MIXNOTE INVESTMENTS (PVT) LTD v MAJOLA & ORS 2017 (1) ZLR 302 (H)

Flynote

Mines and minerals — mining dispute — resolution — decision of mining commissioner appeal from — appeal lying to High Court — Permanent Secretary in Ministry having no appellate jurisdiction

Headnote

The applicant was a mining concern which was involved in a mining dispute with the first respondent, who was the registered owner of gold reef claims in Sally 5 Mine, which is close to Ettrick Mine. The dispute between the parties was referred to the second respondent, the Provincial Mining Director, who ruled that the first respondent should stop working at Ettrick Mine, because it was not her mine, and concentrate her activities at Sally 5 Mine. He said that an aggrieved party could appeal to the Ministry's Dispute Resolutions Committee. The first respondent appealed to the Ministry. The Permanent Secretary dealt with the appeal and pronounced judgment that the applicant should readjust the boundary of Ettrick Mine so that it did not encroach into Sally 5 Mine and that the first respondent could stay on her claim since she has been working there for the past 15 years.

Held, that the decision of the second respondent was shocking and defied logic since the survey commissioned by the second respondent had confirmed that there was no boundary dispute between the parties.

Held, further, that what was even more shocking was when the Permanent Secretary denied the appellant jurisdiction over the mining dispute which should have been resolved by the second respondent.

Held, further, that although the Permanent Secretary is empowered, in his own discretion, to perform the functions of a mining commissioner, there is nowhere in the Act where it says that he has appellate jurisdiction over the court of the mining commissioner.

Held, further, that if the first respondent were allowed to continue extracting gold from the mine the applicant would suffer prejudice should the matter be eventually decided in its favour. Therefore, the solution was to stop all mining activities until the review application was determined.