The People v The Minister Of Mines And Minerals Development Ex-parte Chisuma Properties Limited (2025/HP/0255) [2025] ZMHC 133 (30 December 2025)

• IN THE HIGH COURT OF ZAMB AT THE PRINCIPAL REGISTRYi HOLDEN AT LUSAKA (Civil Jurisdiction) 2025/HP/0255 . · 3._' .. 0:-DEC ·2025 ' . . . . : ..... lilEGlmtV 8 : .. : IN THE MATTER OF: AND IN THE MATTER OF: BETWEEN: ...-,_...~m"l''E-° AN A JUDICIAL REVIEW PURSUANT ~·-~~R 53 RULE 3 OF THE RULES OF THE SUPREME COURT OF ENGLAND, 1965, 1999 EDITION THE MINES AND MINERALS DEVELOPMENT ACT NO 11 OF 2015 THE PEOPLE V THE MINISTER OF MINES AND MINERALS DEVELOPMENT Ex-parte Chisuma Properties Limited BEFORE HON MRS JUSTICE S. KAUNDA NEWA THIS 30th DAY OF DECEMBER, 2025 For the Applicant For the Respondent Ms K. Bwalya and Mr E Chinyama, Messrs Mwamba & Milan Advocates The Attorney General's Chambers JUDGMENT CASES REFERRED TO: 1. Joseph Severance and ors v Benny Mathew and ors 1930 AIR Oudh 2 . Associated Provincial Picture Houses v Wednesbury Corporation 1947 2 ALL ER 680 3 . Derrick Chitala (Secretary of the Zambia Democratic Congress) v Attorney General 1995 ZR 91 4. Blencoe v British Columbia (Human Rights Commission) 2000 SCC 44 5 . BP Zambia PLC v Zambia Competition Commission Total Aviation and Export Limited Total Zambia Limited 2011 Vol 2 ZR 6. North-Western Energy Company Limited v Energy Regulation Board 2011 Vol 2 ZR 512 ... J2 7. Mpongwe Farms Limited v Dar Farms and Transport Limited SCZ No 38 of 2016 ,. 8. Gichuhi & others v Datc{·•Protection Commiss~oner; Mathenge & another 2023 KEHC LEGISLATION REFERRED TO: 1. The Rules of the Supreme Court of England, 1965, 1999 Edition 2. The Interpretation and General Provisions Act Chapter 2 of the Laws of Zambia 3. The Mines and Minerals Deelopment Act No 11 of 2015 OTHER WORKS REFERRED TO: 1. Judicial Review of Administrative Action, by S. A De Smith 3 rd Edition 2. De Smith Woolf and Jowel on Judicial Review of Administrative Actions 1995 Sweet & Maxwell, London 1. INTRODUCTION 1.1 Following the grant of leave to commence Judicial Review proceedings on 10th June, 2025, the Originating Notice of Motion for Judicial Review was filed on 23rd June, 2025. The Originating Notice was supported by the Notice of application and the affidavit verifying facts, which was filed in support of the application for leave to commence judicial review on 21st February, 2025. 2. NOTICE IN SUPPORT OF THE APPLICATION 2.1 The decision on which the judicial review 1s sought as canvassed in the Notice of Application, was the failure and/ or on1ission by the Minister of Mines and Minerals Development to review and determine the appeal that Chisuma Properties Limited had lodged. 2 .2 The prayer was for: . -· J3 i. A declaration that the failure/ omission by the Minister of Mines and Minerals Development to determine the appeal against the Mining Licence Committee (MLC) rejecting Chisuma Properties Limited's application for renewal of its' mining licences are illegal; n. A declaration that the failure/ omission the Minister of Mines and Minerals Development to determine the appeal is unreasonable; m. An Order of mandamus directing the Minister of Mines and Minerals Development to determine the appeal lodged against the decision of the MLC; w. An order that all the necessary and consequential directions be given; v. An order for costs. 3. AFFIDAVIT IN SUPPORT 3.1 The director of Chisuma Properties Limited, John Samaras, in the affidavit verifying facts, deposed that Chisuma Properties Limited, lodged an appeal against the decision refusing to renew its' mining licence. He stated that the appeal was lodged on 9 th October, 2024, which was exhibited as 'JSl'. 3.2 John Samaris also averred, that several follow ups were made with the Minister of Mines and Minerals Development, which had not yielded any results. He referred to exhibit 'JS2', as a letter dated 24th January, 2025, which was acknowledged as received by the Minister of Mines and J4 Min erals Development. However , n o r esponse had been r eceived to the letter . 4. ARGUMENTS IN SUPPORT OF THE NOTICE 4 .1 Chisuma Prop erties Limited , on the grounds u p on which the reliefs are sou gh t, r ep eated th e avermen ts as m a d e in the affidavit verifying facts. 4.2 It was further stated that th e r eview was s ou gh t on the gr ound of illegality, with r eliance being placed on the case of North-Western Energy Company Limited v Energy Regulation Board f6J, wh er e the Suprem e Cou rt h eld that: "Under the ground of "illegality"; the Court seeks to establish whether a decision-maker has acted within the purview of the law that regulates his decision-making power, and has consequently given proper effect to it. An administrative decision or action is flawed and illegal, if it falls outside the parameters of the law that regulates the exercise of the power. An administrative decision is illegal if it: (a) contravenes, or exceeds terms of the power which authorises the making of the decisions; (b) pursues an objective other than for which the power to make the decision was conferred; (c) is not authorised by any power; and (d) contravenes, or fails to implement a public duty." JS 4 .3 Also relied on , was De Smith Woolf and Jowel on Judicial Review of Administrative Actions 1995 Sweet & Maxwell, London, 295, as stating t h at a d ecision is illegal if: a) It contravenes or exceeds the terms of the powers which authorizes the making of the decision; b) It pursues an objective other than that for which the power to make the decision was conferred." 4. 4 Further reliance was placed on the decision in the case of Derrick Chitala v Attorney General f3J. 4.5 In ligh t of th e decisions as cited above, th e argum ent was that public bodies/ officer s are bestowed with public duties or functions, that help in givin g effect to the enabling Acts of Parliament. Thus, failur e to perform or implem ent su ch du ties or fun ctions, entails th at a p ublic officer h as failed to understand the law that regulates their powers, and they have failed to give effect to th e law, thereby comm itting an illegality. 4.6 Further argum en t was mad e that Section 97 of the Mines and Minerals Development Act confers the Minister of Mines and Minerals Development, the power and duty to hear and determine appeals. 4.7 Acknowledgement was made, that th e Mines and Minerals Development Act does not prescribe a time period within which an appeal by the Minister must be heard and determined. . . J6 4 .8 However, the contention was that the Minister of Mines and Minerals Development could not hold persons or parties at ransom, by neglecting or refusing to hear appeals for time on end. It was stated that Article 173 (1) (e) of the Constitution prescribes the need for prompt, efficient and t imely response to people's n eeds in the delivery of public service. 4.9 Thus, the Minister of Mines and Minerals Development in exercising the power to hear and determine appeals under Section 97 of the Mines and Minerals Development Act is required to take into consideration the Constitutional values of prompt, efficient and timely public service delivery. 4.10 Reference was also made to Section 36 of the Interpretation and General Provisions Act Chapter 2 of the Laws of Zambia as providing as follows: "36. Where no time is prescribed, or allowed within which anything shall be done, such thing shall be done without unreasonable delay, and as often as due occasion arises." 4.11 Therefore, as no time is prescribed 1n the Mines and Minerals Development Act to hear and determine appeals by the Minister of Mines and Minerals Development, such had to be done within reasonable time. 4.12 The case of Blencoe v British Columbia (Human Rights Commission) f4J, was relied on, as where the Supreme Court of Canada stated the following with regard to delay in making administrative decisions: J7 "Administrative delay that is determined to be unreasonable based on its' length, its' causes and its' effects is abusive and contrary to administrative law principles. Unreasonable delay must be identified within the specific circumstances of every case, because not all delay is the same and not all administrative bodies are the same. In order to differentiate reasonable ad unreasonable delay, the Courts must remain alive not only to the needs of administrative systems under strain, but also to their good faith efforts to provide procedural protections to alleged wrong doers. In assessing the reasonableness of an administrative delay, three main factors must be balanced; (1) the time taken compared to the inherent time requirements of the matter before the particular administrative body; (2) the causes of the delay beyond the inherent time requirement of the matter; and (3) the impact of the delay. A consideration of these factors imposes a contextual analysis." 4. 13 The case of Gichuhi & others v Data Protection Commissioner; Mathenge & another f8J was furth er relied on, with argum ent b ein g m a de, th a t in that matter, th e cou rt s t ated tha t in the context of a claim of u nreasonable delay, J8 the first stage of judicial inquiry is to consider whether the agency's delay is so egregious as to warrant mandamus. 4.14 It was stated that the Court went on to enumerate the factors that should be considered when answering whether there is such delay as: r. The time agencies take to make decisions must be governed by a rule of reasons; n. Where Parliament has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for his rule of reason; m. Delays which might be reasonable in the sphere of economic regulation, are less tolerable when human health and welfare are at stake; w. The Court should consider the effect of expediting delayed action of agency activities of a higher or competing priority; v. The Court should also consider the nature and extent of the interests prejudiced by the delay; and vr. The Court need not find any impropriety lurking behind the agency lassitude in order to hold that agency action is unreasonably delayed." 4 .15 The case of Joseph Severance and ors v Benny Mathew and ors flJ was further cited as authority in that regard. 4.16 With regard to the tirne that is taken to perform an act, it was argued that the Court has to consider whether the rights or advantages possessed by the parties have been preserved J9 in the process, and that adverse losses should been avoided in that process. 4.17 Also argued, was that it is important that the Court considers the nature and the extent of the interests that have been prejudiced by the delay in deciding what amounts to reasonableness or not. 4.18 It was stated that undeniably, the Court has power to make an order of mandamus to compel a public body to act where there has been delay, which affects the interests of the affected party. 4.19 Accordingly, it was argued that a period of delay of ninety (90) days to determine an appeal by a single applicant was excessive and unreasonable in the sense of Wednesbury unreasonable. 4 .20 The argument was also that the reasons for the delay in hearing and determining the appeal were not known, as none had been offered. 4 .2 1 It was stated that Chisuma Properties Limited had come to learn that the exploration areas which are the subject of appeal had been issued as mining licences to third parties. Thus, further delay in determining the appeal would result in the third parties challenging the same. 4.22 Further argument was made, that delay to hear and determine the appeal would adversely prejudice investments and loss of confidence from investors, as the appeal was lodged on 8 th October, 2024. JlO 4.23 Other authorities that were relied on in support of the delay being unreasonable were Associated Provincial Picture Houses v Wednesbury Corporation f2 J and Derrick Chitala (Secretary of the Zambia Democratic Congress) v Attorney General f3J. 5. AFFIDAVIT IN OPPOSITION 5.1 Samuel Maango, the affiant of the affidavit in opposition who is the Director of Mining Cadastre at the Ministry of Mines and Minerals Development, agreed that Chisuma Mining Limited on 8 t h October, 2024, lodged an appeal against the decision of the Mining Licencing Committee. 5.2 He further agreed that on 23rd January, 2025, Chisuma Properties Limited wrote to the Minister of Mines and Minerals Development urging him to act on the appeal. 5.3 His averment was that the Mines and Minerals Development Act does not stipulate a time frame within which the Minister should hear and determine an appeal. 5.4 Samuel Maango also stated that Chisuma Properties Limited, had not exhausted the appeal procedure under the Mines and Minerals Development Act. 6. SKELETON ARGUMENTS IN OPPOSITION 6 .1 In the Skeleton Arguments in opposition the provisions of Section 97 of the Mines and Minerals Development Act No 11 of 2015 were cited, with particular emphasis being placed on Sub section (4) of the said Section. 6.2 Further reliance was placed on the provisions of Section 99 and 100 of the said Act, stating that an appeal from the .. • Jl 1 decision of the Minister shall be made to the Mining Appeals Tribunal, within fourteen days of an appellant being informed, and from there a person who was aggrieved by the decision of the Tribunal had the right to appeal to the High Court within Thirty (30) days of receiving the decision. 6. 3 The case of BP Zambia PLC v Zambia Competition Commission Total Aviation and Export Limited Total Zambia Limited fSJ was further relied on, as having held that: "The mode of commencement of any action depends generally on the mode provided by the relevant statute. Since the dispute leading to this appeal arose from the decision of the Commission which was exercising this power under the Competition and Fair Trading Act, the applicable statute was the Act and not Order 53 of the Rules of the Supreme Court because the statute prescribes the mode of commencement." 6.4 The argument was that Chisuma Properties Limited had not exhausted the appeal procedure which is set out in the Mines and Minerals Development Act No 11 of 2015. Further, the said Act does not stipulate a time frame within which the Minister of Mines and Minerals Development should h ear and determine an appeal. 6.5 Thus, the application should fail. J12 7. SKELETON ARGUMENTS IN REPLY 7 .1 Relying on the case of Mpongwe Farms Limited v Dar Farms and Transport Limited t7J, it was argued that the issue of Chisuma Properties not having exhausted the a ppellate p rocedure under the Mines and Minerals Development Act No 11 of 2015 was addressed by the Court in the Ruling dated 10th June, 2025. Therefore, it is res judicata and could not be r e-litigated. 7.2 It was further argued that despite Chisuma Properties Limited having written to the Minister of Mines and Minerals Development, after it lodged the appeal, there had b een no response. 7 .3 Argument was also made, that while the Mines and Minerals Development Act No 11 of 2015 does not stipulate the time frame within which the Minister of Mines and Minerals Development should h ear and determine an appeal, Chisuma Properties Limited h ad in paragraphs 18 to 23 of t h e Notice of Application, d emonstrated that the Minister of Mines and Minerals Development had to hear and d etermine an app eal within reasonable time, and without undue delay, as · time was of the essence in matters of m1n1ng. 7 . 4 It was also argued that the absen ce of a time frame did not confer u nfettered discretion on the Minister of Mines and Minerals Development to determine an appeal. That to h old otherwise, would be to imply that the Minister of Mines and J13 Minerals Development could decide an appeal decades later, even long after the remedy sought had lost its' utility. 8. SUBMISSIONS AT THE HEARING 8 .1 At the hearing, only Counsel for Chisuma Properties Limited was in attendance. Counsel relied on the documents that had been filed in support of the Originating Notice of Motion. Note was taken of the documents that were filed in opposition to the Notice of Motion, and Counsel stated that they did not intend to add anything to what h a d b een filed. 9. DECISION OF THIS COURT 9.1 I have considered the application. The Notice was filed pursuant to Order 53 Rule 5 (2) of the Rules of the Supreme Court of England, 1965, 1999 Edition which provides that: "(2) In any other such cause or matter, the application shall be made by originating motion to a judge sitting in open Court, unless the Court directs that it shall be made - (a) by originating summons to a Judge in Chambers; or (b) by originating motion to a Divisional Court of the Queen's Bench Division. Any direction under sub-paragraph (a) shall be without prejudice to the Judge's powers under Order 32, rule 13." 9.2 The issue for determination is wh ether the failure by the Minister of Mines and Minerals Development to hear and J14 determine th e appeal by Chisuma Pr operties Limited after it was lod ged on 8 th Octob er , 2 0 2 4 is illegal and unreasona ble, a n d therefore an order of mand amus s h ould issue directing the Minist er of Mines a nd Minerals Development to hear and determin e the a ppea l. 9 .3 As can be seen from the s ubmissions th at wer e m a d e in the Notice of Application to a pply for Judicia l Review , it was acknowledged th at there is no provision in the Mines and Minerals Development Act No 11 of 2015 th at stipula tes a time period for t h e Minister of Mines to d et erm in e an a ppeal u nder th e Section . 9 .4 However , th e conten tion was tha t in line with Section 36 of the Interpretation and General Provisions Act Chapter 2 of the Laws of Zambia, wher e n o time frame for per form in g an act is p res cribed by statu te, it must b e d one within reason a ble tim e . 9 .5 Section 97 of the Mines and Minerals Development Act No 11 of 2015 provides that: "97. (1) A person who is aggrieved by a decision of the Director of Mining Cadastre, Director of Mines Safety, Director of Mines, Director of Geological Survey or the Commitee under this Act may, within thirty days of receipt of the decision, appeal to the Minister in the prescribed manner and form. (2) The Minister shall determine an appeal under subsection (1) in accordance with this Act and the circumstances of the case. J15 (3) A determination of the Minister under this section ,nay include such directions to the Director of Mining Cadastre, Director of Mines Safety, Director of Mines, Director of Geological Survey or the Committee as the Minister considers appropriate for the disposal of the matter, and the Director concerned or the Committee shall give effect to the directions. (4) A person who is aggrieved with the decision of the Minister may appeal to the Tribunal within thirty days of receipt of the Minister's decision." 9. 6 The appeal against the decision of the Mining Licencing Committee to the Minister of Mines and Minerals Development was lodged on 8 th October, 2024. That is a period of one year and two months ago, and the Minister of Mines and Minerals Development has not heard and determined the appeal. 9 .7 Chisuma Properties Limited cited authorities from other jurisdictions which have guided on what the Court needs to consider in deciding whether the delay to perform a public duty is unreasonable or not. 9. 8 The case of Gichuhi & others v Data Protection Commissioner; Mathenge & another f8J was stated as having laid down the following factors in deciding on the reasonableness of the delay: z. The time agencies take to make decisions must be governed by a rule of reasons; Jl6 n. Where Parliament has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for his rule of reason; iii. Delays which might be reasonable in the sphere of economic regulation, are less tolerable when human health and welfare are at stake; w. The Court should consider the effect of expediting delayed action of agency activities of a higher or competing priority; v. The Court should also consider the nature and extent of the interests prejudiced by the delay; and vi. The Court need not find any impropriety lurking behind the agency lassitude in order to hold that agency action is unreasonably delayed." 9.9 It is also noteworthy that S. A De Smith Judicial Review of Administrative Action 3 rd Edition at pages 129 and 251 states that: "If no response for an administrative decision is preferred, it does not follow that the Courts are powerless to intervene, for if a person seeking to impugn such a decision establishes a prima facie case of misuse of power by the administrative authority, failure by the administrative authority to offer any answer to the allegation may justify an inference that its' reasons were bad in law or J17 that it had exercised its' powers for a legally inadmissible purpose." 9. 10 The Minister of Mines and Minerals Development has not offered any reasons for the delay in the appeal being heard and determined. 9.11 Chisuma Properties Limited however contended that the delay to hear and determine the appeal is prejudicial, as its' interests have been affected, and it has come to learn that the exploration areas which are subject of the appeal have had mining licences issued in respect thereof, to third parties. 9.12 It was also contended that the delay had affected investor confidence, and would ultimately result in the third parties who had been issued with mining licences in respect of the exploration areas challenging the same. 9.13 From this, the delay by the Minister of Mines and Minerals Development to hear and determine the appeal, has potential prejudicial effect on Chisuma Properties Limited. The delay to hear and determine the appeal is unreasonable looking at the period that has elapsed from when the appeal was filed on 8 th October, 2024 and it has not been heard and determined. 9. 14 I say so, as when one looks at Section 9 7 of the Mines and Minerals Development Act No 11 of 2015, they will note that where time periods are prescribed for doing acts, thirty (30) days is stipulated. I,. J18 9. 15 Regard being had to the fact that the Minister of Mines and Minerals Developn1.ent has various duties that he performs, a period of three (3) months would be reasonable time for him hear and determine an appeal under Section 97 of the Mines and Minerals Development Act. 10. CONCLUSION 10.1 As such, as the appeal that Chisuma Properties Limited lodged on 8 th October 2024 to the Minister of Mines and Minerals Development has not been h eard and determined, and no reasons for the d elay having been advanced, this is a proper case where an Order of mandamus should issue, as the delay is unreasonable. 10. 2 I accordingly order that th e Minister of Mines and Minerals Development shall hear and determine the appeal which was lodged by Chisuma Properties Limited within Thirty (30) days from today looking at the period of delay and the potential prejudice that further delay may cause. 10.3 Costs of the n1.atter go to Chisuma Properties Limited which shall be taxed in default of agreement. Leave to appeal is granted.