Falcon Gold Zimbabwe Limited & Nyamazane Gold (Private) Limited v The Minister of Mines and Mining Development N.O

### Preamble
Judgment No. SC 99/23
Civil Appeal No. SC 398/22
1
REPORTABLE (99)
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REPORTABLE	(99)

FALCON     GOLD     ZIMBABWE     LIMITED     (2)     NYAMAZANE     GOLD     (PRIVATE)     LIMITED

v

THE     MINISTER     OF     MINES     AND     MINING     DEVELOPMENT     N.O

SUPREME COURT OF ZIMBABWE

GUVAVA JA, UCHENA JA & MWAYERA JA

HARARE: 12 JANUARY 2023 & 29 SEPTEMBER 2023

T. Zhuwarara with B. Mataruka, for the appellants

C. Chitekuteku, for the respondent

UCHENA JA:	This is an appeal against the judgment of the High Court dismissing the appellants’ application for review against the decision of the respondent cancelling the first appellant’s mining rights in Antelope 9-Reg No. 36034-Antelope 2,3,4,5 and 6 Reg No’s 33199, 33127, 33128, 33129 & 33130, Antelope East 2-Reg No-32200, Antelope East Extension & Antelope East Extension 2-Reg No’s 34385 & 34386, Antelope East-Reg No-32106, Antelope 11-Reg No-36036 (hereinafter referred to as the mining claims).

FACTUAL BACKGROUND

The first appellant is a mining company registered according to the laws of Zimbabwe. The second appellant is a private limited company registered according to the laws of Zimbabwe. It entered into a tribute agreement with the first appellant to mine at the first appellant’s mining claims in dispute.

The respondent is the Minister responsible for the Mines and Minerals Act [Chapter 21:0] (the Act). In terms of s 2 of the Administrative Justice Act [Chapter 10:28] (the AJ Act) is as the Minister responsible for the Act ‌an‌ ‌administrative‌ ‌authority. He is cited in his official capacity.

In 1994 the first appellant which is a large-scale mining entity registered the abovementioned mining claims with the respondent’s Ministry. It preserved the claims by obtaining annual inspection certificates from the respondent’s Ministry. It thereafter signed a tribute agreement with the second appellant. The tribute agreement entitled the second appellant to exercise mining rights over the first appellant’s mining claims referred to above. The second appellant took preparatory steps to commence mining at these claims which included the building of mining infrastructure and securing offshore funding for that purpose. On 31 May 2021 the second appellant held a meeting with the respondent at which it explained the work it was doing towards the commencement of mining operations on the first appellant’s mining claims.

The tribute agreement had been registered and approved by the respondent’s Ministry. The second appellant’s preparatory work had also been inspected and approved by the respondent’s Ministry.

On 28 October 2021, Mr Fisani Moyo of Lucky Hither P/L a mining company operating in the Maphisa area of Matabeleland South wrote to the respondent’s Mining Director responsible for Matabeleland South informing him that the first appellant’s claims were lying idle and were not being worked on. He recommended that they be expropriated in terms of s 320 to 330 of the Act. The letter was received and date stamped by the mining Director’s office on 28 October 2021. A handwritten endorsement indicates it was received by L. Dube on 28 October 2021.

On 29 November 2021, Yellow Candy P/L another mining company operating in the Maphisa area in Matabeleland South also wrote to the respondent’s Mining Director responsible for Matabeleland South advising him that the first appellant’s claims had not been worked on for four decades. It also requested the respondent to expropriate the claims in terms of s 320 to 330 of the Act.

On 17 November 2021, the respondent wrote 6 letters to the first appellant inviting it to show cause why its mining claims mentioned in those letters should not be cancelled in terms of s 400 (1) (a) of the Act as it had not been declaring output of production for those claims. The 6 letters were eventually date-stamped and signed by the respondent on 9 February 2022 but delivered to the first appellant on 23 February 2022.

Through its Lawyers, the first appellant responded to the respondent’s letters explaining why the mining rights should not be cancelled. In making its case, the first appellant contended that it could not have declared any output of production as it had not yet commenced mining operations on the mining claims in question. The first appellant further pointed out to the respondent that the respondent was relying on the wrong provision of the law and as such it was unlawful for the respondent to cancel the mining claims in terms of s 400 (1) (a) of the Act.

In spite of the first appellant’s response, the respondent on 21 April 2022 cancelled the appellant’s mining claims. The relevant part of the notice of cancellation reads as follows:

“Please note that I remain of the view that section 400 (1) (a) as read with section 251 of the Mines and Minerals Act [Chapter 21:05] is the applicable provision in the circumstances. Further note that the titles you hold are for mining, and you were expected to commence mining from the moment you got the titles. You cannot use as an excuse the fact that you have not commenced mining, more than 25 years from the date that you were given mining titles. The alleged illegal invasions on your mining locations only started in 2019 according to the letter from your lawyers, yet there is no record of any output declared by yourselves for the period before the alleged invasions.

I am further not convinced that after all the years that have passed without any output being declared on your part, the tribute agreements mentioned in the letter by your lawyers, amount to good cause for not cancelling.”

In his notice of cancellation, the respondent stated that he remained of the view that s 400 (1) (a) as read with s 251 of the Act are the applicable provisions in the circumstances.

The appellants applied to the court a quo for the review of the respondent’s decision. In its application, the first appellant argued that the respondent had no right to invoke s 400 (1) (a) as this provision was only applicable where mining activities had commenced and that the applicable provisions under the circumstances where the first appellant had not developed the claims or underutilized them for a long period were ss 320 to 330 of the Act.

The first appellant also contended that the respondent in making the decision to cancel the mining claims did not take into account the work which the second appellant had done towards the commencement of mining on the mining claims in question, particularly the various studies undertaken and the investment in a plant which developments were made with the approval of the respondent.

The appellants also took issue with the fact that the second appellant was not afforded a right to be heard. The second appellant contended that it had entered into a tribute agreement with the first appellant which had been approved and registered by the respondent. The respondent should therefore not have cancelled the mining claims without giving it a chance to be heard. The respondent therefore unlawfully deprived it of a right to be heard.

In opposing the application, the respondent contended that he had lawfully cancelled the first appellant’s mining claims in terms of s 400 (1) (a) of the Act for failure to declare any output after commencing mining operations. The respondent argued that as soon as one is granted a mining right they are expected to begin mining and in this case, the first appellant had held rights on those claims for a period of about 25 years. The respondent further argued that s 197 (1) of the Act provides for a miner to apply for an inspection certificate upon gaining title. In casu, the first appellant had applied and obtained inspection certificates which served to prove that mining operations had commenced on the mining claims.

The respondent further argued that there had been no infringement of the second appellant’s rights because the ministry did not have any agreement with it. He therefore submitted that he did not have any obligation to notify the second appellant of his intention to cancel the mining claims which obligation fell on the first appellant since it was the one which had an agreement with the second appellant.

In its answering affidavit, the first appellant maintained that the respondent had unlawfully cancelled the mining claims. It attached correspondence between the respondent’s Ministry and Lucky Heather and Yellow Candy to the effect that the first appellant’s claims were lying idle and had not been mined for four decades. It further alleged that the respondent’s cancellation of its mining rights was driven by ulterior motives in that they had since discovered that the respondent intended to issue the same rights to a company that was involved in invading their mining claims and had been the subject of pending litigation in the Bulawayo High Court.

DECISION OF THE COURT A QUO

In dismissing the application, the court a quo reasoned that s 197 of the Act which relates to the issuance of inspection certificates provides that an inspection certificate can only be issued once work has begun on a claim and that since the first appellant had been issued with inspection certificates, the presumption was that it had commenced mining activities but had failed to declare any output of production as required by law. It therefore held that the cancellation of the first appellant’s claims was lawful.

The court further held that there were no gross irregularities in the manner the respondent cancelled the first appellant’s mining rights and that the allegations that he had ulterior motives as alleged by the first appellant could not be determined as it was only raised in the appellant’s heads of argument.

The court a quo also found that although the respondent had not served the second appellant with the show cause notice the right to be heard by the respondent was not infringed as the law did not oblige the respondent to notify a holder of a tribute agreement of its intention to cancel a mining claim.

In respect of the allegation that the cancellation had been done for ulterior motives the court a quo refused to determine the issue on the basis that it had been raised for the first time in the appellants’ heads of argument.

GROUNDS OF APPEAL

The appellants were aggrieved by the decision of the court a quo. They appealed against it to this Court. The appeal is based on the following grounds: -

“The court a quo erred in holding that the respondent had lawfully cancelled appellants’ mining rights in accordance with s 400 of the Mines and Minerals Act. At law, the aforesaid provision could not be invoked as against the appellants who were yet to commence mining on the attendant mining claims.

Concomitantly, the court a quo grossly misdirected itself in finding that the appellants were presumed to have commenced mining operations. Such finding was incongruent with the facts as led a quo as well as being discordant with the basis upon which the respondent had unlawfully cancelled the appellant's mining rights.

Furthermore, the court a quo misdirected itself in refusing to determine the issue of whether the respondent's cancellation of the appellant's mining rights had been actuated by improper motive. Such issue had been properly pleaded by the appellants before the lodgment of their Heads of Argument; resultantly the court a quo erred in refusing to deal with the aforesaid issue.

The court a quo also erred in finding that the respondent could lawfully cancel the 2nd appellant's mining rights without affording such appellant the right to be heard. As a tributary, the 2nd appellant rights could not be obviated by the respondent without such appellant being afforded the right to be heard.”

SUBMISSIONS BEFORE THIS COURT

Mr Zhuwarara for the appellant submitted that the court a quo erred in upholding the respondent’s decision to cancel the first appellant’s mining rights for failure to declare output in terms of s 400 (1) (a) of the Act which could not be a basis for cancellation in circumstances were the appellants had not commenced mining operations. He averred in this regard that s 320 of the Act, which related to a miner having mining rights for a substantial period of time without working on the claims was the applicable law.

He further submitted that the respondent had based his decision on inspection certificates the first appellant had obtained, in terms of s 211 of the Act upon use of capital expenditure on the claims and not because it had commenced mining operations. He maintained that the appellants had not commenced any mining operations on the claims and the dumps found at the mining claims were from small scale invaders who had invaded the appellant’s claims and not the appellant’s as had been alleged by the respondent.

In respect of the respondent’s failure to serve the second appellant with the show cause notice Mr Zhuwarara in motivating this ground of appeal submitted that by virtue of the tribute agreement between the first and second appellants, there was a statutory obligation on the respondent to notify the second appellant of his intention to cancel the mining claims. Counsel argued that as a tributary, the second appellant’s rights could not be obviated by the respondent without giving it a right to be heard. He contended that the respondent had not only endorsed the tribute agreement between the appellants but had signed some of the agreements between the appellants relating to the mining claims in question. This proved that the second appellant had accrued rights which rights could not be summarily ignored by the respondent. Counsel thus submitted that the drastic decision made by the respondent to cancel the mining claims without affording the second appellant a chance to be heard was unlawful and the court a quo erroneously upheld it.

On the issue of the court a quo refusing to determine appellants’ claim that the cancellation had been done for ulterior motives Mr Zhuwarara submitted that the court a quo erred when it held that the issue had been raised for the first time in the appellants heads of argument. He submitted that the issue was raised in the appellant’s pleadings.

Per contra, Mr Chitekuteku for the respondent submitted that the court a quo correctly upheld the respondent’s decision cancelling the appellants' mining claims as he had been satisfied that mining operations had commenced on the claims in question. He contended that once operations had commenced and the first appellant failed to declare the output, the respondent had the authority to cancel the mining rights as he did. Counsel further argued that inspection certificates are only obtainable in terms of s 197, once work commences in terms of s 205 of the Act and commencement of operations involves development work as well as extraction of minerals which all serves as evidence proving that the appellants had commenced mining operations on the claims. It was on this basis that counsel maintained that s 400 (1) (a) of the Act was the applicable provision of the law under the circumstances.

Mr Chitekuteku also submitted that the dumps found at the mines further proved that the appellants had indeed commenced mining operations on the mining claims and that minerals had been extracted and processed yet the appellants had failed to declare the output. Counsel therefore argued that the cancellation had not only been lawfully done but justifiably so.

In response to the respondent’s failure to hear the second appellant Mr Chitekuteku contended that there had been no infringement of its rights since the respondent had no obligation to notify other interested parties who were not holders of mining title of his intention to cancel the mining claims. Counsel was of the view that the first appellant being the holder of the mining title in question and not the second appellant, the tributary agreement between the two appellants had not transferred ownership of the claims and given the second appellant such rights. There was therefore no statutory obligation on the respondent to hear the second appellant. He argued that the duty fell on the first appellant to notify the second appellant not on the respondent as the second appellant was not a holder of any inspection certificate which was the basis for cancelling the mining claims.

On the court a quo’s refusal to determine the issue of the cancellation having been done for ulterior motives Mr Chitekuteku submitted that the court a quo had correctly refused to determine that issue because it had been raised for the first time in the appellant’s heads of argument.

THE ISSUES

The appeal raises three issues for determination:

Whether or not the court a quo erred in finding that the respondent’s decision to cancel the appellants' mining rights in terms of s 400 (1) (a) of the Act was lawful.

Whether or not the second appellant’s right to be heard was infringed by the respondent’s failure to also serve it with the show cause notice.

Whether or not the respondent had cancelled the claims for ulterior motives.

APPLICATION OF THE LAW TO THE FACTS

Whether or not the court a quo erred in finding that the respondent’s decision to cancel the appellants' mining rights in terms of section 400 (1) (a) of the Act was lawful.

Section 400 (1) (a) of the Act provides that:

“If the Minister has reason to believe that a miner has failed, within a reasonable period after commencing mining operations, to declare any output from his mining location, whether in terms of this Act or any other enactment; the Minister may do either or both of the following

by written notice served on the miner concerned, notify the miner concerned of his intention to cancel his rights in relation to the mining location concerned, and call on the miner to show cause, within such reasonable period as may be specified in the notice, why such rights should not be cancelled

direct any person employed in his ministry to conduct an investigation into the nature and extent of any mining operations that have been conducted on the mining locations” (emphasis added)

It is an established principle of law that when interpreting a statute, the first cannon of interpretation to be applied is the golden rule which states that where the language used in a statute is plain and unambiguous, it should be given its ordinary grammatical meaning unless doing so would lead to some absurdity or inconsistency with the intention of the legislature. A provision of a statute should be given a meaning which is consistent with the context in which it is found. This position was clearly stated in Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S) at 264 D-E, where McNALLY JA said:

“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as Lord WENSLEYDALE said in Grey v Pearson (1857) 10 ER 1216 at 1234, 'unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further.”

See also Madoda v Tanganda Tea Co Ltd 1999 (1) ZLR 374 (S) at 377.

The same principle was expressed by this Court in Endeavour Foundation & Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S) at p 356 F-G to 357 A where GUBBAY CJ said:

“The general principle of interpretation is that the ordinary, plain, literal meaning of the word or expression, that is as popularly understood, is to be adopted, unless that meaning is at variance with the intention of the legislature as shown by the context, or such other indication as the court is justified in taking into account, or creates an anomaly or otherwise produces an irrational result. See Stellenbosch Farmers Winery Ltd v Distillers’ Corp (SA) Ltcl & Anor 1962 (1) SA 458 (A) at 476 E-F.”

The circumstances in which the court may depart from the golden rule of interpretation were authoritatively laid down by INNES CJ in Venter v R 1097 TS 910, at pp 914 - 915 where he said:

“.That being so it appears to me that the principle we should adopt may be expressed somewhat in this way - when to give the plain words of the statute their ordinary meaning would lead to absurdity so glaring that it could never have been contemplated by the Legislature, where it would lead to a result contrary to the intention of the Legislature, as shown by the context or by such other considerations as the court is justified ln taking into account, the court may depart from the ordinary effect of the words to the extent necessary to remove the absurdity and give effect to the true intention of the legislature.”

In this case, the meaning of the words “has reason to believe that a miner has failed, within a reasonable period after commencing mining operations, to declare any output from his mining location, whether in terms of this Act or any other enactment; the Minister may do either or both of the following’ contained in s 400 (1) (a) of the Act are axiomatic, clear and not ambiguous. What s 400 (1) (a) of the Act provides is that the Minister is entitled to cancel one’s claim in the event that a miner has failed to declare output of production after commencing mining operations. The commencement of mining operations is therefore a pre-requisite for one to become obliged to declare an output of production.

Section 400 (1) (a) does not apply to miners who would not have commenced any mining activities on their mining claims. The court a quo had to determine whether or not the appellants had commenced mining activities and failed to declare their output which would in turn justify the cancellation of the first appellant’s mining title by the respondent.

The provision is clear in its language that for the cancellation of rights by the respondent to be lawful, he ought to have reasonably believed that the first appellant had failed to declare any output from his claims after commencing mining operations. In this case, the appellants contended that the respondent made assumptions that since the first appellant had obtained inspection certificates and had obtained rights to the claims for a period exceeding 25 years, then mining operations had commenced and that it was too long a period for a miner to not have started mining after obtaining mining rights. The respondent did not know this as a fact.

There was evidence presented by the first appellant’s legal practitioners to the respondent in their show cause document which served to prove that the first appellant had not commenced mining operations on the claims. The appellants made various reports to the respondent about unlawful invasions which were being carried out on the mining claims by illegal miners which showed that it had not commenced any mining operations. This was further established by the court proceedings under HCB 2420/19, 2751/19 and 686/21 which the first appellant had instituted against the illegal miners which had been brought to the respondent’s attention.

The first appellant also made reference to the letters and meetings held with the respondent regarding the mining claims particularly the tribute agreement with the second appellant and the plans and intentions which the appellants had for the Antelope claims. It further pointed out to the respondent that his office had approved the infrastructural plans the second appellant was developing at the mining claims which proved that even though mining operations had not commenced, the appellants were working on commencing mining operations on the claims.

The respondent did not deny any of the allegations made by the first appellant in its show cause response. Instead, he remained adamant that s 400 (1) (a) was the correct provision and he justified the cancellation by holding that since the first appellant was obtaining inspection certificates, it proved that it had commenced mining operations on the claims but failed to declare output. The court a quo relied on the same reasoning in upholding the respondent’s cancellation of the appellant’s claims. It did not take into consideration the correspondence the appellants attached to their answering affidavit which proved that the appellants had not commenced mining operations on the claims in issue.

The respondent had been advised through two letters written to his Director responsible for Matabeleland South by Fisani Moyo and Yellow Candy that the appellant was not mining on the claims but was selfishly holding on to the idle mining claims to the prejudice of the community where the mining claims are located. Yellow Candy had specifically alleged that the first appellant’s Antelope mining claims had not been mined for four decades. In spite of that evidence which supports the appellants’ claim that they had not commenced mining operations on the claims, the court a quo upheld the respondent’s decision to cancel in terms of s 400 (1) (a) of the Act. It upheld the cancellation of the mining claims on the basis that the first appellant had obtained mining title to the mining claims 25 years ago. It further reasoned that there has to be some mining activity before the issuance of inspection certificates in terms of s 197 (1) of the Act which provides that inspection certificates are issued “in respect of work executed upon such block or mining lease.” It held that:

“The impression gained is that mining operations had commenced. I hold that view because on an interpretation of the phrases as given above, work done in connection with the block can only mean mining operations for what other work would begin on a mining claim besides the commencement of mining operations”

In Van Heerden v Queens Hotel (Ltd) 1973 (SA) 14, the court held that:

“Courts are extremely loath to read into an Act words which are not there. They will only do so, when not to do so, will lead to an absurdity so glaring, that it could never have been contemplated by the legislature.”

The court a quo in upholding the respondent’s decision made an incorrect assumption that the appellants had commenced mining activities because they had been issued with inspection certificates by the respondent’s Ministry which certificates could only be issued, in terms of s 197 of the Act for work executed in extracting minerals yet this is not what is contemplated by s 197 (1) of the Act as work executed could mean other work which is not necessarily extraction of minerals for the purposes of declaring output of production. The Court a quo also erred as inspection certificates can in terms of s 211 (3) and (4) of the Act be issued in respect of capital expenses incurred for the claims. Section 211 (3) and (4) of the Act provides as follows:

“(3) 	For the purpose of obtaining an inspection certificate in respect of capital expenditure, any capital expenditure incurred in respect of any mining location after the date of the registration of the block or the date of the issue of the mining lease, as the case may be, may, notwithstanding section two hundred and four, be declared unless such expenditure was incurred more than two years before the date on which it is declared.

(4) 	Where capital expenditure is incurred in respect of any property, such expenditure may be declared for the purpose of obtaining an inspection certificate for any block forming part of such property, and in such case no certificate of extra work shall be required for any such inspection certificate.”

In view of s 197 not being the only provision through which the first appellant could have obtained inspection certificates the court a quo erred when it without referring to s 211 concluded that the first appellant had commenced mining operations because it had obtained inspection certificates on the basis of its mining operations

It was held in Munhumeso & Ors 1994 (1) ZLR 49 (SC) @ 59G that:

“Derogations from rights and freedoms which have been conferred should be given a strict and narrow, rather than a wide, construction. Rights and freedoms are not to be diluted or diminished unless necessity or intractability of language dictates otherwise.”

It is this Court’s view that it was not the intention of the legislature in s 400 (1) (a) of the Act to confer upon the respondent power to cancel a miner’s rights for failure to declare output of production where extraction of minerals had not commenced. The respondent therefore incorrectly interpreted s 400 (1) (a) of the Act. At the very least the respondent should as provided by s 400 (1) (a) (ii) have ordered an official of his ministry to conduct an investigation on the mining operations at the Antelope claims in order to satisfy himself that mining operations had commenced. Having failed to do so, the respondent could not lawfully cancel the mining claims in terms of s 400 (1) (a) of the Act.

Sections 320 to 325 of the Act provide for the procedure to be followed after receipt of a report that a claim or claims are not being adequately worked or are not being worked at all for the expropriation of such claims and the registration of the expropriated claims. They provide as follows:

“320   (1) 	If any person has reason to believe that a registered mining location is not being worked at all or is not being adequately developed or worked, he may report the matter in writing to the mining commissioner and, with such report, shall lodge a deposit of four hundred dollars.

(2) 	On receipt of such report the mining commissioner shall obtain from a Government mining engineer a report on the matter.

(3) 	If the mining commissioner has reason to believe, whether in consequence of the receipt of a report mentioned in subsection (1) or otherwise, that a registered mining location is not being worked at all or is not being adequately developed or worked, he shall obtain a report from a Government mining engineer.

(4) 	On receipt of the report of the Government mining engineer under subsection (2) or (3), the mining commissioner shall refer the matter to the Board.

321 	Upon the receipt of a report in terms of section three hundred and twenty, the Board shall inquire into the history of the mining location and investigate the mining activities that have been or are being conducted on such mining location with a view to discovering whether such location is being adequately developed or worked.

322 	If after investigation the Board is of opinion that the mining location is not being developed or worked at all or is not being adequately developed or worked, it shall call upon the registered holder of such location to show cause why such location should not be expropriated.

323 	After considering the representations made by the registered holder under section three hundred and twenty two, the Board may recommend to the President that an order expropriating the mining location be made by him unless it is satisfied as to any one of the following matters—

(a) 	that the failure to develop or work or adequately to develop or work such location is due to causes beyond the control of the holder, which he has made every effort to overcome;

(b)	 that it is the holder’s intention to start or continue developing or working the location within a period of six months on a scale satisfactory to the Board;

(c)	 that the location is essential to other mining operations being conducted by the holder and will be worked when the mine which he is at present operating ceases to be productive;

(d) 	that there is reasonable cause for the delay in developing or working such location or for not adequately developing or working such location;

(e)	that the location forms part of a series of not more than ten blocks contiguous to a main block being worked by the holder and is essential to the proper working of such main block.

324 (1) 	Whenever the Board makes a recommendation for the making of an order of expropriation, it shall submit to the President all relevant documents and a written report setting out the grounds for its recommendation.

(2) 	Upon receipt of such report and recommendation the President may require the Board to make further investigations and shall afford the holder of the location an opportunity of making representations to him why the order should not be granted.

(3) 	If after considering all the information laid before him the President is of opinion that the mining location is not being worked at all or is not being adequately developed or worked, he may make an order declaring that the mining location is expropriated.

(4) 	Every order made by the President under this section shall be published in the Gazette and a copy of the order shall be sent to the holder of the expropriated mining location and to the mining commissioner of the district in which the mining location is situated and, where the expropriated mining location is a mining lease, to a Board.

325 (1)   Upon receipt of a copy of the order the mining commissioner shall transfer the expropriated location to the Minister by making the necessary entries in the appropriate registers and other records and shall inform the Board of such transfer.

(2) 	No fee or duty shall be payable in respect of anything done in terms of subsection (1).

(3) 	Save provided by section three hundred and twenty-nine, no compensation shall be payable to the holder of any expropriated location or to any other person in respect of an expropriated location.”

The procedures provided by ss 320 to 325 should have been followed instead of relying on s 400 (1) (a) of the Act. We are therefore satisfied that grounds 1 and 2 ought to succeed, as the court a quo’s decision in upholding  the cancellation of the appellant’s claims by the respondent in terms of s 400 (1) (a) of the Act was not in terms of the law.

Whether or not the second appellant’s right to be heard was infringed by the respondent’s failure to serve it with the show cause notice.

The audi alteram partem rule holds that a man shall not be condemned without being given a chance to be heard in his own defence. The rule is so basic to jurisprudence that, EBRAHIM J (as he then was) in Dube v Chairman, Public Service Commission & Anor 1990 (2) ZLR 181 (H) at p 188D, said:

“It is often termed a rule of natural justice”.

The rule implores public officials, judicial and quasi-judicial officers, and anyone entrusted with the power to make decisions or the power to take action affecting others adversely, to exercise such powers fairly. Fairness is the overriding consideration.

In the case of Schmidt and Anor v Secretary of State for Home Affairs [1969] 1 All ER 904 (CA), LORD DENNING MR at p 909 said:

“The speeches in Ridge v Baldwin n(7) show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say” (emphasis added).

Later on, in 1971, LORD DENNING had this to say in Breen v Amalgamated Engineering Union and Ors [1971] 1 All ER 1148, at p 1153:

“It is now well settled that a statutory body, which is entrusted by a statute with a discretion, must act fairly. It does not matter whether its functions are described as judicial or quasi-judicial on the one hand, or as administrative on the other hand, or what you will. Still, it must act fairly. It must, in a proper case, give a party a chance to be heard.”

In this jurisdiction, the doctrine is firmly entrenched. See the cases of Health Professions Council v McGowan 1994 (2) ZLR 329 (S) at 334, and Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S) among others. In the McGowan case GUBBAY CJ at p 334B-C said:

“In short, the legitimate expectation doctrine, as enunciated in Traub, simply extended the principle of natural justice beyond the established concept that a person was not entitled to a hearing unless he could show that some existing right of his had been infringed by the quasi-judicial body. Fairness is the overriding factor in deciding whether a person may claim a legitimate entitlement to be heard.”

Therefore, administrative decisions such as the one made by the respondent as minister in the present case when he issued the notice of cancellation ought to give effect to the rules of natural justice. Section 68 (1) of the Constitution of Zimbabwe (2013) provides as follows:

“Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.”

The court is satisfied that the respondent is an administrative authority within the meaning of that expression as defined in terms of s 2 of the Administrative Justice Act [Chapter 10:28] (the AJ Act). His cancellation letter was therefore an administrative action. Section 2 of the AJ Act defines these terms as follows:

“2 (1) In this Act -

‘administrative action’ means any action taken or decision made by an administrative authority

‘ administrative authority’ means any person who is-

… (c) a Minister or Deputy Minister of the state, or

(d) any other person or body authorised by any enactment to exercise or perform any administrative power or duty.”

Section 3 of the AJ Act reads:

“(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-

(a)    act lawfully, reasonably and in a fair manner; and

(b)  	act within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being requested to take the action by the person concerned; and

(c)   	where it has taken the action, supply written reasons therefor 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 paragraph (a) of 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 representation; and

adequate notice of any right of review or appeal where applicable.

The court is satisfied that, the respondent breached s 3 of the A J Act by failing to afford the second appellant an opportunity to be heard with regard to its intention to cancel the first appellant’s mining title in the Antelope mining claims over which it held a tribute agreement with the first appellant. In particular, he failed to comply with para (a) of subs (1) and subs (2). He failed in his duty to act in a fair manner; he failed to give the second appellant any notice of his intention to cancel the first appellant’s antelope claims, or an opportunity to make adequate representations before he implemented his decision, let alone before making it.

As we observed earlier the Act is a codification of the rules of natural justice as they relate to administrative law. Therefore the factors which are relevant to the considerations of the common law rules of natural justice would all, or largely apply to considerations of the duties of public bodies under the A J Act. In this case, we find that there are no factors which can exempt the respondent from complying with the provisions of s 3 (1) and (2) as provided by subs (3) of s 3 of the A J Act.

In the case of Zindoga & Ors v Minister of Public Service, Labour and Social Welfare & Anor 2006 (2) ZLR 10 (H), PATEL J (as he then was), at p 13D- E said:

“It is axiomatic that any party who has a right or interest that is likely to be affected by an administrative decision or which is susceptible to being prejudiced thereby must be heard before that decision is taken. This is dictated by the time honoured precept of the common law embodied in the audi alteram partem rule and now codified in the Administrative Justice Act [Chapter 10: 28”(emphasis added).

The Act requires an administrative authority to observe the rules of natural justice whenever it makes an administrative decision or takes an administrative action adverse to vested rights or legitimate expectations. In the present case, the respondent was aware of the tribute agreement between the appellants which he had approved and registered. He was also aware of the preparatory work which was being done by the second appellant on the Antelope mining claims which proved that it was an interested party in as far as the mining claims in question are concerned. The respondent ought therefore to have issued the second appellant with a show cause notice and afforded it an opportunity to make representations in respect of the Antelope mining claims. Failure to do so amounted to a disregard of the law by the respondent. The court a quo therefore erred by upholding the respondent’s disregard of the law.

Whether the respondent cancelled the appellants’ claims for ulterior motives.

The appellants raised this issue in their answering affidavit in which they alleged that the respondent had cancelled their claims so that he could grant them to individuals who had been unlawfully invading their claims. They relied on correspondence from Yellow Candy to the respondent’s mining Director for Matabeleland South dated 7 April 2022 in which it was applying that it be allocated the appellants' claims as it had been advised that the appellants’ claims had been cancelled They further relied on the respondent’s spirited attempts to go ahead with the registration of the cancellations in spite of the then pending review application which resulted in appellants having to apply for an interdict which was granted by the High Court on 27 May 2022 in HC 3439/22. They also relied on the Provincial Mining Director’s letter dated 4 May 2022 requesting that the appellants’ cancelled claims be gazetted in spite of the fact that the respondent was aware that the cancellation had been taken to the High Court on review.

The court a quo refused to determine this issue because according to it, it had been raised for the first time in the appellants; heads of argument. The court a quo’s reason for refusing to determine the issue is not supported by the record of proceedings. The record establishes that the issue was raised in the appellants' answering affidavit. The issue of whether or not an additional cause of action raised through an answering affidavit was properly before the court a quo was not argued before this Court. We cannot therefore make a determination on this issue. It might have been appropriate to remit the matter to the court a quo for a determination of this issue but we are of the view that the appellant’s success on grounds 1, 2 and 4 determined the controversies which were between the parties. There is therefore no need for a determination of this issue.

DISPOSITION

We are satisfied that the respondent acted contrary to the provisions of s 400 (1) (a) of the Act and s 3 of the AJ Act. His cancellation of the first appellant’s claims is therefore ipso facto null and void. We are therefore satisfied that the appellants have made out a case for the relief that they sought. There is no reason why costs should not follow the result.

We accordingly order as follows:

The appeal is allowed with costs.

The judgment of the court a quo is set aside and is substituted as follows:

“The decision of the respondent dated 21 April 2022 cancelling the first appellant’s claims with the following numbers Antelope 9- Reg No-36034, Antelope 2,3,4,5&6 –Reg Nos 33199, 33127, 33128, 33129 & 33130, Antelope East 2- Reg No-32200 Antelope East Extension & Antelope Extension 2- Reg No’s  34385 & 34386 Antelope East- Reg No -32106 Antelope 11 –Reg No 36036 be and is hereby set aside.”

GUVAVA JA:  		I agree

MWAYERA JA:	 	I agree

Gill, Godlonton & Gerrans, appellants’ legal practitioners

The Civil Division of the Attorney General’s Office, respondent’s legal practitioners