Govt appeals Mbada ruling

Govt appeals Mbada ruling | The Herald March 23, 2016

Fidelis Munyoro Chief Court Reporter
Government has launched an appeal against a High Court decision to allow Mauritius-registered firm Grandwell Holdings to remain at Chiadzwa diamond mining site, though banned from carrying out mining activities without permission.

Grandwell Holdings holds 50 percent controlling stake in Mbada Diamonds (Private) Limited. Last week the High Court ruled that allowing Mbada to resume extraction of gems amounted to sanctioning illegality, but condemned the eviction on February 22 of the firm from its Chiadzwa mining claim without securing its assets.

Mbada was allowed to remain at the mining site for purposes of securing its assets until “such a time that the validity of such Special Grants has been regularised in accordance with the law”.

Mines and Mining Development Minister Walter Chidhakwa is not happy with the ruling and this week appealed to the Supreme Court.

In his grounds of appeal Minister Chidhakwa argues that Grandwell could not be granted spoliatory relief in this case. The minister is also seeking to quash the lower court’s finding on the derivative action brought against the Government.

“The court a quo erred in finding that the appellant had committed an act of spoliation against the fifth respondent (Mbada) when, in the circumstances, the appellant was not found to have done anything to evict the fifth respondent from the mining concessions,” reads the grounds of notice to appeal.

“The court a quo further erred in entitling, authorising and empowering the fifth respondent’s security personnel, with all its chain of command, to remain at the mining concessions until resolution of a matter that was resolved on the 22nd of February 2016 when the relevant statutory functionary exercised his discretion against the further extension/renewal of special mining grants in question.”

The respondents acted unlawfully against Mbada Diamonds by evicting it from occupation of its diamond concession area.

Mr Sternford Moyo of Scanlen and Holderness, who acted for Grandwell, said the High Court order meant Mbada Diamonds’ restoration to possession of the concession area so that it may safeguard its assets, while arrangements are being made to renew the special grants was confirmed and will now operate until renewal of the special grant or resolution of the issue relating to validity of the special grant.

“After renewal of the special grants the respondents are interdicted from interfering in anyway with Mbada’s operations,” said Mr Moyo.

“The minister (Chidhakwa), ZMDC (Zimbabwe Mining Development Corporation), Zimbabwe Consolidated Diamond Company and the Commissioner- General of Zimbabwe Republic Police are prohibited from inducing or forcing or in any manner procuring breach , by Marange Resources (Pvt) Ltd of its contractual obligations towards Mbada and Grandwell.”

Mr Moyo said Justice Mafusire’s judgment was a bold statement in support of the rule of law.

“It was prepared with impressive attention to both factual and legal detail. The writing style is pregnant with originality and freshness of approach. It is an excellent judgment.”

In his judgment, Justice Mafusire said: “To allow Mbada to resume mining operations as before, when the right to do so expired, is to sanction an illegality.” He said in his view, it is contrary to public policy.

The judge, however, found Minister Chidhakwa’s conduct to be improper and classically an act of spoliation. He expressed the view that Government could not be stopped from crafting and implementing policy. But in all this, the rule of law should be observed.

“This is paramount. It is a tenet the courts will defend to the last judge standing,” said Justice Mafusire.

“The alternative is anarchy. Law and order are indispensable elements of civilised society. This must sound like a broken record. But unless the need for it falls away, the principle may continue to be re-stated,” he added.

Mbada is the offspring of a marriage between Grandwell Holdings and Marange Resources, which is wholly owned by ZMDC.