Fidelity obtains repossession of its confiscated gold claim
Chief Court Reporter Fidelis Munyoro
Fidelity Printers and Refineries has finally regained possession of its debt that was confiscated by the Ministry of Mines and Mining Development last year, after the Supreme Court upheld an interim order issued to it earlier this year.
Fidelity, a gold buying subsidiary of the Reserve Bank of Zimbabwe, had taken to the Supreme Court to challenge the confiscation of its gold claim in Kwekwe by the ministry, without allowing Fidelity to be heard. The High Court had refused in May this year to uphold Fidelity’s interim order to repossess its debt which had been improperly forfeited to the ministry for allegedly failing to pay the fixed annual fee for more than six years.
A three-judge panel made up of Judge Susan Mavangira, George Chiweshe and Felistus Chatukuta unanimously upheld Fidelity’s appeal. Writing the Judgment for the Court Judge Chiweshe found the appeal to be valid and set aside the lower court’s order.
“The interim order made by this tribunal in HC85 / 21 on February 17 is hereby confirmed,” he said.
“The confiscation of the claimant Mine Mirage 3 registered under certificate number 18132 allegedly carried out on June 5, 2020 is hereby canceled. “
In addition, the court declared invalid any act done by the Minister of Mines and the Provincial Director of Mines of the Midlands to alienate the area under Mirage 3. The ruling means that the Department of Mines and Mining Development cannot waive a mining claim under section 1260. of the Mines and Minerals Act, without first notifying the affected party and without allowing it to make representations.
In the recent past, the ministry has confiscated mining concessions across the country by simply posting the forfeiture notice on its notice boards.
The Supreme Court agreed with Fidelity attorney Tawanda Zhuwarara that in order for the forfeiture of the mine site to be found to be reasonable or fair, the Minister was required to give Fidelity notice of the proposed action and give the possibility of making representations in accordance with the provisions of the law on administrative justice.
He said the failure to observe the precepts of natural justice prior to the exercise of this administrative discretion was manifestly arbitrary and constituted a repeal of the provisions of the Administrative Justice Act.
“A notice must be given before any unfavorable decision because it is thanks to this notice that a party can then choose to use the various protections available such as obtaining a protection certificate”, argued Adv Zhuwarara .
He convinced the court that the High Court’s finding that the Provincial Director of Mines had acted within his confiscation powers or that Fidelity had no right to be informed of an impending decision was unsustainable, justifying the interference of the superior court.
A proper understanding of Section 260 of the Mining and Minerals Act leads to the enduring conclusion that Fidelity should have been advised of the impending forfeiture and that the adoption of such a process was not automatic.
At the hearing before the High Court, the Provincial Director of Mines admitted that she had proceeded with the forfeiture of Fidelity’s mineral claim, without giving any warning or opportunity to the appellant to be heard or giving him the opportunity. to rectify the default.
And Judge Chiweshe, in his judgment, held that the notice of forfeiture produced by the lower court was sufficient proof that Fidelity’s administrative right to be heard had never been recognized. In May of this year, the High Court ruled that the confiscation and subsequent reallocation of the Mirage 3 gold mining concession held by Fidelity Printers and Refiners to the new beneficiary, Mr. Jona Nyevera, was legal.
Fidelity, which had sold the gold mining title to former Herald editor Caesar Zvayi, was suing the Minister of Mines and Mining Development, the Provincial Director of Midlands Mines and Mr Nyevera. Fidelity’s essential argument was that it had not received any prior notification of the intention to declare the claim confiscated and that there had been an agreement between the department and itself that no payment of statutory mining royalties. would not be necessary.
It was therefore a shock to be informed for the first time that his mine had been confiscated for non-compliance with legal obligations for six years.
But the ministry, in its observations, argued that Fidelity’s argument was flawed because the provincial director of mines was not obligated to issue personal notices to individual miners who might be in default regarding the renewal of their. mining costs.
Through his lawyer, Adv Garikai Sithole, Mr. Nyevera argued that the law does not provide that personal notice must be given prior to the confiscation of mining blocks under certain provisions of the Mining Act and the minerals.
He said that a notice is posted on the notice board and that is what the law says in the Mining and Minerals Act. This, he said, was acceptable under article 3, paragraph 3, of the Administrative Justice Act, which allows the right to be heard to be relaxed when there is an autonomous internal appeal mechanism. in a law.