Friday Marasha v The Secretary for Mines & Mining Development and Others

The applicant was the registered holder of a mining claim (Avoca 9) originally registered on 23 December 1994 and subsequently transferred to him with a certificate of registration issued on 27 July 2004. The second respondent was the owner/occupier of the land (Barassie Farm) upon which the claim was registered. On 1 December 2010, the Chief Mining Commissioner gave notice of intention to cancel the claim on grounds it was on wetlands and within the prohibited radius of a homestead. On 6 December 2010, the applicant appealed to the Minister of Mines. On 4 March 2011, I.N. Chihota, signing for the Secretary for Mines, wrote rejecting the cancellation citing section 58 provisions that claims existing for more than two years cannot be cancelled. On 27 April 2011, barely a month later, Chihota wrote another letter stating the Minister had approved the cancellation and turned down the appeal. The applicant challenged this reversal arguing the Minister had become functus officio.

• Whether the High Court had jurisdiction over the dispute or whether it fell under section 32 of the Mines and Minerals Act requiring referral to the Administrative Court
• Whether the Minister of Mines had become functus officio after allowing the applicant's appeal and could subsequently reverse that decision
• Whether the first letter from Chihota constituted a decision by the Minister or merely by the Secretary for Mines
• Whether the Administrative Court's 2000 water rights order precluded the High Court from granting the application

The application was granted. The decision of the fourth respondent (Minister) dated 27 April 2011 purporting to approve the cancellation of Avoca 9 mining claims was set aside. Costs were awarded against the second respondent.

A public official or minister becomes functus officio once a favorable administrative decision affecting private rights has been made and communicated to the beneficiary. Such a decision cannot subsequently be revoked or reversed without the consent of the beneficiary, as this would create intolerable uncertainty. An official cannot make a decision which affects or abolishes rights which his previous act has already created. The High Court has jurisdiction to review the propriety of ministerial conduct in administrative decision-making processes, even where mining disputes are involved, as section 32 of the Mines and Minerals Act only confers exclusive jurisdiction on the Administrative Court for disputes about whether land is open to prospecting, not for challenges to administrative processes.

The court observed that the Secretary for Mines is vested with considerable powers under section 34 of the Mines and Minerals Act to supervise and regulate mining affairs, with authority to exercise powers of mining commissioners by assumption and ministerial powers by delegation. The court noted that ministerial decisions are communicated through the Secretary for Mines. The court also commented on the failure of the Minister and government officials to file any responsive papers despite being served, and how this affected the court's ability to determine certain factual matters, ultimately working against the respondents' case. The court expressed some criticism of the second respondent's counsel for raising what it characterized as 'ludicrous' and 'desperate' arguments, particularly regarding the alleged conflict with the Administrative Court's water rights order.

This case is significant in Zimbabwean administrative law for its application of the functus officio doctrine to ministerial decision-making in mining disputes. It establishes that once a minister has made a decision allowing an appeal against cancellation of mining rights and that decision has been communicated to the affected party, the minister cannot subsequently reverse that decision without consent. The case reinforces the principle that administrative certainty must be protected to prevent intolerable uncertainty regarding decisions affecting private rights. It also clarifies the jurisdictional boundaries between the High Court and Administrative Court in mining disputes, confirming the High Court's jurisdiction over challenges to the propriety of administrative conduct rather than merely substantive disputes about land use rights.