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Optimax Mining Resources granted provisional order

Optimax Mining Resources granted provisional order

Optimax Mining Resources (Pvt) (Ltd) have been granted provisional order order barring two other miners from disposing five million tonnes of iron ore stockpile at Mkwake Railway Siding in Buchwa, Zimbabwe pending the finalisation of the matter.

The ruling follows the company sued NCD Coal Mines (Pvt) (Ltd) and Next Gen Power (Pvt) Ltd (NGP) and Minerals Marketing Corporation of Zimbabwe (MMCZ) seeking to stop the removal of the iron ore from the site pending the confirmation or discharge of the provisional order on the return date.

NCD and NGP, in a development unrelated to Optimax’s acquisition of the iron ore, entered into an agreement of sale of iron ore and joint venture agreement for mining iron ore at Buchwa Mine, Mberengwa. However, pursuant to the agreement, NGP started removing the ore which Optimax had bought from the Sheriff’s sale in execution. Justice Happias Zhou granted the application for a provisional order by Optimax, finding a well-grounded apprehension for irreparable harm if NGP was not interdicted from disposing of the ore.

“The relief, subject to a few amendments to the draft provisional order, can therefore be competently granted against the first respondent and the other two respondents. In the result, the provisional order is granted in terms of the draft thereof,” said Justice Happias.

Opposition

Both NCD and NGP had opposed Optimax application. NCD wanted the application dismissed on the basis that it never authorised NGP to remove Optimax’s ore. According to NCD the ore in question fell outside the areas to which its agreement with NGP related, hence there was no reason for the latter to get to where the ore is piled.

NCD further accused NGP of abusing the agreement and, also the prospecting licence which is not included in the agreement. In the event the application was granted, NCD made an alternative claim for costs against NGP, which the court found to be irrelevant at this stage.

NGP sought to raise several preliminary points to block the hearing of the matter on urgent basis, but Justice Zhou, found the submissions misplaced. The judge said conduct of NGP demonstrated the worrying tendency by litigants to raise unnecessary objections in preliminary points, a tendency which the courts have warned against in many judgments.

To this end, Justice Zhou ruled the objection that the matter was not urgent was therefore without merit and dismissed it. Optimax bought the five million tonnes of iron ore fines at an auction conducted by the Sheriff of the High Court. Its title to the ore was confirmed by the Sheriff in a letter dated February 27, 2017 and a letter by the Secretary for Industry and Commerce in August 2018.

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