Tobias Musariri and Hwange Safaris (Private) Limited v Bruna Minerals Exploitation (Private) Limited

The first appellant (Musariri), a safari operator and managing director of the second appellant, leased approximately 10,500 hectares in State Land C from the Minister of Lands in June 1993 for game ranching and safari operations. He selected a site for a safari lodge which was located on the respondent's registered mining location (RHA 8536 BM). The respondent, a mining company, was the registered owner of 650 base metal mining claims (RHA Claims) registered since 1966 in Hwange District, situated partly on State Land C and partly in the Deka Safari Area. Despite being warned by Dr Pessina (the respondent's managing director) that the selected site was on the respondent's mining area, Musariri proceeded to construct the safari lodge after being advised by a Ministry of Lands official to ignore Dr Pessina. Musariri subsequently concluded a second lease agreement with the Minister of Environment authorizing safari operations in the disputed area. After the respondent obtained a provisional order (temporary interdict) restraining interference with its mining operations on 8 March 1995, Musariri's workers blocked the respondent's access to roads leading to the mining claims on 19 September 1995 by erecting a locked and chained gate and later blocking the road with a tractor and trailer.

• Whether the appellants could be evicted from the respondent's registered mining location
• Whether the Minister of Environment had authority to lease surface rights over a registered mining location to the appellants
• What rights a landowner retains over land containing a registered mining location under section 179 of the Mines and Minerals Act
• Whether the appellants complied with section 190(2) of the Mines and Minerals Act before erecting the safari lodge
• Whether the provisional order restraining interference with mining operations should be confirmed
• Whether the first appellant was guilty of contempt of court for violating the temporary interdict

The appeal was dismissed with costs, subject to the deletion of paragraph 2 of the High Court order (requiring payment of $332). The eviction order against the appellants was upheld. The provisional order restraining interference with mining operations was confirmed. The finding of contempt of court against the first appellant and the fine imposed were upheld.

1. Under sections 178(2) and 179 of the Mines and Minerals Act, a registered holder of a mining location has surface rights for all necessary mining purposes, subject to existing rights, while a landowner retains only the limited right to graze stock or cultivate the surface insofar as it does not interfere with mining operations. 2. A government minister can only lease rights over a mining location that the State itself possesses - namely, the limited rights under section 179, which do not include the right to erect buildings for non-mining business purposes. 3. The principle nemo dat quod non habet applies: no one can give that which they do not have. 4. Section 190(2) of the Mines and Minerals Act requires authorization from the Secretary of Mines, consent of the mining location holder, and (unless exempted) consent of the landowner before erecting any building for business not legitimately connected with and necessary for mining purposes on a registered mining location. 5. A person who willfully violates a court order granting a temporary interdict is guilty of contempt of court and may be fined to coerce compliance.

The Court made observations regarding Dr Pessina's decision to charge rent for the worker's quarters and storage, noting that his actions were motivated by humanitarian concerns rather than constituting tacit consent to the appellants' occupation of the mining location. The Court commented that Dr Pessina felt it would be inhuman to evict the worker immediately and therefore decided to charge rent pending resolution of the dispute. The Court also noted approvingly the trial judge's observation that Musariri was determined not to obey the court order even when giving evidence at trial, indicating a need to coerce compliance through contempt proceedings.

This case establishes important principles regarding the interaction between surface rights and mineral rights in Zimbabwean law, which shares similar mining law principles with South African law. It clarifies the limited nature of landowner rights over registered mining locations under mining legislation, specifically that such rights are restricted to grazing and cultivation that does not interfere with mining operations. The case affirms that government authorities cannot lease rights they do not possess, and that surface rights holders cannot erect structures for non-mining business purposes on mining locations without proper authorization. The judgment reinforces the supremacy of registered mining rights over subsequently granted surface use rights, and demonstrates the courts' approach to enforcing interdicts through contempt of court proceedings where there is willful non-compliance.