Stanley Masumba v Collen Tshayana and Provincial Mining Director-Midlands and Minister of Mines and Mining and Mining Development N.O

The applicant held a mining claim registration certificate for Belingwe Star 40 mine, registration number 13185. A dispute arose with the first respondent, a farmer, because the first respondent located a tuck shop within the mining boundaries of the applicant's mine. The Mining Commissioner issued a determination on 2 June 2015 in favour of the applicant. The first respondent appealed to the Secretary for Mines and Mining Development, who issued a memorandum dated 11 March 2016 cancelling the applicant's certificate of registration. The Provincial Mining Director communicated this decision by letter dated 27 April 2016. The applicant filed a review application (HC 1283/16) on 23 May 2016 challenging the Secretary's decision as ultra vires, and simultaneously filed this urgent application seeking a provisional order to suspend the cancellation pending determination of the review.

• Whether the Secretary for Mines and Mining Development had appellate jurisdiction to hear an appeal against a decision of the Mining Commissioner
• Whether section 341(2) of the Mines and Minerals Act empowers the Secretary to overturn a Mining Commissioner's decision on appeal
• Whether the applicant was entitled to interim relief pending the determination of his review application
• Whether failure to object to the Secretary's jurisdiction at an earlier stage disentitled the applicant from raising the jurisdictional challenge

The provisional order was granted in terms of the amended draft order, suspending the cancellation of the applicant's mining registration certificate pending determination of the review application HC 1283/16.

An appeal against a decision of a Mining Commissioner's court must be made to the High Court in terms of section 361 of the Mines and Minerals Act. The Secretary for Mines and Mining Development has no appellate jurisdiction over such decisions. An appeal directed to the Secretary is a nullity, and any decision flowing from such an appeal is similarly a nullity. Section 341(2) of the Act, which empowers the Secretary to authorize correction of administrative errors, does not confer appellate jurisdiction. Failure by a party to object to a tribunal's lack of jurisdiction does not clothe that tribunal with jurisdiction it does not possess under statute.

The court made a colorful observation that the respondents were "hiding behind a finger" and "should have chosen a better object behind which to hide because the finger is just too small for that purpose" when describing their attempt to characterize the Secretary's appellate decision as merely correcting administrative errors. The court also noted that the use of the word "may" in section 361 simply gives the aggrieved person a discretion whether to appeal, not a discretion to choose alternative appellate forums. The court observed that it would be "the height of desperation" to find appellate jurisdiction in section 341(2).

This case reinforces the principle that administrative tribunals and officials cannot exercise jurisdiction they do not possess under statute, regardless of whether parties submit to that jurisdiction. It confirms the exclusive appellate jurisdiction of the High Court over Mining Commissioner decisions under section 361 of the Mines and Minerals Act, and clarifies that section 341(2) empowering the Secretary to correct administrative errors does not create appellate jurisdiction. The case is an important application of the principles established in Mazuva v Simbi regarding mining law appeals in Zimbabwe and demonstrates the courts' willingness to protect statutory rights through interim relief pending review of ultra vires administrative decisions.