Mining (General) (Amendment) Regulations, 2013 (No.17)

ADVERSE REPORT

OF THE

PARLIAMENTARY LEGAL COMMITTEE

MINING (GENERAL) (AMENDMENT) REGULATIONS, 2013 (NO.17)

In pursuit of its constitutional mandate as provided for in section 40B of the Constitution of Zimbabwe. The Parliamentary Legal Committee met on the 16th of April 2013 at 1400hrs to consider Statutory Instruments that were gazetted during the month of March 2013. After deliberations the Committee resolved unanimously that an adverse report be issued in respect of Statutory Instrument 29 of 2013 due to the following considerations:

Statutory Instrument 29 of 2013- Mining (General) (Amendment) Regulations, 2013 (No.17) contains provisions that are ultra-vires its Enabling Act the Mines and Minerals Act [Chapter21:05].

The second Schedule to the Statutory Instrument sets several fees under the categories of application fees, special Licence fees, registration fees, ground rental fees, Export permit fees, Fire Assay fees amongst others. It is pertinent to note that in the case of application fees, they are non refundable. There is no regard to whether the application would succeed or not. Yet they range from a minimum of $5 000 for an application for registration as an approved prospector to a maximum of $1 million for an application fee for diamonds.

Besides application fees, there are other categories of fees such as those for the registration of ordinary platinum blocks ($2,5 million). Generally, the fees imposed by the statutory instrument are very hefty. They impose a heavy financial burden on citizens and non-citizens alike who wish to invest in the mining sector. These hefty fees have been imposed through a statutory instrument, with little, if not nil, input from ordinary Zimbabweans through their elected representatives. Legal instruments that impose hefty financial burdens are more appropriate for legislative enactment to the extent that this is the only way that ordinary citizens would be able to have an input into the process through their elected representatives. To this end, the Parliamentary Legal Committee decided to exercise its mandate in terms of the Constitution of Zimbabwe as well as the Standing Orders 201 (1) of the house of Assembly.

Apart from its mandate specifically provided for in section 40B of the Constitution, the Parliamentary Legal Committee shall have the following additional terms of reference:

(1)The Parliamentary Legal Committee shall ensure that no statutory instrument shall-

contain matters more appropriate for parliamentary enactment…

Thus, acting in terms of this Standing Order, 201(1) the Parliamentary Legal Committee, formulated the view that the statutory instrument is unconstitutional in that it contains matters that are more appropriate for parliamentary enactment. This is in violation of the said standing Order, which was duly made in terms of the Constitution of Zimbabwe.

The Committee also noted with concern that the statutory instrument is ultra vires the enabling Act. The statutory instrument purports to have been enacted through the Minister’s regulation – making powers in the Mines and Minerals Act [Chapter 21:05], that is, section 403. The said section does not give any competence to the Minister to make regulations prescribing application fees. The closest that the section attempts to do so is in paragraph (q) which provides as follows:

(q) search and inspection fees, fees for duplicate copies of certificates issued under this Act, and any other fees, charges, levies, sums, amounts or payments required or permitted to be prescribed for the purposes of this Act.

However, in terms of this section the fees that can be prescribed by the Minister are specifically mentioned. The Minister may prescribe other unspecified fees, but this is limited to fees permitted by the Mines and Minerals Act. Application fees, for instance, for diamonds, pegged at $1 million dollars, are not permissible in terms of the enabling Act.

To buttress this, the Committee noted that the Minister did not even provide a motivation to the statutory instrument. Section 403 (1) provide that the purpose that the regulations are supposed to serve, and thus should be quoted as the motivation of the statutory instrument. The said section provides as follows:

(1) The Minister may make such regulations, as he may deem expedient to give force or effect to this Act or its better administration.

That way, the Minister would have stood guided as to whether the statutory instrument is giving force or effect to the Act or is meant to enhance better administration of the Act.

It should be noted that where an Act of Parliament (Act) permits the making of a statutory instrument, the person or body authorized to make such statutory instrument must keep within the powers delegated by the Act: a statutory instrument cannot go beyond the powers conferred by the Act. If a statutory instrument goes beyond such delegated powers, the statutory instrument is ultra vires the enabling Act.

Due to the aforesaid, the Committee resolved unanimously to issue an adverse report on the statutory instrument.

Hon.S.L. Mushonga

CHAIRPERSON