Tilfury Zimbabwe (Private) Limited and Fungai Bangidza v The Mining Commissioner P. Kunaka (N.O) and Others

The applicants held certificates of registration for four gold mining claims (Glen Arroch 80, 81, 82, and 83). A long-running boundary dispute existed between the applicants and the second respondent (Damofalls Investments), a land developer on whose land the mining claims were situated. After several court cases in which the applicants were largely successful, the dispute came before the first respondent (Mining Commissioner P. Kunaka). The applicants objected in writing to the first respondent adjudicating the matter due to a conflict of interest - the first respondent's brother, A. Kunaka, was a senior manager and financial controller of the second respondent. On 6 June 2023, the first respondent summarily rejected the objection without a hearing. The first respondent scheduled a meeting for 17 July 2023, which proceeded in the applicants' absence despite their request to reschedule due to their lawyer's unavailability. On 13 October 2023, the first respondent issued a notice of intention to cancel the certificates effective 31 October 2023. However, the notice was only served on the applicants' lawyers on 4 November 2023, after the purported cancellation date. The applicants filed a review application under the Administrative Justice Act, while simultaneously filing an appeal before the third respondent (the Minister).

• Whether the first respondent acted in a biased manner in adjudicating the dispute given his familial relationship with a senior member of the second respondent
• Whether the first respondent's decision to cancel the mining certificates was null and void for failure to comply with mandatory procedural requirements under section 50 of the Mines and Minerals Act
• Whether the first respondent complied with his duties under section 3 of the Administrative Justice Act to act lawfully, reasonably and fairly
• Whether the applicants should have exhausted internal remedies (the appeal to the Minister) before approaching the High Court for review
• Whether bias is a ground of review under the Administrative Justice Act or only under the High Court Act
• Whether the High Court had jurisdiction to hear the matter

The application for review was granted. The first respondent's decision to cancel the certificates of mining title for Glen Arroch 80 (Reg. No. 29584), Glen Arroch 81 (Reg. No. 29585), Glen Arroch 82 (Reg. No. 2980), and Glen Arroch 83 (Reg. No. 298005) was set aside. The first, second and third respondents were ordered to pay the applicants' costs of suit, jointly and severally, one paying the others to be absolved.

The binding legal principles established are: (1) Bias is a reviewable ground under the Administrative Justice Act [Chapter 10:28] as it falls within the requirement of 'fairness' under section 3(1)(a). (2) Where there is a familial relationship between an adjudicator and a party to the dispute that would cause a reasonable person to apprehend bias, the adjudicator should recuse himself - the test is objective and based on how the situation appears to a right-minded person, not on the actual state of mind of the adjudicator. (3) Failure to comply with mandatory procedural requirements prescribed by statute (such as the 30-day notice period under section 50(2) of the Mines and Minerals Act [Chapter 21:05]) renders the resulting administrative decision null and void and of no legal effect. (4) The audi alteram partem rule (right to be heard) is a fundamental requirement of natural justice that administrative authorities must observe - serving notice after a cancellation has purportedly taken effect denies this right and vitiates the decision. (5) The High Court has discretion under section 7 of the Administrative Justice Act to decline to require exhaustion of internal remedies where it considers that the matter will not be properly adjudicated through those remedies.

The court made several non-binding observations: (1) The court expressed concern about the first respondent's failure to comprehend simple statutorily prescribed procedural steps, finding it 'appalling' that he suggested late service of the notice proved no cancellation had occurred. (2) The court noted the confusion among respondents themselves about whether cancellation had actually occurred - the second respondent argued it had been cancelled while the first and third respondents claimed it had not. (3) The court observed that the applicants had lost faith in the administrative authorities given the history of the dispute and the contradictory positions taken by various respondents. (4) The court commented on the first respondent's actions in proceeding with the 17 July 2023 meeting despite the applicants' request to reschedule, noting 'I do not see the wisdom in the first respondent's actions' given the concerns already raised about bias. (5) The court suggested that pursuing the appeal before the Minister would likely be to the applicants' prejudice, particularly given that the third respondent had ignored the fundamental issue of the first respondent's conflict of interest.

This case is significant in Zimbabwean administrative law for several reasons: (1) It clarifies that bias can be raised as a ground of review under the Administrative Justice Act within the concept of 'fairness' under section 3, not only under the traditional grounds in the High Court Act. (2) It reinforces the importance of the rule against bias and apparent bias in administrative decision-making, applying the objective test from Metropolitan Properties v Lannon - that justice must not only be done but be seen to be done. (3) It emphasizes that mandatory procedural requirements in statutes (such as the 30-day notice period in section 50 of the Mines and Minerals Act) must be strictly complied with, and failure to do so renders administrative decisions null and void. (4) It demonstrates the High Court's willingness to exercise its discretion under section 7 of the AJA to hear review applications rather than requiring exhaustion of internal remedies where there are concerns about fair adjudication. (5) It affirms the High Court's inherent jurisdiction over administrative matters and that sector-specific legislation does not automatically oust this jurisdiction.