1

HH 681-22

HC 2163/21

SPENCER NYAKUDYA

versus

VIBRANIUM RESOURCES (PVT) LTD

and

 J MAKANDWA- PROVINCIAL MINING DIRECTOR

MASHONALAND CENTRAL N.O

and

MINISTER OF MINES AND MINING DEVELOPMENT N.O

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 16 November, 2021 & 5 October 2022

Opposed Court Application for review

T Gombiro, for the applicant

B Diza, for 1^st respondent

R J Nyatati, for 2^nd & 3^rd respondents

CHITAPI J:   The applicant seeks a review of the decision of the second respondent to cancel Mining license number ‘X’ Mine 47622 issued in the applicants name and for an order of its reinstatement.  The draft order to the application was couched as follows-

“IT IS ORDERED THAT:-

1. That the cancellation of Applicant’s Mining Certificate for Shamva ‘X’ Mine Registration number 47622 posted on the Notice Board at Bindura, Mashonaland Central Province, at Ministry of Mines and Mining Development offices on 8 April 2021 be and is hereby set aside and substitute  with the following orders.  “The Applicant’s Mining Certificate for Shamva ‘X’ Mine Registration number 47622 be and is hereby reinstated and resuscitated.”
2. The cost of the application shall be borne by the first respondent in the event that he opposes the application.”

The first respondent apart from opposing the application filed a counter application which probably is not really necessary because the relief sought therein flows naturally from the relief that the court gives in the main claim if the claim succeeds.  The draft order to the counter claim is couched as follows:

            “IT IS ORDERED THAT:

1. That the applicant and all those claiming occupation through him be and are hereby evicted from block number 47622 formally registered as Shamva ‘X’ mine also known as Chipoli Estate, approximately 3-7km North-West of the Confluence of Mazowe and Nyawi Rivers in Shamva area.
2. That the applicant pays costs of suit.”

The brief material of facts the dispute most if not all are not in dispute.  They are that the applicant was issued with a registration certificate number 47622 on 26 August, 2020.  The area of the mine on which the claim lay is called Shamva ‘X’.  It is a block consisting of 10 claims and was issued license number 015471K.

The first respondent on the other hand was issued with licenses over five gold claims of 10 blocks each being registered number 47323-27 also within the same  area as that on which the applicants claim is situate being Chipoli Estate.  A boundary dispute involving the applicant and the first respondent’s claims arose because the mining claims or mines are adjacent to each other.  The boundary dispute was referred to the second respondent for his determination on or around December, 2020.  The second respondent determined that the applicant’s claim over-pegged onto the first respondent’s claims which were said to have been pegged prior to the pegging of the applicant’s claims.  It is what happened after the second respondent had made a finding of over pegging on the part of the applicant that concern this review.

The applicant contends that following the determination that the applicant’s claim was over-pegged on the first respondent’s claims, the second respondent wrote a letter dated 20 November, 2020 which he headed notice of intention to cancel certificate of registration number 47622.  The full content of the letter which appears as annexure C to the founding affidavit is as follows:

“Ref: MCENTRAL Z/649/301/20

20 November, 2020

Spencer Nyakudya

P. Box 65

Shamva

RE: NOTICE OF INTENTION TO CANCEL CERTIFICATE OF REGISTRATION NUMBER 47622; SHAMVA ‘X’ MINE

We hereby write to notify you of the intention to cancel certificate of registration of Shamva ‘X’ mine, registration number 47622, Shamva on 26 August, 2020.  The registration follows erroneous recommendations for approval of registration of the mine.

The proposed cancellation is in accordance with s 31 of the Mine and Minerals Act ,[Chapter 21:05] read with s 50 Cancellation of certificate of registration, subsection(1) of s 58, at any time cancel a certificate of registration issued in respect of a block or site if he is satisfied that;

1. At the time when such a block or site was pegged it was situated on ground reserved against prospecting and pegging under s 31 or 35 or on the ground not open to pegging in terms of subsection 238.

As such Shamva ‘X’ was registered on ground not open to prospecting and pegging as it was pegged on top of current mining locations, Ganja mines, registration numbers (47323-27) which were registered prior to Shamva ‘X’ (Section 177).

However, you are entitled to exercise your rights of appeal to the Minister of Mines and Mining Development within 30 days of receiving this letter against the proposed cancellation of your certificate.

T Ndhlovu

Provincial Mining Director-Mashonaland Central Province

FOR: SECRETARY FOR MINES AND MINING DEVELOPMENT”

The applicant contended that the second respond did not serve the applicant with the letter or copy thereof.

It is apposite at this juncture to consider the procedure provided for in the Mines and Minerals Act to [Chapter 21:05] for cancellation of mining claim certificates.  The provisions of s 50 of the Act govern the procedure.  They provide as follows:

“50. Cancellation of certificate of registration

(1) Subject to subsection (2), the mining commissioner may, notwithstanding subsection (1) of section fifty- eight, at any time cancel a certificate of registration issued in respect of a block or site if he is satisfied that—

(a) at the time when such block or site was pegged it was situated on ground reserved against prospecting

and pegging under section thirty-one or thirty-five or on ground not open to pegging in terms of subsection (3) of section two hundred and fifty-eight; or

(b) provisions of this Act relating to the method of pegging a block or site were not substantially complied

with in respect of such block or site.

(2) At least thirty days before cancelling a certificate of registration under subsection (1), the mining commissioner shall give notice to the holder of the block or site of his intention to cancel such certificate and of the

grounds for such cancellation and of the proposed date of such cancellation, and shall at the same time inform

the holder that he may, at any time before that date, appeal in writing to the Minister against such cancellation.

(3) Such notice shall be given by registered letter addressed to the holder of the block or site at the postal

address recorded in the office of the mining commissioner or, if no such address is recorded, by publication

thereof in the Gazette.

(4) Where such an appeal is made, the Minister shall give directions to the mining commissioner as to

whether or not the certificate of registration is to be cancelled, and the mining commissioner shall comply with

such directions.

(5) Upon such cancellation the mining commissioner shall post upon the board whereon notices of forfeiture are posted a notice giving particulars of such cancellation and shall, in addition, publish those particulars in

the Gazette and in a newspaper circulating in his district.

(6) A mining location, the certificate of registration of which has been cancelled in terms of this section,

shall, for the purposes of sections two hundred and sixty-eight, two hundred and sixty-nine, three hundred and

sixty-three and three hundred and seventy-five, be deemed to have been forfeited and, accordingly, any reference

in section two hundred and sixty-nine to the posting of a forfeiture notice shall be read as including a reference

to the posting of the notice of such cancellation.

 The provisions of s 50 may be summarized as that where the Mining Commissioner considers that there is legal ground to cancel a certificate of registration he or she should comply with the provisions of subsection(2).  The provisions are peremptory and must therefore be complied with fully for a valid cancellation of a certificate of registration to ensue.  The key provisions are:

1. The notice  to cancel should allow for a period of not less than 30 day’s notice to the proposed date of cancellation to the registered license holder
2. The notice should set out the grounds of cancellation.
3. The notice should indicate the proposed date of cancellation.
4. The notice should inform the holder of the certificate of registration that he or she may appeal to the relevant Minister in writing against the decision of the mining commissioner to cancel the certificate.  The notice should also advise the holder of the certificate that the appeal if the holder is advised to note one should be noted within the same 30 day period.

The above summarizes the nature and content of the notice of intention to cancel a certificate of registration.

The next issue is to consider the provisions relating to the service of the notice upon the certificate of registration holder.  Para 3 of s 50 provides for the mode of service.  It provides that service should be by registered post addressed to the holder at the postal address recorded in the office of the mining commissioner.  Where there is no postal address recorded in office of the Mining Commissioner, the notice should be published in the Government Gazatte.

The provisions of subsection (4) are important for noting.  I say for noting because they relate to a situation where a holder has noted an appeal against the notice of intention to cancel the certificate of registration.  The Minister on whom an appeal has been directed is required as a matter of law to give directions on whether or not the certificate of registration should be cancelled.  The Mining Commissioner is required to comply with the Ministers directions.  In a manner of speaking, where the holder has noted an appeal as aforesaid, the decision whether or not the certificate of registration should be cancelled will be given by the Minister.  Where however the holder has not noted an appeal, the decision that holds is that of the Mining Commissioner.

If the decision to cancel is retained, the Mining Commissioner must carry out three processes as provided for in subsection (5) above quoted, namely:

1. Post on the board where notices of forfeiture are posted, a notice which gives particulars of the cancellation.
2. Publish the particulars of cancellation in the Government Gazette.
3. Publish the particulars of cancellation in a newspaper circulating in the district of jurisdiction if the Mining Commissioner.

Subsection 6 is important.  It provides that the certificates of registration which is cancelled in terms of s 50 has the effect of deeming the mining locations to which it relates to

be forfeited.  It is therefore a requirement that the cancellation is only valid if it is carried out in terms of the provisions of s 50.  Where therefore as in this application, there is a challenge to the propriety of the cancellation, the dispute must be determined on the basis of tracing the paper trial leading to the cancellation of the certificate of registration.  A paper trial in this case connotes that the court must consider the written evidence of sequence of events or actions of the mining commissioner to determine whether he or she has discharged the cancellation formalities as required or sequenced by the provisions of s 50 as quoted.  The onus is on the second respondent to prove that he or she complied with the peremptory provisions of s 50 and that therefore the cancellation is valid.  The applicant must however lay the foundation of his claim which is to show that he or she was the lawful registered holder of the certificate of registration which was purportedly cancelled and that such cancellation was unprocedural, setting out facts to support such belief.

The applicants submission was that he was not served with the notice of intention to cancel his mining registration certificate and that by failure to do so, the notice cannot be implemented.  He averred that by application HC 7682/10 the first respondent sought to interdict the applicant from carrying out mining operations in the event that the applicant appealed against the notice of cancellation.  The applicant averred that it was in that application that he for the first time became aware of the notice of cancellation which had been prepared by the second respondent.  The applicant averred that he was not served with the notice of intention to cancel his certificate of registration and that the subsequent purported cancellation of the certificate of registration by the second respondent on the basis that the applicant had not appealed to the third respondent was a nullity for failure by the second respondent to comply with the provisions of s 50.  On 26 April 2021 and by the letter of that date, the applicants’ legal practitioners protested the purported cancellation of the applicants’ certificate of registration.  The legal practitioners in the letter advised the second respondent that the purported cancellation was null and void and that if the second respondent was intent to cancel the licence, he should do so in terms of the provisions of the Mines and Minerals Act.  The letter in question was annexed by the applicant as Annexure ‘H’ to the founding affidavit.

In answer to the allegations of procedural irregularities committed in the purported cancellation of the applicants certificate of registration, the respondent in a letter dated 6 May 2021 in response supported the cancellation and wrote as follows:

“REF: MCENTRALZ/602/21

6 May 2021

Chiturumani Zvavanoda Law Chambers

1 Waterhill Avenue

Eastlea

Harare

Attention:Mr T Chiturumani

RE: CANCELLATION OF CERTIFICATE OF REGISTRATION: SHAMVA ‘X’ MINE (REGISTRATION NUMBER 47622)

The above mater refers;

We write in response to your letter dated 26^th April 2021 in which you were queering the cancellation of the above mentioned mine.

Please note that you client was notified of the cancellation by way of a registered letter addressed to the postal address recorded in our office on 4 February 2021 in accordance to Section 50 of the Mines and Minerals Act, [Chapter 21:05].

Also note that cancellation of the above mentioned mining certificate was posted on our notice board on 8 April 2021 in accordance to Section 50(5) of the Mines and Mineral Act [Chapter 21:05].

Please be advised accordingly.

J Makandwa

Provincial Mining Director-Mashonaland Central

FOR: SECRETARY FOR MINES AND MINING DEVELOPMENT

cc Minister of Mines and Mining Development –Hon W Chitando

     Permanent Secretary for Mines and Mining Development – Mr O M Moyo

     Chief Director Technical Services – Mr C S Tawha

The issue that resolves the dispute is to determine whether or not the process of cancellation was done in accordance with the law and therefore valid.  Starting with the letter of notice to cancel the applicant’s licence, the letter of notice did not provide a date on which it was proposed to cancel the licence.  Section 50(2) provides that the proposed date of cancellation should be indicated.  The letter provided that the applicant was entitled to exercise his rights to appeal to the third respondent; “within 30 days of receiving this letter against the proposed cancellation of your certificate”.  This is not what the law provides for.  The law provides that the notice of intention to cancel should specify the date on which cancellation is proposed to be done and it further provides that the Mining Commissioner:

“…..shall at the same time inform the holder that he may at any time before that date appeal in writing to the Minister against such cancellation…”

It is not the law that the intended appeal be filed within 30 days from the date that the licence holder receives the letter of the proposed cancellation.  The 30 days are calculated backwards from the date of proposed cancellation. 

In respect of the service of the notice, the second respondent averred that service of the notice was attempted upon the applicants’ legal practitioners who refused to accept service, thereby prompting the second respondent to then serve the notice by registered post.  The legal practitioners were right to refuse to accept service and to advise the second respondent to effect service in the manner provided for in s 50(3) of the Mines and Minerals Act.  The Legislature in clear terms provided that service of the notice shall be by registered post in the first instance.  The postal address to be used is the address provided by the licence holder appears in the records kept by the Mining Commissioner relating to the claim in issue.  In the event that there is no such address on record, service of the notice shall be by publication in the Government gazette.  There is therefore no proper service if done in other ways not provided for in s 50(3).

The second respondent then submitted that he effected service by registered post.  The applicant denied that the notice was received thus effectively challenging that service was effected as aforesaid.  The onus was then on the second respondent to prove the service by registered post as claimed by him.  In this respect, the Mines and Minerals Act does not provide how service by registered post is proved.  Therefore service by registered post cannot be deemed.  The applicant averred that annexure A to the opposing affidavit, being a certificate of posting a registered article was proof of service.  The High Court rules provide for how service of process by registered post should be proved.  There are however not relevant because the rules apply to service of process of the High Court of which the notice of intention to cancel is not such.

The method of proving service of the notice by registered post since it was challenged had to be found in the enactment which provides for postal service.  The Postal and Communications Act, [Chapter 12:05] provides in Part XIIV for registration of postal articles therefore s 80 of that Act provides that the sender may apply at the time of registering the article that he be furnished with an acknowledgement by the addressee of receipt of the article.  Section 81 provides as follows:

“81. Inquiry as to loss or non – delivery 

The sender of a requested article may on application made within twelve months after the registration of the article and on payment of the charge prescribed require the postal licence to institute an enquiry to the loss or non-delivery of a requested article”.

Since the applicant denied   that the proposed notice was served upon him by registered post, all that the second respondent should have done if advised was to seek the intervention of the postal licencee to investigate   and provide a report on the fate of the requested article, namely, the notice of cancellation. The second respondent therefore failed to show or prove that the notice was delivered on the applicant by registered post.  The mere fact that the postal agency issued a receipt to acknowledge that it had received an article for service by registered post did not establish or prove that the article was then delivered.  It could have been lost inside the postal system.

The next issue is to consider the effect of the failure by the second respondent to serve the notice as provided for by law. In this regard guidance may be sought from the words of Mcnally JA in the case Affretair (Pvt) Ltd and Another v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S) where at p 24, the  learned Judge stated as follows:

“The function of judicial revises is to scrutinize the legality of administrative action; nor to secure a decision by a judge in place of an administration.  As a general principle, the courts will not attempt to substitute their own decision for that of the public authority.   If an administrative decision is found to be ultra vires the court will usually set it aside and refer the matter back to the authority for a fresh decision. To do otherwise would constitute an unwarranted usurpation of power entrusted (public authority) by the legislator. Thus it is said that, the ordinary course is to refer back because the court is slow to assume a discretion which has by statute been entrusted to another tribunal or functionary. In exceptional circumstances this principle will be departed from.  The overdue principle is that of fairness”.

The second respondent did not argue that there were exceptional circumstances which justified a departure from the general rule extrapolated by Mcnally JA. His position which is nor supported by the facts was that he discharged his obligations as provided for in the Mines and Minerals Act. Mines and Minerals Act does not provide that the giving of notice often than in the manner provided   for in section 50 (3) can be condoned by any authority including the court. An act not done in accordance with an enacted law which provides for how the act in question should be carried out cannot be condoned by the court unless the enactment concerned gives the court a power to condone a departure therefrom. The second respondent did not act procedurally in purport to cancel the applicant’s licence.  Such failure to act procedurally as provided by statute cannot be condoned

The first respondent opposed the application. The case is nor really against its conduct.  It argued that the applicant sought to have pinpointed the exact ground in section of 27 of the High Court Act which he relied upon for seeking the review. In the grounds of review  the applicant stated clearly that the second respondent  committed a procedural irregularly in not serving the  notice of the proposed cancellation of the applicant licence in the manner provided for in section  50 (2) and 50 (3) of the  Mines and Minerals Act. There is no doubt that the first respondent as did the second respondent understood the grounds of the applicants challenge. 

The first respondent also averred that the applicant had been properly served with the notice by registered post. It attached a copy of the certificate of posting a registered article addressed to the applicant. It is not clear how the first respondent came into possession of the certificate. Further the first respondent not being the sender would have known what the registered article was. The first respondent also submitted that the applicant had not shown that the second respondent’s decision to cancel the licence was unreasonable. That is not the issue. The   issue is whether the process of cancellation was carried out as provided for by law.  It was not for reasons already given. 

The first respondent’s counter claim derives from the assumption that the application for rescission of default judgment would be dismissed. It was a calculated risk to do that. The grating of the application puts paid to the counter – claim. It falls to dismissed. The status quo before cancellation must hold.  There is no legal justification to evict the applicant from the claims in dispute at its stage.

Lastly, I deal with the issue of costs. I am not persuaded that costs should be granted on a greater scale than ordinary. There has been no submission that rule that costs follow the result should not be applied. I will grant the applicant his costs of both the application in convention and the counter -claim.

Accordingly this application is disposed of by order as follows:

1. The decision of the second respondent to cancel mining licence certificate “X` Mine Registration number 47622 be and is hereby set aside and the status quo ante the purported cancellation shall obtain.
2. The first respondent counter- claim is dismissed with costs.
3. The first and second respondents to pay the applicants costs in the application in convention jointly and severally the one paying the other be absolved.     

Chimwamurombe legal Practice, applicant’s legal practitioners

Mlushe and Nkomo legal, respondent first respondent’s legal practitioners

Civil Division Attorney General’s Office, second and third respondent’s legal practitioners