In 2019, the first respondent (Mining Commissioner) heard a mining dispute between the applicant (Kencor Holdings) and the second and third respondents (Screenon Mining and Nyangu Jossam Mangere). The Mining Commissioner failed to deliver a determination, prompting the applicant to obtain a court order (HC 9285/19) on 11 December 2019 compelling him to do so. On 20 January 2020, the Mining Commissioner delivered his determination. The applicant appealed this decision under CIV (A) 43/2020. When the applicant's counsel inquired about preparation of the record of proceedings, the Mining Commissioner responded that he had no proper record and could only provide correspondence. The applicant's legal practitioners then prepared an index and record, which the Mining Commissioner signed in October 2020. The second and third respondents later complained that documents were missing from the record. The Registrar of the High Court (fourth respondent) returned the record to the Mining Commissioner for further action. The applicant sought a mandatory interdict to compel the Mining Commissioner to return the record dated 26 October 2020 to the Registrar and have the appeal set down. The second and third respondents opposed and filed a counter-application seeking a proper record containing specified documents including notices of forfeiture, certificates of registration, inspection records, mining returns, and permits.
The main application was dismissed. The counter-application was granted. The Mining Commissioner was ordered within 30 days to prepare and lodge with the Registrar a record containing: (i) notice of forfeiture of applicant's Kingdom mining claim; (ii) Certificate of Registration for Kingdom 29-38; (iii) Certificate of Registration for Kingdom 45, 46, 48 and 49; (iv) Inspection Record Book containing Inspection Certificates from 2007 to date; (v) Mining Returns; (vi) Permit to transport ore dated 17 September 2014; (vii) Authority to dispose of gold dated 28 October 2013. The Registrar was directed to set down case No. HC CIV (A) 43/20 for hearing within ten days of receiving the record. There was no order as to costs.
Where no formal record of proceedings exists before a tribunal or administrative officer, the parties must proceed under Rule 9(1)(b) of the High Court (Miscellaneous Appeals and Reviews) Rules, 1975, which requires lodging reasons for the decision with all related papers, rather than attempting to create a formal record retrospectively. The Registrar of the High Court has quasi-judicial powers under Rule 9(3) to require submission of additional documents he deems necessary where no formal record exists, and exercise of this power is lawful. A record of proceedings prepared unilaterally by one party's legal practitioners without consultation with opposing parties, where no formal record existed, is irregular and does not bind the court or the Registrar. The requirements for a mandatory interdict include: (a) a clear right; (b) an injury actually committed; and (c) absence of similar protection. No injury is suffered where an official acts lawfully within prescribed statutory or rule-based duties. The duty to prepare records for appeal lies with the tribunal or officer who made the decision being appealed, not with the parties or their legal practitioners.
The court observed that it cannot mero motu uplift a bar arising from failure to file papers timeously, citing The President of Zimbabwe Robert Gabriel Mugabe N.O and Ors v Morgan Richard Tsvangirai SC21/17. The court noted that while the applicant may have a clear right to access to justice, this does not automatically entitle it to the specific relief sought where that relief would deny the opposing party access to justice by excluding their key documents from the record. The court observed that unexplained contradictions in affidavits, such as the applicant's shifting positions on who prepared the record, leave the court with more questions than answers and undermine credibility. The court commented that there is no prejudice to the applicant if additional documents are included in the record, while the second and third respondents may suffer incurable prejudice if such documents are excluded; if documents are not genuine, submissions can be made at the appeal hearing. The court noted the defined role of the Registrar as described in Herbstein and Van Winsen, emphasizing that the Registrar is an official responsible for the smooth functioning of court with administrative duties including case management and record keeping, citing Mutasa and Anor v Registrar of Supreme Court and Ors SC27/18.
This case clarifies the procedural requirements for preparing records of appeal in Zimbabwe when no formal record of proceedings exists. It establishes the Registrar's quasi-judicial powers under Rule 9(3) of the High Court (Miscellaneous Appeals and Reviews) Rules, 1975 to demand additional documents necessary for an appeal where no formal record was kept. The case emphasizes the importance of procedural fairness in record compilation, requiring consultation with all parties rather than unilateral preparation. It reinforces that the duty to prepare records lies with the tribunal or officer who made the decision, not with litigants. The judgment demonstrates the court's commitment to ensuring complete records for appeal courts to properly adjudicate disputes, prioritizing substantive justice over procedural shortcuts. It also confirms that the Registrar's administrative and quasi-judicial functions must be respected, and that mandatory interdicts are not appropriate remedies where officials act lawfully within their prescribed duties.