Old Nic Mine fails to block new Byo housing development
The Supreme Court of Zimbabwe has dismissed a bid by the owner of Old Nic Mine to block a real estate company situated adjacent to their mine in Bulawayo from using its land for residential purposes.
Retinue Stars Investments, which has 16 mining claims that make up the Old Nic Mine had cited Olympus Gold Zimbabwe (Voullaire estate and Voullaire extension), Mines minister, provincial mines director Matebeleland North, environmental Management Agency, City of Bulawayo and director of engineering services of the city of Bulawayo as respondents in the matter.
Retinue Stars appealed against a high Court judgment that dismissed its application seeking the cancellation of a development permit given to Voullaire estate by the council.
According to court papers, Retinue Stars is the registered holder of 16 mining claims that make up Old Nic Mine and is engaged in underground gold mining.
Voullaire estate and Voullaire extension are the owners of an adjacent immovable property in the same area as Old Nic Mine.
Retinue Stars alleged that it received reports that Voullaire estate planned on changing the use of its land situated 500 metres from the mine to residential purposes.
The court heard that on May 27, 2017 Retinue Stars made representations to the council objecting to the approval of the proposed residential sites around the mine.
however, the mine said on October 12, 2017, the provincial mines director for Matabeleland North wrote to the Bulawayo town clerk saying the proposed development would not be affected by the mining operations.
On January 17, 2018, eMA issued a permit allowing Voullaire estate to start its housing development project.
On April 4, 2019, the council granted Voullaire estate a development permit in respect of the application dated August 8, 2018 for the proposed residential stands.
Aggrieved by the conduct of the respondents, Retinue Stars approached the Administrative Court in case number ACC 47/20 challenging the granting of the permits.
The mine sought condonation and extension of time within which to note an appeal in terms of the rules of the Administrative Court (Miscellaneous Appeals) Rules, 1982.
The court found that the appellant was not properly before it.
The mine then approached the high Court seeking to set aside the decision of the council.
The mine alleged that eMA issued an environmental impact assessment certificate without giving due consideration to the environmental hazard and long term impact of allowing residential properties to be built next to an active goldmine.
lt also argued that the council did not conduct proper consultations in terms of the Regional Town and Country Planning Act [Chapter 29:12].
On the other hand, Voullaire estate argued that the court lacked jurisdiction to determine the matter and that the Administrative Court was the appropriate forum to determine the land use.
It also submitted that the Administrative Court had not refused jurisdiction, but had implicitly required the mine to approach the court with a proper application.
The high Court then declined to hear the case on the basis that there were other available remedies.
The mine then approached the Supreme
Court on the grounds that the high Court erred in law and misdirected itself in finding that it lacked jurisdiction to determine the matter.
After hearing the arguments, the Supreme Court found that the Administrative Justice Act gives the high Court the discretion to decline jurisdiction.
“The high Court may decline jurisdiction if it is of the opinion that the applicant is entitled to seek relief under any other law.
“In casu the court a quo exercised its discretion and declined jurisdiction," Supreme Court judges Justices Antonia Guvava, Susan Mavangira and hlekani Mwayera ruled.
“The Administrative Court had not thrown the appellant out of court but directed compliance with the rules.
“The court a quo therefore correctly exercised its discretion when it held that the appellant ought to have exhausted other available remedies.
“It, therefore, properly and correctly declined jurisdiction.”
They added: “The appeal has no merit. It must fail. Costs follow the result. It is accordingly ordered as follows: The appeal be and is hereby dismissed with costs.”