Pahasha Somalia Mining Syndicate v Earthrow Investments (Private) Limited And 2 Others (450 of 2021) [2021] ZWHHC 450 (3 September 2021)

1 HH 450-21 HC 1465/18 PAHASHA SOMALIA MINING SYNDICATE versus EARTHROW INVESTMENTS (PRIVATE) LIMITED and MINISTER OF MINES & MINING DEVELOPMENT and ACTING PROVINCIAL MINING DIRECTOR (MASHONALAND EAST) HIGH COURT OF ZIMBABWE CHINAMORA J HARARE 16 June 2020 and 3 September 2021 Urgent Chamber Application Adv L Uriri, for the applicant Adv T L Mapuranga, for the 1st respondent No appearance for the 2nd and 3rd respondents CHINAMORA J: Introduction: I have before me an application for review filed by the applicant on 25 August 2020 in terms of Rules 26 and 27 of the old High Court Rules 1971. Although four grounds were listed by the applicant in its application, on a proper examination, three grounds are discernible. The applicant alleged that there was a gross procedural irregularity surrounding the decision to cancel the applicant’s registration certificate, as it was not afforded the opportunity to be heard. It was further alleged that the 2nd respondent’s decision was irrational as no reasons were given as required by section 68 of the Constitution. Finally, the applicant averred that the determination was excessive and so outrageous in its defiance of logic that no reasonable person who applied his mind to the dispute would have arrived at such a decision. The applicant prayed that the 2nd respondent’s determination (dated 20 December 2017) upholding the 3rd respondent’s decision to cancel the applicant’s registration certificate be set aside with costs if the application was opposed. The 1st respondent opposed the application. HH 450-21 HC 1465/18 Factual background The applicant asserted that it is a mining firm registered under number 45650, while the 1st respondent owns a mining syndicate known as Koodoo 62-65 registered under number 29559- 62BM. Sometime in 2016, a boundary dispute arose between the two firms, which was referred to the 3rd respondent for determination. The 1st respondent’s bone of contention was that the applicant had encroached onto its claim. On the hand, the applicant contended that there was no such encroachment. The 3rd respondent’s decision on the dispute is captured in the letter dated 22 August 2017, which is Annexure “A” to the record, and reads as follows: “DISPUTE OUTCOME PAHASHA SOMALIA SYNDICATE REG NO 45650 vs EARTHROW INVESTMENTS KOODOO 62-65 REG NO 29559-62BM Following a visit to the ground by surveyors of this office to verify the issue of over-pegging between the above mentioned disputants a determination has been made. It has been noted that Earthrow Investments registered their block Koodoo 63 and 64 in 2003, whilst Pahasha Somalia registered their claim in 2013. According to the records in this office, the position of Pahasha Somalia Syndicate on application is different from where they are working on the ground, but all the same they are over-pegging [the] prior pegger who is Earthrow Investments. In view of the above, this office is invoking section 177 of the Mines and Minerals Act [Chapter 21:05]. This is because the area was not open to prospecting and pegging when Pahasha Somalia Syndicate (Koodoo) was registered. This office intends to cancel certificate of registration for Pahasha Mining Syndicate registration number 45650 to pave way for the prior pegger. By the receipt of this letter Pahasha Somalia Syndicate should stop all mining operations in the disputed area. However, if anyone feels aggrieved by this determination he/she may appeal to the Minister of Mines and Mining Development within 30 days of receipt of this letter”. Unhappy with the determination, the applicant noted an appeal to the 2nd respondent. The appeal is contained in the letter dated 29 August 2017, which is Annexure “B” to the record. In its notice and grounds of appeal, the applicant (inter alia) argued that the 3rd respondent decided the matter on the evidence of one party without giving it an opportunity to be heard. In addition, the applicant submitted that the decision was vague and ambiguous, and that the dispute had been determined on insufficient evidence. On 28 August 2017, the 3rd respondent issued the applicant with a notice of intention to cancel its registration certificate. The applicant averred that it received the notice HH 450-21 HC 1465/18 on 4 October 2017. The applicant stated that it filed another notice of appeal dated 18 October 2017, which is Annexure “D” to the record and expressed in these terms: “Grounds of Appeal 1. The Mines Director has delivered her ruling on the matter, and with respect, the appellants have since noted and filed their appeal against the initial ruling (the same grounds of appeal which are being incorporated herein by special and specific reference), it is incompetent for the Director to make a second ruling on the matter, as she is no longer seized with the matter. 2. There is apparent instance of bias and manipulation of the Mines Office by prominent members of the respondents in the Earthrow case, whereby it is evidently clear, the Mines Director is determined to give preference to the interests of Earthrow Investments (Pvt) Limited over the legitimate rights of the appellants. Accordingly, it is respectfully submitted that the purported intention to cancel the certificate in casu is no less and no more than an obvious realization that Earthrow shall by no means be expected to win in its claim against the appellant, and consequently that this second baseless ruling is a mere ploy to take away the appellant’s unassailable rights through the back door. 3. It is strenuously denied that the registration of the appellant’s claim is in violation [of] the specified or any of the provisions of the Mines and Minerals Act. 4. Applicants, as in the previous case reference above, have not been allowed the opportunity to tender submissions in response, and in particular, this being a continuation of the same matter wherein bias has already been alleged, the conduct complained of is inconceivably wrong, and requires the special attention of the Hon Minister”. The outcome of the appeal was conveyed to the applicant by letter dated 20 December 2017 signed by the 2nd respondent (the Minister of Mines and Mining Development). The decision confirmed the 3rd respondent’s determination and cancelled the applicant’s certificate of registration. The 1st respondent opposed the application and prayed for its dismissal with costs on an attorney and client scale. Additionally, the 1st respondent raised some points in limine, namely, (a) that there was no applicant before the court; (b) that the 3rd respondent does not exist as a party with locus standi to sue or be sued; and (c) that the application for review has been filed outside the time stipulated in the High Court Rules. With the agreement of the parties, I adopted a rolled up approach which allowed the parties to argue the points in limine at the same time as the merits of the matter. Owing to this approach, the applicant was the first to make submissions to the court. At the end of the hearing, I reserved judgment on both the preliminary points and the merits of the matter. I now give my judgment with reasons for coming to the conclusion I did. HH 450-21 HC 1465/18 Points in limine No applicant before the court Adv Uriri, for the respondent submitted that the preliminary point taken by the 1st respondent lacked merit and should be dismissed. He began by referring to section 332 of the Constitution, which provides that “a person” to mean “an individual or a body of persons whether incorporated or unincorporated”. Counsel then argued that a syndicate, which is an unincorporated entity, has legal personality derived from this provision of the Constitution. Then, he referred to section 2 of the Companies and Other Business Entities Act [Chapter 24:31], which defines a “business entity” as follows: “a company, a private business corporation, a syndicate, a partnership or any other association of persons, whether corporate or unincorporated, which has a business character”. Reliance was also placed on the definition of “syndicate” in the same section, which provides that it is an association of individuals, companies or business entities whether incorporated or not. Adv Uriri also referred to Rule 8 of the old High Court Rules which states that associates my sue or be sued in their name. The applicant therefore concluded argument on this point in limine by submitting that Pahasha Mining Syndicate was a legal persona which could sue and be sued. In response, the 1st respondent argued that a syndicate which is unincorporated has no legal personality and, as such has no capacity at law to sue or be sued. Adv Mapuranga for the 1st respondent, submitted that while a partnership or syndicate can be sued in its trade name, the standing of such a litigant must be clearly stated on the papers. Counsel added that neither the Companies Act nor the Companies or Other Business Entities Act allowed the applicant to operate as a legal persona. Further to that, the 1st respondent pointed out that the application for review was filed on 15 February 2015, while the Companies and Other Business Entities Act was enacted in 2019. That being the case, the 1st respondent argued that standing is decided on the date of filing and not on the date the dispute is heard by the court. Put differently, the submission was that if the applicant had no standing at the date the proceedings were commenced, the Companies and Other Business Entities Act could not cure that defect. Having heard argument from both parties, the view I take is that the applicant could bring the present application. The court in Masowe Syndicate v Motladiile 2001 (2) BLR 751 (HC) HH 450-21 HC 1465/18 dismissed the point in limine that a syndicate was not a legal persona, holding that it could sue and be sued. I therefore find no merit in this preliminary point and dismiss it. The 3rd respondent does not exist as a party with locus standi It was contended by the 1st respondent that the office of Provincial Mining Director does not exist at law. Consequently, the argument was advanced, the 3rd respondent is not properly before the court. The 1st respondent submitted that the correct party who should have been cited is the Secretary for Mines and Mining Development and relied on Gombe Resources (Private) Limited v Provincial Mining Director, Mashonaland Central& Ors HH 405-18. The point made in this case was that if the Provincial Mining Director lacked authority to make the orders he made, then the relief that was being sought was academic. The applicant accepted that, a Provincial Mining Director is not cited anywhere in the Mines and Minerals Act, but was a de facto position that existed in the Ministry of Mines and Mining Development. In its heads of argument, it extended the argument to submit that “the Provincial Mining Director is clothed with responsibilities of the Mining Commissioner”. Indeed, the applicant correctly pointed out that section 346 (2) of the Mines and Minerals Act provides that a mining commissioner shall hear and determine disputes concerning mining claims. However, the 1st respondent’s argument was that, as the position of Provincial Mining Director was not provided in the Mines and Minerals Act, the 3rd respondent was not properly before the court. The question of whether or not the existence of an administrative position ipso facto creates a legal persona has already been decided by this court and the Supreme Court. This was dealt with in the context of the position of Director General of the Zimbabwe Revenue Authority (ZIMRA). In this context, it is apposite to rely on the following decisions: Care International in Zimbabwe v Zimbabwe Revenue Authority & Ors SC 76-17; Main Road Motors v Commissioner General, ZIMRA HMA 17-17; Sindikumbuwalo Pacifique v The Commissioner General Department of Customs & Excise HH 123-18. In fact, in Sindikumbuwalo Pacifique v The Commissioner General Department of Customs & Excise supra, the court pertinently stated: “The question whether or not there is a defendant before the court is a critical point of law. A court cannot proceed to hear any matter on merit unless satisfied that there are parties before it who seek a resolution of a dispute resulting in a competent decision which is binding upon the parties”. HH 450-21 HC 1465/18 Owing to the admitted position that the position of Provincial Mining Director does not exist in the Mines and Minerals Act but that of “mining commissioner”, this begs the question: On what basis has the present application been brought against the 3rd respondent? The applicant accepts that sections 345 and 346 of the Act envisage the hearing and determination of disputes by the mining commissioner, but it has not articulated why the 3rd respondent has been cited. In Benchman Investments (Pvt) Limited HH 136-20, I held that the Commissioner General of ZIMRA was a legal persona who could sue and be sued. Following an appeal to the Supreme Court by ZIMRA, the appeal was upheld in Commissioner General – Zimbabwe Revenue Authority v Benchman Investments (Private) Limited SC 88-21, with GARWE JA (as he then was) criticizing me pointedly for not following the stare decisis principle. In light of my aforegoing observations, I am satisfied that the point in limine raised is meritorious. Accordingly, I uphold it. The application for review was filed late (outside the Rules) The 1st respondent argued that the applicant was inordinately out of time to seek a review of the 3rd respondent’s decision of 22 August 2017. It was submitted that an application for review ought to have been filed 8 weeks from the date the 3rd respondent determined the dispute (i.e. 22 August 2017). The argument proceeded that the applicant should have sought condonation for late noting of the application for review, but did not do so. Having come to the conclusion that the point in limine regarding the citation of the 3rd respondent has merit, I have decided not to deal with whether or not the application for review was filed late. I will decide the application on the basis of the point that I have upheld. For the same reason I will not deal with the merits. As I have resolved the matter before me on the basis of the aforesaid preliminary point, I have decided not to deal with the merits of the issues before me. Disposition The application is struck off the roll with costs. Madzivanzira & Associates, applicant’s legal practitioners Rubaya & Chatambudza, 1st respondent’s legal practitioners