G & W Industrial Minerals (Pvt) Ltd v The Secretary for Mines and Mining Development & 2 Ors

### Preamble
1
HH 79/21
CIV ‘A’ 367/17
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G & 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

MUREMBA AND MANZUNZU JJ

HARARE, 9 July 2020 & 5 March 2021

Civil Appeal

W. Kasitomo, for the appellant

E.T. Muhlekiwa, for 2nd the respondent

No appearance for 1st and 3rd respondents

MUREMBA J: We heard this appeal on 9 July 2020 and struck it off the roll with costs in an ex-tempore judgment. We hereby furnish the written judgment as requested.

This was an appeal which was brought in terms of s 361 of the Mines and Minerals Act [Chapter 21:05] against the decision of the first respondent, the Secretary for Mines and Mining Development. He was said to have given his decision acting as a Mining Commissioner in terms of s 341 (2) of the said Act. The decision was made on 18 September 2017 and delivered to the appellant on 2 November 2017. It was in relation to a mining boundary dispute between the appellant and the second respondent, Seldo Mining (Pvt) Ltd. In his decision, the first respondent upheld the decision of the Acting Provincial Mining Director dated 31 August 2015 which directed the appellant to relocate to its original position. A field visit that was conducted by the Acting Provincial Mining Director in the presence of both parties to physically inspect the location of the beacons had shown that the appellant’s block was located inside or within the second respondent’s block yet on the survey map the two mining blocks were separated in both time and space. There was supposed to be no dispute at all if the appellant’s block was not wrongly placed on the ground. The Provincial Mining Director- Mashonaland Central was cited as the third respondent.

In its appeal to this court the appellant prayed for the setting aside of the decision of the first respondent.

In its grounds of appeal the appellant stated that the first respondent, the Secretary for Mines erred in law in his interpretation of the provisions of the Mines and Minerals Act in arriving at his decision. In response the second respondent raised several points in limine, one of which was that the appeal was a nullity as s 361 of the Mines and Minerals Act which the appellant used in approaching this court does not provide for appeals against the decision of the first respondent, the secretary. We upheld that point in limine and it is on that basis that we struck off the matter from the roll. Mr Kasitomo for the appellant had even made a concession that the appeal was a nullity.

S 361 of the Act reads,

“Appeal from mining commissioner’s court to High Court

Any party who is aggrieved by any decision of a mining commissioner’s court under this Act may appeal against such decision to the High Court, and that court may make such order as it deems fit on such appeal”

Mr Muhlekiwa for the second respondent submitted that in terms of this provision it is the decision of the mining commissioner in the exercise of his quasi-judicial powers as a court which is subject to appeal. He referred to s 345 (2) of the Act which provides that where a dispute is referred to a mining commissioner in terms of s 345 (1) the mining commissioner shall be guided by s 346 to 360. Mr Muhlekiwa argued that the decision which was being appealed against was that of the Secretary and not that of the mining commissioner’s court. He submitted that the two are different and perform different functions in terms of the Act.

In response Mr Kasitomo submitted that s 361 of the Act should be read in conjunction with s 341 (2) which states that the Secretary may assume the powers, duties and functions of the mining commissioner. He submitted that in casu the appeal was against the decision which was made by the Secretary who was performing his functions as a mining commissioner.

We upheld the point in limine for the following reasons. That the Secretary and the mining commissioner are two different people with different functions is common cause. S 341 makes that clear. It reads,

“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”

It is therefore clear that in terms of s 341 (1) the Secretary is mandated to supervise and regulate the effectual carrying out of the Act by the mining commissioners or other officers. In terms of s 341 (2) the Secretary may assume the powers and perform the duties and functions of the mining commissioner. He is further empowered to authorise the correction of any error in the carrying out of the provisions or administration of the Act.

In the circumstances of this case when the dispute between the appellant and the second respondent arose, the appellant approached the Ministry of Mines and Mining Development. An investigation into the matter was made and a determination was made on 31 August 2015 by F. Mugumbate who was the Acting Provincial Mining Director of Mashonaland Central on behalf of the Secretary for Mines. The determination was that the appellant’s block was wrongly placed on the ground as it was located inside the second respondent’s mining block. The determination was addressed to the parties in the form of a letter. In response to that letter the appellant’s legal practitioners on 30 September 2015 wrote a letter to the Secretary for Mines complaining that the Acting Provincial Mining Director made his determination without following the provisions of ss 345 to 350 of the Act. They averred that various legal processes such as the leading of witnesses and service of documents on affected parties were ignored. They contended that this rendered the letter of the determination a nullity. They said that they were therefore applying in terms of s 341 of the Act to correct the error that was made by the Acting Provincial Mining Director. They were also applying that the Secretary gives a directive to the effect that a proper scientific survey be carried out. In the interim they were asking that the appellant be allowed to continue its operations on the mining location without interference from the second respondent.

The Disputes Committee in the Ministry of Mines and Mining Development held a meeting on 20 July 2017 and concluded that the decision by the Acting Provincial Mining Director was correct. They recommended that the appellant should revert to its original position as at registration. Pursuant to that recommendation, the Secretary on 18 September 2017 in a letter addressed to the Provincial Mining Director Mashonaland Central Province upheld the decision of  the Acting Provincial Mining Director made on 31 August 2015.

It is clear from the foregoing that the person who determined the dispute between the parties was the Acting Provincial Mining Director on 31 August 2015. Dissatisfied with the decision the appellant through his legal practitioners wrote a letter to the Secretary ‘applying to correct the error that was made by the Acting Provincial Mining Director’ in terms of s 341. We did not quite appreciate how the decision could be regarded or defined as an error which needed correction in terms of s 341. This was more so in view of the fact that the effect of the correction was to overturn the decision. Be that as it may, what was pertinent was that the Secretary was approached to make that correction in his capacity as the Secretary. The letter was addressed to the Secretary and not to the mining commissioner. The letter did not say that the Secretary was being approached in his capacity as a mining commissioner. Nothing in s 341 (2) of the Act indicates that when the Secretary makes a correction he does so in his capacity as a mining commissioner. It was therefore wrong for the appellant to submit to us that the Secretary upheld the Acting Mining Provincial Director’s decision in his capacity as a mining commissioner. Even in the memorandum that the Secretary wrote upholding the decision of the Acting Provincial Mining Director, he made it clear that he was making that decision as the Secretary. He also signed it in his capacity as the Secretary. Nowhere did he state that he was making that decision in his capacity as a mining commissioner. It was therefore our considered view that it was wrong and improper for the appellant to bring an appeal to this court against the decision of the Secretary in terms of s 361 of the Mines and Minerals Act.

What is appealable in terms of s 361 is the decision of the mining commissioner’s court. Surely a decision that is made with regards to a complaint raised against a decision made by one of the secretary’s officers or subordinates cannot be brought on appeal in terms of s 361. The Secretary’s decision under such circumstances cannot be said to be the decision of the mining commissioner’s court. Moreover, in addressing the complaint the Secretary did not convene a court. It is the Disputes Committee in the Ministry which held a meeting and looked into the dispute and the decision that was made by the Acting Provincial Mining Director. It then made recommendations to the Secretary. The Secretary then made his decision. Surely that cannot be said to be a decision that was made by the mining commissioner’s court. In dealing with disputes between parties the mining commissioner is guided by ss 345 to 360 of the Act. The procedure that is followed is clearly outlined there. S 360 even says that the procedure to be observed by a mining commissioner’s court and the fees chargeable in respect of any proceedings therein shall, so far as practicable, be in accordance with the law and rules governing procedure and fees in civil cases in the magistrates’ courts. This matter was not determined in terms of those provisions. This was just a decision that was made by the Secretary in his supervisory role pursuant to a complaint which was raised by way of a letter. It was not an appeal nor a review. It was said to be an application to correct the error that had been made by the Acting Provincial Mining Director. Our understanding of s 341 of the Act is that if a complaint is raised with the Secretary against an officer in the Ministry of Mines and Mining Development, the Secretary handles the complaint in his capacity as the Secretary and not as a Mining Commissioner. He will simply be discharging his supervisory role over his subordinates. He will not be resolving disputes between warring parties. And this is what happened in the present matter. It is for this reason that we found the Secretary’s decision not appealable in terms of s 361 of the Act.  Mr Kasitomo for the appellant even conceded that the appeal was a nullity.

Having determined that the appeal was a nullity, we did not deal with the rest of the points in limine. We thus struck off the appeal with costs.

Hussein Ranchod & Co, appellant’s legal practitioners

Muhlekiwa Legal Practitioners, 2nd respondent’s legal practitioners