Fidelity wins repossession of forfeited Gold claim

Fidelity Printers and Refineries has finally repossessed its claim that was forfeited by the Ministry of Mines and Mining Development last year, after the Supreme Court confirmed an interim order granted to it early this year.

Fidelity, a gold buying subsidiary of the Reserve Bank of Zimbabwe, had approached the Supreme Court challenging the forfeiture of its gold claim in Kwekwe by the ministry, without affording Fidelity a chance to be heard. The High Court had in May this year refused to confirm Fidelity's provisional order to repossess its claim that had been improperly forfeited to the Ministry for allegedly failing to pay the laid down annual fees for more than six years.

A three-judge panel of Justice Susan Mavangira, George Chiweshe and Felistus Chatukuta unanimously allowed the appeal by Fidelity. Writing the judgment for the court Justice Chiweshe found merit in the appeal and set aside the order by the lower court.

"The provisional order issued by this court in HC85/21 on 17 February is hereby confirmed,' he said.

"The forfeiture of the applicant's claim Mirage 3 Mine registered under certificate Number 18132 purportedly done on 5 June 2020 is hereby set aside."

In addition, the court declared invalid any act done by the Minister of Mines and the provincial mining director for Midlands to alienate the area under Mirage 3. The ruling means the Ministry of Mines and Mining Development cannot forfeit a mining claim in terms of Section 1260 of the Mines and Mineral Act, without first notifying the affected party and allowing them to make representation.

In the recent past, the ministry has been forfeiting mining claims all over the country by simply posting the notice of forfeiture on their notice boards.

The Supreme Court agreed with Fidelity's lawyer Advocate Tawanda Zhuwarara that for the forfeiture of the mining location to be deemed reasonable or fair, the Minister was obliged to issue notice to Fidelity concerning the proposed action and give an opportunity to make representations in compliance with the provisions of the Administrative Justice Act.

He said failure to follow the dictates of natural justice before the exercise of this administrative discretion was manifestly arbitrary and an abrogation of the provisions of the Administrative Justice Act.

"Notice must be given before any adverse decision is made because it is through that notice that a party can then elect to use the various protections available such as the obtainment of a protection certificate," argued Adv Zhuwarara.

He convinced the court that the finding of the High Court that the provincial mining director acted within her powers to forfeit or that Fidelity had no right to be notified of impending decision was unsustainable, warranting interference by the superior court.

A proper understanding of section 260 of the Mines and Minerals Act leads to an immutable conclusion that Fidelity should have been notified of the impending forfeiture and that the adoption of such process was not automatic.

During the hearing at the High Court, the provincial mining director admitted that she proceeded to declare the forfeiture of Fidelity's mining claim, without giving any warning or opportunity for the appellant to be heard or giving it an opportunity to rectify non-payment.

And Justice Chiweshe in his judgment found the forfeiture notice produced in the lower court to be ample evidence that Fidelity's administrative right to be heard was never acknowledged. The High Court in May this year ruled that the forfeiture and subsequent re-allocation of Mirage 3 Mine gold mining claim held by Fidelity Printers and Refiners to new beneficiary Mr Jona Nyevera was lawful.

Fidelity, which had sold the gold mining claim to former Herald Editor Caesar Zvayi, was suing the Minister of Mines and Mining Development, the provincial mining director for Midlands and Mr Nyevera. Fidelity's essential argument was that it received no prior notice of the intention to declare the claim forfeit and that there had been an understanding between the Ministry and itself that no statutory mining fees payment would be necessary.

So it came as a shock, to be informed for the first time that its mine had been forfeited for not honouring statutory obligations for six years.

But the Ministry, in its submissions, argued that Fidelity's argument was flawed because there was no obligation upon the provincial mining director to issue personal notices to individual miners who might be in default regarding the renewal of their mining fees.

Through his lawyer, Adv Garikai Sithole, Mr Nyevera argued that the law does not provide that personal notice should be given before forfeiture of mining blocks in terms of certain provisions of the Mines and Minerals Act.

He said notice is posted on the notice board and that is what the law provides in the Mines and Minerals Act. This, he said, was acceptable in terms of subsection 3 of section 3 of the Administrative Justice Act, which allows relaxation of the right to be heard where there is a self-contained domestic remedy mechanism in a statute.