Administrative Action

Anjin Investments (Private) Limited v The Minister of Mines and Mining Development & 3 Others (CCZ 6/18, Constitutional Application No. CCZ 38/16) [2018] ZWCC 6 (27 June 2018);

The applicant, had received a letter from the Secretary for Mines and Mining Development alerting them that their special grants for mining had expired and they had to cease all mining activities and vacate the covered mining areas. The Minister further issued a press statement on the consolidation of all diamond mining activities in the grant areas.

The applicant averred that the above decisions had prejudicial effect on it which also violated its property rights.

The respondents alluded that the application was improperly brought before the court as it appeared to be a response to the judgment of the High Court which the applicant had previously lodged but never appealed and that the cause of action was res judicata and that the avoidance principle applied here. The court, therefore, had to decide on these three main points.

The court held that the appeal had been disguised as a case concerning constitutional points and should have been brought in terms of s167(5)(b) of the Constitution.

It held that although the basis of the application had changed with the introduction of the constitutional question, the effect of the relief sought remained the same.

The court also held that the bulk of the applicant’s case was on right to just administrative action which was protected under the Administrative Justice Act which had sufficient grounds to deal with the rights they alleged had been infringed.

The matter was dismissed with costs.

REPORTABLE        (6)

 

 

ANJIN     INVESTMENTS    (PRIVATE)     LIMITED

v

  1.  

 

 

 

CONSTITUTIONAL COURT OF ZIMBABWE

MALABA CJ, GWAUNZA JCC, GOWORA JCC,

HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC,

MAVANGIRA JCC, UCHENA JCC & ZIYAMBI AJCC

HARARE, 19 JULY, 2017 AND 27 JUNE, 2018.

 

 

 

 

S v Tinodya & 3 Others (HH 215-18, CA 668/16 Ref CRB 3503-7/16) [2018] ZWHHC 215 (25 April 2018);

The court considered a criminal appeal, where the applicants had been charged for contravening s7(1)(a) or (b) of the Communal Land Act, by occupying or using communal land without lawful authority. The applicants pleaded guilty and were convicted and sentenced to pay a fine of $5000 or 30 days in prison. The appellants appealed the conviction on the ground that the court committed an irregularity by failing to proceed in terms of the correct procedure. 

They contended that by entering a guilty plea, the court had a duty to safeguard the fair trial rights of the accused by adopting a procedure which was most likely to suggest a defence where there was one.

The court considered whether the appellant’s conviction was lawful. It observed that with unrepresented accused persons, there was the ever-present likelihood that out of ignorance of the law, a person would admit to charges of a complex nature out of a desire to draw sympathy of the police or the courts and the onus was upon the court to choose a procedure which would have given the appellants a possible defence.

The court found that the conviction was wrong and remitted the matter back to the lower court. In addition, the court below would be required to take cognizance of s 16 of the Act which required that following a conviction, an order for eviction be granted. Accordingly, the appeal succeeded.

TAVENGERWEI TINODYA

and

AGNES MUCHINA

and

BESTI MUNGONO

and

FUNGAI WENGE

versus

THE STATE

 

 

HIGH COURT OF ZIMBABWE

HUNGWE & WAMAMBO JJ

HARARE, 29 March 2018 & 25 April 2018

 

 

Criminal appeal

 

 

D Mudadirwa, for the appellant

Mrs S Fero, for the respondent

 

S v White (HB 07/17 HCA 84/15) [2017] ZWBHC 07 (26 January 2017);

This was an appeal against the decision of a magistrate to evict the appellant from land which he had occupied for several years. The appellant was convicted of contravening s 3(2) (a) as read with s 3(3) of the Gazetted Lands (Consequential Provisions) Act, for continuing to occupy state land without lawful authority. 

The appellant contended that the trial magistrate failed to take into account that he had established a lawful right to remain on the property through the authority of the Ministry of Lands and Rural Resettlement and by being in possession of mining rights over the land.

The High Court considered whether the magistrate erred by failing to consider the appellant’s arguments. The court applied s 236 of the Criminal Law Code that provides that ignorance of law is a defence but where such ignorance was brought about by the advice of an administrative officer and the advice is acted upon, this was a proper defence. The court noted that that the Chief Lands Officer had instructed the appellant to remain in occupation of the farm and he acted on these representations.

The court also found that the appellant’s mining rights gave him a right of occupation of the land and the right to the use of any surface within the boundaries of land. 

The appellant’s eviction and sentence was therefore held to be unlawful and the court set aside the appellant’s conviction and sentence. 

1

        HB 07/17

     HCA 84/15

 

TIMOTHY SEAN WHITE

 

Versus

 

THE STATE

 

IN THE HIGH COURT OF ZIMBABWE

MAKONESE & TAKUVA JJ

BULAWAYO 11 JULY 2016 & 26 JANUARY 2017

 

Criminal Appeal

 

S. Collier for the appellant

Ms S. Ndlovu for the respondent

ANJIN Inv. (Pvt) Ltd. v Minister, Mines and Mining Development & Others (HH 228-16 HC 2183/16) [2016] ZWHHC 228 (30 March 2016);

This was an application for an interim relief of setting aside the first respondent’s directive that ordered the applicant to cease their diamond mining operations after the applicant’s rights in a ceded portion of a special grant 4765 expired.

The applicant argued that clause 8 of the grant allowed it to work the sites which were ceded to it for an indefinite period of time. The first respondent countered this on the basis of s 291 of the Mines and Minerals Act that requires special grants to be issued for a specified period of time.

Further, the first respondent argued that no real cession had occurred since the applicant as the holder of the ceded and ‘residual’ portions of the grant were operating outside the law.

The court noted that the first respondent gave the applicants a 5-year period to renew the grant when they allowed the grant to operate outside the law before declaring it invalid, and the applicants still failed to renew it. For this reason, the applicant was found to have approached the court with ‘dirty hands’ since it was in breach of the condition of the special grant and s 29 of the act.

The applicant failed to prove that the first respondent acted unlawfully, unreasonably or disproportionately for the court to apply its review discretion. The court, therefore, held that the first respondent was right in exercising its administrative discretion and pronouncing what the law said.

Accordingly, the application was dismissed with costs.

1

HH 228-16

HC 2183/16

ANJIN INVESTMENTS (PRIVATE) LIMITED

versus

THE MINISTER OF MINES & MINING DEVELOPMENT

and

THE MINISTER OF HOME AFFAIRS

and

THE COMMISSIONER-GENERAL

OF THE ZIMBABWE REPUBLIC POLICE

 

 

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 7 and 30 March 2016

 

 

Urgent Chamber Application

 

 

P Ranchhod, for the applicant

L Uriri, for the 1st respondent

S v Jamari (HH 131/16 CA 560/09 CRB NO. MUT 307/03) [2016] ZWHHC 131 (16 February 2016);

The court considered a criminal appeal against the sentence imposed on the accused. 

The accused was convicted, on his own guilty plea, for contravening s 3(1)(a) of the Gold Trade Act by being in possession of 0.15 grams of gold without authorisation.

The evidence revealed that the accused was asked whether there were any special circumstances, which the court below established did not exist and sentenced him to the mandatory minimum sentence.

The accused argued that the trial judge did not explain in full what special circumstances meant and the inadequate explanation prejudiced him. The respondent agreed and stated that the explanation was “special or extraordinary mitigating factors” where it should have referred to special circumstances. 

The court found that the Act did not define special circumstances, and it was on a case by case basis. However, the court below took all necessary steps to explain the meaning and import of special circumstances, which was given in clear unambiguous terms. 

The court found that the accused was not an illiterate person and appreciated what was taking place and there was nothing preventing him from asking the magistrate for clarity. Further, that the accused’s conduct once arrested, in running away illustrated a guilty state of mind. 

The court found that the accused’s special circumstance of “being the only breadwinner” was clear that he was aware of the offence being committed. As such, the court found no merit in the appeal. 

1

HH 131/16

CA 560/09

CRB NO. MUT 307/03

VHAU JAMARI

versus

THE STATE

 

 

 

HIGH COURT OF ZIMBABWE

CHATUKUTA J & MANGOTA J

HARARE, 18 May 2015 and 16 February 2016

 

 

 

Criminal Appeal

 

 

 

D. Halimani, for the applicant

T. Mapfuwa, for the respondent

 

 

S v Moyo (CRB Mt 144/14) [2015] ZWHHC 452 (11 May 2015);

The court considered a criminal appeal against the sentence imposed on the accused, who was sentenced to a mandatory 2-year imprisonment for contravening s 368 (1), which dealt with the illegal mining of gold, under the Mines and Minerals Act

Before imposing a mandatory sentence, the court asked the accused if there were any special circumstances relating to the commission of the offence which would result in the requisite sentence not being imposed. 

The accused held that his special circumstances were that he did not have enough money for a bus fare. The court found that this did not constitute a special circumstance as poverty desperation could not be excused for the commission of a crime.

The court found that a special circumstance is within the court’s discretion and thus it should be taken to be any extenuating circumstance. Further, that the court should enquire into all circumstances put forward by an accused to validate the aspect of a special circumstance. 

The court held that a trial court had to ensure that economic situations leading to commission of crimes under economic circumstances at the time did not operate differently for the rich and for the poor. The court found that the court below should have performed a proper enquiry and that the accused should be given the benefit of the doubt. Accordingly, the appeal succeeded.

1

HH 452-15

CRB Mt 144/14

S v Macmillan (B 595/07) [2007] ZWHHC 11 (23 May 2007);

This was an appeal against the decision of the Magistrates Court, dismissing the appellant’s application for bail. The appellant was arrested for possessing gold without a licence.
At the initial bail hearing, the Magistrate questioned the issue of abscondment and held that the appellant was unlikely to stand trial for various reasons such as him being a “a man of means” who “could use that status to abscond”. The magistrate further held that the stipulated mandatory penalty “could certainly ignite motives of abscondment” and that “the onus was now on the accused to show on a balance of probabilities that his admission to bail would not prejudice the interests of justice”.
The court, therefore, had to decide whether the magistrate’s approach to onus was erroneous in light of the evidence placed before him.
The court held that the magistrate a quo did not misdirect himself as to the approach to follow but had failed to exercise due diligence. He made unfounded allegations which did not indicate whether the appellant was likely to abscond for those reasons. He had also left a lot of issues open ended such as the severity of the penalty, the issue of passports and had ultimately failed to assess the strength of the evidence forwarded by the appellant.
Therefore, the magistrate a quo misdirected himself his evaluation of the likelihood of abscondment by the appellant and the evidence did not indicate that the appellant would abscond. Accordingly, his decision to decline bail was set aside.

EWAN ALEXANDER MACMILLAN

versus

THE STATE

 

HIGH COURT OF ZIMBABWE

PATEL J

HARARE,  21, 22, 23 & 24 May 2007

 

Bail Appeal

 

Mr Chikumbirike, for the appellant

Ms Dube, for the respondent

 

 

Subscribe to Administrative Action