John Simon Rodger & Others v Frik Muller & Others

The 1st and 2nd applicants were directors of the 3rd applicant, a safari operator in the Zambezi Valley Area. They held two written hunting concessions in the Rifa Safari Area for 10 years expiring on 31 December 2007. On 18 October 2007, the National Parks and Wildlife Management Authority (4th respondent) conducted an auction for a new 5-year concession. The applicants were prevented from bidding because they failed to furnish the requisite bank guarantee. The 1st applicant alleged that the 1st respondent (director of the 3rd respondent, also a safari operator) undertook to bid on behalf of the applicants after exhausting his own bidding limit. The 1st respondent won the bid for $750 billion. Subsequently, on 20 October 2007, the respondents allegedly reneged on the arrangement and sought to retain the concession for themselves. The respondents denied this arrangement. On 22 February 2008, the applicants were granted a Provisional Order interdicting the respondents from evicting them and interfering with their operations. They now sought a Final Order confirming this relief.

• Whether the non-citation of the Minister of Environment and Tourism was fatally defective
• Whether the Parks and Wildlife Act Chapter 20:14 precluded the grant of hunting concessions beyond 10 years
• Whether there was a clear agreement between the applicants and respondents whereby the 1st respondent was to bid on behalf of the applicants at the auction
• Whether the agreement between the applicants and respondents, if any, was legally binding and enforceable against the Authority
• Whether the balance of convenience favoured the grant or refusal of the relief sought

The application was dismissed with costs.

An agency agreement whereby one party bids on behalf of another at an auction for hunting concessions is not legally binding and enforceable against the National Parks and Wildlife Management Authority. Such arrangements circumvent the Authority's vetting requirements and the clear legislative objective that hunting concessions are personal to the grantee. The Minister of Environment and Tourism must be cited as a party in proceedings that seek to interfere with hunting concessions previously approved by the Minister, as the Minister's concurrence is a statutory sine qua non under section 37 of the Parks and Wildlife Act. The statutory maximum period of 10 years for hunting concessions applies to each individual concession granted, not to the aggregate period a holder may possess concessions over time.

The Court observed that even if the applicants had established some infringement of their rights, the balance of convenience clearly favoured the respondents. The Court noted that the applicants' losses were not irreparable and could be redressed by damages, whereas the respondents and Authority would suffer substantial losses from suspension of the concession. The Court also noted that Rule 87(1) of the High Court Rules does not absolve litigants of the obligation to cite all relevant parties, and the Court's discretion must be exercised to ensure all persons affected by the determination are afforded an opportunity to be heard. The Court further observed that while it concluded the matter on the basis of non-citation being fatal, it proceeded to determine the merits given the possibility that this conclusion might be incorrect.

This case establishes important principles regarding the administration of wildlife hunting concessions in Zimbabwe, particularly: (1) the essential role of the Minister in approving hunting concessions and the necessity of citing the Minister in disputes affecting such concessions; (2) the personal and non-delegable nature of hunting concessions granted under the Parks and Wildlife Act; (3) the prohibition against using agency arrangements to circumvent statutory vetting requirements for concession holders; and (4) the application of interdict principles in the context of wildlife management and administrative decisions.