 2024, the third respondent and workers entered the mining sites without authorization and began loading and removing chrome ore from the mining location. The Applicant obtained a provisional order on 26 November 2024 interdicting the third respondent from attending at and removing chrome from the special grants. The Applicant sought confirmation of the provisional order and a declarator that the agreement remained valid and binding. However, it emerged that the two special grants had expired on 21 March 2023, before the application was filed. The respondents opposed the application, arguing that the agreement had been overtaken by events due to the expiry of the special grants, that the agreement was illegal as it did not comply with statutory requirements for transfer of mining rights, and that there were material disputes of fact regarding the 200 tonnes of chrome ore allegedly removed.

• Whether a provisional order could be confirmed where the special grants underlying the agreement had expired
• Whether an agreement relating to mining rights could be declared valid and binding after the expiry of the special grants
• Whether the agreement was illegal for failure to comply with Sections 291 and 302 of the Mines and Minerals Act requiring ministerial approval for transfer of mining rights
• Whether consequential relief for the return of 200 tonnes of chrome ore should be granted by way of application or referred to trial
• What effect material disputes of fact have on an application for declaratory relief

1. The provisional order granted on 26 November 2024 was discharged. 2. The application for declaratory relief in terms of paragraphs 2-4 was dismissed. 3. The prayer for consequential relief in paragraph 5 (return of 200 tonnes of chrome ore) was referred to trial, with the founding papers to be construed as summons, the opposing papers as notice of entry of appearance to defend, and the Plaintiff to file a declaration within ten days. 4. The Respondents were ordered to bear costs of the application to date on an ordinary scale.

An agreement to acquire mining rights over special grants cannot be declared valid and binding after the special grants have expired. The expiry of special grants terminates the legal foundation upon which such agreements rest, and courts will not exercise their discretion under Section 14 of the High Court Act to validate agreements that operate contrary to statutory provisions. For a declaratory order to be granted, the applicant must demonstrate a direct and substantial interest in an existing, future or contingent right - an expired special grant does not constitute such a right. A provisional order interdicting interference with mining operations cannot be confirmed where the underlying special grants have expired, as there is no legal right to protect.

The court made favorable observations about the advantages of trial procedure over motion procedure in matters involving material disputes of fact, noting that trial procedure is "more disciplined" and "lends itself more appropriately, both from a pleading and from an evidence point of view, to a resolution of the issues." The court quoted with approval Robinson J's observation in Mashingaidze v Mashingaidze that "A good novelist can write a series of exciting affidavits and at the end claim large sums of money. It takes a lawyer to draw a declaration." The court also noted that referring the matter to trial rather than dismissing it outright would "bring finality to litigation" as trial procedure has "the requisite tools for weighing and assessing evidence." While the court addressed the authorities on illegal contracts cited by counsel (Hatting v Van Kleek and Hem Granite Industries v Keely Granite), the court ultimately found it unnecessary to make a determination on the legality of the agreement given its finding that the agreement could not be declared valid after the expiry of the special grants.

This case is significant in Zimbabwean mining law for establishing that agreements relating to mining rights cannot be enforced or declared valid after the underlying special grants have expired, even if the agreement was concluded while the grants were still valid. The case reinforces the principle that courts will not validate agreements that would operate contrary to statutory provisions, particularly the Mines and Minerals Act. It also demonstrates the application of the principle that courts do not enforce illegal contracts, and clarifies that once special grants expire, any rights derived from those grants cease to exist. The case provides guidance on when matters raising material disputes of fact should be referred from motion procedure to trial procedure, particularly where consequential relief is sought that requires detailed factual determination.