Antech Laboratories (Pvt) Ltd v Permanent Secretary for Mines & Mining Development and Others

Antech Laboratories (Pvt) Ltd (applicant) owned Purdown Farm held under Title Deed No. 2586/90. The applicant previously held Special Grant 5011 to operate a stamp mill on part of the farm, which lapsed in 2007. Subsequently, Arnold Mandaba was issued Special Grant 4854 over the same area, but was interdicted by the applicant. After Mandaba's death, that special grant also lapsed. On 6 December 2017, the 3rd respondent (Khan & Mawadzi Milling Syndicate) applied for a special grant to utilize 6 hectares within the reserved area on the applicant's farm. Despite the applicant's objections to the City of Kwekwe and the 1st and 2nd respondents, Special Grant 6899 was issued on 27 August 2018 by the 1st respondent (Permanent Secretary for Mines & Mining Development). When the 3rd respondent commenced preparations to start mining operations, the applicant obtained a provisional order from Mabhikwa J on 7 November 2018 stopping the operations, and then sought confirmation of that order. The applicant operated an internationally accredited assaying laboratory and had future plans for the land that would be negatively impacted by mining operations.

• Whether the applicant's non-compliance with Form 29B requirements rendered the application fatally defective
• Whether the applicant had locus standi to institute proceedings given that the title deed was in the name of Orpheus Mining (Pvt) Ltd
• Whether the relief sought was competent and whether the court would be usurping administrative functions
• Whether Special Grant 6899 was issued in accordance with the law, specifically compliance with section 97 of the Environmental Management Act
• Whether the principles of natural justice (audi alteram partem) were violated when the applicant was not given an opportunity to be heard before the special grant was issued

The provisional order was confirmed as a final order with the following terms: (1) Special Grant 6899 issued on 27 August 2018 was set aside and declared null and void; (2) If the 3rd respondent submits a future application for a special grant over Purdown Farm or any part of it, the 1st respondent must permit the applicant the right to respond to such application; (3) The provisions of section 97 of the Environmental Management Act must be complied with before issuance of any future special grants; (4) The 3rd respondent was ordered to pay costs on the ordinary scale.

The binding legal principles established are: (1) Mining projects listed in the First Schedule of the Environmental Management Act (Chapter 20:27) cannot be implemented without first obtaining an environmental impact assessment certificate as required by section 97 of that Act; (2) Administrative decisions that fail to comply with mandatory statutory requirements (such as obtaining an EMA certificate) are null and void; (3) The principles of natural justice, particularly audi alteram partem (the right to be heard), apply to administrative decisions even where there is no express statutory provision requiring consultation, where a person has a legitimate expectation to be heard and would be adversely affected by the decision; (4) A court does not usurp administrative functions when it declares that an administrative authority must comply with the law in exercising its powers; (5) The Environmental Management Act prevails over other legislation in case of conflict or inconsistency (section 3(2)); (6) Non-compliance with procedural rules (such as Form 29B requirements) may be condoned under Rule 4C where there is substantial compliance and no demonstrable prejudice to the opposing party; (7) A change of corporate name does not affect property ownership rights.

The court made several non-binding observations: (1) Kabasa J noted that the founding affidavit was "the longest affidavit I have ever set eyes on" and "reads like a short story novel," cautioning against such prolix pleadings; (2) The court warned that in future, courts may penalize legal practitioners who ignore basic requirements of the rules relating to use of appropriate forms through appropriate costs orders, citing Zhou J's warning in Sekard Learning Development Solution case; (3) The court observed that being heard does not guarantee a favorable decision - the applicant's objections would not necessarily translate to non-issuance of the special grant; (4) The court noted that written representations suffice for the purposes of being heard - there is no requirement for a formal hearing; (5) The court commented that the 1st and 2nd respondents' failure to oppose the application could be read as acceptance that they did not do what they ought to have done; (6) The court observed that the 3rd respondent's spirited opposition was an attempt to secure a benefit it believed it had obtained lawfully, and thus punitive costs were not warranted despite the applicant's request.

This case is significant in Zimbabwean administrative and environmental law for several reasons: (1) It affirms the primacy of environmental law compliance, holding that section 97 of the Environmental Management Act requires environmental impact assessment certificates before mining operations can be authorized, and that this requirement cannot be bypassed; (2) It reinforces the principles of natural justice in administrative decision-making, holding that persons likely to be adversely affected by administrative decisions have a right to be heard even where no express statutory provision requires consultation; (3) It demonstrates judicial willingness to condone procedural irregularities where there is substantial compliance and no prejudice; (4) It clarifies that courts can grant declaratory orders requiring administrative authorities to comply with the law without usurping administrative functions; (5) It establishes that the Environmental Management Act prevails over other laws in case of conflict (section 3(2)); (6) It provides guidance on when punitive costs are appropriate. The case illustrates the court's role in ensuring administrative authorities exercise their powers lawfully and in accordance with principles of natural justice and environmental protection.