Actglow Investments (Private) Limited v Provincial Mining Director, Mashonaland Central and The Secretary, Mines and Mining Development

### Preamble
1
HH 385-21
HC 3287/20
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ACTGLOW INVESTMENTS (PRIVATE) LIMITED

versus

PROVINCIAL MINING DIRECTOR, MASHONALAND CENTRAL

and

THE SECRETARY, MINES AND MINING DEVELOPMENT

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 12 November 2020 & 22 July 2021

Opposed Application

A. Masango, for the applicant

Ms F. Gustin, for the respondents

ZHOU J: This is an application for the respondents to be held to be in contempt of the order of Court which was granted in Case No. HC 1138/19, and for them to be sentenced to ninety days imprisonment to be suspended on condition that the respondents comply with the said order.  The order in HC 1138/19 was granted on 13 November 2019.  The applicant seeks costs against the respondents on the legal practitioner and client scale. The application is opposed by the respondents.

The applicant herein was also the applicant in HC 1138/19.  The respondents, together with the Provincial Mine Surveyor who is not cited herein, were the respondents.  The material portion of the order is as follows:

“IT IS ORDERED THAT:

1.	The decision of the first respondent barring the applicant from prospecting 				in the reserved area 1 566, special grant 6075 without the consent of the owner be 			and is hereby set aside.

2.	The decision to reduce the size of special grant 6075 leaving out areas with current 			claims be and is hereby set aside.

3.	The respondents be and are hereby directed to issue an injunction against any illegal 			operations by persons within the area reserved for special grant 6075.

4.	The first respondent pays costs of suit on a party and party scale.”

The applicant alleges that the first respondent has not complied with the order granted in HC 1138/19 and that he has continued to issue licences and authority to mine to persons who are disrupting the applicant’s mining operations at its mine.  On 27 February 2020 the applicant wrote to the second respondent asking for the conversion of its special grant to mining special grant.  Applicant also refers to another letter by its then legal practitioners to the Attorney-General complaining about the alleged non-compliance with the order of this court.  Applicant states that the respondents failed “to issue an injunction to any person within the area reserved for special grant 6078“ but enforced the arrest and eviction of applicant’s employees.  Applicant further refers to the refusal by the first respondent to convert its special grant and failure to respond to letters written to him.  These considerations are irrelevant to the application since the order of this court did not direct the respondents to convert the applicant’s special grant.

In opposition, the respondents deny any disobedience to the order of this court and state that the special grant given to the applicant was for prospecting and not for mining.  The order in HC 1138/19 was applicable to prospecting rights as well.  The allegation is that the applicant is attempting to use the special grant to carry on mining operations, thereby committing an illegality.  According to the respondents the applicant is carrying on illegal mining operations.  It is further contended that at the time that the special grant was issued the area to which it relates had already been pegged by other miners, hence the special grant was issued in error since the ground was not open to prospecting.

Contempt of court proceedings are invoked to enforce an order ad factum praestandum, that is, an order to do or abstain from doing a particular act.  Failure to comply with such an order makes the defaulter liable to imprisonment for contempt, Weinberg v Weinberg 1958 (2) SA 618 (C) at 621B-C; Metropolitan Industrial Corp (Pty) Ltd v Hughs 1969 (1) SA 224 (T) at 230 B.  The object of contempt of court proceedings is to impose a penalty in order to vindicate a court’s honour following wilful and mala fide disobedience of its order and/or to compel compliance with the court order, see Herbstein and van Winsen The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5 ed. Vol. 2, p. 1100.  In the case of Lindsay v Lindsay (2) 1995 (1) ZLR 296(S) at 299F, GUBBAY CJ said:

“The purpose of this criminal sanction (of imprisonment) is not punishment of the 	disobedience for punishment’s sake, but rather to coerce the defaulter to comply with the 	order in 	the future. Understandably, it is a remedy of last resort, only to be employed when all 	endeavours to bring the situation under control have failed, or are almost certain to fail.”

The authorities show that once it was shown that there was a non-compliance with a court order which the party was aware of, willfulness and mala fides on the part of the defaulting party are inferred, and the onus is upon that party to rebut the inference on a balance of probabilities. See Lindsay v Lindsay (2), (supra), at 299B.

In this case para 3 of the order in HC 1138/19, which requires the respondents to issue an injunction against any persons involved in illegal operations in the area covered by the special grant is the one that is ad factum praestandum.  The applicant has not led evidence of any unlawful mining operations which are taking place under the watch of the respondents.  The respondents are alleging that it is the applicant who is carrying on illegal mining operations using a special grant that was issued solely for the purpose of prospecting for minerals.  This allegation has not been contested.  It was actually admitted in submissions by applicant’s counsel who stated that prospecting involves mining.  The applicant seems to have been prompted to institute the contempt of court proceedings by the respondents’ failure to respond favourably or at all to its letters of 27 February 2020 and 4 March 2020, as is evident from paras 21, 22, 23 and 24 of the founding affidavit.  These are annexures “D” and “E” which are given wrong dates in the applicant’s affidavit.  As noted above, the request to have the special grant converted to a mining special grant which is contained in the letter of 27 February 2020 is not part of the order which the applicant seeks to enforce through this application.  The allegations of non-compliance with the order which are made in the letter of 4 March 2020 lack detail.  The respondents, in para 10 of the opposing affidavit, dispute that there has been any interference with the prospecting activities of the applicant.  This dispute of fact cannot be resolved in favour of the applicant on the papers especially in the absence of evidence or details of the alleged interference.

Further, the Special Grant No. 6075 which the applicant relies upon had a lifespan of twelve months from the date of issue.  The date stamps suggest that it was issued in 2017, which means that it expired in March 2018.  It could not therefore be interfered with in 2020.  In any event, the special grant was only for the purpose of prospecting.  There is no evidence that the applicant was prevented from prospecting during the currency of the special grant.  The applicant is the one who wanted to abuse the special grant to carry on mining operations, thereby violating the mining laws.  Although in the answering affidavit the applicant denied carrying on mining operations, the submission made on its behalf shows that its understanding is that it is entitled to carry on mining operations using a special grant issued for prospecting purposes.  Indeed, in para 8 of its founding affidavit, the applicant talks of carrying on mining operations.

In all the circumstances, no disobedience to the order has been established.  The grounds for the respondents to be held to be in contempt of court have not been established.

In the result, the application is dismissed with costs.

Muronda Malinga Legal Practice, applicant’s legal practitioners

Civil Division of the Attorney-General’s Office, respondents’ legal practitioners