K & G Mining Syndicate v Ronald Mugangavari and Others

A dispute arose between the applicant (K & G Mining Syndicate) and the 1st respondent (Ronald Mugangavari) concerning boundaries of a mining claim. The 1st respondent had overlapped onto the existing boundaries of applicant's claim, Midway 21 Mine (registration number 9871), which was registered on 19 October 2006 and transferred to the applicant on 16 July 2007. The 1st respondent registered Clifton 15 Mine (registration number 12578) on 20 February 2012, six years after Midway 21 Mine. The 2nd respondent (Provincial Mining Director) visited the claim in Zvishavane and on 2 October 2014, determined that both mines shared the same position on the Master Plan and beacons, and cancelled Clifton 15 Mine's registration on the basis that Midway 21 Mine enjoyed priority rights under section 177 of the Mines and Minerals Act. The 1st respondent appealed to the 3rd respondent (Ministry of Mines & Mining Development), which reversed the decision on 17 July 2015 and allowed the 1st respondent to resume operations. The applicant then brought this review application.

• Whether the Minister (3rd respondent) had jurisdiction to hear an appeal from the Mining Commissioner's decision under section 361 of the Mines and Minerals Act
• Whether the Minister's decision was grossly irregular and unreasonable
• Whether the Minister's decision was irrational in ignoring the provisions of section 177(3) of the Mines and Minerals Act granting priority rights to the first pegger
• Whether new evidence could be introduced on appeal outside the record of proceedings

1. The determination by the 3rd respondent dated 17th July 2015 cancelling Midway 21 Mining registration certificate held by applicant was set aside. 2. The 1st respondent was ordered to pay costs of suit.

Where section 361 of the Mines and Minerals Act provides that appeals from decisions of a Mining Commissioner's court shall lie to the High Court, an appeal to the Minister of Mines is a nullity for want of jurisdiction, and any decision made by the Minister pursuant to such an appeal is equally null and void. A tribunal or authority acting without jurisdiction cannot make a valid determination, and such determination may be set aside on review.

The court observed that even if it was wrong on the jurisdictional point, the Minister's decision would still be grossly irregular and unreasonable because it ignored the clear provisions of section 177(3) of the Mines and Minerals Act which grants priority rights to the first pegger. The court also noted that it would be improper to review proceedings of the 2nd respondent as they were not properly before the court, and if the 1st respondent wanted those proceedings reviewed, he should have done so before appealing to the Minister. The court commented that it is undesirable to allow parties to lead new evidence outside the record of proceedings as this would effectively lead parties to argue their cases differently.

This case is significant in Zimbabwean mining law as it clarifies the proper appellate route from decisions of Mining Commissioners under the Mines and Minerals Act. It establishes that appeals must be directed to the High Court under section 361 of the Act, not to the Minister of Mines. The case also reinforces the principle that decisions made without jurisdiction are nullities. It affirms the statutory priority rights granted to first peggers under section 177(3) of the Mines and Minerals Act and demonstrates the court's willingness to review administrative decisions on grounds of lack of jurisdiction and gross irregularity. The judgment emphasizes the importance of following prescribed statutory procedures in mining disputes.