Rights (MINES AND MINERALS)

Katenge Resources Limited v Avarmma Mining Corporation Limited and Others (Appeal No. 153/2017) [2018] ZMCA 328 (4 September 2018);

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The matter dealt with an appeal against the decision of the High Court that ordered the cancellation of a mining licence and its return to the first respondent. The background to the case was that Minster of Mines had granted a large-scale mining licence to the local people within the Kasempa community who immediately took possession of the mine. The first respondent alleged that the minister was wrong to have granted the licence, while its application over the same mine was still pending before him. The first respondent applied to the High Court for judicial review and sought a reversal of the minister’s decision. The High Court reversed the minister’s decision by cancelling the new licence and returning it to the appellant.

The Court of Appeal considered whether the first respondent’s prospecting licence was valid at the time of its subsequent application for a large-scale mining licence. The court also considered which legislation was applicable to the first respondent at the time of its application. 

The court found that the first respondent’s prospecting licence had expired and there was no renewal. The court found further that the act that was applicable was the amended Mines and Minerals Development Act No. 11 of 2015.  It held that the first respondent did not comply with the provisions of the act to seek recourse from the tribunal within 30 days. 

Accordingly, the court concluded that the High Court should not have entertained this matter in the first place and upheld the appeal.

Sahne Mining Zambia Limited (Appeal No. 83/2017) [2018] ZMCA 29 (12 June 2018);

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The matter dealt with an appeal against a decision of the High Court to dismiss a matter for want of jurisdiction. The appellant had sought an injunction against the respondents in a claim for nuisance and trespass on its mining area. The High Court held that it lacked jurisdiction to entertain the matter as a court of first instance since s 100 of the Mines and Minerals Development Act No. 11 of 2016 designated the High Court as an appellate court and not a court of first instance. 

The Court of Appeal considered whether the import of the act was to strip the High Court of jurisdiction by conferring jurisdiction to hear and determine all disputes in the Mines Appeals Tribunal. In interpreting the meaning of ss 96 to 100 of the act, the court cited the rule in Mazoka v Mwanawasa and Others (2005) ZR 138 to the effect that the literal rule of statutory interpretation would be applied unless it led to an absurdity. The court observed that a reading of the act did not grant the tribunal jurisdiction in all matters. The facts showed that the respondents did not have a mining licence and appeared to be trespassers, which subject matter the High Court had jurisdiction to determine. The court concluded that the High Court erred in holding that it did not have jurisdiction to entertain the matter.

Accordingly, the ruling was set aside and the case remitted to the High Court for trial.

United Quarries Limited v Chongwe District Council (Appeal No. 40/2017) [2018] ZMCA 9 (3 May 2018);

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This appeal arose from a High Court decision wherein the appellant was ordered to pay sand levy to the respondent. In the year 2000, the respondent sought information as to how much stone had been mined and sold. Such information was made available in 2007. The respondent claimed levies for the said period and the trial judge ruled in their favour. 

The court of appeal had to decide on whether the trial judge had erred in holding that sand levy was payable at any point and not just at checkpoints established by the council, that the trial judge had erred in law and in fact holding that levies were payable in arrears and that a person who mines sand or sells it does not necessarily need to go through a checkpoint to pay levy.

The court held that the by-law that stated that levy was payable at any check point did not mean that levy was only payable at a checkpoint and that a checkpoint was one of the places to get payment but not the only one.  Secondly, the court dismissed that levies could not be paid as arrears as ss 69(3) and (4) of the Local Government Act supported the fact that any levy not paid could be recoverable as debt, so the trial judge was correct

The case was dismissed

China Copper Mines Limited v Tikumbe Mining Limited (Appeal No. 017/2017) [2017] ZMCA 4 (14 September 2017);

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The matter dealt with an appeal against the decision of the High Court to uphold the deputy registrar’s decision to grant judgment on admission. The plaintiff sought an injunction against the defendant to restrain it from mining on its land and a declaration that the defendant’s mining activities were illegal. The parties were engaged in mining on properties adjacent to each other. The deputy registrar found that the defendant on its own admission had encroached on the plaintiff’s land and this decision on appeal was upheld.

The Court of Appeal considered whether there was an unequivocal admission of liability by the defendant and whether the High Court was right in relying on its finding of fact and law in an interlocutory application to uphold the appeal. It found that the admissions by the defendant were not clear, unambiguous and unconditional and did not reveal an intention to be bound by them so as to deny its valuable right to contest the claim against it. The court observed further that it was not the duty of the court at that stage to pronounce orders that would determine the reliefs being sought except the relief relating to the injunction. It held therefore, that the reliance by that court on its findings of fact in an interlocutory application was improper.

Accordingly, the court allowed the appeal, set aside the judgment on admission and remitted the case to the High Court to proceed to trial.

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