Sengwa Colliery (Private) Limited v The Minister of Mines and Mining Development and Others

Sengwa Colliery (Private) Limited (applicant) held Special Grant No. 849 over the Sengwa Colliery coal mining location for over four decades, producing coal from 2003-2008 and resuming operations in 2024. On 15 August 2024, the Minister of Mines and Mining Development (first respondent) issued a notice of intention to cancel the Special Grant based on alleged inactivity, giving 12 months' notice under section 305(1) of the Mines and Minerals Act. The applicant responded on 20 June 2025 with representations and evidence of operations, but the Special Grant was cancelled on 15 August 2025 by the Secretary for Mines and Mining Development (second respondent), who was also Chairperson of the Mining Affairs Board. Subsequently, Special Grant No. 10417 was issued to George Mining (Private) Limited (fifth respondent) over the same location on 17 October 2025, purportedly with Presidential authorization. The applicant filed for declaratory relief arguing the cancellation and new grant were unlawful nullities because only the President has statutory power to cancel Special Grants under Part XX of the Act, and that the Minister and Secretary usurped Presidential powers.

• Whether the non-joinder of the President of the Republic of Zimbabwe was material to the proceedings
• Whether non-joinder of the President was fatal to the application
• Whether the court has inherent power to join the President as a party without prior leave under rule 12(21) of the High Court Rules
• Whether under section 305 of the Mines and Minerals Act the power to cancel a Special Grant vests exclusively in the President
• Whether the first and second respondents had statutory authority to cancel a Special Grant issued under Part XX of the Act
• Whether rule 32(11) and 32(12)(b) of the High Court Rules permit joinder of any person, including the President, necessary for complete determination of issues

1. The point in limine for non-joinder was upheld. 2. The President of the Republic of Zimbabwe was joined to the proceedings as the seventh respondent. 3. The matter was removed from the roll. 4. The applicant was directed to serve the seventh respondent within 10 days, whereafter the matter would proceed according to court rules. 5. Costs were reserved to be costs in the cause.

Non-joinder of a party, including the President, is not fatal to proceedings by virtue of the peremptory provisions of rule 32(11) of the High Court Rules. Where a party's involvement is material to the resolution of the dispute, as evidenced by official documents and the statutory framework, the court has inherent power under rule 32(12)(b) to order joinder of that party, including the President, even without prior application for leave under rule 12(21), because it is the court itself sanctioning the suit. The words "any person" in rule 32(12)(b) are sufficiently broad to include the President. Where the President's role in administrative decision-making is central to determining whether acts were lawful exercises of Presidential power or unlawful usurpation by subordinate officials, the President's participation is necessary for complete and effectual determination of all issues, and the audi alteram partem principle requires affording him the right to be heard.

The court made observations on the merits regarding whether section 305 of the Mines and Minerals Act requires the President personally to communicate cancellation decisions or whether this may be done by the Minister or Secretary on his authority, but declined to determine this issue at the preliminary stage. The court also noted that Part XX of the Act brings the President directly into the arena as the authority that makes decisions to grant or cancel Special Grants, distinguishing this from cases where Presidential citation may be unnecessary. DEMBURE J observed that if leave had been sought to join the President, no reasonable court could have declined to grant it, suggesting a low threshold for such applications where Presidential involvement is evidenced.

This case establishes important principles regarding joinder of the President in Zimbabwean administrative law proceedings. It clarifies that: (1) rule 32(11) is peremptory and non-joinder is never fatal to proceedings; (2) courts have inherent power under rule 32(12)(b) to join any person, including the President, necessary for complete determination; (3) where the President's involvement in administrative decision-making is evidenced by official documents, his joinder becomes necessary rather than merely convenient; (4) the requirement for prior leave under rule 12(21) does not restrict the court's inherent power to order joinder mero motu when the President is found to be a necessary party; and (5) rule 7(a) permits departure from procedural rules in the interests of justice. The case also addresses the important substantive question of whether executive functions under mining legislation are properly exercised by the President or may be delegated to Ministers and officials, though this was not finally determined.