Kingstone Mudonhi v Minister of Mines and Mining Development and Others; Ticharwa Murehwa v The Minister of Mines & Mining Development N.O. and Others

The applicants (Kingstone Mudonhi and Ticharwa Murehwa) and the third respondent (Aaron Shanje) are gold miners in the Odzi area with adjacent mining claims (G3445, G3385, and G1243 respectively). A boundary dispute arose in 2014 between one applicant and the third respondent, which was determined by the Acting Provincial Mining Director for Manicaland Province on 23 December 2014. The parties mined harmoniously for 18 months thereafter. In July 2016, the third respondent wrote a complaint letter to the second respondent requesting a review of the 2014 decision, alleging encroachment by the applicants. This letter was not copied to the applicants. Without consulting the applicants or affording them an opportunity to make representations, the second respondent reviewed the earlier decision and issued a new determination on 22 May 2017, which altered the beacons and boundaries, effectively taking portions of the applicants' mining claims and awarding them to the third respondent. The letter referenced receiving "an appeal" and stated it was a decision by the Minister of Mines and Mining Development.

• Whether the first and second respondents had jurisdiction to review their own decision of 23 December 2014
• Whether the determination of 22 May 2017 was made ultra vires the Mines and Minerals Act
• Whether the applicants' right to administrative justice was violated by the failure to afford them an opportunity to make representations before the 22 May 2017 decision
• Whether the decision of 22 May 2017 constituted a correction of error under s 341(2) of the Mines and Minerals Act or a new determination
• Whether the matter was res judicata
• Whether the application was filed timeously
• Whether the relief sought was competent in light of s 177(3) of the Mines and Minerals Act

1. The decision of the 1st and 2nd Respondents made by letter dated 23 May 2017 rescinding its own determination of 23 December 2014 is set aside. 2. The 2nd Respondent is ordered to cause a survey of mining locations G3445, G3385, and G1243 to be conducted in terms of Section 353(1) of the Mines and Minerals Act within seven days. 3. The 2nd Respondent is ordered to summon the Applicants and 3rd Respondent to make representations on the boundary dispute in terms of Section 348 of the Mines and Minerals Act within fourteen days. 4. The 2nd Respondent is ordered to render its determination on the boundary dispute within seven days of hearing representations from the parties. 5. The 1st, 2nd and 3rd Respondents to pay costs of suit.

An administrative authority acting under the Mines and Minerals Act does not have inherent power to review its own decisions in the absence of express statutory provision. Where an administrative decision affects parties' rights, those parties must be afforded an opportunity to make representations before the decision is made, in accordance with s 3(1) of the Administrative Justice Act and s 68 of the Constitution. A decision made without hearing all affected parties violates the right to administrative justice and is invalid and must be set aside. Section 341(2) of the Mines and Minerals Act, which permits correction of errors, does not authorize substantive alterations to determinations that affect parties' rights without affording them a hearing. Administrative authorities must act lawfully, fairly, impartially, and in accordance with both substantive and procedural fairness; failure to do so renders their decisions ultra vires and invalid.

The court observed that if the applicants had persisted with their original draft order seeking to be declared prior peggers, the third respondent's point in limine based on s 177(3) of the Mines and Minerals Act (which provides that prior peggers' rights are superior) would have been valid. However, since the amended relief only sought to set aside the procedurally defective decision and require proper consultation, this issue did not arise. The court also noted its willingness to condone procedural non-compliance in the interest of justice and finality, particularly where matters had been consolidated and one applicant had filed timeously in the consolidated proceedings.

This case is significant in Zimbabwean administrative law as it affirms the constitutional and statutory rights to administrative justice, particularly the audi alteram partem principle (right to be heard). It establishes that administrative authorities in the mining sector cannot unilaterally review their own decisions without affording affected parties an opportunity to make representations, even where one party requests such review. The case reinforces that administrative conduct must comply with both s 3(1) of the Administrative Justice Act and s 68 of the Constitution of Zimbabwe, requiring lawfulness, fairness, impartiality, and procedural fairness. It also clarifies that s 341(2) of the Mines and Minerals Act, which allows correction of errors, cannot be used to make substantive new determinations that alter parties' rights. The judgment demonstrates the courts' willingness to set aside administrative decisions tainted by procedural unfairness and bias, protecting property rights in mining claims from arbitrary administrative action.