Edson Godza v Provincial Mining Director Midlands and Chisarasara Ore (1) (31133) and Juru Mining Syndicate 065569AA

### Preamble
1
HMA 60-20
CIV 12-20
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EDSON GODZA

versus

PROVINCIAL MINING DIRECTOR MIDLANDS

and

CHISARASARA ORE (1) (31133)

and

JURU MINING SYNDICATE  065569AA

HIGH COURT OF ZIMBABWE

WAMAMBO J AND ZISENGWE J

MASVINGO 21 OCTOBER 2020 &4 NOVEMBER, 2020

Civil Appeal

Mr C. Ndlovu, for the appellants

Mr R. Munatsi, for 1st Respondent

No appearance for 2nd&3rdRespondents

ZISENGWE J:	This is an appeal purportedly brought in terms of section 361 of the Mines and Minerals Act, [Chapter 21:05] ("the act") against the refusal of the 1st respondent (the Mining Commissioner) to grant the appellant a certificate of registration under an ordinary prospecting licence.

The appellant is an individual who applied for the registration of a certain mining claim under prospecting licence number 064172 AA. The mining claim in question is situated in the Chirumanzi communal lands of the Midlands province.

As alluded to above, the 1st respondent, is the Mining Commissioner for the Midlands province. His official duties are vast and extensive and are strewn across the various provisions of the Act. Among a myriad of other functions he or she may grant or refuse any application for a prospectinglicence, for the registration of mining blocks, for registration as an approved prospector, or for the registration of mining leases which may or may not lead to the grant of certain mining rights. He may also cancel any certificate of registration of any mining claim, etc. These, among several others, may be regarded as his administrative functions.

The Mining Commissioner also enjoys certain judicial functions bestowed on him under Part XXV of the Act. In this regard he presides over disputes related to mining.To exercise this role he or she may hold court (the Mining Commissioner’s Court) in any part of the mining district for which he is appointed (section 346 of the Act). At the conclusion of that hearing he renders a decision, determination or ruling. Any party aggrieved by such outcome is entitled to appeal against the same to the High Court in terms of section 361 of the Act. It was in terms of this section that this appeal was supposedly brought.

The determination of this appeal is severely hamstrung by the absence of a proper record of proceedings from the Mining Commissioner’s Court (if ever any was held). To begin with, it is extremely difficult to establish whether at all the 2nd and 3rd respondents participated in the proceedings a quo(that is again if ever any such proceedings were held). However, from the letters constituting the bedrock of this appeal one can only surmise that 2nd and 3rd respondents are holders of mining rights in respect of land adjacent to or otherwise overlapping with the one to which the appellant lays claim.

Besides the above, this appeal is afflicted by a litany of maladies not least its failure to conform to the requirements of part XXV of the act. Section 361 in terms of which it is brought reads as follows:

361. Appeal from Mining Commissioner’s Court to High Court.

"any party who is aggrieved by any decisions 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."

This section, therefore, presupposes a formal hearing asenvisaged in part XXV of the Actpresided over by the Mining Commissioner having been undertaken. Such a formal hearing is conspicuous by its absence in the present appeal.

All that was annexed to this appeal were a series of letters mainly by the appellant to the Mining Commissioner lamenting the slow pace at which his application for a certificate of registration of mining rights was being processed. The other letters emanate from the local authorities (the local chief and the Mvuma rural district council) expressing the position that they were not opposed to the granting of the appellant’s application to the Mining Commissioner.

This culminated in the letter by the Mining Commissioner directed to the appellant dated 28 January 2020. The said letter which is on the Midlands Provincial Mining Director’s letterhead reads:

Ref:	Rejection of your application for a certificate of Registration under ordinary prospecting licence number 06417222AA: Edson Godza

The above subject matter refers.

Your application for certificate of Registration under ordinary prospecting licence Number 0647172AA has been rejected.

The reason for rejection is that your application encroaches onto a current registered block with Registration Number 31133.

In view of the above, may you please immediately remove all the notices and temporary beacons from the ground in question. Your ordinary prospecting licence 0647172AA is hereby returned as it is still valid.

The letter was signed by one N. Munyanduri in his capacity as Provincial Mining Director for the Midlands Province. It is basically against the contentsof that letter that the current appeal was noted. The grounds of appeal were stated as follows:

Grounds of appeal

The 1st Respondent erred in rejecting the application on the basis of encroachment because on the 18th of March 2019 the Respondent ordered the Appellant to pay the registration fees after being satisfied that the coordinates submitted by Appellant did not encroach Chisarasara or 1 (31133) (2nd Respondent).

The 1st Respondent erred in rejecting the application notwithstanding that the application proposed claim and Chisarasara (2ndRespondent) did not share the discovery point (D.P) 1st Respondent should have allowed the appellant to adjust his block (if ever there was encroachment)since appellant hadexpressed his intention to do so on the (the) 7th of October 2019.

The 1st Respondent erred in registering JuruMining Syndicate (3rd Respondent) after the appellant had posted his prospecting notice, pegged the claim and paid registration fees. The 1stRespondent’s conduct violated the provisions of Section 41(4) and (5) of the Mines and Minerals Act [Chapter 21:05].

The 1st Respondent erred in rejecting the application on the basis of the survey carried out on 15th April 2019 instead of taking into account various surveys conducted after 15th April 2019.

This appeal was resisted by the Mining Commissioner who filed heads of argument and on whose behalf oral arguments were presented in court. The 2nd and 3rd respondents on the other hand did not appear on the date set down for the hearing of this appeal. According to the respective returns of service both of them were served by theaffixing of the notices of set down on certain parts of physical structures at their respective mining claims. Heads of argument were however filed on behalf of the 3rd respondent.

The 1st respondent raised the preliminary point impugning the appropriateness of the procedure adopted by the appellant. It argued that it was highly irregular for the appellant to pursue an appeal in the context of this matter instead of seeking a review of the decision of the Mining Commissioner.

In response the counsel for the appellant, purportedly relying on the ratio in Van Wyk v Croukamp 1969 (1) SA 475 (R.AD) persisted with the appeal claiming that it is implicit from a reading of that case that an appeal brought in terms of section 361 of the Act is the correct procedure to adopt.

I am of the firm view, however, that the route taken by appellant is erroneous. It is predicated on amisapprehension of the nature of proceedings that are subject to appeal in terms of section 361 of the Act. What follows are my reasons for arriving at that conclusion.

Brief overview of the scope of proceedings subject to appeal in terms of Section 361 of Act

As stated earlier an appeal undersection 361 of the Act presupposes a judicial decision having been made under theMining Commissioner’s Court.This then begs the question of the nature of proceedings envisaged under the Act. Sections 345 – 361 (inclusive) setout in elaborate detail the procedure to be followed in instances where a dispute falls to be adjudicated by a Mining Commissioner when he exercises his or her judicial functions.

The judicial powers of the Mining Commissioner as set out in section 346 envisage a dispute having arisen between two persons (other than the Mining Commissioner himself/herself) in respect of which the Mining Commissionerthenpresides over. I pause here to observe that the Mining Commissioner cannot sit in judgement over a dispute in which he is a party. To do so would be to do violence to the Nemo judex in causa sua principle. It simply does not make sense.

Without clattering this judgment with unnecessary detail, the dispute resolution procedure under Part XXV of the Act is simply as follows;

Firstly, section 345 provides that the Mining Commissioner has power investigate, hear and determine any dispute between parties, the latter who in subsection 1 are designated "complainant" and “defendant” respectively.

Subsection (3) in particular provides as follows:

Section 345 Jurisdiction of High Court and mining commissioners

…………………………………..

………………………………….

The mining commissioner, before whom any claim, dispute or proceeding is brought, shall hear and determine such claim, dispute a proceeding in the manner set forth in this Act and shall be and is hereby empowered to give and make all such orders, directions, judgements or decrees and do or cause to be done all such things, as may be necessary to give effect to his decision in respect of such claim, dispute a proceeding.

Sections 346 lays down the judicial powers of the Mining Commissioners. It specifically states in subsection (1) that a Mining Commissionermayhold court inany part of a mining district. It sets out the procedure of holding court and other issues attendant thereto such as the examination of witnesses on oath and the recording of evidence etc. In particular subsections 2 and 3 prescribe the manner in which the proceedings are conducted. They provide as follows:

A Mining Commissioner shall hear and determine, in the simplest, speediest and cheapest manner possible, all actions, suits, claims, demands and questions arising within his jurisdiction, as set forth in section 345, and make such orders as to costs as he may deem just.

For the purpose of such hearing a mining Commissioner shall examine witnesseson oath, which oath he is empowered to administer, and take down the evidence in writing to be signed by the person giving the same, and do all things which he may deem necessary for a proper decision(emphasis added)

Section 347 in peremptory terms requires that all proceedings in a Mining Commissioner’s Court shall be commenced by summons. It also prescribes inter alia the prerequisites of such summons.

Section 348 is particularly relevant and will be reproduced here.

348 Summary hearing of complaints

"Notwithstanding requirements of sections 345 and 346, the Mining Commissioner may, if the parties consent thereto in writing and are both present at the hearing, hear and determine any such complaint as above mentioned, summarily, and without any formal proceedings taken before him.

A minute of the decision shall be made by him in a requisite of complaints in which shall be entered every complaint laid before him, together with particulars thereof.”

What is clear from a plain reading of the above sections, therefore, is that of the procedure to be followed is formal in nature. It is not altogether dissimilar from that employed in several other tribunals of this kind.It is against the background outlined above that I cannot,for the life of me, comprehend why the appellant insists that the few letters of complaint to the Mining Commissioner and the responses thereto which he attached to this appeal amounted to proceedings of a MiningCommissioner’s Court.

Absence of Record of Proceedings

The completeabsence of the record of proceedings of what transpired before the Mining Commissioner’s Courtis not onlyemblematic of no such court ever having been held in the first place, but alsomore pertinently makes the task of determining the propriety or otherwise of the decision therebyrendered practically impossible. How is the appeal court expected todetermine the correctness or otherwise of the decision complained of in the absence of the record of proceedings leading to that decision?

The summons (commencing action) required in section 347 is conspicuously absent, so too is the record of evidence adduced(be it oral or documentary). There is neither a record of the witnesses who testified (as required under section 346 (3)) nor the slightest hint as to when, where and how the court was held. More importantly, the respective positions of and evidence led by the 2nd and 3rd Respondents (then presumably as defendants) before the Mining Commissioner’s court are equally conspicuous by theirabsence.

As indicated earlier, the few letters of complaint directed at the Mining Commissioner by the appellant cannot by any stretch of the imagination amount to or otherwise substitute the record of proceedings.

Absence of Formal Proceedings

This is closely related to the foregoing. The proceedings before a Mining Commissioner are formal (section 345 (3)). The need for formality may only dispensed with in terms of section 348 of the Act wherein the parties may consent in writing to the determination of their dispute in a summary fashion. However in terms of that section the parties still need to be present which was not the case in the present matter.

This is the section relevant for the decision in Van Wyk v Croukamp (supra) which decision will be dealt with below, suffice it to say that the decision of the Assistant mining commissioner in that case was set aside for want of compliance with the section 378 of the Mines and Minerals Act [Chapter 203] which was in operation then (equivalent to section 348 of the current Act).

Misjoinder of the 1ST Respondent

The citing of the Mining Commissioner as a co-respondent epitomises the misapprehension of the appellant of the nature of an appeal brought under section 361 of the Act. It is irregular to cite the judicial officer who supposedly presided over a tribunal as a co-respondent in an appeal against his or her decision.

When this was pointed out during oral arguments in these proceedings, counsel for the appellant upon a realisation of the impropriety of citing the Mining Commissioner as a party, sought to seek refugein rule 87 (1) of the High Court Rules, 1971. The said rule reads:

"87. Misjoinder or non-joinder of parties"

No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party and the court may in any cause or matter determine the issues

orquestions in dispute so far as they affect the rights and interests of the persons whoare parties to the cause or matter"

The attempt to sever or excise the Mining Commissioner from these proceedings is an exercise in futility as it amounts to no more than treating the symptoms of a highly irregular appeal.

The entire appeal was fundamentally flawed and irregular and cannot be salvaged by resorting to rule 87. Surely it must have dawned upon the appellant that it was irregular in an appeal to cite the judicial officer who presided over the proceedings a quo as a party to the proceedings.

Even if we were to disregard such reference to the Mining Commissioner as a party to the appeal, this does not in the least cure the defects referred to earlier.

Van Wyk v Croukamp distinguished

Contrary to the submissions made on behalf of appellant, the current matter is materially different from that of Van Wykv Croukamp(supra) which appellant sought to rely on.Unlike the present matter in that case there was a record of proceedings from the Mining Commissioner’s Court (see page 475 G-H). Unlike the present case, in that matter the parties had consented in writing that there be a hearing which was to take place at the site of the mining location (although the appeal court  found that such a consent did  not amount a consent for  a summary hearing  without   formality as contemplated in section 378 of the Act [Chapter 203]. Unlike the present case in that matter theMining Commissioner was not cited as a party.Unlike present case in that matter, there was evidence led and the parties were cross examined (see pages 475 H- 476 A).

I could go on ad infinitum, the inescapable conclusion is that there was an unfortunate conflation in the present matter on the part of the appellant, of Commissioner’s administrative functions (which would ordinarily lead to a review if tainted by some irregularity) with his judicialroles (which on the other hand would lead to a section 361 appeal if the decision thereby rendered is not in accordance with justice).  I say this mindful of the fact that in certain instances administrative decisions may be subject to appeal; however that right of appeal is almost invariably provided for in the very statute that confers such administrative powers on that body. Solely for purposes of illustration, reference will be made to two such enactments. InWatchtower Bible and Tract Society of Pennsylvania & Another v Drum Investments (Pvt) Ltd 1993 (2) ZLR 67 (S) the first appeal (i.e. to the Administrative Court) was based on Section 39 of the Rural, Town and Country Act, 1976 (now section 44 of the Regional, Town and Country planning Act, Chapter 29:12) That provision reads as follows:

44 Appeals

(1) Any person who is aggrieved by—

(a) any decision made or deemed to have been made by a local planning authority in connection with an application for a permit in terms of this Part may, within one month of the notification of such decision;

or

(b) the refusal of the Minister responsible for agriculture to recommend in terms of the proviso to paragraph (a) of subsection (5) of section forty the granting of a permit in terms of this Part may, within one month of being notified of such refusal; or such longer period as the President of the Administrative Court may in writing authorize, appeal to the Administrative Court in such manner as may be prescribed in rules and the Administrative Court may make such order as it deems fit.(Emphasis own).

Similarly, the decisions in Lowenthal v Liquor Licencing Board 1956 (1) SA 227 (SR) and in Divaris v Liqour Licencing Board 1956 (3) SA 462 (SR) on the other hand were based on the equivalent of section 19 of the Liquor Act, Chapter 29:12 which provides for appeals against administrative decisions of the Liquor board, the section reads:

19 Appeals

(1) Subject to this Act, any person who is aggrieved by a decision—

(a) of the Board or the chairman in terms of any provision of this Act, other than in terms of Part XI; or

(b) by the Minister in terms of subsection (4) of section eighteen; or

(c) by the Board or the Minister in relation to a permit referred to in subsection (2) of section eighty-six; may appeal against that decision to the Administrative Court. (Emphasis added)

Section 361 of the Act is evidently dissimilar from the latter class of appeals in that it is not based on an administrative decisionper se but a judicial one by a person who is ordinarily an administrative functionary.  The appellant’s recourse regarding his disgruntlement over the refusal by the Mining Commissioner to grant him a certificate of registration may be located elsewhere (for example via an application for review brought under section 27 of the High Court Act, Chapter 7:06),what is clear, however, is that a section 361 appeal is inapplicable to the current scenario. The 1st Respondent’s preliminary point that the appeal is procedurally flawed is therefore meritorious and is hereby upheld. Consequently I make the finding that there is no proper appeal before this court in terms of Section 361of the Act and the matter should be struck off the roll.

Costs:

The successful party is generally entitled to its costs. There is no justification in denying the 1stRespondent the same.

Accordingly the following order be and is hereby given:

Order:

The appeal be and is hereby struck from the roll

Appellant to meet 1st respondent’s costs.

ZISENGWE J………………………………………………………………………….

WAMAMBO J agrees………………………………………………………………….

Ndlovu andHwacha, appellant’s legal practitioners

Civil Division of the Attorney General’s office, 1strespondent’s legal practitioners