Mixnote Investments (Pvt) Ltd v Evans Majola and Others

The applicant, Mixnote Investments (Pvt) Ltd, was the registered holder of 10 gold reef claims called Ettrick Mine, registered on 17 August 1999 and transferred to the applicant on 6 September 2011. The 1st respondent, Evans Majola, held Sally 5 Mine, registered on 27 August 1999 and transferred to him on 15 December 2000. A mining dispute arose when the parties clashed during mining activities. The Provincial Mining Director (2nd respondent) commissioned a survey on 3 September 2014, which revealed that the two mines were approximately 136 meters apart with no common boundary, and that the 1st respondent had abandoned Sally 5 Mine and was instead working at the applicant's Ettrick Mine shaft. On 17 October 2014, the 2nd respondent issued a determination directing the 1st respondent to cease working at Ettrick Mine and return to Sally 5 Mine. The determination advised parties they could appeal to the Ministry. The 1st respondent appealed to the Secretary for Mines and Mining Development, who issued a memorandum on 17 November 2016 reversing the Provincial Mining Director's decision and directing the applicant to readjust boundaries and invoking section 58 on impeachment of title, allowing the 1st respondent to continue mining. The applicant filed a review application (HC 3062/16) and this urgent application seeking to interdict both parties from mining pending determination of the review.

• Whether the Secretary for Mines and Mining Development had appellate jurisdiction over decisions of the Provincial Mining Director (mining commissioner)
• Whether section 341 of the Mines and Minerals Act [Chapter 21:05] vests appellate jurisdiction in the Secretary
• Whether the Secretary's decision of 17 November 2016 was a nullity
• Whether the applicant had demonstrated an arguable case on review and prima facie right to interim relief
• Whether to grant an interdict halting mining activities pending determination of the review application

The provisional order was granted in terms of the amended draft, interdicting both the applicant and 1st respondent from carrying out mining activities on the disputed mining claim at Ettrick Mine pending finalization of case number HC 3062/16 (the review application).

The binding legal principles established are: (1) Section 341 of the Mines and Minerals Act [Chapter 21:05] does not vest the Secretary for Mines and Mining Development with appellate jurisdiction over decisions of mining commissioners; (2) Section 361 of the Mines and Minerals Act provides that appeals from decisions of mining commissioners lie exclusively to the High Court, not to the Secretary; (3) While section 341(2) empowers the Secretary to assume the powers and functions of a mining commissioner at his discretion, when doing so the Secretary must comply with the procedural requirements applicable to mining commissioners, and such decisions remain subject to appeal to the High Court under section 361; (4) A purported appeal to the Secretary from a mining commissioner's decision is a nullity, and any determination made by the Secretary purporting to exercise non-existent appellate jurisdiction is equally a nullity; (5) A party cannot sit as an appellate authority over their own decision (functus officio principle).

The court made non-binding observations criticizing the Secretary's substantive decision as "shocking" and defying logic, noting that it contradicted the survey findings which confirmed there was no boundary dispute and that the mines were 136 meters apart. The court observed that the invocation of section 58 on impeachment of title was inapplicable to the facts, as that provision applies to mining locations registered for a period of 2 years, and there was no evidence that the 1st respondent had registered claims already registered by the applicant. The court also noted the 2nd respondent's "strange argument" and "interesting point" regarding the Secretary being appointed as Mining Commissioner, characterizing this interpretation as being without foundation "no matter what rule of statutory interpretation one employs."

This case clarifies the appellate structure in mining disputes under the Mines and Minerals Act [Chapter 21:05] in Zimbabwe. It establishes that the Secretary for Mines and Mining Development does not have appellate jurisdiction over decisions of mining commissioners (Provincial Mining Directors), and that section 361 provides the exclusive route of appeal to the High Court. The judgment reinforces the principle that administrative officials cannot create appellate jurisdiction where none exists in statute, and that decisions made without jurisdiction are nullities. The case is significant for mining law practitioners and confirms earlier jurisprudence on the same issue, contributing to legal certainty in the mining sector regarding dispute resolution procedures.