Percival Ndoga v The Provincial Mining Director Mashonaland West Province N.O. and The Minister of Mines and Minerals Development N.O.

The applicant held eight special prospecting licenses (numbers 021753BA to 021760BA) issued on 18 and 19 July 2022 by the first respondent's office, entitling him to prospect for minerals, mineral oils and natural gas. After obtaining these licenses, the applicant pegged mining claims at Silverside Mhangura with the involvement of personnel from the first respondent's office. On 2 August 2022, the applicant paid all registration and prospecting fees. On 11 August 2022, he received a rejection letter from the first respondent rejecting his application for registration under section 372(9) of the Mines and Minerals Act for violating section 372(1), which prohibits pegging on ground not open to prospecting. The rejection was based on the fact that prospecting discovery and registration notices were dated 26 July 2022, meaning pegging was done within an area covered by Exclusive Prospecting Order (EPO) Application Number 23 of 2020. The EPO was only lifted on 29 July 2022, after the applicant had posted prospecting notices and pegged the claims.

• Whether the first respondent's decision to reject the applicant's application for registration of special prospecting licenses constituted a gross irregularity justifying judicial review
• Whether the decision to reject was made before or after the lifting of the EPO on 29 July 2022
• Whether the involvement of the first respondent's personnel in the pegging process legalized the otherwise illegal pegging
• Whether pegging done on land subject to an EPO (not open to prospecting) violated section 372(1) of the Mines and Minerals Act
• Whether the existence of a special grant application was a valid additional ground for rejection

The application for review was dismissed with costs.

The binding legal principle established is that pegging conducted on land not open to prospecting by virtue of an existing Exclusive Prospecting Order violates section 372(1) of the Mines and Minerals Act, and the mining commissioner is entitled under section 372(9) to refuse registration of such mining locations. The involvement or cooperation of mining officials in the pegging process does not legalize pegging done on land that is legally not open to prospecting. In judicial review proceedings, the court's function is to scrutinize the legality of administrative action, not to substitute its decision for that of the administrator, and where an administrative authority acts within its statutory powers and does not act ultra vires, illogically or unprocedurally, the court will not interfere with the decision.

The court observed that the issue of a special grant application raised by the respondents in their notice of opposition was not relevant to the case, as the special grant provisions in sections 291 to 296 of the Mines and Minerals Act clearly speak to a "special grant issued" rather than merely an application for such a grant. The court noted that whether the first respondent's personnel were mistaken or unaware of the status of the land when they cooperated in the pegging exercise "may be an issue for another day," suggesting potential questions about the internal processes and knowledge management within the mining authority, but declining to address these issues in the present case.

This case is significant in Zimbabwean mining law as it clarifies that pegging activities conducted on land subject to an Exclusive Prospecting Order (EPO) are illegal under section 372(1) of the Mines and Minerals Act, even when undertaken with the cooperation or involvement of mining officials. The case reinforces the principle that administrative cooperation or involvement does not cure substantive illegality. It also demonstrates the limited scope of judicial review in administrative law matters, emphasizing that courts will not substitute their discretion for that of administrative authorities acting within their statutory powers. The judgment underscores the importance of ensuring land is legally open to prospecting before commencing pegging activities, regardless of any practical assistance received from mining officials.