G and W Industrial Minerals (Pvt) Ltd v The Secretary for Mines and Mining Development and Others

The appellant (G and W Industrial Minerals) noted an appeal in terms of section 361 of the Mines and Minerals Act [Chapter 21:05] against a decision of the first respondent (Secretary for Mines and Mining Development) purportedly acting as a Mining Commissioner dated 18 September 2017. The dispute arose from a boundary dispute between the appellant and the second respondent (Seldo Mining) over mining claims. The appellant had registered claim 25955 BM in 1998 where its plant in Rushinga was located, and contended it had superior rights. The second respondent had pegged and registered block 37310 BM. The appellant alleged that the first respondent erred in law by misinterpreting sections 177(3) and 31(1)(a)(iv) of the Act, and overlooked pertinent issues including: a missing docket containing registration information, correctly established beacons in 1998, and errors in the surveyor's report which omitted the appellant's readings and included unidentified readings.

• Whether the proper procedure for lodging the record of proceedings in terms of the High Court (Miscellaneous Appeals and Reviews) Rules, 1975 was followed
• Whether the appellant's summary of facts was properly before the court
• Whether the appeal could proceed without a properly constituted record of proceedings
• Compliance with procedural requirements under section 361 of the Mines and Minerals Act and Rule 9 of the High Court (Miscellaneous Appeals and Reviews) Rules, 1975

The matter was struck off the roll with no order as to costs.

In appeals from administrative tribunals under the High Court (Miscellaneous Appeals and Reviews) Rules, 1975, it is the duty of the tribunal or officer whose decision is appealed against to lodge the record of proceedings with the registrar within 15 days of receipt of notice of appeal, not the appellant. Where a formal record is lodged, it must comply with the requirements of Order 33, Rule 260, including certification as true and correct, pagination, proper indexing, and other formal requirements. An appeal cannot proceed without a properly constituted record of proceedings that complies with these procedural requirements. A 'summary of facts' submitted by an appellant does not satisfy the requirement for a proper record of proceedings.

The court noted that the appellant's attempt to submit its own summary of facts was tantamount to seeking a re-hearing as if the court was hearing the matter afresh. While the court did not expressly rule on whether the summary should be expunged, it found that it did not constitute a proper record. The court also observed that the two 'records' filed contained some documents that were the same, thus setting forth documents more than once, which is specifically prohibited by the rules requiring that no document shall be set forth more than once.

This case underscores the importance of strict procedural compliance in appeals from administrative tribunals to the High Court of Zimbabwe. It clarifies that parties cannot unilaterally submit their own versions of the record of proceedings - the proper procedure requires the tribunal or officer whose decision is appealed against to lodge the record with the registrar. The case emphasizes that failure to comply with the High Court (Miscellaneous Appeals and Reviews) Rules, 1975 regarding the preparation and lodging of the record is fatal to an appeal, regardless of the merits of the underlying dispute. It serves as a reminder that procedural requirements exist to ensure fairness, accuracy, and proper administration of justice in appellate proceedings.