Border Timbers Limited (Under judicial management) v Kuguta Kushinga Mining Syndicate and The Mining Commissioner Manicaland N.O.

### Preamble
1
HMT 88-20
CIV “A” 14/20
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BORDER TIMBERS LIMITED

(Under judicial management)

versus

KUGUTA KUSHINGA MINING SYNDICATE

and

THE MINING COMMISSIONER MANICALAND N.O

HIGH COUR OF ZIMBABWE

MWAYERA AND MUZENDA JJ

MUTARE, 21 October and 26 November 2020

Civil Appeal

Advocate G. R. Sithole assisted by C. Maunga, for the appellant

B. N Mungure, for the 1st respondent

P Garwe, for the 2nd respondent

MUZENDA J: This is an appeal against the determination of the Provincial Mining Director Manicaland, sitting at Mutare on 10 March 2020 where he ordered co-existence between the now appellant and firs respondent, allowing the first respondent to carry out sustainable mining operations in the plantation of the appellant.

On 12 May 2020 the appellant filed notice and grounds of appeal as follows:

GROUNDS OF APPEAL

The Mining Commissioner/Provincial Mining Director a quo grossly misdirected himself and erred at law when he failed to determine the issue whether or not the first respondent had prior to commencing its mining operations on reserved land, obtained the appellant’s written consent in terms of s 31 (1) (a) of the Mines and Minerals Act [Chapter 21:05].

The Mining Commissioner/Provincial Mining Director erred at law and grossly misdirected himself  on the facts and evidence before him when he effectively found and came up to a conclusion not supported by reasons that, appellant had unreasonably held its consent in writing, to the first respondent, such finding being contrary to the evidence on record.

A fortiori the Provincial Mining Director a quo erred at law and grossly misdirected himself when he invoked and applied mero motu the provisions of s 31 (1) (g) (iii) of the Mines and Minerals Act, in circumstances where the factual basis for such an approach did not exist.

The Provincial Mining Director erred at law and grossly misdirected himself when he held that there was in existence a tacit agreement between appellant and the first respondent which agreement authorised first respondent to carry out its unlawful mining activities, such finding being contradictory to the requirements of a written consent in terms of s 31 (1) of the Mines and Minerals Act.

The Provincial Mining Director erred at law and grossly misdirected himself when he failed to order the first respondent as he ought to have done, to cease mining operations and vacate from the appellant’s private property pending first respondent regularising its operations in terms of the law.

The appeal is being opposed by the first respondent.

Factual background

Border Timbers Limited owns numerous timber plantations in Manicaland and one of these plantations is Sheba Estate in Penhalonga. On 5 September 2018 the appellant became aware of the presence of first respondent mining gold in its plantation. It filed a report with the police. First respondent was moved out of appellant’s piece of land. The first respondent applied for permission to mine in the latter’s plantation. Appellant requested first respondent to avail to it a number of documentary requirements. To this end the parties agreed that the foregoing is common cause.

On 11 October 2018 appellant learnt that first respondent was already in possession of a Certificate of Registration over part of Sheba Estate, the certificate was issued by the Provincial Mining Director, Manicaland, dated 6 October 2017. On 29 January 2019 first respondent reoccupied the mining claim and started operations without the consent of the appellant. The appellant approached Provincial Mining Director to have the certificate of registration cancelled. On 10 March 2020 the Provincial Mining Director determined the matter by ordering co-existence. It is that determination that the appellant is appealing against.

On the date of hearing of the appeal Advocate G. R Sithole for the appellant applied that the citation of second respondent be struck out and whatever documentation filed on his behalf be expunged, the Provincial Mining Director for purposes of an appeal was not supposed to be involved. The application was not opposed by both respondents and hence the citation of second respondent was expunged. As a result the first respondent will henceforth be referred to as the respondent in this matter.

Submissions by the parties before the Provincial Mining Director a quo

The appellant’s argument before the Provincial Mining Director was to the effect that, the part of Sheba Estate was not open to prospecting in terms of s 31 of the Act. It was sonly after the land owner would have given his or its consent in writing that prospecting would be allowed. The appellant further submitted that in the absence of a written consent the certificate of registration was improperly issued and must be cancelled in terms of s 50 of the Act.

On the other hand the respondent contended before the Provincial Mining Director a quo that after approaching the appellant, it was given a list of requirements it has to fulfil and obtained a letter from the appellant’s director. It has met all the obligations specified and obtained the certificate of registration. The respondent thought that having met all the requirements spelt out by the appellant it genuinely believed that it was not proper for the appellant to make a U-turn and seek to evict it from the claim. Respondent moved the Provincial Mining Director to order co-existence between the appellant and the respondent.

Prayer being sought by the applicant.

The appellant seeks the following relief:

i) 	that the instant appeal succeeds with costs.

ii)	that the determination of the Provincial Mining Director Manicaland a quo dated 10 March 2020 be set aside and in its place substituted by the following:

“The certificate of Registration number G4761 that was issued in favour of Kuguta Kushinga Mining Syndicate be and is hereby cancelled.”

In my view after having heard the appellant and respondent’s arguments, the central issue for determination is whether the certificate of registration issued by the Provincial Mining Director has to be annulled and cancelled? If it is to be cancelled, whether such a cancellation of the certificate of registration should be attained through an appeal or that the aggrieved party, the appellant had to apply for review of the proceedings of the Provincial Mining Director in this court or seek an appeal to the Administrative Court? I am fortified in this approach by the nature of relief sought and the enquiry should be whether the Provincial Mining Director in issuing the certificate of registration failed to observe the statutory requirements stipulated in s 31 of the Mines and Minerals Act. During oral submissions in court both counsel agreed that the requirements of s 30 and s 31 of the Act are peremptory and ought to have been complied with by the Provincial Mining Director, that is a written consent by Border Timbers authorising respondent to mine in its plantation was a pre-requisite before a certificate was issued.

Generally an appeal is based on the argument that the decision appealed against is wrong on the facts or law. The grounds for the review of a purely administrative decision as in casu are restricted to the following:

The decision made was outside the powers of the authpority, it was ultra vires.

There was fraud, bad faith or improper motives on the part of the person making the decision, he was mala fides.

No decision was made or any discretion exercised by the person required to make the decision or exercise the discretion.

It is not disputed by the appellant that whatever the Provincial Director did, he did so in his administrative function and this court on a properly filed review will in terms of s 28 of the High Court set aside, or correct the proceedings or decision and where the public body or an individual exceeds its or his or her powers this court will exercise a restraining influence. This power cannot be exercised when a wrong form of procedure is chosen by a litigant.

The bone of contention by the appellant is that the Provincial Mining Director ought not have issued a certificate of registration where there was no written consent in conformity of the statute, that argument as already alluded to herein above is common cause to both parties, but what could have been the recourse to the appellant, on appeal to the Administrative Court or application for review to this court or an appeal to this court?

I agree with the respondent’s counsel that the appropriate recourse to the appellant was an appeal to the Administrative Court in terms of s 32 of the Act. Alternatively the appellant could have brought the matter to this court by way of review, appellant did not do either. I am  satisfied that the appellant adopted a wrong procedure in bringing the matter on appeal and the appeal is not properly before us and it ought to be struck off the roll.

On the question of costs, the appellant was legally represented. It must have occurred to the appellant that it had adopted a wrong procedure to assert its rights against a determination by the Provincial Mining Director. This is a matter where the appellant has to pay the wasted costs of the respondent.

As a result the following order is given:

The matter is struck off the roll and the appellant has to pay respondent’s wasted cost.

MWAYERA J agrees ___________________

Maunga Maanda & Associates, appellant’s legal practitioners

Makombe & Associates, respondent’s legal practitioners