CHANAKIRA MINING SYNDICATE and ANOTHER v TIGERE and OTHERS (250 of 2025) [2025] ZWHHC 250 (25 March 2025)

3 HH 250-25 HCH 2406/22 CHANAKIRA MINING SYNDICATE and PARDON CHANAKIRA versus NICHOLAS TIGERE and THE MINING COMMINISSIONER KADOMA and THE SECRETARY OF MINES AND MINING DEVELOPMENTS HIGHCOURT OF ZIMBABWE TAKUVA J HARARE; 25 March 2025 F Misihairambwe, for applicant D Machingauta, for second respondent No appearance for first and third respondent Introduction This is chamber application for review of the judgement and condonation for late noting a review. Background facts First applicant in this matter is Chanakira Mining Syndicate and second applicant is Pardon Chanakira. Nicholas Tigere is identified as the first respondent in this matter, mining Commissioner Kadoma/ Provincial Mining Director Mashonaland west (PMD) is the second respondent and third respondent is The Secretary of Mines and Mining Developments. The applicants have held rights to the Chanakira Mining Syndicate of Hazelmere 5 mine registered under number 4407 since 6 June 2001 and they have mined peacefully until 2018 when Nicholas Tigere of Last Chance 14 and 16 registered under numbers 16944 and 16945 claim the entire mine. Upon realization that there was double allocation of the mining location, the second respondent ordered the applicants to relocate there mining block to what they termed original position. Applicants lodged complaints with the second respondent notifying him that they were the owners of the mine for 2 decades. A ground verification of the mine was done and the second respondent did not attend but rather he sent some men who generated the wrong diagram that changed the actual position of their claim and that of even their neighbors. The applicants were then ordered to re-locate to another area which is belonging to Chigumba Farm. Aggrieved by the decision, the applicants tried to appeal against the decision of the second respondent to the third respondent but there was no any response. However, all the respondents opposed the application. The first respondent raised the point in limine that the procedure of mixing two applications is unlawful and the high court had no jurisdiction to review decisions of the second respondent in terms of the Mines and Minerals Act. The first respondent also argues that he is also the owner of that mining block. second and third respondents argued that the application is frivolous and vexation, the application itself is confusing. They also argued that issue of priority of rights shall only apply on the particular ground that would have been registered. The Applicants seeks the court to declare that: The applicant be and is hereby condoned for filing application late as he had appealed to the mines through the secretary of mines.The ruling issued by the second respondent be and is hereby rescinded and or set aside.Applicants, through first applicant be and are hereby declared the duly registered miners of the claim in question.The first respondent be and is hereby ordered to stop mining.An order for the relocation of first respondent`s claims block through the second respondent is now and hereby issued or alternatively an order for cancellation of the first respondent`s claims block is now and hereby issued. Issues for determination The issues that this Court is called upon to determine are: Whether the application for condonation had to be grantedWhether the high had jurisdiction over the matterWhether second respondent used the correct procedure to relocate the applicants. The law The High Court in terms of s 13 of the High court Act [Chapter 7:06] has inherent jurisdiction to deal with all civil and criminal matters. The manner in which the Mining Commissioner conducted himself in handling this dispute clearly shows administrative shortcomings that cannot be overlooked by the High Court. More so, on a review of any proceedings or decision other than criminal proceedings, the High Court may, subject to any other law set aside or correct the proceedings or decision. See s 28 of the High court Act [Chapter 7:06].In Arafas Mtausi Gwaradzimba N.O v Gorta A. G SC 10/15 the court at p 6 listed the grounds of a review that is: (a) absence of jurisdiction on the part of the court, tribunal or authority concerned; (b) interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be; (c) gross irregularity in the proceedings or the decisionThey were procedural irregularities when the Mining Commissioner re-located the applicants. Neither the Commissioner nor the Provincial Mining Director did not visit the disputed area but rather sent a delegation from the Ministry of Mines Chinhoyi working under the Provincial Mining Director and it is the one that prepared a determination that favors the first respondent. In terms of s 3 of the Administrative Justice Act [Chapter 10:28] 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.” The decision of relocating the applicants was unreasonable for the reason that the first respondent did not consider the fact that the applicants occupied the area for about two decades and they are also owners of the claim under registration number 4407. The Commissioner also failed to adhere to s 177(3) of the Mines and Mineral Act when it upheld the rights of the first respondent who occupied the claim in 2018 many years after applicants acquired ownership of that claim. S 177(3) of the Mines and Mineral Act provides as follows; “3) Priority of acquisition of title to any mining location, reef or deposit, if such title has been duly maintained, shall in every case determine the rights as between the various peggers of mining locations, reefs or deposits as aforesaid and in all cases of dispute the rule shall be followed that, in the event of the rights of any subsequent pegger conflicting with the rights of a prior pegger, then, to the extent to which such rights conflict, the rights of any subsequent pegger shall be subordinated to those of the prior pegger, and all certificates of registration shall be deemed to be issued subject to the above conditions.” The actions of failing to address an appeal of the applicants are not justified at all and they are unreasonable. In terms of s 68 of the constitution of Zimbabwe Amendment (Number 20) of 2023 every person has a right to administrative justice. S 68 states that: “(1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair. (2) Any person whose right, freedom, interest or legitimate expectation been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct. (3) An Act of Parliament must give effect to these rights, and must- (a) provide for the review of administrative conduct by a court or, where appropriate, by an independent and impartial tribunal; (b) impose a duty on the State to give effect to the rights in subss (1) and (2); and (c) promote an efficient administration”. See also s 69 of the Constitution, wherein it is provided that “every person has the right to fair hearing”. ORDER The decision of the second respondent be and is hereby set asideThe first respondent be and hereby ordered to pay costs on ordinary scale. takuva J: .............................................................. Lawman Law Chamber, for applicants Civil Division of the Attorney General, for second respondent 3 HH 250-25 HCH 2406/22 3 HH 250-25 HCH 2406/22 CHANAKIRA MINING SYNDICATE and PARDON CHANAKIRA versus NICHOLAS TIGERE and THE MINING COMMINISSIONER KADOMA and THE SECRETARY OF MINES AND MINING DEVELOPMENTS HIGHCOURT OF ZIMBABWE TAKUVA J HARARE; 25 March 2025 F Misihairambwe, for applicant D Machingauta, for second respondent No appearance for first and third respondent Introduction This is chamber application for review of the judgement and condonation for late noting a review. Background facts First applicant in this matter is Chanakira Mining Syndicate and second applicant is Pardon Chanakira. Nicholas Tigere is identified as the first respondent in this matter, mining Commissioner Kadoma/ Provincial Mining Director Mashonaland west (PMD) is the second respondent and third respondent is The Secretary of Mines and Mining Developments. The applicants have held rights to the Chanakira Mining Syndicate of Hazelmere 5 mine registered under number 4407 since 6 June 2001 and they have mined peacefully until 2018 when Nicholas Tigere of Last Chance 14 and 16 registered under numbers 16944 and 16945 claim the entire mine. Upon realization that there was double allocation of the mining location, the second respondent ordered the applicants to relocate there mining block to what they termed original position. Applicants lodged complaints with the second respondent notifying him that they were the owners of the mine for 2 decades. A ground verification of the mine was done and the second respondent did not attend but rather he sent some men who generated the wrong diagram that changed the actual position of their claim and that of even their neighbors. The applicants were then ordered to re-locate to another area which is belonging to Chigumba Farm. Aggrieved by the decision, the applicants tried to appeal against the decision of the second respondent to the third respondent but there was no any response. However, all the respondents opposed the application. The first respondent raised the point in limine that the procedure of mixing two applications is unlawful and the high court had no jurisdiction to review decisions of the second respondent in terms of the Mines and Minerals Act. The first respondent also argues that he is also the owner of that mining block. second and third respondents argued that the application is frivolous and vexation, the application itself is confusing. They also argued that issue of priority of rights shall only apply on the particular ground that would have been registered. The Applicants seeks the court to declare that: The applicant be and is hereby condoned for filing application late as he had appealed to the mines through the secretary of mines. The ruling issued by the second respondent be and is hereby rescinded and or set aside. Applicants, through first applicant be and are hereby declared the duly registered miners of the claim in question. The first respondent be and is hereby ordered to stop mining. An order for the relocation of first respondent`s claims block through the second respondent is now and hereby issued or alternatively an order for cancellation of the first respondent`s claims block is now and hereby issued. Issues for determination The issues that this Court is called upon to determine are: Whether the application for condonation had to be granted Whether the high had jurisdiction over the matter Whether second respondent used the correct procedure to relocate the applicants. The law The High Court in terms of s 13 of the High court Act [Chapter 7:06] has inherent jurisdiction to deal with all civil and criminal matters. The manner in which the Mining Commissioner conducted himself in handling this dispute clearly shows administrative shortcomings that cannot be overlooked by the High Court. More so, on a review of any proceedings or decision other than criminal proceedings, the High Court may, subject to any other law set aside or correct the proceedings or decision. See s 28 of the High court Act [Chapter 7:06]. In Arafas Mtausi Gwaradzimba N.O v Gorta A. G SC 10/15 the court at p 6 listed the grounds of a review that is: (a) absence of jurisdiction on the part of the court, tribunal or authority concerned; (b) interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be; (c) gross irregularity in the proceedings or the decision They were procedural irregularities when the Mining Commissioner re-located the applicants. Neither the Commissioner nor the Provincial Mining Director did not visit the disputed area but rather sent a delegation from the Ministry of Mines Chinhoyi working under the Provincial Mining Director and it is the one that prepared a determination that favors the first respondent. In terms of s 3 of the Administrative Justice Act [Chapter 10:28] 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.” The decision of relocating the applicants was unreasonable for the reason that the first respondent did not consider the fact that the applicants occupied the area for about two decades and they are also owners of the claim under registration number 4407. The Commissioner also failed to adhere to s 177(3) of the Mines and Mineral Act when it upheld the rights of the first respondent who occupied the claim in 2018 many years after applicants acquired ownership of that claim. S 177(3) of the Mines and Mineral Act provides as follows; “3) Priority of acquisition of title to any mining location, reef or deposit, if such title has been duly maintained, shall in every case determine the rights as between the various peggers of mining locations, reefs or deposits as aforesaid and in all cases of dispute the rule shall be followed that, in the event of the rights of any subsequent pegger conflicting with the rights of a prior pegger, then, to the extent to which such rights conflict, the rights of any subsequent pegger shall be subordinated to those of the prior pegger, and all certificates of registration shall be deemed to be issued subject to the above conditions.” The actions of failing to address an appeal of the applicants are not justified at all and they are unreasonable. In terms of s 68 of the constitution of Zimbabwe Amendment (Number 20) of 2023 every person has a right to administrative justice. S 68 states that: “(1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair. (2) Any person whose right, freedom, interest or legitimate expectation been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct. (3) An Act of Parliament must give effect to these rights, and must- (a) provide for the review of administrative conduct by a court or, where appropriate, by an independent and impartial tribunal; (b) impose a duty on the State to give effect to the rights in subss (1) and (2); and (c) promote an efficient administration”. See also s 69 of the Constitution, wherein it is provided that “every person has the right to fair hearing”. ORDER The decision of the second respondent be and is hereby set aside The first respondent be and hereby ordered to pay costs on ordinary scale. takuva J: .............................................................. Lawman Law Chamber, for applicants Civil Division of the Attorney General, for second respondent