This means that based on the ruling passed on July 3, 2019, Moxico Resources, Rephdim and Mimbula cannot proceed with their planned mining activities on Lot 694/M and the remaining extent of Lot 564/M or the land in Nchanga Mine area without prior consent of KCM.
Moxico’s chief executive Alan Davies had last week issued a statement to the effect that $40 million has been invested this year for operations at Mimbula and Kanengwa in Chingola and Mufumbwe respectively.
However, the appeal judgment by judges Dominic Sichinga, Judy Mulongoti and Petronella Ngulube agreed with the grounds of appeal raised by KCM following the dismissal of the matter by the lower court for abuse of process.
The appeal judgment has found merit in KCM’s arguments against Moxico, Rephdim and Mimbula on the tort of trespass and has ordered that the matter be taken back to the High Court to be heard by a different judge.
The Court of Appeal has also awarded costs to the appellant to be taxed in default of agreement.
The appeal was against a ruling of the High Court dated April 23, 2018, which dismissed the action before it for being statute barred and an abuse of court process following an action by the appellant on January 17, 2018, against the respondents, claiming a declaration that the defendants have no right to enter upon Lot 694/M and the remaining extent of Lot 564/M or the land in Nchanga Mine area without the prior consent of the plaintiff, among other grounds.
In this matter, the appellant alleged that in the ZCCM-IH sale agreement of December 15, 1999, it acquired all mining rights over Nchanga Copper Mine from ZCCM as part of the privatization of the mines, together with a large scale mining licence 7075-HQ-LML, covering approximately 11,470 hectares with a validity of 25 years from its first issue on March 30, 2000.
The appellant stated that it had valid certificates of title to the area otherwise known as Lot 694/M and the remaining extent of Lot 564/M or the land in the Nchanga Mine area.
The appellant stated that the first respondent, Rephdim, was issued with a small scale mining licence SML 296 to mine copper, cobalt and gold for a period of 10 years from January 2007, and the licence as re-issued under the Mines and Minerals Act of 2008 as 844-HQ-SML in April 2010.
KCM stated that the land subject to this licence included an area which is Nchanga Mine licence relating to Lot 694/M and the remaining extent of Lot 564/M or the land in Nchanga Mine area.
In 2016, the first respondent applied for consent to transfer its small-scale mining licence to the second respondent, Mimbula, which application was granted and the said mining licence was converted to the new owner.
The respondents then moved on site, placed boundaries and advertised intentions to exploit the mineral resources at Mimbula Dumps and Mimbula Pits, in the press, and further moved machinery on to Lot 694/M and the remaining extent of Lot 564/M.
The appellant, however, said the actions of the respondents constitute trespass on its land and further that it did not grant the defendants consent to commence mining activities.
But the respondents, on November 17, 2017, filed a defence and counter-claim, denying that the appellant acquired all mining rights over ZCCM and contended that the appellant’s mining rights were subject to the Defunct Areas Agreement which provided that Mimbula Area was one of the defunct areas that could be transferred to the appellant after making a call option to ZCCM.
The respondents argued that at the time the appellant was exercising this call, the government had already issued a small-scale mining licence No. 8441-HQ-SML and No- 8514-HQ-SML.
The respondents, therefore, denied that the disputed area was sold to the plaintiff in 2000.
The judge then ruled that the plaintiff’s action was an abuse of the court process.
However, KCM appealed the ruling in the Court of Appeal on 10 grounds, among them that the lower court misdirected itself in fact and in law when it failed to properly take into account that the appellant holds mining rights as well as surface rights on the land and that the two rights are separate rights protected in different ways by the Laws of Zambia.
The Court of Appeal, in its ruling, has said in as much as they were in agreement with the respondents that the lower court properly dealt with the issue of jurisdiction at an early stage of proceedings, they found that had the court properly applied its mind to the circumstances of the appellant’s case, it would have inevitably arrived at the conclusion that the plaintiff’s claim was not in relation to conflicting mining rights, but the tort of trespass, which did not fall within the ambits of the nature of disputes subject to the grievance procedure under the Act.
The Court of Appeal further said committal proceedings should have been taken against the respondents for disobeying a court order that restrained them from proceeding with mining activities in the disputed area.