Ktulu Resources V Minister OF Mines AND Mining Development AND THE Provincial Mining Director FOR Mashonaland Central N.O

### Preamble
1
HH 577-25
HCH515/25
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KTULU RESOURCES

versus

MINISTER OF MINES AND MINING DEVELOPMENT

and

THE PROVINCIAL MINING DIRECTOR FOR MASHONALAND CENTRAL N.O

HIGH COURT OF ZIMBABWE

TAKUVA J

HARARE; 20 January & 30 September 2025

Court Application for setting aside forfeiture of mining claims

K Sabau, for the applicant

P Chibanda, for the 1st and 2nd  respondents

TAKUVA J:  This is an application for Administrative Justice Act [Chapter 10:28] which seeks to set aside the decision of the Respondents to forfeit mining claims registered in favor of the Applicant. Applicant seeks the following order;

1. “The Respondents’ decision to forfeit the Applicant’s mining claims bearing the following names, Beryl Rose 118, Beryl Rose 119, Beryl Rose 120, Beryl Rose 121, Beryl Rose 122, Beryl Rose 123, Beryl Rose 124, Knoxa 6, Knoxa 7 and Knoxa, is hereby set aside in terms of section 4(2)(a) and (e) of the Administrative Justice Act [Chapter 10:28].

2. The Respondents are hereby ordered within (7) days of this order to reinstate the Applicant’s name on the claim’s card for the mining claims bearing names listed in clause 1 of this order and all such other official mining documents for such claims in their custody.

3. The Respondents be and are hereby ordered to allow the Applicant an opportunity to settle all outstanding inspection fees in respect of the claims listed in terms of the law up to the date of this order.

4. The Respondents, jointly severally and in solidium, the one paying the other to be absolved pay legal costs on a legal practitioner and client scale.”

BACKGROUND FACTS

The Applicant, previously registered as Kilright Industries (Private) Limited, acquired a number of mining claims known as Beryl Rose 118 to 124 and Knoxa 6 to 8. In 2013 and again in 2018, the Respondents purported to forfeit these claims through Forfeiture Notices. The forfeiture was effected without any prior notice to the Applicant and without affording it an opportunity to make representations. The notices were merely placed on a notice board at the Ministry of Mines offices in Bindura.

The Applicant subsequently formed the view that the claims had been reinstated pursuant to a High Court order under case number HC 7901/19. Relying on that order, the Applicant approached the Second Respondent seeking to pay inspection fees for the claims. The Second Respondent, however, advised that the claims remained forfeited in terms of the earlier notices, and later confirmed that the court order did not apply to them.

The Applicant addressed correspondence to the Second Respondent in November 2024 seeking clarification and reinstatement of the claims but received no substantive response. The Applicant now challenges the validity of the forfeiture, contending that it was unlawful and procedurally unfair in that it was not given notice, nor an opportunity to be heard, as required under the Administrative Justice Act.

The Respondents take the position that the mining claims were validly forfeited under the relevant forfeiture notices. They argue that publication of such notices on the Ministry’s notice board constitutes sufficient notice in terms of the law and practice applicable to mining claims.

As regards the High Court order under case number HC 7901/19, the Respondents contend that the order did not apply to the Applicant’s claims, and therefore the forfeiture remained effective. On that basis, they argue that the Applicant has no legal entitlement to the reinstatement of the claims.

Issues for Determination

The following issues fall for determination.

Whether publication of the forfeiture notices on a notice board, without direct notification to the Applicant, satisfied the requirements of procedural fairness under the Administrative Justice Act.

Whether, in the circumstances, the Applicant is entitled to the relief it seeks.

The court will proceed to deal with the issues following the order in which they were listed, apply the law to the facts submitted by parties. The central question is whether the forfeiture of the Applicant’s mining claims under Forfeiture Notices No. 1 of 2013 and No. 1 of 2018 complied with the law. Forfeiture, being a drastic deprivation of rights, must be carried out strictly in accordance with statutory and constitutional requirements. The evidence before the court shows that the Applicant was not directly notified of the forfeiture, and no prior opportunity to respond was afforded. This raises concern as to procedural compliance. However, P Chibanda, counsel for the repondents submitted that the applicant did not provide an address through which the respondents could communicate their notifications. This is a point that was raised on the day of hearing. The respondents did not raise this point in their notice of opposition and the court cannot allow such an ambush. The court shall focus on the adequacy of the notices given. What seems to me is the fact that these said notices were notices to forfeit the claims and not notices of intention to forfeit. Section 3 of the Administrative Justice Act [Chapter 10:28] AJA provides as follows:

“1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall- act lawfully, reasonably and in a fair manner; and act within the relevant period by period specified by law…. within a reasonable period after being requested to take action by the person concerned; and where it has taken action, supply written reasons, therefore within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.

2) In order for an administrative action to be taken in a fair manner as required by para 9 (a) of subsection (1) an administrative authority shall give a person referred to in subsection (1)-

a) adequate notice of the nature and purpose of the proposed actions; and

b) a reasonable opportunity to make adequate representations; and

c) adequate notice of any right of review on appeal where applicable.

3) ………………………………………………………………………………………”

The Respondents argue that posting the forfeiture notices on the Ministry’s notice board constituted sufficient notification. However, the Applicant contends that such a procedure fails to meet the standards of Administrative Justice Act. Section 3 particularly subsection (2) of the Administrative Justice Act requires administrative authorities to act lawfully, reasonably, and fairly, including affording affected parties the right to be heard. Limiting notification to a notice board, without more, falls short of that obligation, particularly where the affected party is identifiable and directly contactable. Section 60 of the Mines and Minerals Act [Chapter 21:05] provides as follows

“(1) Every holder of a mining location on registration of such location in his name at the office of the mining commissioner and every lessee and assignee of such holder shall furnish such mining commissioner with an address in Zimbabwe at which all notices, orders or other processes shall be served by the mining commissioner or other officer duly appointed for the purposes of this Act, and any such holder, lessee or assignee may at any time change such address by registering at the office of such mining commissioner any other address within Zimbabwe.

(2) Service of any such notice, order or other process at such registered address shall be deemed to have the same effect as personal service.

(3) In default of any address being registered as by this section required the posting in the office of the mining commissioner of any such notice, order or other process shall be deemed to have the same effect as personal service.

(4) …………………………………………………..”

The record shows applicant’s certificates of registration after transfer which provide all the specific addresses associated with each claim. The Act emphasizes fairness and, in this case, that procedural fairness is not seen to be exercised. Indeed, applicant does not deny its failure to pay the annual inspection fees but the Act requires the administrative authority to afford the miner an opportunity to remedy. The miner ought to be given a chance to rectify the default, such as by submitting the required document or in this case paying the outstanding fees. The respondents notified the Applicant of the automatic forfeiture of his claim without any option to remedy this default and such an action did not give regard to the provisions stipulated in section (3) of the Act. In the case of Fidelity Printers & Refiners (Pvt) Ltd v The Minister of Mines & Others supra SC 107/22, the Supreme Court made it clear that the forfeiture of a mining title constitutes the deprivation of an existing right and, as such, it cannot occur automatically. The Court went on to emphasize that the simple act of pinning a notice on a notice board does not amount to an adequate or effective method of communication. The court stated that;

“In order to be valid such notice must be effectively communicated. Section 3 (2) (a) of the AJA requires the respondents to give the appellant “adequate notice of the nature and purpose of the proposed action. In practical terms, therefore, the second respondent is required, in terms of s 272 (1) of the Act to post the notice of forfeiture on his notice board, and in terms of the AJA, to communicate this notice to the appellant or any other person so affected.”

The second requirement stipulated by the Supreme Court was not fulfilled in this particular case. Applicant was not afforded the opportunity to make its representations thus contravening Administrative Justice Act.  It is clear from the Fidelity case that although section 272 of the Mines and Minerals Act [Chapter 21:05] allows the posting of forfeiture notices on notice boards, the administration body is still required to take a step further so as to communicate this notice to the affected party.

In Anesu Gold (Pvt) Ltd v Moyo N.O and 3 Others (642 of 2023) [2023] the court stated the following;

“The provisions of section 3(2) of AJA ought to have been followed first. This failure to comply with the provision of the Administrative Justice Act renders the forfeitures unlawful and they cannot be allowed to stand. First and second defendants did not act fairly, reasonably or lawfully as is required of an administrative authority.”

It therefore follows that these forfeitures were unlawful hence void at law. Lord Denning Mr. in the MacFoy v United Africa Co. Ltd 1961(3) All ER 1169 at 1172 stated the following;

“If an act is void then it is in law a nullity. It is not only bad but incurably bad …. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

Disposition

Forfeiture Notices No. 1 of 2013 and No. 1 of 2018 are unlawful and void and the Applicant is entitled to the relief it seeks.

It is therefore ordered that;

1. The Respondents’ decision to forfeit the Applicant’s mining claims bearing the following names, Beryl Rose 118, Beryl Rose 119, Beryl Rose 120, Beryl Rose 121, Beryl Rose 122, Beryl Rose 123, Beryl Rose 124, Knoxa 6, Knoxa 7 and Knoxa, is hereby set aside in terms of section 4(2)(a) and (e) of the Administrative Justice Act [Chapter 10:28].

2. The Respondents are hereby ordered within (7) days of this order to reinstate the Applicant’s name on the claims’ card for the mining claims bearing names listed in clause 1 of this order and all such other official mining documents for such claims in their custody.

3. The Respondents be and are hereby ordered to allow the Applicant an opportunity to settle all outstanding inspection fees in respect of the claims listed in terms of the law up to the date of this order.

4. The Respondents, jointly severally and in solidium, the one paying the other to be absolved pay legal costs on an ordinary scale.

Takuva J:……………………………………

Mlotshwa Solicitors Legal, applicant’s legal practitioners

Civil Division of The Attorney General, first and second respondents’ legal practitioners