Fidelity Printers and Refiners (Private) Limited v The Minister of Mines and Mining Development N.O. and Others

Fidelity Printers and Refiners, a government-owned company, owned a mining block known as Mirage 3 (registration certificate number 18132) in Kwekwe Mining District. In January 2021, the appellant sought to sell its interests in the mine and wrote to the second respondent (Provincial Mining Director) requesting a statement of outstanding fees. The second respondent advised that the mining claim had been forfeited on 5 June 2020 for failure to obtain an inspection certificate as required under section 260 of the Mines and Minerals Act. No prior notice of the intended forfeiture had been given to the appellant. The notice of forfeiture had only been posted on a notice board at the Mining Commissioner's office. The mining claim had subsequently been relocated to the third respondent. The appellant claimed it had been advised it would be exempt from fees as a state entity. The appellant sought urgent relief in the High Court, which initially granted a provisional order but subsequently discharged it on the return date, ruling in favor of the respondents. The appellant appealed to the Supreme Court.

• Whether section 260 of the Mines and Minerals Act provides for automatic forfeiture of mining blocks by operation of law or whether forfeiture is discretionary
• Whether the first and second respondents were required to give prior notice and an opportunity to make representations before forfeiting the appellant's mining block
• Whether the posting of a forfeiture notice on a notice board at the Mining Commissioner's office constitutes adequate notice under the Administrative Justice Act
• Whether the respondents acted arbitrarily in forfeiting the appellant's mining rights without affording it procedural fairness

The appeal was allowed with costs. The High Court's order in HH211/21 was set aside and substituted with an order confirming the provisional order, setting aside the forfeiture of the appellant's mining claim Mirage 3 Mine (certificate number 18132), and declaring invalid and null and void any act done by the first and second respondents to alienate the area, including the relocation to the third respondent. The respondents were ordered to pay costs of suit.

The binding legal principles established are: (1) The phrase 'render liable to forfeiture' in section 260 of the Mines and Minerals Act means the mining block becomes susceptible to forfeiture at the discretion of the Mining Commissioner; it does not provide for automatic forfeiture by operation of law. (2) Where an enactment does not contain express provisions dealing with natural justice requirements (whether including, varying, or excluding them), administrative authorities must comply with the procedural fairness requirements under the Administrative Justice Act, including giving adequate notice and an opportunity to make representations before taking decisions that adversely affect rights. (3) Adequate notice under section 3(2)(a) of the Administrative Justice Act requires effective communication to the affected party; merely posting a notice on a notice board at a government office is manifestly inadequate and does not satisfy the statutory requirement. (4) Administrative convenience or dealing with large numbers of affected persons does not justify departure from the mandatory requirements of natural justice and procedural fairness. (5) Forfeiture of mining rights constitutes an abrogation of property rights and cannot be effected without compliance with natural justice principles. (6) Any administrative action taken in breach of mandatory procedural requirements is null and void, as are consequential actions based on such unlawful decisions.

The Court made several non-binding observations: (1) Counsel for the third respondent virtually conceded the merits of the appeal by submitting that the relevant provisions of the Act 'seriously required amendment by reason of lack of procedural clarity once a mining block is rendered liable to forfeiture.' (2) The Court observed that the duty to comply with natural justice would be greater in the case of a mining block that is being actively worked (where the holder has incurred costs or made investments) compared to one that has not been worked at all. (3) The Court suggested various methods by which notices could be effectively communicated in the modern era, including through the Government Gazette, print media, websites, and various information technology platforms, noting that no explanation was given why such methods could not be utilized. (4) The Court noted that first and second respondents' counsel intimated that the relevant provisions of the Act needed to be reviewed to bring them into line with the rules of natural justice. (5) The Court observed that one does not deny the rights of persons merely because such persons are 'too many', rejecting the practical difficulty argument advanced by the respondents.

This judgment is significant in Zimbabwean administrative law as it affirms the supremacy of natural justice principles even where enabling legislation does not expressly provide for procedural safeguards. The Court established that administrative authorities cannot act arbitrarily and must comply with the Administrative Justice Act's requirements for adequate notice and an opportunity to make representations before taking decisions that adversely affect rights. The judgment clarifies that 'liability to forfeiture' under section 260 of the Mines and Minerals Act does not mean automatic forfeiture but rather discretionary forfeiture requiring procedural fairness. It sets important precedent regarding what constitutes 'adequate notice' - mere posting on a notice board is insufficient; effective communication is required. The Court rejected efficiency arguments as justification for departing from natural justice requirements, emphasizing that rights cannot be diluted merely because of administrative convenience or large numbers of affected persons. The judgment demonstrates the application of constitutional principles of administrative justice across all sectors of government action, including mining regulation.