‘Allowing Mbada Diamonds, To Mine As Before, Right Expired, Is To Sanction An Illegality’-High Court

THE government’s decision to forcibly close Grandwell Holdings (Mbada Diamonds) mining operations in Chiadzwa, has been castigated by the High Court as an act against the rule of law.

But in his 21-page judgment, Justice Joseph Mafusire ruled that the mining firm cannot continue operations until the validity of its special grants has been regularised in accordance with the law.

Grandwell Holdings, who are the major shareholders of Mbada Diamonds, had filed an application last month challenging the government’s decision to withdraw its licence to mine diamonds in Chiadzwa.

“It is, hereby, declared that the actions of the respondents (Mines minister Walter Chidakwa, Zimbabwe Mining Development Corporation (ZMDC), Marange Resources, Zimbabwe Consolidated Diamond Company (ZCDC) and Commissioner-General of Police (Augustine Chihuri) on February 22 amounted to an act of spoliation against the fifth respondent (Mbada Diamonds) in respect of its occupation, and operations at, the diamond mining site at the Chiadzwa Concession,” Justice Mafusire said.

In its application, Mbada Diamonds had claimed the government committed an act of spoliation and, therefore, wanted the court to intervene and issue an order restoring their position.

Justice Mafusire said if the government had discovered Mbada Diamonds’ special grants had expired, it was obliged to follow the law, as opposed to forcibly closing the mining operations.

“If the respondents suddenly discovered that the special grants had expired and wanted to terminate the marriage, they were obliged to follow the law,” the judge said.

“They were not entitled to take the law into their own hands and cause the forcible closure of the mine…At any rate, in the circumstances of this case, the respondents’ actions are difficult to understand.”

The judge said it seemed true that the special grants expired in 2010 and others in 2013, yet Mbada had continued mining. He further said sometime in September last year, ZMDC had written to the Mines ministry permanent secretary, expressly pointing out that the special grants had expired and sought a further exemption, but the government did not move in to shut the mines then.

“For action only to be taken as late as February 2016 seemed to lend credence to the complaint by Grandwell that the government was punishing the foreign investors for seemingly dragging their feet, or refusing to comply, with the consolidation scheme,” Justice Mafusire said.

“The government had all the time to act lawfully, so why the rush? Why the sudden emergency? . . . Therefore, in my finding, an act of spoliation was committed by the respondents on Mbada, however, that is not the end of the matter.”

Turning to the issue of Mbada’s application seeking to return to site, the judge said it seemed obvious that the mines’ special grants had expired and “with that Mbada’s right to possession had terminated”.

“Efforts to renew the special grants in September 2015 failed. In terms of section 291 of the Mines and Minerals Act, a special grant is the authority that gives one the title to minerals. In terms of section 2, the dominium in (occupation), and the right of searching, mining and disposing of all minerals is vested in the State President (Robert Mugabe).

“In casu (In this case), to allow Mbada to resume mining operations as before, when the right to do so expired, is to sanction an illegality.”

Justice Mafusire granted Mbada an interim relief interdicting Chidakwa, ZMDC, ZCDC, and the police from inducing, or forcing or in any manner procuring, a breach of the third respondents’ (Marange Resources) contractual relationship with the applicant (Grandwell Holdings) and the fifth respondent (Mbada Diamonds)”.

He said once the validity of the special grant has been regularised, Chidakwa, ZMDC, ZCDC, Chihuri and their agents or anyone acting on their behalf or under their instructions, “shall be interdicted from interfering with Mbada’s lawful operations at the mine.

“For all the purposes of safeguarding assets, all of the fifth respondent’s security personnel, with all their chain of command, shall be entitled, authorised and empowered to remain at the fifth respondent’s mining site at Chiadzwa Diamond Concession, as directed in paragraph two of the order of this court on 29 February 2016, until the resolution of this matter,” the judge added. By Charles Laiton.

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