Answer ... Sanhe Mining Zambia Limited v Trumala Balaji (Z) Limited – Appeal 83/2017: This was an appeal of a High Court decision dismissing the appellant’s entire action for lack of jurisdiction. The appellant was the owner of a small-scale mining licence and the second respondent was the holder of a small-scale mining licence in the same area and adjacent to the appellant’s mine. The appellant commenced action in the High Court claiming:
- damages for nuisance and trespass;
- an interlocutory and permanent injunction restraining the respondents from entering its mining area; and
- a declaratory order that the respondents had no legal right to be in the Kampumba mining area because their licence had expired.
In response, the respondents filed suit to dispose of the matter on points of law pursuant to Sections 98(3) and 100 of the Mines Act, arguing that the matter was one relating to mining or non-mining rights covered by Section 98 of the act, to be dealt with at first instance by the Mining Appeals Tribunal. The respondents further argued that under Section 100 of the act, the High Court was an appellate court. Based on the respondents’ arguments, the High Court held that it had no jurisdiction to hear and determine the matter. Dissatisfied, the appellant appealed to the Court of Appeal.
The issue that arose was the import of Sections 96 to 98 of the Mines Act – that is, whether such provisions confer jurisdiction to hear and determine all disputes on the tribunal, thereby stripping the High Court of jurisdiction to adjudicate on the matter before it.
The Court of Appeal adopted a purposive approach when interpreting Section 96 to 98 of the Mines Act. In terms of the import of the provisions, it noted that in line with Section 98 of the Mines Act, the tribunal has jurisdiction to enquire into any matter affecting gold panning, mining or non-mining rights of any person or the government, whether under the Mines Act or otherwise. It equally has jurisdiction to determine disputes relating to compensation. The mining rights that may be granted under the Mines Act are an exploration licence and a mining licence. Non-mining rights that may be granted are:
- a mining processing licence;
- a mineral trading permit;
- a mineral import permit;
- a mineral export permit; and
- a gold panning certificate.
Further, the court stated that the proposition that the tribunal was confined to hearing appeals only was negated, irrespective of the fact that Section 98 is found in Part VIII of the act, headed “Appeals”. The court stated that this did not restrict the provisions in that part to appeals alone. Thus, the tribunal may perform such other functions as may be prescribed by an act or any other written law. At present, the tribunal may inquire into and determine matters that affect mining and non-mining rights law.
However, as the respondents did not file a defence, the averments in the statement of claim for the purposes of the application before the lower court stood unrefuted. These were that the respondents had no small-scale mining licence and this was known to the director of mines. That being the case, the respondents appeared to be mere busybodies and trespassers.
Nevertheless, the court stated that its reading of the Mines Act did not lead to the conclusion that the Mining Appeals Tribunal is endowed with jurisdiction to try cases of trespass and render judgment accordingly. As such, it cannot enjoin a trespasser from continuing to trespass on another’s licenced area. Therefore, the High Court has jurisdiction to try cases in which trespass is alleged against a party that has no mining right or non-mining right over the area in question, and that trespasses on or becomes a nuisance to a small-scale mining licence holder. The High Court had therefore erred in holding that it had no jurisdiction to try the case.
The High Court’s ruling was set aside and the case was remitted to the High Court for assignment to another judge.
Katenge Resources Limited v Avarmma Mining Corporation Limited – Appeal 173/2017: On 10 August 2015, the minister of mines announced his decision to issue a large-scale prospecting licence for the Katokamena Mine in Kasempa to the people of Kasempa. The first respondent commenced proceedings in the High Court arguing that the decision was unlawful as the mine belonged to it, because it held a large-scale prospecting licence in respect of the mine and was in the process of applying for a large-scale mining licence. Additionally, the first respondent argued that the minister should not have granted another licence in an area which was the subject of an application for an extension of licence. The application was deferred pending submission of an approved decision letter from the Zambia Environmental Management Agency and a comprehensive ore reserve statement.
In response, the appellant averred that:
- the first respondent’s licence in respect of the mine had expired and had not been renewed;
- the first respondent’s application for a large-scale mining licence did not meet all requirements of the Mines Act; and
- the purported extension for submission was not supported by law.
The lower court held that the applicable law was the repealed Mines Act, as the current Mines Act took effect on 1 July 2015. Therefore, the extension granted by the Ministry of Mines could not be said to have been ultra vires the repealed Mines Act. Additionally, the lower court held that cancellation of the first respondent’s licence and grant of another to the appellant was ultra vires the repealed Mines Act and against the rules of natural justice and commercial sense. Accordingly, the lower court cancelled the appellant’s large-scale prospecting licence and held in favour of the first respondent. The appellant was dissatisfied with the judgment of the lower court and appealed.
The issues under consideration were whether:
- the applicable law was the repealed Mines Act or the current Mines Act;
- the High Court had jurisdiction to hear the matter, since the appellant had not exhausted the procedures stipulated in the Mines Act before appealing in the High Court; and
- the High Court was in order to hear the matter and cancel the third respondent’s licence without affording it an opportunity to be heard, contrary to the rules of natural justice.
The Court of Appeal held that the applicable act was the current Mines Act, which came into effect in 1 July 2015. This is because the appellant’s cause of action arose on 10 August 2015, when the minister announced the issue of a large-scale mining licence to the people. A party aggrieved by this decision should thus have followed the requisite procedure under the Mines Act. Section 98 of the Mines Act establishes a Mining Appeals Tribunal, which has jurisdiction to hear complaints about decisions of the minister of mines within 30 days of receipt. Accordingly, the High Court should not have entertained the first respondent’s purported appeal, as this did not fulfil the requisite legal provisions for the grievance procedure.
In light of the above, the Court of Appeal held that the lower court should not have proceeded to reserve the matter for a ruling on the same day that it granted leave to the appellants’ advocates to withdraw from the record. The appeal was accordingly allowed.