Blackgate Investments (Private) Limited v Ran Mines (Private) Limited & 2 Ors

### Preamble
HH 260-2011
HC 7376/2010
BLACKGATE INVESTMENTS (PRIVATE) LIMITED
---------




BLACKGATE INVESTMENTS (PRIVATE) LIMITED

versus

RAN MINES (PRIVATE) LIMITED

and

G & P INDUSTRIES (PRIVATE) LIMITED

and

THE MINISTER OF MINES & MINING DEVELOPMENT

HIGH COURT OF ZIMBABWE

CHIWESHE JP

HARARE, 10, 15 and 22 March 2011 and 4 November 2011

Adv T. Mpofu, for the applicant

Adv E. W.W. Morris, for the first & second respondents

CHIWESHE JP:  This is an application for review in terms of s 26 of the High Court Act, [Cap 7:06].

The background facts to this matter are as follows: The applicant is a mining investment company duly incorporated in terms of the laws of Zimbabwe.  The applicant’s directors discovered what they believed to be a disused and abandoned mine at the site of the old Ran Mine in the district of Bindura.  The site was then being worked by illegal panners.  The directors then enquired with the Ministry of Mines as to the ownership and status of the mine.  They were advised that the mine had been abandoned in 1999 and therefore the land was vacant.  The applicant then applied for and was duly issued with prospecting certificates with respect four claims situate at the old Ran Mine.  Thereafter the applicant company proceeded to peg the area as required in terms of the Mines and Minerals Act [Cap 21:05]

In November 2009 the first respondent lodged a complaint with the Ministry of Mines that in so pegging the applicant had encroached on its claims.  The Mining Commissioner caused an investigation of the complaint after which he, in a letter dated 15 January 2010, recommended to the Secretary for Mines and Mining Development that the claims held by first and second respondents be cancelled and that the applicant be allowed to continue operations at the site.  This recommendation was based on the findings of the Mining Commissioner which may be summarised as follows:  Ran Mine had been inactive for a period of ten years.  To all intents and purposes the owners had abandoned the mine which was now occupied by illegal gold panners.  As a result the original claims registered by the second respondent had been forfeited by the previous Mining Commissioner, and the respondents had applied for the revocation of the forfeiture.  For that reason the land in question was deemed vacant hence the issuance of the relevant certificates to a new entrant, the applicant.

Displeased with this development the first respondent appealed against the intended cancellation of its mining claims.  The appeal is contained in a letter written by the first respondent’s legal practitioners addressed to the Minister of Mines and Mining Development, dated 12 February 2010.  The letter is also copied to a number of addressees.  The letter attacks the conclusion reached by the Mining Commissioner in a number of respects. It queries both the factual and the legal basis upon which the Commissioner’s recommendations are based.  In particular it is pointed out that sections 382 and 383 of the Mines and Minerals Act [Cap 21:05] in terms of which cancellation of the claims is recommended has no provision for cancellation of claims in the event of breach.  Section 382 relates to the requirements to submit on the part of the claim holder or miner certain returns and reports of his operations to the Mining Commissioner.  Failure to do so only renders the claim holder or  miner, upon conviction, to “a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.”

Section 383 relates to the making of false declarations, returns and other certificates.  The respondents aver that no such misconduct ever took place and that even if it could be shown that such had indeed taken place, the Minister could only cancel the respondent’s claims in terms of s 400 of the Act and only after an investigation.  The Secretary for Mines and Mining Development sought the opinion of the Attorney General as to the merits of this appeal to the Minister by the respondents.  The Attorney General’s views were articulated in a letter addressed to the Secretary for Mines and Mining Development dated 22 April 2010.  In that letter the Attorney General, in the concluding paragraph, advised as follows:

“Our view, premised on the evidence provided, is that the Mining Commissioner’s report has not provided sufficient grounds backed by statute to recommend to the Minister to cancel the certificate of registration of the mining claims of the concerned company.  We therefore advise against acting on the recommendations in their present form unless further evidence is produced showing non-compliance with specific legal provisions of the Act.”

The Secretary of Mines, citing this opinion from the Attorney General, advised the Mining Commissioner, Harare that the Ran Mine claims were still valid and “As for the dispute between Ran Mine (Pvt) Ltd and Blackgate Industries (Pvt) Ltd, the Attorney General’s Office ruling is attached for your information.”  This letter, dated 17 August 2010, was copied to the applicant.

It is this decision, as contained in that letter by the Secretary of Mines, that the applicant wants reviewed and set aside on the following grounds:

The ruling was based on the finding of the Office of the Attorney General and not that of the Secretary of Mines who is vested with the power and authority to make such decisions in terms of the Act.

The Attorney General has no locus standi and capacity to usurp the functions of the Minister or his officials.

The decision is grossly unreasonable in that no reasons were given by the Secretary of Mines as to why first respondent’s claims were considered to be still valid.

The third respondent did not observe the audi alteram partem rule in that the parties and the applicant in particular were not given an opportunity to be heard before the decision was made.

The applicant was not served with the order as required in terms of s 355 of the Act.  The applicant had to request a copy of the order well after the respondent had returned to site.

Third respondent has not invalidated the applicant’s claim, resulting in the two sets of claims existing simultaneously in relation to the same mining site.  In any event the respondent’s claims were forfeited making the Minister’s decision illogical, irrational and unreasonable.

The respondent’s claims having been forfeited and reversal of such forfeiture not having been effected, the Minister’s decision would result in an absurdity as in (vi) above.

The Minister’s decision is illegal because the appeal against forfeiture was made (out of time) and no condonation was sought or granted prior to the decision being made.

I will now deal with the merits of each ground in turn.

With regards the first ground of review I agree with the respondents that given the nature of the issues placed before it, involving the interpretation of the Mines and Minerals Act, the third respondent acted prudently in seeking the views of the Attorney General who after all is the principal legal advisor to Government.  Having received this advice the third respondent acted upon it and communicated that fact and the written advice so received to the parties.  The third respondent did so because he agreed with the Attorney General’s opinion.  There is no suggestion that such opinion was forced down the Minister’s throat.  In the circumstances the decision that was taken was that of the Minister be it on the basis of advice rendered by the Attorney General.

The second ground of review also falls away on the basis of the above.  The Attorney General’s letter is clearly nothing more than legal advice both in terms of its content, tenor and spirit.  It is not a directive to the Minister and cannot be held to constitute a usurpation of the Ministerial function.

The Minister’s reasons for the decision are contained in the Attorney General’s letter which is specifically referred to and attached to the relevant correspondence.  The third ground of review is devoid of merit in that regard.

Did the third respondent not observe the audi alteram partem rule?  The facts in this matter are very clear.  It is the applicant who initially approached the Commissioner of Mines under the illusion that Ran Mine had been abandoned.  The Commissioner, at their behest, carried out an investigation and concluded that the site had been abandoned and the claims consequently forfeited.  He then wrote to the third respondent seeking cancellation of the claims in favour of a take-over of the same by the applicant.  The applicant knew or ought to have known of the investigation, the result thereof and the subsequent recommendation.  Indeed according to the respondents the applicant attended a meeting of the parties and the Mining Commissioner held on the 16 November 2009 but failed to attend subsequent meetings.  It stands to reason that the applicant’s views were sought, heard and acted upon by the Mining Commissioner.  These views were conveyed to the third respondent in a report whose findings and recommendations were favourable to the applicant’s interests.  It cannot be said that the applicant was denied the opportunity to be heard.  Equally, the respondents, through a letter done by their legal practitioners, voiced their concerns to the third respondent.  Both parties’ positions were placed before the third respondent for his consideration.  Accordingly, the fourth ground of review cannot stand.

The applicant was notified of the third respondent’s decision in writing, having been copied a letter to that effect addressed to the Commissioner of Mines.  Section 355 of the Act, as correctly pointed out by the respondents, applies to orders given in terms of s 354 relating to applications for injunctious against “obstruction or interference in the enjoyment of rights on a mining location.”  The present order does not fall under the ambit of that section.  The fifth ground for review also falls away.

The sixth ground of review relates primarily to the merits of the decision made and is therefore more a ground of appeal rather than review. It too falls away.

The third respondent’s decision does not result in the absurdity referred to by the applicant.  The decision upholds the validity of the respondents’ claims which automatically excludes claims by any other party, applicant included.  At law, according to that decision, the applicant never held any valid claims to the site in question.  The position is very clear.  The seventh ground of review falls away.

The eighth ground of review faces the same fate.  The applicant appealed against a recommendation by the Commissioner of Mines seeking cancellation of its claims.  No decision had been taken at that stage as to forfeiture or otherwise of those claims.

In the result I am of the view that there is no substance in this application.  It is accordingly ordered that the application be and is hereby dismissed with costs.

Messrs Dube, Manikai & Hwacha, applicant’s legal practitioners

Atherstone & Cook, 1st and 2nd respondents’ legal practitioners