African Consolidated Resources Plc and Others v Minister of Mines and Mining Development and Others

The first applicant is a public company listed on the London Stock Exchange. The second to fifth applicants are Zimbabwean companies, wholly owned subsidiaries of the first applicant, and holders of registered mining claims in the Chiadzwa diamond mining area of Manicaland. Their claims had been declared valid by Hungwe J in HC 6411/07, with an appeal pending before the Supreme Court. On 28 January 2010, the second respondent (Permanent Secretary in the Ministry of Mines) gave notice to the second to fifth applicants of his intention to cancel their claims with effect from 10 March 2010, on the basis that the claims were registered over a reserved area in contravention of the Mines and Minerals Act. This followed an earlier cancellation notice dated 8 December 2009, which had been withdrawn by the second respondent. The applicants filed an urgent application on 5 March 2010, seeking a provisional order interdicting the respondents from cancelling their claims on 10 March 2010. The applicants had also appealed to the Minister on 9 March 2010, one day before the cancellation date and four days after filing the court application.

• Whether the application was urgent within the meaning of Rule 244 of the High Court Rules
• Whether the applicants were required to exhaust domestic remedies under section 50(2) of the Mines and Minerals Act before approaching the court
• Whether the court should exercise its discretion under section 7 of the Administrative Justice Act to decline to entertain the application where alternative remedies exist
• Whether the delay in filing the application and appeal negated urgency
• Whether the principle of judicial deference applies to administrative decisions pending domestic review

The application was struck off the roll. The court ordered that the matter should be set down and heard like any other case, taking its place among cases awaiting hearing in terms of the rules applicable to non-urgent applications.

The binding legal principles established are: (1) Urgency for purposes of urgent applications requires not only an imminent deadline but also that the applicant acted promptly when the need to act arose - urgency stemming from deliberate or careless abstention from action until the deadline approaches is not the type of urgency contemplated by the rules; (2) Litigants must exhaust domestic remedies, particularly statutory appeal mechanisms, before approaching the courts unless there are good reasons for not doing so; (3) Under section 7 of the Administrative Justice Act, the court may decline to entertain an application if the applicant is entitled to seek relief under any other law and the court considers that such remedy should first be exhausted; (4) When an applicant simultaneously pursues an application before the court and an appeal through domestic remedies, the court must defer to the domestic proceedings and allow them to be exhausted first, as the pendency of the domestic remedy removes urgency from the court application; (5) A finding that a case is not urgent does not determine the merits - the appropriate order is to strike the matter off the roll to allow it to proceed as an ordinary application, not to dismiss it.

The court made several non-binding observations: (1) It discussed the principle of judicial deference, noting that courts should appreciate the legitimate and constitutionally-ordained province of administrative agencies, admit their expertise in policy-laden or polycentric issues, accord their interpretation of fact and law due respect, and be sensitive to the interests legitimately pursued by administrative bodies and the practical and financial constraints under which they operate; (2) Judicial deference is particularly appropriate where the subject-matter of administrative action is very technical or of a kind in which a court has no particular proficiency; (3) Judges should not use the opportunity of scrutiny to prefer their own views as to the correctness of the decision, thus obliterating the distinction between review and appeal; (4) The court noted that the applicants' concern about bias on the part of the Minister was addressed by their request for recusal in their appeal, meaning they had a fair chance of their appeal being properly considered; (5) The court observed that the intention of the legislature in providing domestic remedies must be respected by the courts, and officials charged with authority to determine domestic appeals or reviews must be allowed to do their work before the court intervenes; (6) The court should only intervene in cases where it is obvious that domestic remedies will not do justice. The court also noted but did not decide the other preliminary issues raised, including non-compliance with Order 33 and whether the applicants existed at the time the claims were registered.

This case is significant in Zimbabwean administrative and procedural law for several reasons: (1) It reinforces the principle that litigants must exhaust domestic remedies before approaching the courts, particularly in administrative matters where statutory appeal mechanisms exist; (2) It clarifies that urgency under Rule 244 requires not only an imminent deadline but also prompt action when the need arises - delay caused by deliberate abstention negates urgency; (3) It applies section 7 of the Administrative Justice Act, establishing that courts should defer to domestic remedies and not place themselves in competition with administrative decision-makers; (4) It introduces and applies the principle of judicial deference to administrative decisions in Zimbabwe, drawing on South African jurisprudence; (5) It clarifies the appropriate relief when an urgent application is found not to be urgent - the matter should be struck off the roll rather than dismissed, allowing it to proceed as an ordinary application; (6) It demonstrates the court's approach to balancing access to justice with respect for administrative processes and expertise.