Kerina Naome Songore v Minister of Mines and Mining Development (N.O) and The Provincial Mining Director for Midlands Province (N.O) and Zedias Nene

### Preamble
1
HH 455-22
HC 7016/2021
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KERINA NAOME SONGORE

versus

MINISTER OF MINES AND MINING

DEVELOPMENT (N.O)

and

THE PROVINCIAL MINING DIRECTOR FOR

MIDLANDS PROVINCE (N.O)

and

ZEDIAS NENE

HIGH COURT OF ZIMBABWE

BACHI-MZAWAZI J

HARARE, 15 June and 13 July, 2022

Opposed Application

V Mukwachari, for the applicant

T Marira, for the 1st respondent

L T Muradzikwa, for the 2nd & 3rd respondent

BACHI – MZAWAZI   J:

INTRODUCTION

The applicant, a holder of mining rights in Zhombe, defaulted in submitting the statutory inspection fees resulting in the forfeiture of her mining claims by the first and second respondents.  The claim against the third respondent was withdrawn during the course of the parties’ reciprocal pleadings.

Applicant has approached this court seeking an interdict against the respondents in terms of her draft order.  She claims that she was not lawfully notified of the forfeiture of her mining blocks.  Applicant, in that regard contends that she was denied an opportunity to make representations against the impugned forfeiture in terms of the Administration of Justice Act [Chapter 10:28]

BRIEF FACTS

The common cause facts are that, in the year 2000, applicant was granted mining rights by the respondent through, a certificate of Registration number 23194, in Zhombe, constituting of 9 Gold Reef Claims called Gay Spark II.

Sometime in 2016, due to a succession of family mishaps and bereavements, applicant  handed over her mining operations to Chief Gwesela.   Chief Gwesela was supposed to mine and pay all the statutory payments in accordance with the governing laws.  He was also mandated to remit 20% tribute of all gold sales realized to the applicant.

In 2016 she made a follow-up of the general operations of the mining project and her share of money with the Chief who for years had been evasive.  Upon her visit to the second respondent’s offices in Gweru, she learnt that the Chief had not been complying with the terms of their agreement and had been clandestinely working in usurping the rights and title in the mine into his name.  She was then informed of the forfeiture of her mining claim.  Consequently she, through her lawyers wrote a letter to the second respondent dated the 17 of November 2021 requesting for the reasons and all the information in relation to the forfeiture of her mining rights.  There was no response to her enquiries.  She only learnt of the date and details of forfeiture notice in the respondent’s opposing papers after she had commenced these proceedings.

APPLICANT’S ARGUMENTS

The applicant as already alluded to is challenging the forfeiture of her mining claim on the basis that there was no notice personally or otherwise of the intention to forfeit given to her.  As such she claims that her rights to be heard as espoused in s 68 of the Constitution Amendment No. 20 of 2015, the right to administrative justice have been infringed.  In support of her argument she also cited s 3 of the Administration of Justice Act [Chapter 10:28] providing that the respondents fell within the definition of administrative authorities who had in turn previously, denied her the right to an audience and an opportunity to exploit the domestic remedies provided for by the Mines and Minerals Act [Chapter 21:05]. She further states that she has prima facie right emanating from the fact that she has all along been recognized as the mining claim holder of the said blocks. As such her rights still exists as the forfeiture by the respondents was unlawful, therefore, a legal nullity. Over and above that, she argues that the forfeiture itself, which flouted the law was an injury actually committed and continuing until the position is rectified.  It is the applicant’s submission that there are no other satisfactory remedies open to them as the failure by the respondents to personally notify them denied them an opportunity to  proceed  for relief in terms of  in s272(3) of the governing enactment. Relying on the authority in ,Turfwall Mining (Pvt) Ltd T/a Beenset Investments vs Provincial Mining Director Matabeleland South (NO) & 2 Ors, HB 102/17, applicant argues that damages are out of question as they will be difficult to assess. Lastly, applicant claims that the balance of convenience favors the restoration of the mining claim to the applicant as it has not been allocated to anyone. Thus, by doing so it favors the upholding of the rule of law. That being the case they advanced that they have satisfied the requirements of an interdict as outlined in the case of Airfield Investments (Pvt) Ltd  v Minister of Lands & Ors 2004 (1) ZLR 511 (S) as well as that of Setlegelo v Setlegelo1914 Ad 221.

RESPONDENTS’ ARGUMENTS

The respondents argued that it is common cause that the applicant for years through her then assigned agent Chief Gwesela, failed to remit the statutorily required remittances to facilitate her continued mining operations.  As a result, they submit that she was in breach of s 260 as read with s 79 of the Mines and Minerals Act [Chapter 21:05] which in turn necessitated the forfeiture of the mining rights in issue.  They contended that their actions were above board and in terms of the law as the applicant cannot breach the law and then seek protection from the same law she had violated.  The respondent then introduced new section not pleaded in their founding papers. They claimed that their actions where sanctioned by ss 271 and 272 of the Mines and Minerals Act.  They stated that in terms of these sections, a declaration by the Mining Commissioner was sufficient. Therefore, there was no need for notification as the posting on the notice board calling upon the aggrieved party to apply for revocation was enough. The respondent argues that firstly the applicant lost any rights to the claims the moment they had been forfeited, Secondly, when she failed to make representations in terms of s272 for revocation of forfeiture. In that light they assert that there is no irreparable harm as the applicant had abandoned the mine for five years, from 2016, prior to the forfeiture on 5 of June 2020. They counter argued that there are other remedies as the applicant has to reengage the Mining Commissioner for the allocation of another mining location. They also enunciated that the balance of convenience favors the dismissal of the relief sought.

ANALYSIS

Given the above scenario, the task faced by the court is to determine Whether or not the applicant has satisfied the requirements of an interdict entitling her to the relief sought? Whether or not in forfeiting the applicant’s claims the respondent acted within the framework of the law?  To start with, s 68 of the Constitution, Amendment No. 20 of 2013 states that, every person has a right to administrative conduct that is lawful, reasonable proportions impartial and both substantively and procedurally fair and any person whose right, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given and in writing the reasons for the conduct. The said Constitutional provision advocated for an alignment of the enabling legislation to cater for the interests of Administrative of justice, the Administration of Justice Act [Chapter 10:28].  The purpose of this Act is summarized in its preamble as follows:

An Act to provide for the right to administrative action and decisions that are lawful, reasonable and procedurally fair;

To provide for the entitlement to written reasons for administrative action or decisions.

To provide for relief by a competent court against administrative action or decisions contrary to the provisions of this Act with or incidental to the foregoing.

This is basically what has been reduced to s3 of the came Act with additions.  Of particular interest is s 3(2) which reads:

“In order for an administrative action to be taken in a fair manner as required by paragraph (a) of the subsection (1), an administrative authority shall give a person referred to in subsection (1):

Adequate notice of the nature and purpose of the proposed action; and

A reasonable opportunity to make adequate representations; and”

It cannot be disputed that the respondents fall within the definition of administrative authority as provided by s 2(1)(c) and (d) as the respondents have official power that affect individual rights in the field of mining. See, Telcel Zimbabwe (Pvt) Ltd v Postal and Tele communications Regulatory Authority of Zimbabwe and Others HH446/15, U -Tow trailers (Pvt) Ltd v City of Harare and Another, 2009 (2) ZLR 259(H)267 F-G and Danai. H. Mabuto v Women’s University in Africa and Ors HH698/15.

In casu, the respondent admittedly took administrative action allegedly in terms of section s 260 and 79.   In concurrence with the submissions made by counsel for the applicant, it is my considered view that, s 79 does not apply.  Section, 79 applies to and is restricted to transgressions on mining on reserved grounds. Commendably, Counsel for the respondents did not pursue their line of argument in respect of the same in their oral submissions.

The respondent’s actions are premised on s 260 of the Mines and Minerals Act [Chapter 21:05].  This provision states that:

“Failure to obtain an inspection certificate within the period prescribed thereof shall, unless a protection certificate has been obtained under section two hundred and seventeen in respect of such block, render liable to forfeiture the block in respect which such failure has taken place.”

It is not disputed that the word “liable” does not give the administrative authority an automatic right to take an administrative action without complying with the provisions of s 3(2) of the Administration of Justice Act above.  As it where they were supposed to give adequate notice to the applicants and also invite them to make representations before a definitive decision to forfeit or confiscate her mining blocks was made. This was well articulated in the case of U -Tow trailers (Pvt) Ltd v City of Harare and Another, 2009 (2) ZLR 259(H)267 F-G, wherein, Makarau J, (as she then was ) , speaking to the Administrative of Justice Act, Chapter , 10.28, highlighted that.

“…The Act provides that an administrative authority which has the responsibility or power to take administrative action which may adversely affect a right, interest or legitimate expectation of any person, shall, inter alia, act reasonably and in a fair manner. The Act proceeds to define what a fair manner, for the purposes of Act, entails and this includes adequate notice of the nature and purpose of the proposed action and a reasonable opportunity to make adequate representations, in my view an embodiment of the audi alteram partem rule’

The argument by the respondents that they posted the notice on their notice board inviting the applicants to make representation by a given date is not in my view adequate notice. Sight cannot be lost that what came first which is the corner stone of the respondent’s defense is that the failure to pay the inspection fees rendered the mine “liable “to forfeiture. This in my view is the stage where adequate notice and a call for representations comes into play. The alleged declaration of forfeiture in terms of section 271, was consequent to the fulfilment of the rules of natural justice as envisaged in Act, No. 10:28 and authorities cited above. Section 271 (1) of the Mines and Minerals Act, [Chapter 21.05] states that.

‘Subject to section two hundred and sixty-three, where any mining location is liable for forfeiture in terms of this Act, the mining commissioner may declare such location to be forfeited.’

The use of the word “may,” is in my view, not preemptory, it entails that, certain procedural steps had to be fulfilled before the drastic action of compulsory forfeiture.

In that regard, s, 263 of the Mines Act reads, Forfeiture of mining leases: if the holder of a mining lease fails to obtain any inspect ion certificate within the period prescribed therefor, the mining commissioner shall by registered letter notify the holder of such failure and shall send a copy of such letter to the Board. The whole of this section speaks of notice and its communication, at various stages by the Board referred to in subsection one.

Further, s 264 relates to the forfeiture of sites.  It further illustrates the importance of giving and communicating notice by stating that, if at any time the monthly rent of any registered mining site has remained due and unpaid for a period of three months or more it shall be liable for forfeiture, provided that the mining commissioner shall by registered post notify the lease holder that payment of his arrears and specify a period upon which the arrears must be liquidated within thirty days of the posting of that notification.

It is evident that in all the said clauses, up to clause 265 of the Mines and Minerals Act Chapter 21.05, the issue of notice, communication and grace period to comply, resonates throughout. There is nowhere on record indicating that notice of forfeiture in terms of the above clear provisions was given. In my view there was non-compliance with the requirements of the governing law by the respondents.

The main thrust of the respondent’s oral argument is that, the posting of the forfeiture in terms of section 272 was sufficient notice. This section states that, lists of registered mining locations which have been abandoned or forfeited in terms of this Act, shall from time to time be posted on a board, to be exhibited in some conspicuous way outside the office of the mining commissioner, amongst other stipulations.  My interpretation of this section is that the posting on the notice board is a display of already forfeited mines. It is after the act of a forfeiture done in compliance with the law that requires the giving and communication of notice of such forfeitures.

In addition,  it is on record that the applicant had visited the respondent’s office on several occasions including those of very senior Government officials in her quest to be heard.  In that regard, her right to audience was denied in clear contravention of s 3 of the Administration of Justice Act [Chapter 10:28].

FINDINGS

Whilst it was within the respondent’s rights to seek to enforce statutory provisions, they should have followed the legal requirements.  Arbitrary actions by administrative bodies are what the Administration of Justice Act was promulgated for, to ensure that common law principles of natural justice are observed.

Their actions were administrative actions which do not follow within those exempted by the Administration Act, in s 11.  Therefore, it is my finding that the respondents acted contrary to the provisions of the Administrative Act.  In my view, they had a duty to firstly do the following:

Give notice of the intention to forfeit;

Call for representations against forfeiture

Give notice of the subsequent forfeiture.

The notice should have been given personally.

They knew where to find the applicant.  Her place of residence or at the mining site.  No proof was placed before the court that such attempt or service of notice was ever made.  Notice was on a notice board. This was not a notice to forfeit but a display of the actual forfeiture. It is clear that there was a registered address upon which the parties use to correspond or communicate.  It would have assisted the court, if proof service was placed on record that there was an attempt to serve on the registered address as required by s 60 of the Mines and Minerals Act.  Service on the notice board is applicable when there is no such address.

Section 60(3) stipulates that:

“In default of any address being registered as by this section required, the posting in the office of the mining commission if any such notice order or process shall be deemed to have the same effect as personal service.”

In my view, what this means is that for as long as the address has been registered then personal service entails.  See ZIMRA v The Mining Commissioner & 2 Ors HH 10-16 and Fidelity Printers and Refineries (Private) Limited v The Minister of Mines and Mining Development N.O and Two Ors HH 59-21.

I am thus satisfied that the applicant has made a case for the relief sought.  All the requirements have been met see, Setlogelo vs Setlogelo 1914 AD. They have a legitimate right in the form of the mining rights which I make a finding that they were unlawfully forfeited.  The actions by respondent of forfeiting the mining block in the manner they did is an injury actually committed.  In terms of the Administration of Justice Act, they have the right to approach this court for a remedy against unlawful administrative conducts.  The balance of convenience favors the applicant.

DISPOSITION

The respondents acted ultra vires the Administration of justice law.  Though the applicant had defaulted in the payment of the statutory inspection certificate fees, it was imperative that they be given:

notice of intention to forfeit.

an invitation to make representation.

lastly the notice of the actual forfeiture.

The failure by the respondent to do the above meant that they acted unlawfully thereby invalidating the forfeiture of the mining rights in question. Judgment is given in terms of the draft order as amended.

Accordingly, IT IS ORDERED THAT:

The decision by the first and second respondents to forfeit applicant’s mining claim known as Gay Spark II under Certificate of Registration number 23194 be and is hereby set-aside and declared invalid and of no force and effect.

Any act done by the first and second respondents following the invalid forfeiture of Applicant’s claim known as Gay Spark II under Certificate of Registration number 23194 is declared invalid and consequently null and void.

The Applicant’s mining claim known as Fay Spark II under Certificate of Registration number 23194 is hereby revived and the first and second respondent are directed to follow the due process of the law in dealing with Applicant’s said mining claim.

The costs in the cause.

T H Chitapi & Associates, applicant’s legal practitioners

Civil Division of the Attorney-General’s Office, 1st and 2nd respondent’s legal practitioner