(HERALD) Court revokes ACR licence

Court revokes ACR licence
By Chakanetsa Chidyamatiyo

THE High Court has revoked its earlier judgment and nullified African Consolidated Resources’ mining claims in Marange as it emerged the company fraudulently acquired the rights.

Justice Charles Hungwe on September 25, 2009 declared ACR and its subsidiaries — Heavy Stuff, Olebile, Dashaloo and Possession Investments — the rightful owners of the mining claims. However, yesterday Justice Hungwe overturned his own ruling in light of the new revelations.

ACR, the judge ruled, had concealed important information in the September 2009 case.

He said ACR had fraudulently acquired the mining rights because its subsidiaries were yet to be registered at the time of obtaining the mining rights.

"I find that applicants have no locus standi in judicio (no standing at law) to seek the order that they seek in the counter application on the basis that they do not have any title to any claims in the Marange diamond fields.

"In any event the counter application suffers from a fatal defect in that it does not join in these proceedings the parties whose rights would be adversely affected by the order they are seeking.

"Not only that the counter-claim must in the very least in order to qualify as such in terms of the rules, be an answer to the main claim by first respondent; it is not," Justice Hungwe ruled.

He said ACR’s subsidiaries were guilty of fraud through misrepresentation.

"Only a person can be granted a prospecting licence. Since none (of the subsidiaries) was incorporated, there was no person to release a certificate of mining," he said.

Justice Hungwe said the September 29 case had proceeded on the assumption that the subsidiaries were duly incorporated.

"It seems to me now that quite a lot of information was kept away from the court," he said.

He also noted that the Marange area had been reserved against prospecting at the time ACR fraudulently sought the mining rights.

"The notice was displayed at the Mining Commissioners’ notice boards in Mutare and Harare.

"It is incompetent for one to procure a licence in an area reserved," Justice Hungwe said.

The judge dismissed ACR lawyer Mr Jonathan Samukange’s argument that no one suffered prejudice after the ACR subsidiaries were subsequently registered.

On if the Mines and Mining Development Ministry came to court with dirty hands, Justice Hungwe said the rule applied where one is a fugitive.

"Analysis is that first respondent (Mines Minister) has not disqualified himself the protection of this court.

"The principle of dirty hands does not apply to respondents because they are not a fugitive to justice.

"There are other ways to secure compliance," Justice Hungwe said.

He said the Mines Ministry had come to court because they were in compliance of an order of the same court and thus could not be classified as justice.

"It would be inappropriate to hold that they are in contempt of court," Justice Hungwe said.

He dismissed Mr Samukange’s argument that the same case was pending in the Supreme Court.

"There is ample authority . . . nothing prevents seeking of rescinding of judgment," he said.

Advocate Farai Mutamangira acted on behalf of the Mines Ministry.