Judicial Review

Anjin Investments (Private) Limited v The Minister of Mines and Mining Development & 3 Others (CCZ 6/18, Constitutional Application No. CCZ 38/16) [2018] ZWCC 6 (27 June 2018);

REPORTABLE        (6)

 

 

ANJIN     INVESTMENTS    (PRIVATE)     LIMITED

v

  1.  

 

 

 

CONSTITUTIONAL COURT OF ZIMBABWE

MALABA CJ, GWAUNZA JCC, GOWORA JCC,

HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC,

MAVANGIRA JCC, UCHENA JCC & ZIYAMBI AJCC

HARARE, 19 JULY, 2017 AND 27 JUNE, 2018.

 

 

 

 

The applicant, had received a letter from the Secretary for Mines and Mining Development alerting them that their special grants for mining had expired and they had to cease all mining activities and vacate the covered mining areas. The Minister further issued a press statement on the consolidation of all diamond mining activities in the grant areas.

The applicant averred that the above decisions had prejudicial effect on it which also violated its property rights.

The respondents alluded that the application was improperly brought before the court as it appeared to be a response to the judgment of the High Court which the applicant had previously lodged but never appealed and that the cause of action was res judicata and that the avoidance principle applied here. The court, therefore, had to decide on these three main points.

The court held that the appeal had been disguised as a case concerning constitutional points and should have been brought in terms of s167(5)(b) of the Constitution.

It held that although the basis of the application had changed with the introduction of the constitutional question, the effect of the relief sought remained the same.

The court also held that the bulk of the applicant’s case was on right to just administrative action which was protected under the Administrative Justice Act which had sufficient grounds to deal with the rights they alleged had been infringed.

The matter was dismissed with costs.

G & W Industrial Minerals (Pvt) Ltd (HH 266-18, CIV Á'367/17) [2018] ZWHHC 266 (16 May 2018);

G and W INDUSTRIAL MINERALS (PVT) LTD

versus

THE SECRETARY FOR MINES AND MINING DEVELOPMENT

and

SELDO MINING (PVT) LTD

and

THE PROVINCIAL MINING DIRECTOR-MASHONALAND CENTRAL

 

 

 

HIGH COURT OF ZIMBABWE

CHITAKUNYE & CHIRAWU-MUGOMBA JJ

HARARE, 15th and 16th May 2018

 

 

 

Civil Appeal

 

S. M Hashiti, for the appellant

P. Macheka, for the 1st and 3rd respondents

E. T Muhlekiwa, for the 2nd respondent

Hippo Valley Estates Limited & Another v Minister of Environment, Water & Climate (HH 235-18, HC 7770/16) [2018] ZWHHC 235 (03 May 2018);

HIPPO VALLEY ESTATES LIMITED

and

TRIANGLE LIMITED

versus

MINISTER OF ENVIRONMENT, WATER AND CLIMATE

 

 

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 20 February, 2018 and 3 May, 2018

 

 

Opposed application

 

 

T Magwaliba, for the applicants

E Mukucha, for the respondent

 

 

The court considered an application to set aside the National Water Authority Regulations and tariffs on the ground that they were ultra vires and violated the applicants’ rights. 

The applicants’ business operations involved sugar-cane growing and sugar processing. They concluded two agreements with the Zimbabwe National Water Authority (ZINWA), which related to the supply of water. It was a term of the agreement that the parties would, together, review charges for raw water, and should they fail to agree, the respondent would fix the prices.  Subsequently, ZINWA addressed a letter advising the applicants of their intention to review the charges. The respondent unilaterally increased the tariffs and failed to notify the applicants. The respondent argued that in terms of the ZINWA Act, she had the authority to impose tariffs for water charges and that the regulations did not violate the applicants’ rights. 

The court considered whether the respondent had acted lawfully in imposing the water tariffs. It found that the government reviewed the water charges, and not ZINWA which was lawfully established to review the tariffs in as far as the applicant was concerned.  

The court found that the respondent could not unilaterally increase water tariffs, unless ZINWA had made application to it to justify the increase. In this case, the respondent failed to notify the applicants, nor did she give them an opportunity to respond. The court concluded that the respondent acted ultra vires by increasing the tariffs and her actions were unlawful. Accordingly, the application was upheld

K&G Mining Syndicate v Mugangavari & Others ( HB 131/17 HC 2031/15) [2017] ZWBHC 131 (01 June 2017);

1

HB 131/17

HC 2031/15

 

 

K & G MINING SYNDICATE

 

Versus

 

RONALD MUGANGAVARI

 

And

 

PROVINCIAL MINING DIRECTOR – MIDLANDS

And

 

MINISTRY OF MINES & MINING DEVELOPMENT N.O.

 

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 1 FEBRUARY & 1 JUNE 2017

 

Opposed Matter

 

This High Court case concerned an application for review in which the applicant sought an order that the third respondentÕs decision cancelling the applicants mining registration be set aside. 

The dispute arose between the applicant and the second respondent allegedly due to a double allocation of the same mining area to the applicant and the first respondent. The third respondent convinced that there was a double allocation cancelled the applicants mining rights to the extent that their boundaries were overlapping. His reasoning was that the first respondent was the first to be allocated the disputed area. The applicant was dissatisfied with the decision and hence applied for a review to the High Court.

The issue for determination by the Court was thus whether the third respondentÕs decision was justified. The Court held that since the matter was first decided in the Mining CommissionerÕs Court, the appeal was supposed to be directed to the High Court per s361 of the Mines and Minerals Act of 1961 and not to the Minister. The High Court thus held that the entire proceeding, and the decision that followed it, was a nullity.

As such, the determination by the third respondent cancelling the applicantÕs Mining registration certificate held by the applicant was set aside with cost.

Mixnote Inv. (Pvt) Ltd. v Majola & Others (HB 40/17 , HC 401/17 X REF 3062/16 ) [2017] ZWBHC 40 (02 March 2017);

1

 HB 40/17

HC 401/17

X REF 3062/16 

 

MIXNOTE INVESTMENTS (PVT) LTD

 

Versus

 

EVANS MAJOLA

 

And

 

PROVINCIAL MINING DIRECTOR –

MATABELELAND NORTH N.O.

 

And

 

MINES AND MINING DEVELOPMENT MINISTER

 

IN THE HIGH COURT OF ZIMBABWE

MATHONSI J

BULAWAYO 22 FEBRUARY & 2 MARCH 2017

 

The applicant and first respondent were the registered holders of two respective mining claims when it became apparent that the first respondent had been mining on the applicant’s property under the mistaken belief that it was hers. The dispute was referred to the second respondent who made a determination and advised the parties of the right to appeal to the Secretary for Mines and Mining Development. On appeal, the Secretary made another determination on the dispute which prompted an application for review. 

The applicant contested the validity of the secretary’s decision and prayed for an interdict to restrain the first respondent from carrying on her mining activities pending the review.

The court considered whether the application to the second respondent and subsequently to the Secretary were procedurally proper under the Mines and Minerals Act; in order to determine whether the applicant had an arguable claim for review. 

The court interpreted ss 341, 346 and 362 of the Act, and found that the second respondent heard and determined the dispute as a mining commissioner acting under delegated powers. It was also found that an appeal against the decision of the mining commissioner should lie to the High Court and not to the office of the Secretary. The court therefore held that the appeal to the Secretary was a nullity and that the applicant had established an arguable claim.

Accordingly, the court granted the interim interdict pending determination of the matter.

Tarathula v Techmate Engineering (Lilly Mine) Mine Manager & Others (HH 312-16 HC 4673/16) [2016] ZWHHC 312 (20 May 2016);

1

HH 312-16

HC 4673/16

 

FAKAZI SONNY TARUTHULA

versus

TECHMATE ENGINEERING (LILLY MINE) MINE MANAGER AND TOM

and

MALVERN PATIRAO

and

LILLY MIN AND MILLS (TECHMATE ENGINEERING) PVT LTD

and

OFFICER IN CHARGE KADOMA RURAL POLICE

and

OFFICER IN CHARGE CID MINERALS

and

PROVINCIAL MINING DIRECTOR KADOMA (NO)

 

 

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE,11 and 20 May, 2016

 

 

The origin of the application is an interim interdict prohibiting the first, second and third respondents from carrying out mining activities and ordering the fourth and fifth respondents to clear illegals who were working at the mine. The first respondent sought a review of this order and got an interim interdict that ordered for the eviction of the applicant and prohibition from mining.

This application arose when the applicant sought direction from the judges in chambers for anticipation of a return date and also rescinding the eviction order.

The court applied Order 33 of the High Court Rules and held that the pending review suspended the operation of the order issued in the magistrate court. Consequently, the applicant could not exercise the rights conferred upon him unless the review was determined in his favor.
The court found that the mine lies in the applicant’s plot. However, the court found it important for peace to prevail at the mine and that both parties be removed from the mine pending resolution of their dispute.

The court held that the applicant was able to prove all the requirements of an interdict: he had a right to mine; he would suffer irreparable damage if the respondent continued with their mining operations; he had no alternative remedy and he proved his case on a balance of probabilities against the respondent.

Accordingly, the interdict was granted pending the resolution of the dispute and the security guards of both parties were ordered to guard the mine jointly. 

ANJIN Inv. (Pvt) Ltd. v Minister, Mines and Mining Development & Others (HH 228-16 HC 2183/16) [2016] ZWHHC 228 (30 March 2016);

1

HH 228-16

HC 2183/16

ANJIN INVESTMENTS (PRIVATE) LIMITED

versus

THE MINISTER OF MINES & MINING DEVELOPMENT

and

THE MINISTER OF HOME AFFAIRS

and

THE COMMISSIONER-GENERAL

OF THE ZIMBABWE REPUBLIC POLICE

 

 

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 7 and 30 March 2016

 

 

Urgent Chamber Application

 

 

P Ranchhod, for the applicant

L Uriri, for the 1st respondent

This was an application for an interim relief of setting aside the first respondent’s directive that ordered the applicant to cease their diamond mining operations after the applicant’s rights in a ceded portion of a special grant 4765 expired.

The applicant argued that clause 8 of the grant allowed it to work the sites which were ceded to it for an indefinite period of time. The first respondent countered this on the basis of s 291 of the Mines and Minerals Act that requires special grants to be issued for a specified period of time.

Further, the first respondent argued that no real cession had occurred since the applicant as the holder of the ceded and ‘residual’ portions of the grant were operating outside the law.

The court noted that the first respondent gave the applicants a 5-year period to renew the grant when they allowed the grant to operate outside the law before declaring it invalid, and the applicants still failed to renew it. For this reason, the applicant was found to have approached the court with ‘dirty hands’ since it was in breach of the condition of the special grant and s 29 of the act.

The applicant failed to prove that the first respondent acted unlawfully, unreasonably or disproportionately for the court to apply its review discretion. The court, therefore, held that the first respondent was right in exercising its administrative discretion and pronouncing what the law said.

Accordingly, the application was dismissed with costs.

Rankin v Nyatsuro & Others (HC 12579/15) [2016] ZWHHC 09 (25 December 2015);

1

HH 9-16

HC 12579/15

 

PHILLIP S RANKIN                                                                       

versus

SYLVESTER NYATSURO

and

VERONICA NYATSURO

and

THE MINISTER OF LANDS AND LAND RESTTLEMENT N.O.

and

MAGISTRATE SINGANO

 

 

 

HIGH COURT OF ZIMBABWE

CHAREWA J

HARARE, 31 December 2015                                  

 

 

Urgent Chamber Application

 

 

S v Robinson (HB 21-08 ) [2008] ZWBHC 34 (14 May 2008);

THE STATE

 

Versus

 

MARK FREDERICK ROBINSON

 

IN THE HIGH COURT OF ZIMBABWE

NDOU J

BULAWAYO 15 MAY 2008

 

T Mkhwananzi,for the state

R M Smithwick,for the accused

 

Criminal Review

 

The court considered an application for review concerning the forfeiture of gold whereby the respondent was found guilty of contravening s 8(1) of the Gold Trade Act. The accused owned a jewelry shop whereby he traded gold. The Zimbabwe Republic Police Gold Squad regularly visited the accused’s shop to ensure that he was complying with the act. On one visit, it became clear that the accused had not registered 8.59g of gold into the register as required by the act. 

The court found that after the conviction of the accused, a review of the record revealed that the learned magistrate had not made an order for the forfeiture of the gold. Despite the accused attempting to secure the return of the gold, he was informed it had been forfeited to the state. Pursuant to the accused’s investigation, and obtaining the record again, the record appeared to make reference to the forfeiture of the gold. 

The court found that the only explanation was that the trial magistrate entered the forfeiture clause well after the sentence had been imposed and the accused started claiming the gold.  In conclusion, the court found that the conviction and sentence were adequate but held that the forfeiture clause contained in the record be set aside and the accused be sentenced afresh. 

S v Matione (Case No. HC 725/10) [2010] ZWBHC 21 (09 June 2010);

 

THE STATE

VERSUS        

 

LOVENESS MATIONE

 

IN THE HIGH COURT OF ZIMBABWE

CHEDA J

GWERU 7 MAY 2010 AND 10 JUNE 2010

 

Review Judgment

 

The court considered an application for review concerning the decision handed down by the Magistrate’s Court on whether the accused’s case should have been discharged. The facts were that whilst the complainant was being investigated by the police for theft by finding of gold, the accused, a magistrate, approached the complainant and solicited him for a bribe to dispose of his case. The complainant made a report to the police who set a trap to arrest the accused, after she had received the money.

The defence applied for a discharge of the case, which was granted on the basis that the state witnesses were not truthful.
The court considered whether the magistrate’s decision to the discharge the case was exercised judicially. The court found that the trial court had a discretion to discharge or continue with the trial, and that such discretion ought to have be exercised judicially. 

The court stated that a discharge was appropriate where: there was no evidence to prove an essential element of the offence; or no evidence on which a reasonable court would convict; or where the evidence was so unreliable that no reasonable court could act on it.   The court held that there was nothing indicating that the witnesses had been discredited and that it was a misdirection for the magistrate to treat the assertions made by the accused as though they were evidence. Accordingly, the court set aside the accused’s discharge and referred the matter back to court for continuation of trial. 

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