1

HH 259/15

HC 4157/14

 

NKOSILATI MACHEZA

versus

CUTHBERT CHAUMBEZVO

 

 

 

HIGH COURT OF ZIMBABWE

MTSHIYA J

HARARE, 27 January 2015and 18 March 2015

 

 

 

OPPOSED MATTER

 

 

H. Mukonoweshuro, for applicants

C. F. Nyamundanda, for 1^st  respondents

M. Chimombe, for 2^nd  respondent

 

 

            MTSHIYA J: On 22 May 2014 the applicant filed this review application seeking the following relief:-

 

            “IT IS ORDERED THAT

            1.         The 2^nd Respondent’s entire decision contained in the latter of the 7^th of April                                2014 addressed to both Applicant and 1^st Respondent be and is hereby set aside.

            2.         The Commissioner of Mines decision contained in the letter of the 9^th January                                2014 addressed to both parties be and is hereby reinstated.

            3.         That the 1^st Respondent pays for the costs of this application”.

 

            The decision referred to in para 1 of the above relief was contained in a letter dated 7 April 2014 from the second respondent and addressed to the applicant. The letter was signed on behalf of the second respondent by the Chief Mining Commissioner. The said letter read as follows:-

           

 

Reference is made to the above subject:

 

In response to an appeal made to the Minister and after serious considerations to the issues thereto in the above mentioned case, the Minister has resolved that;

 

1.         Mr Cuthbert Chaumbezvo is hereby declared the rightful title holder over the disputed      area.

II.        It is not legal for Mr Macheza to use a prospecting licence which he acquired in 2010 to    get registration in 2014 as such prospecting licence could have expired in 2012 as        prescribed by section 23 of the Mines and Minerals Act [Chapter 21:05]. Mr Macheza   should have pursued his registration before the expiration of his Prospecting Licence No.      489780J, under which he is relying on to claim title over the disputed ground.        

 

III.       Depending on the extent of encroachment, Mr Macheza is instructed to adjust his boundaries and relocate from the disputed area but if such encroachment and such adjustment is too extensive hence defying the definition of a claim Mr Macheza’s          Certificate of Registration over the disputed area will be cancelled.

 

 

            F.M. MABHENA (MR)

            CHIEF MINING COMMISSIONER

            FOR

            MINISTER MINES AND MINING DEVELOPMENT”

 

            As can be deduced from the above letter, the parties were involved in a mining claim dispute. The applicant, as registered owner of mining claim known as “Riptop 41”, was granted a prospecting licence number 46870J by the Mining commissioner, Masvingo. The applicant had submitted his application for registration on 19 October 2010 but was only issued with a registration certificate on 7 January 2014. During the period, 19 October 2010 to 7 January 2014, the first respondent entered the scene.

            On 10 December 2012 the first respondent applied for the registration of a claim in the same location. This resulted in him being issued with a registration certificate number 12929 on 21 December 2012. The registration certificate was in respect of a mining claim called Rip Top 38. The papers show that the applicant’s registration certificate number 13249, issued on 7 January 2014, is in respect of Rip Top 41. I shall, however, assume the dispute is over the same claim.

            The events leading to the issuance of the registration certificates to both the applicant and the first respondent with respect to the same mining claim have led to the dispute herein.

            By letter dated 9 January 2014, the Acting Mining Commissioner, C. Phiri, addressed the dispute and made certain recommendations. The letter, containing the recommendations read as follows:-

 

 

            The above matter refers.

           

            Overview

 

            This Office is in receipt of your applications to register gold reef mines in Mberengwa. The one       for Mr. Macheza was receipted on 19 October 2010 after being pegged on 16 of that month. Mr             Chaumbezvo’s application was receipted on 10 December 2012 after some pegging on 6      December 2012. However, an application by Mr. Chaumbezvo was processed and the Certificate         of Registration issued, which resulted in the dispute of the two parties.

 

            Observation

 

            This Office visited the area to ascertain the situation on the ground with a view to resolve the             impasse. On the ground, the following were observed:

• a trench
• two shafts
• hammer mill, and
• a borehole
• beacons for Rip top 38 and
• pegs for Prospecting Licence 489789J

 

•  

 

We also took some co-ordinates of the beacons and pegs to determine a resolution to the dispute. From the co-ordinates, it is evident that :

            1. there as an encroachment of the two blocks.

            2. the two shafts and a trench are within the area of encroachment.

            3. the hammer mill is also within the encroached area.

 

•  

 

Based on the details stated above, a following determination is imminent:

1.  By virtue of being a prior pegger, Mr. Macheza has priority of mining rights according to  

     s 177(3) of the Mines and Minerals Act [Chapter 21:05].

2.  The trench, two shafts and hammer-mill fall within a block pegged by Mr. Macheza under

     Prospecting Licence 489780J.

3.  A borehole is out of Mr. Macheza’s block but falls within Rip top 38 owned by Mr.

     Chaumbezvo.

4.  The application by Mr. Macheza is hereby recommended for processing and a Certificate of 

     Registration issued to that effect without delay.

5.  Mr. Chaumbezvo is hereby instructed to adjust his boundary marked C and C₂  to make way

     for a block by Mr. Macheza.

6.  Mr. Macheza is requested to seek the services of an Approved Prospector to effect the

     Adjustment”.

 

            The above letter was addressed to both the applicant and the first respondent.

             The first respondent challenged the Acting Mining Commissioner’s recommendation through a letter dated 14 January 2014. The letter read as follows:-

 

            This serves to notify you that I feel your determination in the above dispute dated 9 January was un-fair.

 

            In that respect I have taken the matter to your Head Office in Harare for re-consideration.

 

            I therefore request your office to put your recommendations on hold until the matter is re-            solved.

 

            Regards

            Cuthbert Chaumbewo”

 

 

            Indeed, on 11 January 2014, the first respondent had already addressed a long letter to the Deputy Minister in the Ministry of Mines and Mining Development detailing the background to the dispute.

            The correspondence referred to led to the second respondent’s decision, which the applicant seeks to have reviewed.

            The applicant sets out his grounds for review as follows:-

 

            “7.  The grounds for review are that;    

           

            a) The 2^nd respondent lacks the necessary jurisdiction to preside over an appeal against                          the Commissioner of Mines’ decision. Section 50 (2) of the Mines and Minerals Act                          Chapter 21: 05 only confers appellate jurisdiction on the 2^nd respondent where the                             Commissioner of mines has given notice to a holder of a block or site of his intention                        to cancel the holder’s certificate and the grounds for such cancellation. The 1^st                                     respondent was not served with a notice of intention to cancel his certificate.

 

            (b)  In terms of section 361 of the Mines and Minerals Act an appeal against the Mining                          Commissioner’s court lies with the High Court and not the Minister.

            (c)  In the alternative when the Minister made the decision on the appeal, he did not hear                         me. He determined that appeal after only hearing one party, the 1^st respondent. In this                       regard the Minister decision violates the principles of natural justice.

            (d)  Further and alternatively the 2^nd respondent decision is so outrageous in its defiance                           of logic that no reasonable tribunal would after applying its mind to the same arrive                           at the same decision”.     

 

            In paragraphs 27 – 30 of his founding affidavit the applicant states : 

 

            “27.     I was not served with the 1^st respondent’s appeal to the 2^nd respondent                                                      neither was I invited to make representation before the 2^nd respondent made                                his decision.

            28.       I am advised by my legal counsel that the Commissioner of Mines’                                               determination which 1^st respondent purportedly appealed against to the 2^nd                                   respondent, is not a decision which could be appealed against to the 2^nd                                                   respondent.

            29.       I am further advised by my legal counsel that an appeal to the 2^nd respondent                                     is only allowed in terms of section 50 (2) of the Mines and Minerals Act                                                   Chapter 21:05 where the Commissioner of Mines has given notice to a holder                                         of a block or site of his intention to cancel the holders certificate of                                              registration and the grounds of such cancellation.

            30.       To the best of my knowledge, the Commissioner of Mines never served 1^st                                  respondent with a notice to cancel his certificate of registration in this matter.                                          The 2^nd respondent therefore has no jurisdiction to entertain and determine                            the appeal”.              

 

            In response to the above the first respondent, in the main, argued as follows:

 

            “3. a)  The Acting Mining Commissioner failed or neglected to follow the procedure laid      down in part xxv of the Mines and Minerals Act in determining what he alleged to be a      dispute between the Applicant and the 1^st Respondent. The mining Commissioner did not             convene a court to determine the dispute. Instead, the Mining Commissioner purported to   have made a determination which threatened the cancellation of my certificate of    registration consisting of 10 claims. The adjustment of my boundary which the Mining         Commissioner instructed me to carry out could not be done without causing the             cancellation of my certificate of registration. In effect, therefore the determination which     the Mining Commissioner had made had effect of cancelling my certificate of registration          without giving me notice in terms of section 50 and without convening a court in terms of     section 361, which could have entitled me to approach the High Court on appeal against             the decision of the Mining Commissioner. I had an interest to protect.

 

            b) It was clear to me that the Mining Commissioner who issued a Certificate of         Registration on the 7^th January 2014 and then purported to have made his determination on the 9^th January 2014 on the basis of a spent Prospecting licence was bent on favoring             the Applicant. See Annexures 1 and 2

 

            c)  In the circumstances, I decided to write to the Secretary of mines and Minerals Act on     the strength of section 341, subsections (1) and (2) and subsequently appealed to the      Minister in terms of section 50, subsection 2, because I believed that the Mining   Commissioner’s determination was wrong. See Annexures 3 and 4”.  

           

            In para 3(a) above, the first respondent agrees that the procedure which would have entitled him to lodge an appeal with the second respondent who not followed.

            The second respondent opposed the application mainly on the ground that:     

 

            “Part XXV of the Mines and Minerals Act lays out the procedure to be followed in   determining disputes brought to the Mining Commissioner’s Court. In       the instant case,           the Mining Commissioner did not convene a court to determine   the dispute which would          have entitled the 1^st Respondent to approach the High        Court on appeal. As such, the decision of the Mining Commissioner was a nullity and what the 2^nd Respondent did             was simply to declare that decision a nullity administratively and substituting it with            a proper decision”.

 

            The above is, in my view, a clear admission on the part of the second respondent that laid down procedures were not followed.

            Notwithstanding the detail in this matter, I believe a proper understanding of s 50 of the Mines and Minerals Act [Chapter 21:05] (the Act) is necessary. It is on the basis of that provision of the law that the applicant wants the second respondent’s decision of 7 April 2014 reviewed.

            Section 50 of the Act provides as follows:

            “50 Cancellation of certificate of registration

            (1)  Subject to subsection (2), the mining commissioner may, notwithstanding subsection      (1) of section fifty eight, at any time cancel a certificate of registration issued in respect      of a block or site if he is satisfied that-

            (a)  at the time when such block or site was pegged it was situated on ground reserved             against prospecting and pegging under section thirty-one or thirty-five or on ground not        open to pegging in terms of sub-section (3) of section two hundred and fifty-eight; or

            (b)  provisions of this Act relating to the method of pegging a block or site were not substantially complied with in respect of such block or site.

            (2)  At least thirty days before cancelling a certificate of registration under subsection (1),    the mining commissioner shall give notice to the holder of the block or site of his           intention to cancel such certificate and of the grounds for such cancellation and of the   proposed date of such cancellation, and shall at the same time inform the holder that he    may, at any time before that date, appeal in writing to the Minister against such      cancellation.

            (3)  Such notice shall be given by registered letter addressed to the holder of the block or      site at the postal address recorded in the office of the mining commissioner or, if no such   address is recorded, by publication thereof in the Gazette.

            (4)  Where such an appeal is made, the Minister shall give directions to the mining             commissioner as to whether or not the certificate of registration is to be cancelled, and the             mining commissioner shall comply with such directions.

            (5)  Upon  such cancellation the mining commissioner shall post upon the board whereon             notices of forfeiture are posted a notice giving particulars of such cancellation and shall,      in addition, publish those particulars in the Gazette and in a newspaper circulating in his           district.

            (6)  A mining location, the certificate of registration of which has been cancelled in terms     of this section, shall, for the purposes of sections two hundred and sixty-eight, two       hundred and sixty-nine, three hundred and sixty-three and three hundred and seventy-   five, be deemed to have been forfeited and, accordingly, any reference in section two         hundred and sixty-nine to the posting of a forfeiture notice shall be read as including a   reference to the posting of the notice of such cancellation”.

 

            In view of the respondents’ reliance on the position that the second respondent merely carried out an administrative act, it is important to also lay bare the provisions of s 341 of the Act. The section provides as follows:

            “341 Administration of Ministry

            (1) The Secretary shall be and is hereby vested with authority generally to supervise and             regulate the proper and effectual carrying out of this Act by mining commissioners or           other officers of the Public Service duly appointed thereto, and to give all such orders,      directions or instructions as may be necessary.

            (2) The Secretary may at his discretion assume all or any of the powers, duties and   functions by this Act vested in any mining commissioner, and may lawfully perform all    such acts and do all such things as a mining commissioner may perform or do, and is   further empowered in his discretion to authorize the correction of any error in the      administration or in the carrying out of the provisions of this Act, or to perform any other    lawful act which may be necessary to give due effect to its provisions.

            (3) The Secretary may exercise such of the powers by this Act vested in the Minister as        may be delegated to him by the Minister”.

 

            Clearly, the above section gives the administrative responsibility of the Ministry to the Secretary.

            I now come back to the main ground of review, mainly the argument that the second respondent had no jurisdiction “to preside over an appeal against the Mining Commissioners’ decision”. The effect of the second respondent’s decision was to cancel the applicants’ registration certificate. The first respondent was declared the rightful title holder over the disputed area.

            Once the disputed area is given to the first respondent, the second part of the second respondent’s decision becomes of no consequence. That second part of the second respondent’s decision reads as follows:-

           

            III.       “Depending on the extent of encroachment, Mr Macheza is instructed to                            adjust his boundaries and relocate from the disputed area but if such                                   encroachment and such adjustment is too extensive hence defying the                                definition of a claim Mr Macheza’s Certificate of Registration over the                               disputed area will be cancelled”.

           

 

            There is therefore nothing remaining to be given to the applicant. The second         respondent declared the first respondent as “the rightful title holder over the     disputed area”

 

            The above is correct in the sense that once the disputed claim has been given to one of the parties, the registration certificate of the other party, relating to the disputed claim, stands cancelled. The issue then, is: Was the second respondent entitled to intervene as happened? My answer to that question is an emphatic No.

             I agree with the applicant’s interpretation of s 50 of the Act. The applicant submitted as follows:-

 

            “5.7.    In terms of Section 50(2) as read with 50(3) of the Act, an appeal to the Minister                                can only be made upon receipt by the holder of a block or site of a notice in                                     writing, of intention to cancel his certificate and the grounds of such cancellation                              and of the proposed date of such cancellation.

            5.8.      Section 50(2) prescribes the event, the occurrence of which gives birth to the                                    right to appeal to the Minister and also confers Appellate jurisdiction on the                          Minister.

            5.9.      In the present case, the event which gives birth to the right to appeal to and also                                  confers appellate jurisdiction on the Minister did not occur. The letter by the                                       Mining Commissioner dated 9 January 2014 does not constitute the event within                               the ambit of section 50(2) of the Act in that:

 

                                    (i)         It does not communicate to the 1^st respondent an intention by the                                                       Mining             Commissioner to cancel the 1^st respondent’s certificate                                                             of Registration             (Notice).

 

                                    (ii)        It does not state any of the Grounds mentioned in Section 50 (1)                                                        (a) or (b) as the grounds for such cancellation.

 

                                    (iii)       It does not state the proposed date of cancellation and lastly.

 

                                    (iv)       It does not inform the 1^st respondent that he may appeal at any                                                          time before the proposed date of cancellation, to the Minister                                                             against such cancellation.

 

            5.10.    Under the circumstances, it is respectfully submitted that because of the                                            foregoing, the 2^nd respondent does not have appellate jurisdiction to determine                                  the 1^st respondent’s appeal. On this ground alone the application for review must                              succeed”.

 

            The above, in my view, is the correct interpretation of the law. Incidentally the three parties accept that the procedure laid out in s 50 of the Act was not followed by the Mining Commissioner. There was therefore, a procedural irregularity.

            The relief sought herein gives the wrong impression that the first respondent’s certificate of registration was cancelled. That is not correct. The Mining Commissioner made a recommendation. The operative part of The Acting Mining Commissioner’s letter, dated 9 January 2014, reads as follows:

 

            “Based on the details stated above, a following determination is imminent:

 

                        1.         By virtue of being a prior pegger, Mr. Macheza has priority of mining                                                rights according to Section 177(3) of the Mines and Minerals Act                                           (Chapter 21:05).

 

                        2.         The trench, two shafts and hammer-mill fall within a block pegged by                                               Mr. Macheza under Prospecting License 489780J.

 

                        3.         A borehole is out of Mr. Macheza’s block but falls within Rip top 38                                                 owned by Mr Chaumbezvo.

 

                        4.         The application by Mr. Macheza is hereby recommended for processing                                            and a Certificate of Registration issued to that effect without delay.

 

                        5.         Mr. Chaumbezvo is hereby instructed to adjust his boundary marked C                                             and C₂ to make way for a block by Mr. Macheza.

 

                        6.         Mr. Macheza is requested to seek the services of an Approved Prospector                             to effect the adjustment”. (My own underlining)

 

           

                        As can be seen, what was given was a mere recommendation wherein a decision in favour of the applicant was anticipated. That letter did not in any way set in motion the cancellation process envisaged under s 50 of the Act.

            The first respondent’s purported appeal addressed to the Minister of Mines and Minerals Development dated 22 January 2014 reads, in part:

 

            “The Appellant hereby notes Appeal against the entire Determination of the Acting   Mining Commissioner in the above matter which is referenced as C2 Macheza vs      Chaumbezvo/10/214 dated the 9^th of January 2014. See Annexure”.

 

 

            I reiterate that what the Acting Mining Commissioner addressed to both parties was a recommendation which, I believe, would then be placed before another authority (not stated in the letter).

            My belief, however, is that the recommendation was intended for the Chief Mining Commissioner. He is the one who then conveyed the purported second respondents’ decision to both the applicant and the first respondent on 7 April 2014.         Clearly, as at 9 January 2014, there was nothing to trigger the motions that would lead to an appeal being placed before the second respondent in terms of s. 50(2). The recommendation, in my view, did not constitute the requisite notice for cancellation provided for under that section.

            Assuming the procedure was above board, the decision of the second respondent would still remain irregular in the sense that the applicant was never heard.

            Furthermore, the second respondent cannot rely on s 341 of the Act because the administrative action is reserved for The Secretary. The Secretary cannot delegate the administrative responsibility to the second respondent. In terms of the law, it is the second respondent who can delegate certain responsibilities to the Secretary.

            In view of the foregoing, I believe it is in the interest of justice for the dispute to be remitted to the Mining Commissioner so that it can be resolved procedurally. This conclusion disables me from dealing with the merits of the case in the dispute.

            I therefore order as follows:-

 

            1.         The decision of the second respondent, conveyed to the applicant and first                                     respondent by the Chief Mining Commissioner on 7 April 2014, be and is                           hereby set aside.

            2.         The dispute between the applicant and the first respondent be and is                                   hereby remitted to the Mining Commissioner, Masvingo, for it to be                                    resolved in terms of the law; and

            3.         Each party shall bear its own costs.

 

 

 

 

 

Messrs H. Mukonoweshuro & Partners, applicant’s Legal Practitioners

Messrs Muhonde Attorneys, 1^st respondent’s legal practitioners

The Attorney General – Civil Division, 2^nd respondent’s legal Practitioners