RIOZIM Limited has lost the battle with the Defence ministry over 200 mine claims after the High Court struck the case off the roll saying the application was defective.
RioZim had cited Defence and Mines ministers as respondents in the application.
The mining company had approached the court seeking a review of the Defence minister’s decision declaring the land as a cantonment area or a military zone according to section 89 of the Defence Act.
RioZim submitted that it is the holder of 206 mining claims in the Darwendale area of Mashonaland West miningdistrict and relevant to this matter are claims known as Wendale 42 and Wendale 43 Block which are registered under certificate numbers 18006BM and 18007BM, respectively.
The said mines are situated partly on Darwendale South Eclipse Farm, New Burnside Farm and Darwendale B Farm.
RioZim’s further contention is that sometime around August 2018, the Defence minister acting in terms of section 89 of the Defence Act, published a notice, which is cited as Defence (Cantonments) Notice 2018 (No 51).
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The notice stipulated that the area described in the schedule shall be a cantonment for the purposes of Part IX of the Act.
RioZim alleged that the area covered in the notice included all of its 206 mining claims.
According to court documents sometime in February 2018, a company called Falcon Resources (Pvt) Ltd wrote to RioZim requesting that it grants it a tribute in respect of its Chrome Ore claims in Darwendale, curiously indicating that the claims must be 10 kilometres away from an area which it described as Darwendale Military Zone.
RioZim did not respond to the letter as it did not intend to tribute any of its Chrome Ore claims to the said Falcon Resources (Pvt) Ltd or any other entity.
On May 30, 2018, RioZim received information that Falcon Resources (Pvt) Ltd in conjunction with Rusununguko Nkululeko (Pvt) Ltd were mining at its claims namely Wendale 43 Block, Darwendale.
RioZim then held several meetings with the said entities with a view of stopping all mining activities at its claims and seeking compensation for the loss occasioned.
Falcon Resources (Pvt) Ltd and Rusununguko Nkululeko (Pvt) Ltd turned down its request and indicated that the mining activities were being done in a military cantonment and continued mining.
RioZim argued that the representation that the area was a military cantonment was not true as the area had not been declared as a military cantonment.
This led RioZim to file an urgent chamber application under HC 5212/18 which was heard and interim relief was granted by the High Court in its favour.
Falcon Resources (Pvt) Ltd and Rusununguko Nkululeko (Pvt) Ltd appealed against the decision of the High Court in HCH 5212/18 under SC 476/18 and the appeal was dismissed.
In the application RioZim argued that the declaration by the Defence minister of the area covering RioZim’s mining claims as a cantonment area in terms of Statutory Instrument 145 of 2018 is reviewable on the grounds that the decision was exercised in a manner that contravened the duty to Act lawfully, reasonably and fairly and that the decision was grossly irregular and ultra vires, as the minister exercised power for a purpose other than that which the power was conferred.
The Defence minister opposed the matter by raising two preliminary points — that RioZim did not comply with Order 33 Rule 257 of the now repealed High Court Rules, 1971 which require that a court application for review shall state shortly and clearly, the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for.
The minister submitted that RioZim has no mining claims in the area covered by Statutory Instrument 145 of 2018, Defence (Cantonments) Notice 2018 (No 51) saying the effect of the Statutory Instrument is that it declared a 10km radius shown on the plan as a restricted area.
It argued that RioZim had no valid title to any mining claims within the covered area as both Wendel 42 and 43 had been re-pegged and had new registration numbers different from those provided by RioZim.
However in his judgment released this week then High Court judge Justice Webster Chinamhora upheld the point made by the minister of Defence that the application is defective.
“I will deal with the preliminary points and start by addressing whether or not the deponent had authority to act on behalf of the applicant. The starting point is section 130(2) of the Insolvency Act [Chapter 6:07], which is a deeming provision that provides as follows: “(2) During a company’s corporate rescue proceedings the board of the company will be deemed to be dissolved...
“It is evident that the first respondent’s (minister of defence) contention that the deponent to RioZim’s founding affidavit lacks authority to depose the applicant’s affidavit is properly founded at law.
“As highlighted above, this proposition is anchored on the fact that when a company is placed under corporate rescue, it ceases having a life of its own,” Chinamhora ruled.
“Having come to the conclusion that the deponent to the applicant's affidavit had no authority or approval by the corporate rescue practitioner, I make the finding that the application is fatally defective.
“As I have resolved the matter on the basis of the afore-said preliminary point, there is no application before the court," Chinamhora said before he struck the matter off the roll with costs.