MMS Mining Syndicate v K Mlangeni (in his capacity as Provincial Mining Director) and Others

The applicant (MMS Mining Syndicate) held a certificate of registration for a mine claim. On 19 October 2015, the first respondent (Provincial Mining Director) made a decision to cancel the applicant's certificate of registration. The applicant challenged this decision on review, alleging that: (1) the cancellation was arbitrary and without lawful cause; (2) the first respondent erred by awarding a ruling to the second respondent in a dispute where she was not a party; and (3) the decision was irregular, corrupt in nature, and unreasonable. The first respondent filed an opposing affidavit deposed to by Malcolm Mazemo, who was the Provincial Mining Director for Midlands Province (not the decision maker who was being challenged). Mazemo stated the facts were true to the best of his knowledge. The applicant raised a preliminary objection that the opposing affidavit was defective as the deponent could not swear positively to the facts, particularly regarding allegations of corruption, as he was not the decision maker.

• Whether the opposing affidavit complied with Rule 227(4)(a) which requires that an affidavit be made by a person who can swear positively to the facts or averments therein
• Whether a person who was not the decision maker and not present during the decision-making process could competently depose to an affidavit defending that decision
• Whether an affidavit based on hearsay and information from files, rather than personal knowledge, is valid in review proceedings
• Whether allegations of corruption could be properly denied by someone other than the decision maker against whom such allegations were made

1. The decision of the first respondent dated 19 October 2015 is set aside. 2. Respondents to pay the costs of suit.

An opposing affidavit in review proceedings must be deposed to by a person who can swear positively to the facts from personal knowledge. Where a decision maker's decision is challenged on review, including on grounds of corruption, a person who was not the decision maker, was not present during the decision-making process, and who derives knowledge merely from reading files and records, cannot competently depose to an opposing affidavit. Such an affidavit is based on hearsay and is defective at law. The test for determining whether a deponent can swear positively to facts is whether that person would be a competent viva voce witness to those facts if called to testify. An affidavit containing material allegations based on hearsay is bad and cannot stand.

The court observed that while it had found the opposing affidavit to be defective and set aside the decision under review, it would not be appropriate to substitute its own decision for that of the tribunal. The court noted that it had not dealt with the merits of the case and that it would therefore be hazardous to start substituting the decision with orders that affect the merits. This reflects a restrained approach to judicial review, limiting the court's intervention to setting aside the defective decision rather than making substantive determinations on the underlying mining dispute.

This case reinforces the strict application of procedural rules governing affidavits in Zimbabwean administrative review proceedings. It emphasizes that in review applications challenging administrative decisions, the opposing affidavit must be deposed to by someone with direct personal knowledge of the facts, preferably the decision maker themselves. The case is significant for establishing that a successor official or colleague who merely has access to files cannot competently defend a decision made by another official, particularly where serious allegations such as corruption are raised. The judgment upholds the principle that hearsay evidence in affidavits renders them defective, and reinforces that the test for a valid affidavit is whether the deponent would be a competent witness if called to testify viva voce. The case also demonstrates judicial restraint in review matters, with the court setting aside the impugned decision but declining to substitute its own decision on the merits.