BMG Mining (Pvt) Ltd v Mining Commissioner Byo Mining District and Others

In 2001, Kapata Syndicate hired an approved prospector to conduct due diligence and subsequently registered 3 special base metal block claims in the Dete Area of Hwange, including claim number 11769 BM (Kapata 11). In 2002, the claims were transferred to the applicant (BMG Mining). The applicant maintained and paid for the claims in accordance with the Mines and Minerals Act. In July 2009, ZMDC complained to the 1st Respondent (Mining Commissioner) that the applicant's claims overpegged existing claims belonging to the 3rd Respondent (Kamativi Tin Mines), which had pegged and registered certain Kapata claims in 1977 and 1979. The 1st Respondent, allegedly based on a survey by the Regional Survey Department, determined that the applicant's claims should be cancelled due to overpegging. However, the Regional Mining Surveyor issued a letter denying that any survey had been conducted for purposes of the dispute and stating that the BMG claims were found to be in order when they conducted a survey for different purposes. The 1st Respondent proceeded to cancel the applicant's registration certificate without following the procedural requirements of section 50 of the Mines and Minerals Act.

• Whether the cancellation of the applicant's mining registration certificate was done in accordance with the provisions of the Mines and Minerals Act
• Whether the court has jurisdiction to grant a declaratory order regarding the validity of the applicant's mining claims
• Whether the 1st Respondent complied with the audi alteram partem principle and the procedural requirements of section 50 of the Act
• Whether the court should intervene where there is an act of glaring invalidity by an administrative official

The provisional order made on 15 January 2010 was confirmed with the following terms: (1) It is declared that the applicant is the lawfully registered holder of claims named Kapata 11, registered number 11769BM as recorded on certificate of registration after transfer number T30249; (2) If there are any complaints of encroachment such should be dealt with by the 1st Respondent in compliance with the provisions of the law; (3) 1st and 2nd Respondents should bear the costs of this application.

The binding legal principles established are: (1) Cancellation of a mining registration certificate under section 50 of the Mines and Minerals Act requires strict compliance with the procedural requirements in subsections (2) and (3), including giving at least 30 days' notice to the holder, stating grounds for cancellation, the proposed date, and informing of the right to appeal; (2) Any act done by an administrative official in excess of powers conferred or without following prescribed procedure is null and void ab initio; (3) Where administrative action involves glaring invalidity and breach of mandatory procedural requirements, courts should grant declaratory orders to protect rights and ensure justice; (4) Overpegging disputes should be dealt with under the specific provisions of sections 353 and 354 of the Act, not through cancellation under section 50, which applies only where ground was reserved against prospecting/pegging or pegging method requirements were not substantially complied with.

The court made non-binding observations that: (1) The 1st Respondent's conduct was characterized by glaring inconsistencies, including claiming to rely on a survey that the Regional Mining Surveyor explicitly stated never occurred for the purpose of the dispute; (2) The 1st Respondent appeared to have acted primarily on the complaint of the 3rd Respondent without conducting meaningful independent investigation; (3) The court noted that the status of ZMDC's locus standi was questioned, though this was explained by the 3rd Respondent as ZMDC owning 100% of the 3rd Respondent; (4) The court expressed that the 1st Respondent's prevarication and lack of credibility made it difficult to understand on what basis she decided to cancel the claims; (5) The court emphasized that to deny the applicant audience in the face of glaring inconsistencies and clear violations would amount to an abdication of judicial duty.

This case is significant in Zimbabwean mining law and administrative law for establishing that: (1) administrative cancellation of mining rights must strictly comply with statutory procedural requirements, particularly notice and hearing requirements; (2) failure to comply with mandatory procedural requirements renders administrative action ultra vires and void ab initio; (3) courts have jurisdiction to grant declaratory orders regarding mining rights where there is glaring administrative invalidity, and should not turn away parties on technical grounds where justice requires intervention; (4) the audi alteram partem principle applies to cancellation of mining rights; and (5) mining commissioners must conduct proper investigations and follow specific statutory procedures for dealing with overpegging disputes (sections 353-354) rather than improperly invoking cancellation powers under section 50.