The Bulawayo High Court has struck off the urgent roll an application by a miner seeking to compel the Provincial Mining Director for Matabeleland South to issue him with a carbon movement permit, ruling that the urgency was self-created through years of inaction.
The applicant, Rainas Gambaza, approached the court seeking an order compelling the director to issue the permit for his mining operations.
Gambaza told the court that he had been given a mining claim, Van Roo 3 (registration number 32656), by Michael John Van Rooyen several years earlier, and had been in peaceful and undisturbed possession of the claim since then.
However, the donation was never formally completed, and the mining claim remained registered in Van Rooyen’s name.
Van Rooyen died on February 16, 2022 without completing the transfer of the mining claim to Gambaza.
The deceased’s widow subsequently confirmed in an affidavit that the donation had been made but remained incomplete.
According to the judgment, Gambaza continued mining the claim and, in March this year, instructed his mine manager to apply for a carbon movement permit.
The provincial mining director requested documents, including a title holding, an inspection certificate and approval of the mine manager’s appointment.
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Although the documents were supplied, the mining director declined to issue the permit, advising that the mining claim remained registered in the deceased’s name and that the authorities would instead deal with the executor of his estate.
Gambaza then approached the High Court on an urgent basis. The provincial mining director opposed the application, arguing that Gambaza had no legally regularised right to the mining claim and had known about the problem for years.
Justice Nokuthula Moyo upheld the preliminary objection on urgency and ruled that Gambaza could not rely on his own failure to regularise the mining claim to obtain preferential treatment from the court.
The judge said Gambaza should have taken steps to formalise the donation after receiving the mining claim and, particularly, after Van Rooyen’s death in 2022.
“The applicant was aware, or ought to have reasonably been aware, of its untenable position and the obligation to regularise the donation so as to regularise their operations,” Moyo said.
Despite this, the applicant remained inactive for four years, the judge said.
“The prejudice being complained of now is a direct consequence of applicant’s negligence and failure to act so as to comply with the law,” Moyo ruled.
The court relied on the established principle that urgency cannot be created by a litigant who deliberately or negligently waits until the last minute before approaching the court.
Moyo said a litigant seeking preferential treatment on the urgent roll must demonstrate that the matter was treated as urgent when the need to act first arose.
“In the present case, the need to regularise the mining operations did not arise upon the refusal of the permit. It arose years earlier when the applicant commenced mining operations without the requisite lawful entitlement papers,” the judge said.
The court rejected Gambaza’s argument that the refusal of the carbon movement permit created the urgency.
“I am therefore satisfied that there is no urgency here, it is all self-created through inaction,” Moyo said.
“Applicant cannot ignore an obviously untenable state of affairs for years, and then approach this court on the guise of urgency when the predictable consequences of his non-compliance materialise.”
Moyo said Gambaza did not qualify to ‘jump the queue’ ahead of other litigants waiting to have their matters heard. The court consequently upheld the preliminary point and struck the application off the roll of urgent matters, with costs.
Gambaza was represented by Job Sibanda and Associates, while the Civil Division of the Attorney-General’s Office represented the provincial mining director.
