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Miner, Chinese company wrangle over special alluvial mining rights

By Sam Noko

A local miner is engaged in a wrangle with a Chinese mining company over special alluvial mining rights in Insiza in Matabeleland South.

This is despite government earlier this month banning all riverbed alluvial and riverbed mining on rivers.

“All riverbed alluvial and riverbed mining on rivers is banned with immediate effect, except on the Save and Angwa rivers where desiltation will be allowed under very strict conditions. All those holding mining concessions will be given a grace period to be announced, to obtain Environmental Impact Assessment (EIA) and State of Works Plan acceptance by the Ministry of Mines and Mining Development,” Information Minister Monica Mutsvangwa announced on September 8.

Zenzo Ncube through his lawyer Jabulani Ndubiwa of Mashayamombe and Company Attorneys recently filed an application at the Bulawayo High Court seeking to compel the Mines and Mining Development Ministry to stop a Chinese firm identified in the court papers as “Portobell / Simboti” from mining at the site, he had initially pegged.

Bulawayo High Court Judge Justice Nokuthula Moyo on September 10 granted the application and ordered the ministry to consider Ncube’s application for special mining rights.

“After reading documents filed of record and hearing Ndubiwa for the applicant, it is ordered that the respondent is directed to consider the application for a special mining grant filed by the applicant at the offices on March 18 2019. The respondent is ordered to furnish the applicant with an outcome of its decision within 14 days of this order,” Justice Moyo ruled.

In his founding affidavit, Ncube said his application was done in terms of Section 3 as read with Section 4 and 6 of the Administrative Justice Act (Chapter 10:28).

“On or about March 30, 2019, and at Gwanda I made an application for a special grant to carry out alluvial gold mining in Insiza District. The application was made in terms of Section 291 of the Mines and Minerals Act. It was duly lodged upon payment of the prescribed fee with the provincial mining director for Matabeleland South. It is customary that applications for mining licenses are lodged at the province level and then cascaded up to the respondent for his consideration,” reads the founding affidavit.

“The area I intended to conduct mining activities is a reserved area of about 8 hectares along the Insiza river. The crucial background to this application is that the Minister of Environment Tourism and Hospitality Industry had published on November 30 2018 in the supplement to the Gazette the Environmental Management (Control of Alluvial Mining) (Amendment) Regulations 2018 (No. 1).”

Ncube submitted that the import of these regulations was to permit riverbed alluvial mining, which had previously been banned, provided that the processing plants, washing plants, ore stockpiles, slimes dams or settling pools were not to be constructed within 500m from the river bank or highest flood line of the watercourse.

He said conducting riverbed mining was also to be subject to an environmental rehabilitation plan which was approved by an Environmental Impact Assessment Report.

“Prior to the submission of the special grant application I engaged the services of a prospector for the purposes of pegging the area in which I intended to carry out mining activities at a cost of US$2000. I verily believe that my application complied with the normal and approved standard operating procedure of the Ministry of Mines and Mining Development,” reads the affidavit in part.

“My application contained crucial information such as full information of my financial status, information that the application relating to gold mining, details illustrated by a sketch plan of the area to be embraced by the special grant and the size of the area and a detailed description of the scope of works.”

He said the Mining officials duly accepted his application and verbally advised that the area had not been pegged and that the area was open for prospecting.

“From March 30, 2019, to August 4 2019, despite my numerous inquiries and follow-ups with the Ministry of Mines at Gwanda, I received no formal communication or response to my application. I verily believe that the respondent… has a legal obligation when dealing with an application for a special grant, which affects my rights as an applicant, act in a manner that is lawful, reasonable and fair, take a decision and act in a manner within a reasonable period from the date of my application and written reasons for his decision must be given within a reasonable time,” Ncube submitted.

“Chagrined by the snail’s pace in which my application for a special mining license was moving and after receiving information that a certain entity known as “Portobell / Simboti” had commenced mining operations on the same piece of land for which I have applied, I directed a letter to a functionary of the respondent on August 4 2020.”

Ncube then requested written reasons why his application for a special mining license had not been responded to formally and why before a decision had been taken on his application, another entity had been allowed to commence mining operations.

He said on August 4 2020, he received a response to his letter from the Matabeleland South provincial mining director Tichaona Makuza and the letter stated that his application had been forwarded to Zimbabwe Mining Development Corporation (ZMDC) who are supposed to carry out alluvial mining along rivers through joint ventures based on cabinet directive.

“Finally I was advised to make follow-ups with the ZMDC on the status of my application. I believe the conduct of the respondent has violated my rights and legitimate expectations to fair administrative justice as contained in the Constitution and the Administrative Justice Act,” Ncube submitted.

“My reading of the Mines and Minerals Act together with Statutory Instrument 258 of 2018 leads me to the conclusion that the respondent is the administrative authority with powers and responsibility of approving and considering applications for special mining licenses.”

He said a reading of Part XIX of the Mines and Minerals and the other empowering pieces of legislation governing alluvial riverbed mining do not prescribe “a condtio sine quo non of partnering in a joint venture agreement with ZMDC before being awarded a special mining license for a reserved area.”

Ncube submitted that while he accepts that the act of merely filing an application for a special grant does not confer title over the mining area to him, the law still requires that the respondent considers his application in a manner that is lawful, rational, reasonable and fair.

 “I thus, make this application ….to compel the respondent to consider my application for a special mining license in terms of Section 291 of the Mines and Minerals Development Act and render written reasons for his determination within 14 days of the granting of the order,” he said.

“Failing compliance with supply of the written reasons for his decision within 14 days of the granting of this order then the court is prayed to grant an order declaring taken by the respondent constitutes an improper exercise of discretion and its ultra vires the Mines and Minerals Act. It is so prayed.”

Ndubiwa said respondent is yet to comply with the order.

The developments come at a time when the villagers are still angry with the former Chinese miners who previously conducted alluvial mining in the area, which locals say caused siltation of water sources.

Tanzanite Mining operated at Killarner Mine in Phikelela village in Insiza South along the Insiza River from May 2013, while Yuan Hang Corporation operated a Special Grant 5780 Mine at Hlangano Ranch in Mbalabala along the Umzingwane River from August 2013.

The rivers feed into dams that supply Bulawayo city with water. Siltation of the two dams could spell doom for the country’s second-largest city.

One of the traditional leaders in the community, Chief Ndube distanced herself from any dealings with the Chinese miners although she confirmed they had arrived in the district with a map and papers from the Mines Ministry.

EMA Matabeleland South Public Relations Officer, Simon Musasiwa recently said they had not yet received objections from Insiza villagers over the river mining activities.

He admitted that there were submissions of such prospective activities but nothing was happening on the ground yet.

“We have not yet received any reports of active operations taking place there. Yes, there are submissions for mining activities to take place but nothing has started on the ground, because for one to start mining activities he or she needs to acquire an Environment Impact Assessment (EIA) certificate and provide evidence of community engagements before undertaking mining activities,” Musasiwa said.

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