Tilfury Zimbabwe (Pvt) Ltd and Fungai Bangidza v Damofalls Investments (Pvt) Ltd and Minister of Mines & Mining Development (N.O.)

The applicants (1st applicant: Tilfury Zimbabwe (Pvt) Ltd; 2nd applicant: Fungai Bangidza) sought an urgent interdict and declaratur concerning mining claims on Glen Arroch land owned by the 1st respondent (Damofalls Investments). In May 2012, the 2nd applicant obtained partial withdrawal consent from the 1st respondent to peg 20 hectares for mining. The 2nd applicant registered mining claims Glen Arroch 80 and 81 (registration numbers 29584 and 29585). Later in 2013, the 1st applicant registered Glen Arroch 82 and 83 (registration numbers 29806 and 29805). In June 2018, the 1st respondent threatened to interfere with the applicants' mining operations. The 1st respondent subsequently revoked permission on 17 August 2012 after discovering that co-ordinates had been altered from the original agreement. Multiple GPS surveys ordered by the court revealed: (1) the ground positions of Glen Arroch 80 and 81 differed from their registered docket positions; (2) the total area exceeded the agreed 20ha by approximately 1.3ha; (3) Glen Arroch 82, 83 and Main 2 were registered without proper consent from the 1st respondent or the 2nd respondent (Minister) as required by section 31 of the Mines and Minerals Act; (4) the applicants had applied to Zibagwe Rural District Council for authority to prospect despite the land being owned by the 1st respondent.

• Whether the applicants had a clear and definite right to mine on the disputed claims to support a declaratur and permanent interdict
• Whether section 58 of the Mines and Minerals Act (preventing disputes about title after 2 years) barred the 1st respondent from challenging the registration
• Whether the registration of Glen Arroch 82, 83 and Main 2 complied with section 31 of the Mines and Minerals Act requiring consent from the landowner
• Whether a declaratur and interdict could be granted where there were discrepancies between the ground positions and docket positions of mining claims
• Whether the applicants could derive rights from claims that were registered through misrepresentation or fraud
• Whether the court should exercise its discretion to grant a declaratur in circumstances of illegality

The application for a final interdict and declaratur was dismissed with costs.

A declaratur or permanent interdict cannot be granted in favour of a party who has not established a clear and definite right. Where mining claims are registered in violation of statutory requirements (particularly section 31 requiring landowner consent and section 48 requiring consistency between docket and ground positions), no clear right is established. Section 58 of the Mines and Minerals Act, which prevents disputes about title after 2 years, is subject to section 50 which permits cancellation of certificates obtained unlawfully. Section 58 is a defensive provision and cannot ground a cause of action for a declaratur. The common law principles "nemo ex propio dolo consequitur actionem" and "nemo ex suo delicto meliorem suam conditionem facere protest" prevent parties from deriving rights from their own illegal or fraudulent conduct. Courts cannot declare an illegality to be legal or grant interdicts to protect illegal mining operations. Where there are material discrepancies between registered positions and ground positions of mining claims, and where registration was obtained through misrepresentation or without proper consent, applicants fail to establish the clear rights necessary for a declaratur or permanent interdict.

The court observed that it would be undesirable to oust the Mining Commissioner's jurisdiction through a declaratur where disputes are pending before that tribunal. The court noted that applicants violated court orders by denying the survey team access to inspect the disputed shaft, which constituted contempt. The court commented that an applicant must stand or fall by the facts alleged in the founding papers, which constitute the foundation of the application. The court also noted that even if certain preliminary points (such as improper form under Rule 241, wrong jurisdiction, or dirty hands) were raised, these need not detain the court's mind where parties agree to proceed on the merits, though such points are often interwoven with the merits.

This case is significant in Zimbabwean mining law (applicable for comparative purposes in South African law) as it clarifies that: (1) section 58 of the Mines and Minerals Act (which prevents disputes about title after 2 years) is not an absolute bar and is subject to section 50 which allows cancellation of certificates obtained in violation of the Act; (2) compliance with statutory requirements for mining registration, particularly obtaining proper consent under section 31, is mandatory and cannot be circumvented; (3) there must be consistency between registered (docket) positions and actual ground positions of mining claims as required by section 48; (4) courts will not grant declaraturs or interdicts to validate illegal conduct or where rights are obtained through fraud or misrepresentation; (5) the common law principles against benefiting from one's own wrongdoing apply in mining disputes; (6) the Mining Commissioner's jurisdiction should not be ousted through declaraturs where disputes are properly before that tribunal. The case reinforces strict compliance with mining law procedures and the court's refusal to assist parties who have acted unlawfully.