A
mining dispute arose between the applicant and the first respondent
because the applicant has been carrying out mining operations on his
mine known as Belingwe Star 40, mine registration number 13185,
located somewhere next to a farm where the first respondent is
farming. The dispute arose not because of clash of activities between
the first respondent's farming exploits and the applicant's
mining operations but because the farmer located a tuckshop within
the mining boundaries of Belingwe Star 40 mined by the applicant.
The
dispute was referred to the Mining Commissioner who issued a
determination on 2 June 2015 in favour of the applicant. The first
respondent appealed against that determination to the Secretary for
Mines and Mining Development who issued a memorandum dated 11 March
2016 cancelling the certificate of registration of the mining claim
belonging to the applicant. I say that because the results were
communicated to the two antagonists by letter of the Provincial
Mining Director - Midlands Province dated 27 April 2016. It reads:
“REF:
FARMER-MINER DISPUTE BELINGWE STAR 40 MINE vs PLOT STAND 37 OF
DUNNING FARM: MBERENGWA
Reference
is made to the above subject matter. Following the appeal against the
Acting Mining Director's decision dated 30 April 2016 this office
is in receipt of a memorandum from the Secretary for Mines and Mining
Development dated 11 March 2016 which states that:
1.
The certificate of registration issued to Belingwe Star 40 mine to be
cancelled as it pegged on an area that was not open to prospecting
and pegging in terms of section 31 of the Mines and Minerals Act
[Chapter 21:05].
2.
The area in question is land under cultivation, and, as such, pegging
in such a location can only be done with the consent of the farm
owner.
3.
Collen Tshayana's tuck shop should not be demolished as it is on
his land which is less than hundred (100) hectares.
The
certificate of registration for Belingwe Star 40 mine, registration
number 13185, is hereby on this day, 27 April 2016, cancelled.”
If
the date stamp on that letter for 5 May 2016 is anything to go by
then the letter containing that decision must have been dispatched on
that date. When the applicant received it, he was quick to file an
application for review in this court in HC1283/16 on 23 May 2016
against the present respondents. He sought a review of the decision
on the grounds of illegality because an appeal against a decision of
the Mining Commissioner does not lie with the Secretary for Mining
but the High Court. He argued that the decision in question is ultra
vires
the Act and therefore a nullity.
The
second and third respondents have opposed that application.
In
the opposing affidavit of Malcom Mazemo, the Provincial Mining
Director for Midlands, they sought to argue that the Secretary did
not determine an appeal because none was made. Instead, he only
corrected “an error which was done in the administration of the
Midlands Office.” The Secretary is entitled to do so by virtue of
section 341(2) of the Act.
In
my view, the respondents are hiding behind a finger. They should have
chosen a better object behind which to hide because the finger is
just too small for that purpose.
The
letter I have reproduced above is clear and unambiguous. There was an
appeal made against the decision of the Mining Commissioner. The
Secretary upheld the appeal and cancelled the applicant's
certificate of registration and gave reasons for doing so. There is
no question whatsoever of correcting errors. No matter how hard the
respondents may try to bring that action within the provisions of
section 341(2) of the Act, which empower the Secretary to authorize
the correction of errors in the administration committed by a Mining
Commissioner, it simply will not work. This is a case where an appeal
was directed to a tribunal with no appellate jurisdiction.
In
fact, we are now being made to plough through land that has already
been tilled. In Mazuva
v Simbi; Simbi v Mazuva
2011 (2) ZLR 319 (H), I was confronted with exactly the same issue.
An appeal against the decision of the Mining Commissioner was
purportedly made to the Secretary of Mines ignoring the provisions of
section 361 of the Act which provides:
“Any
party who is aggrieved by any decision 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.”
I
still abide by the decision I took that such an appeal is a
monumental nullity.
The
use of the word “may” in that section does not mean more than
that the aggrieved person has a discretion to appeal. It does not
mean that there are other avenues of appeal. It certainly does not
repose upon the aggrieved party a discretion to appeal to the
Secretary of Mines. No such appellate jurisdiction is given to the
Secretary of Mines. It is, in fact, the height of desperation to find
such jurisdiction in section 341(2) of the Act because it is simply
not there. The appeal was a nullity and so was the decision flowing
from it.
The
applicant has, in the present application, sought a provisional order
the effect of which would be to suspend the decision to cancel his
registration certificate pending the determination of his application
for review in HC1283/16.
The
first respondent, who appeared in person, stated that he is opposed
to the application, firstly, because the applicant and himself
attended at the office of the Secretary of Mines on 19 November 2015
and 3 December 2015. If he was objecting to the jurisdiction of the
Secretary he should have done that long back and not to do so now.
When his attention was drawn to the application for review,
HC1283/16, he stated that he had received the application and was yet
to file his opposition.
In
my view, failure to object to the Secretary's jurisdiction cannot
clothe the Secretary with jurisdiction he does not have.
Secondly,
the first respondent submitted that the mining claim of the applicant
is located on his land. He produced a map which he says was also
submitted to the second respondent after he had already made his
decision, annexure A, and the latter underwent some damascene
experience. He then advised him to approach the Secretary of Mines
for recourse.
In
my view, the applicant has shown that he has a prima
facie
right to the relief that he seeks. He has had his registration
certificate cancelled on the decree of a Secretary of Mines who has
overturned a decision taken earlier by the Mining Commissioner. That
course of action was taken following an appeal made in violation on
section 361 of the Act. The applicant has already taken action in
pursuit of a remedy by filing a review application in this court.
As
that application is yet to be determined, he certainly requires
protection in the interim. On the other hand, as long as his
certificate remains cancelled he cannot undertake mining operations.
Doing so would be illegal. I perceive of no other remedy available to
the applicant in the circumstances and the balance of convenience
would seem to favour the grant of the provisional order. Until the
decision of the Secretary, the applicant was lawfully mining and the
first respondent confirmed that he neither has a registration
certificate nor the wherewithal to conduct mining operations. He will
suffer no prejudice whatsoever by returning to the status
quo.
In
the result, the provisional order is hereby granted in terms of the
amended draft order.
