Mutasa Mining Syndicate v Wan Wenjin Jewellers (Private) Limited and Others

The first respondent, Wan Wenjin Jewellers (Pvt) Ltd, held six certificates of registration (Nos G6822-G6827) for mining claims called Odzanai 14, 15, 6, 7, 9, and 10. The Provincial Mining Director (second respondent) issued a notice of intention to cancel these certificates on 20 August 2024 on the basis that the claims were situated on ground not open to prospecting in violation of s 31 of the Mines and Minerals Act, specifically within Stapleford Forest in violation of the Forest Act. The Minister of Mines and Mining Development (third respondent) dismissed the first respondent's appeal and cancelled the registration certificates. The first respondent filed a review application (HC 1002/25 on 5 March 2025) and an urgent application (HC 1068/25 on 7 March 2025) seeking a stay of the cancellation decision. MUCHAWA J granted a provisional order on 13 March 2025 suspending the cancellation decision pending the review. The applicant, Mutasa Mining Syndicate, was not a party to those proceedings but held a Special Grant No. 10072 dated 5 March 2025 covering the same 50-hectare area within Reserve Area RA MNC005 in Manicaland. The applicant sought rescission of MUCHAWA J's order under rule 29(1)(a) on the basis that the order was erroneously granted in the absence of an affected party.

• Whether an application for rescission of a provisional order is competent under rule 29 of the High Court Rules 2021
• Whether the applicant had locus standi to apply for rescission of an order in proceedings to which it was not a party
• Whether the order was 'erroneously granted in the absence of an affected party' within the meaning of rule 29(1)(a)
• What constitutes an 'error' for purposes of rule 29
• What is the appropriate relief where a court grants an order without knowledge of a material fact (the Special Grant) that existed at the time of the application

1. The provisional order by MUCHAWA J dated 13 March 2025 is rescinded and set aside. 2. The applicant is joined as 3rd respondent in Case No. HC 1068/25. 3. The first respondent shall serve the applicant with all papers in HC 1068/25 within 5 days. 4. The applicant shall file and serve opposing papers within 5 days after service. 5. The Registrar shall set down the matter for hearing within 5 days of filing of opposing papers. 6. Pending determination, the first respondent and applicant shall stop and suspend all mining activities on site, with the Sheriff ensuring cessation of all mining activities. 7. Costs are reserved.

Rule 29 of the High Court Rules 2021 applies to both final and provisional orders. An 'affected party' for purposes of rule 29 includes a person who was not a party to the original proceedings but who holds a direct and substantial legal interest in the subject matter that would be prejudicially affected by the order. An order is 'erroneously granted in the absence of an affected party' under rule 29(1)(a) where the court was unaware of material facts existing at the time of the application which, if known, would have made it highly unlikely the court would have granted the order without the participation of that affected party. A holder of a Special Grant issued under the Mines and Minerals Act conferring exclusive mining rights over an area has locus standi as an affected party to seek rescission of an order relating to mining rights over the same area, even if not a party to the original proceedings. The court has power to regulate its processes in the interests of justice, including by ordering cessation of mining activities by competing claimants pending resolution of disputes over mining rights.

The court observed (though expressly stated this was 'thinking cloud thought' and did not bind the parties) that common sense and logic would dictate that the parties resolve amongst themselves the issues of joinder and how to accelerate disposal of the review application. The court noted that if the applicant exploits the area under the Special Grant and the court finds on review that the first respondent's titles were unlawfully cancelled, this would complicate the situation. The court commented that the Special Grant's validity is indirectly under challenge in that its continued validity will depend on the result of the review. The court observed that MUCHAWA J could not be accused of having erred where the Special Grant was not placed before her, noting that had it been placed before her and she inadvertently did not relate to it, the argument could have been different, though the court did not hold that even in such a situation she could necessarily be said to have committed an error.

This case establishes important principles regarding the application of rule 29 of the High Court Rules 2021 in Zimbabwean law. It confirms that: (1) provisional/interim orders can be rescinded, varied or corrected under rule 29, which does not distinguish between final and interim orders; (2) an 'affected party' with locus standi under rule 29 includes a person who was not a party to the original proceedings but holds a direct and substantial legal interest that would be prejudicially affected by the order; (3) the definition of 'error' in the context of rule 29(1)(a) encompasses situations where a court was unaware of material facts existing at the time of the order which would have made it highly unlikely the order would have been granted; and (4) the court has inherent power to regulate its processes to promote justice and order, including by suspending competing mining activities pending resolution of disputes. The case demonstrates the court's willingness to intervene to protect the rights of persons holding statutory mining titles even when they were not parties to the original proceedings.