Helipad Investments (Private) Limited v The Provincial Mining Director N.O and The Minister of Mines and Mining Development N.O

### Preamble
1
HCC 56/25
HCCC 123/25
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HELIPAD INVESTMENTS (PRIVATE) LIMITED

Versus

THE PROVINCIAL MINING DIRECTOR N.O

And

THE MINISTER OF MINES AND MINING DEVELOPMENT N.O.

IN THE HIGH COURT OF ZIMBABWE

BACHI MZAWAZI J

CHINHOYI  2 & 27 OCTOBER 2025

K. Kadye, for the Applicant
C. Chitekuteku, for the Respondent

Opposed Matter

BACHI MZAWAZI J:

Brief Overview

On the 27th of April 2021, the applicant, a duly incorporated Company, was issued with a Special Grant to mine, Granite (Quarry Mining), in an area which had been reserved by the respondents on Glenlusa farm, Mt. Hampden. The special grant expired on the 24th of April 2023 and was renewed on the 26th of August 2025. The applicant filed this application for mandamus to compel the respondents to exercise their powers in terms of section 50 of the Mines and Minerals Act [Chapter, 21:05], barely a month before the expiration of the Special Grant.  The application was filed on the 19th of June 2025, when the expiry date was the 23rd of August 2025. The matter was opposed. It was set down for hearing and was determined on the 2nd of October 2025. An ex-tempore judgment was delivered at the end of the hearing. This is the written decision.

It suffices to note that, the intricate details of the facts, such as, the serial numbers of the Special Grants and all the documents supporting the issuance of the grant, amongst others, are not in dispute. As such, duplication is unwarranted. This application was as a sequel to a letter, from the applicants to the respondents dated the 5th of December 2025 which had not yet been responded to. The applicant had written to the respondents requesting them to activate the said powers and cancel, a mining certificate which it had issued to a third party, Four Ways Venture, on the same farm.

Applicant’s case

The applicant submits, that the respondents were not supposed to grant mineral rights to the entity, Four Ways Venture, on a reserved area when the law forbids it to do so. They content that such issuance was contrary to the law as spelt out in section 31, 35 and 258 of the Mines and Minerals Act therefore an illegality. They thus, argue that the respondents are enjoined to rectify the error in terms of s50(1) of the same enactment. The correction sought is by way of cancellation of the said third party’s mining rights deemed as unlawfully registered.

Applicant further asserts that, it has satisfied the requirements of a mandamus, in that, they have a clear right emanating from their Special Grant. In addition, that they are in occupation of their mining area. The mere fact that there is another entity which has been given mining rights in a reserved area, in the same farm is, from their perspective, an infringement, or harm already done and is continuing until the cancellation. Again, applicant argues the absence of an alternative remedy, as their letter of the 5th of December, 2025, to the respondents triggered no action. Lastly, they contend that the respondent has a statutory duty in terms of s50 of the Act, to cancel that which has been issued in violation of the enacted mining laws.

Respondent’s case

In their opposing affidavit, the respondent raised a preliminary point that, the non-joinder of an interested party, Four Ways Venture, when the relief sought by the applicant will affect their rights was fatal to the applicant’s application.  On the merits they, argued that, the applicant ought to have been candid with the court by stating whether or not the third party’s mining rights encroach his or that he is mining on his mining location. Further, because it is the respondent who reserved the area, therefore of what interest does the applicant has to question the non-compliance with the provisions of the Mines and Minerals Act [21:05]. They say, Applicant lacks a direct and substantial interest in the reserved land in question, which does not belong to him.  In addition, they assert that the applicant’s special grant, then in existence restricted them to the mining of a specific mineral which excludes gold. They are surprised as to why the applicants would then be concerned with the said third party ‘s mining registration which is limited to the mining of gold ore.

Respondents, counteracts that, the applicant failed to illustrate how exactly the issuance of the impugned mining certificate affected their rights, or Special Grant. Therefore, in their view, applicants have not demonstrated any prejudice to their existing rights under the Special Grant. It is the respondents’ submission that it is the respondent that triggers the action in terms of s50 of the Act and the same section gives them a wide discretion to exercise the obligation imposed on them by the same. In a nutshell, the respondents advert that the applicant has failed to satisfy the requirements of a mandamus. Even if it was to be assumed without conceding, so they argue, the applicants do have other available remedies other than a mandamus.

The issues

Whether or not the non-joinder of the third party Four Ways is fatal to the proceedings?

Whether the applicant has real and direct interest in the matter?

Whether the respondents have a statutory duty to cancel the impugned Mining licence?

Whether or not the applicants have satisfied the requirements of a mandamus?

Analysis

Whether or not the non-joinder of the third party Four Ways is fatal to the proceedings?

After hearing arguments on the preliminary point, I asked the parties to proceed on the merits so that I could then make a composite decision.    The applicant argued that in terms of rule 32(11) of the 2021 High Court rules, a non or misjoinder of a party cannot forestall the proceedings. Though it is clear that the relief of the cancellation of rights of a party who has not been made a party to the suit will adversely affect that third party, I tend to agree with the applicant, in so far as, the position of the law as set out in rule 32(11) and amplified in Wakatama & Ors v Madamombe SC 10/2012 is concerned.

In reference to a similar provision in the old rules, the  Supreme Court in Wakatama & Ors above,   pronounced that, the non-joinder of the Minister was not fatal as in terms rule 87 of the old rules, and that no cause of action shall be defeated by reason of a misjoinder or non-joinder of any party, the court may in any case or matter determine issues or question in dispute so far as they affect the rights and interests of the persons who are parties to the case or matter.

In my considered view, rule 32(12) qualifies rule 32(11)  in that, though the proceedings cannot be forestalled for the non-joinder of a party, the court by virtue of rule 32(12)(b) is at liberty, on its terms, to order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon to be added as a party.

However, distinctively, in casu, the relief that is being sought by the applicant affects more the rights of the excluded party than those of any of the two before this court.  In their relief, the applicants are asking this court to command or order the respondents to cancel Four Ways Venture mining certificate. That is to terminate their rights. Irrespective of the legality of those rights, an issue which is not for the determination by this court, they are the holders of rights.  The mining certificate gives this absentee party rights.  They have not been joined to the suit so that their right to be heard is exercised. To then allow a determination of those rights and then make an order in respect to those rights as submitted by the respondents will be an infringement of their fundamental natural right to be heard.

Indeed, paragraph 16 of the applicant’s founding affidavit, shows that the applicants are aware of the existence of this interested party and the effect of the order they are seeking on them, but they choose to exclude them. This exclusion does not reflect well on the applicants. In view of these observations, being guided by the provisions of rule 32(11) and 32(12)(b), this court has an option to order that the left-out party be joined to the proceedings with the necessary amendments of pleadings. I am however, for the reasons that will evolve herein, I am of the considered view that this matter can be considered on the merits without adverse effects on the non-joined party. I will proceed to deal with the merits.

Whether the applicant has real and direct interest in the matter?

I will not detain myself on this point. The respondents in a way missed it. The applicants at the time they instituted this action in June 2025, up to the date of the expiry of their Special Grant had real and direct interest in their mining area in Glenlusa farm. What a direct and substantial interest is, was exhausted in Museredza and Others v Minister of Agriculture, Lands, Water and Rural Settlement and 10 Others ZCC1 o/ 2022 and needs no further elaboration.

Whether the respondents have a statutory duty to cancel the impugned Mining licence?

Section 50 of the Mines and Minerals Act reads:

(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—

1. (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 sub- section (3) of section two hundred and fifty-eight; or

2. (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.

Clearly, that the Respondents are a statutory functionary, with a statutory duty to cancel mining certificates of registration is out of question. Nonetheless, in terms of the law as set out is s50(1) above, which needs no repetition, the respondent has to be satisfied of the mentioned breaches of the cited sections. The key phrase there is, has to be satisfied.  In order to do so, an investigation ought to be conducted. This means some ground verification has to be done to determine whether there has been an infringement of any of the above provisions of s50.

As correctly, submitted by Mr Chitekuteku, the Respondent is then given a discretion by the legislature, by virtue of the use of the word ‘may’, construed literally, to cancel the registration of the mining certificate or not.

In Commissioner of Police and Anor 2000 (1) ZLR 418 (S) at 422F and 424C it was stated that:

“What then is the appropriate remedy where it has been shown that the police have not done something which obviously it is their duty to do — where there has been a dereliction of duty owed to the public? The answer is that in such a clear case the court will grant an order of mandamus. But where the police have arrived at the decision not to take any action in good faith and on the basis of a proper appreciation of the applicable law, they will not then incur the risk of judicial intervention”. (My emphasis).

The issue of discretion was also highlighted in Moll v Civil Commissioner of Paarl (1897) 14 SC 463 at 468. In the broader context, in respect to the cancellation of the Four Ways Venture mining certificate, I am of the view that as a responsible administrative body, the respondents, in the absence of proof that after receiving the December 2024 letter from the applicants, did not act in good faith in the interim six months up to the launching of this application then judicial intervention is not necessary.

In casu, the respondent had to be given an opportunity to firstly investigate and then make a finding. Surely, the lapse of six months cannot be said to be an inordinate delay justifying the intervention of the courts in the affairs of a quasi-judicial body. In any event, the governing enactment gives the administrative body a discretion to activate or not to, their powers in terms of s50, with no timelines to do so.

Whether or not the applicant has satisfied the requirements of a mandamus?

First and foremost, a mandamus is a judicial remedy consisting of a court order that commands a government official or entity to perform an act it is legally required to perform as part of its official duties, or to refrain from performing an act the law forbids it from doing. Writs of mandamus are usually used in situations where a government official has failed to act as legally required or has taken a legally prohibited action.

What a mandamus is, was explicitly explored by the now late CHINHENGO J, in Oil Blending Enterprises (Pvt) Ltd v Minister of Labour 2001 (2) ZLR 446 (H) at 450B–   quoted with approval by a recent Supreme Court Judgment, Minister of Justice, Legal and Parliamentary Affairs and Another v Chiramba SC68 / 2023.

In Oil Blending Enterprises (Pvt) Ltd v Minister of Labour, above, the court, citing the authorities in, Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52,.L Baxter on Administrative Law at p 687, held that, a mandamus or mandatory interdict is a judicial remedy recognized under our law. It is applied against public authorities. It is an order which requires a public authority to comply with a statutory duty which requires a public authority to perform some act which remedies a state of affairs brought about by its own unlawful administrative action. It is, therefore, a judicial remedy available to enforce the performance of a specific statutory duty or to remedy the effects of an unlawful action already taken.   The remedy will be granted where the public authority is under a clear duty to perform the act ordered.

The apex court, in the case of Chironga & Anor v Minister of Justice & Parliamentary Affair & Others CCZ.14/2020, reaffirmed what a mandamus is and its requirements. It reinforced that, a mandamus is a judicial remedy available to enforce the performance of a specific statutory duty, or remedy the effect of an unlawful action already taken. The essential elements were restated as, a clear or definite right as a matter of substantive law, an injury actually committed or reasonably apprehended, an infringement of the established and resultant prejudice and the absence of a similar protection by any other ordinary remedy.

It has already been established that by virtue of s50 of the mines and Minerals Act [Chapter 21:05], the respondent has a statutory mandate to cancel a mining registration certificate issued contrary to the provisions so cited. From the above cited cases a court can intervene through a mandamus to enforce the performance of that specific statutory duty in deserving circumstances. That is after satisfying itself of the need to act and fails to act.

This was renditioned in Chavunduka and Anor v Commissioner of Police and Anor 2000 (1) ZLR 418 (S) at 422F and 424C as follows:

“What then is the appropriate remedy where it has been shown that the police have not done something which obviously it is their duty to do — where there has been a dereliction of duty owed to the public? The answer is that in such a clear case the court will grant an order of mandamus. But where the police have arrived at the decision not to take any action in good faith and on the basis of a proper appreciation of the applicable law, they will not then incur the risk of judicial intervention.

Of note, it is applicant who brought this law suit against the respondent. In their own words, they intend to activate the powers vested in the respondents through s50. The question is, does applicant have a clear right to do so?

A clear or definite right

I am not convinced that the applicant has demonstrated a clear or definite right to a mandamus interdict. They stated that their right emanated from their special grant which at the time of the institution of these proceedings made a lot of sense. However, at the time of the hearing the special grant had expired. It expired a month after the launching of this application. The applicant was aware of this fact but took no steps to renew the special grant pending the hearing of the matter. It had an option to firstly renew its grant then institute the legal remedy.

Applicant, instead of pursuing the renewal route with the respondents decided to request them to cancel a third party’s registration certificate. Applicant did not put the court in its confidence as to the reason why they did not renew their mining rights. An expired special grant does not give the applicant any rights at all. Their rights ceased with the expiration of the Special grant.

This was clearly spelt out in    In Moll v Civil Commissioner of Paarl (1897) 14 SC 463 at 468, where it was stated that:

“But it is obvious that relief (mandatory interdict) will not be given where such rights are of a doubtful nature or the public officer has acted in the exercise of a discretion left to him, but only where the existence and continued infringement of an absolute right have been clearly been established’’.

In Minister of Justice, Legal and Parliamentary Affairs and Another v Chiramba (68 of 2023) [2023] CCZ, the ultimate court, citing, Herbstein & Van Winsen The Civil Practice of the High Courts of South Africa 5th Edition, at p 1457, in respect to the clear right in a mandamus interdict specified that,

“The authors state that one has to prove a clear and definite right in terms of substantive law, a right which can be protected, a right existing at common law or statutory law.”

Having exhausted the first requirement on the applicant’s lack of a clear and definite right, I need not elaborate on the other point raised by the applicants as establishing their rights. They stated that they were in occupation of the area which they had been mining. Nonetheless, it is evident that the legality of that occupation is hinged on the life span and the continued renewal of the Special grant. There is no special grant as we speak, therefore technically no occupation right.  An infirm leg to stand on.

An injury committed, in continuum or apprehended

For completion, if there is no established right, then there is no harm. Applicant has failed to prove the existence of a right. Therefore, there is no harm to talk about. In all honest, their expired special grant was only over a small portion of the whole reserved area. Applicants did not adduce evidence on whether, the impugned mining certificate did encroach the reserved area or the area which they had been granted the now expired special grant over.  In addition, it is the respondent who had reserved certain parts of the area in contention. In their argument in court, the respondent disputed any encroachment on areas specified in s50 or in contravention of any other section prohibited by the governing legislation.

Absence of another remedy

As already pointed out, the applicant has the remedy of the renewal of their special grant with the respondents, an option, I have no reason not to believe is still open to them.

Balance of convenience

Likewise, the balance of convenience is not in favor of the applicants. The applicant initiated this pre-emptive strike before or instead of taking the necessary steps to renew their special grant at their own peril. Therefore, in the absence of a clear and or definite right there cannot be prejudice.

Disposition

The applicant has failed on a balance of probabilities to satisfy the requirements of the relief of a mandamus interdict. Punitive costs are not justified in the circumstances of this case.

Accordingly, the application is dismissed with costs on the ordinary scale.

Mlotshwa Solicitors, Titan Law, Applicant’s legal practitioners.
Civil Division of the Attorney General’s Office, Respondent’s legal practitioners