This is an appeal against a judgment of the High Court.
The second respondent (“Timba”) and the first and second appellants (“the Rushwayas”) are the majority and minority shareholders respectively in Aepromm Resources (Pvt) Ltd. On 3 May 2011, following a series of lawsuits, the Rushwayas entered into an agreement (“the Sale Agreement”) with Timba in which they sold, to the latter, their rights and interest in Tolrose Investments (Pvt) Ltd (“Tolrose”) and Aepromm (Pvt) Ltd (“Aepromm”) in contemplation of a 'clean break' between the parties.
It was a specific clause of the agreement that the assets, which included gold mine claims currently registered in the name of Xelod Investments (Pvt) Ltd, 'shall be immediately re-transferred to Tolrose and Aepromm, at any rate before the payment of the deposit.'
That agreement was meant to end all lawsuits between the parties.
However, on the 27 June 2011 the parties were again before the courts. This came about as follows:
Following the signature by the parties of the Sale Agreement, Timba appointed, as Accredited Agent for all mining rights registered in the name of Tolrose (Pvt) Ltd, one Stephenson Timba, who, in turn, appointed one Ernest Mudimu as Mining Manager of Tolrose. This caused Jameson Rushwaya to write, on or about 16 June 2011, to the Mining Engineer querying the appointment and complaining that, as the claim holder, he was not consulted on this appointment. The Mining Engineer, by letter dated 20 June 2011, and addressed to the Operator, Glencairn Mine, cancelling the appointment of Ernest Mudimu as Mine manager of Telrose, and suspending all operations at the mine pending 'proper Manager's appointment'.
The respondents brought an urgent application in the High Court seeking the following relief:
“TERMS OF THE FINAL ORDER SOUGHT
The decision by the first respondent, of 20 June 2011, be and is hereby set aside, and, accordingly, the suspension of mining operations at Glencairn Mine is uplifted immediately and that the parties resort (sic) to the status quo ante that prevailed prior to the aforesaid decision.
INTERIM RELIEF GRANTED
1. The operation of the decision by the first Respondent, on 20 June 2011, be and is hereby suspended pending the return date.
2. Second, Third and Fourth respondents be and are hereby interdicted from commencing any mining operations and interfering with any administrative operations whatsoever at Glencairn Mine.”
The respondents in the High Court were the Mining Engineer as the first respondent, Xelod Investments (Pvt) Ltd as the second respondent, and the Rushwayas as the third and fourth respondents.
The court a quo found in favour of the respondents and granted the order sought. It found that the decision to close mining operations was made without hearing the respondents in violation of the principles of natural justice.
It found, also, that the decision by the Mining Engineer amounted to a determination of the parties' contractual rights and that there was no basis on which the Mining Engineer could have entertained the determination of a contractual dispute between the parties.
It is against this order that the appellants now appeal.
They purport to appeal against the whole judgment of the court a quo. The Notice of Appeal contained no less than nine grounds of appeal.
It was contended, by counsel for the respondents, in his heads of argument, that there was no appeal before this Court as the Notice of Appeal was invalid for the following reasons:-
(i) There were four respondents in the court a quo of whom the Mining Engineer was the first and the main respondent in the matter. The substantive relief granted was against the Mining Engineer who did not appeal against the decision. Hence, the appellants brought an appeal against an order not made against them.
(ii) The appellants took issue, in their grounds of appeal, only with paragraph 1 of the Order (which suspended the operation of the Mining Engineer's letter).
(iii) The grounds of appeal did not comply with Rule 29(1)(d) as read with Rule 32(1) of the Rules of this Court being verbose in nature as well as containing argument.
(iv) The order appealed against being neither final nor definitive but interlocutory, and not being an interdict, it was imperative that leave to appeal be obtained from the court a quo. No leave having been obtained, the appeal is a nullity.
(v) The grounds of appeal were directed at the reasons for the judgment and not the decision of the court a quo. In any event, even if they did relate to the decision, the appeal would be met with the same fate because the party against whom the decision was given has not appealed against it.
Dealing with the first submission by counsel for the respondents, the Mining Engineer, against whom the order was given, did not appeal against it.
A litigant cannot appeal against an order not given against him.
The order suspending the operation of the Mining Engineer's letter was made against the Mining Engineer who was the first respondent in the court below and who has not appealed against the order. There is nothing on the record to suggest that the Mining Engineer was dissatisfied with the order of the court a quo.
The appellants had no locus standi to appeal against that part of the Order which was given against the Mining Engineer.
Indeed, although the appeal purports to be against the whole of the judgment of the court a quo, the grounds of appeal were directed only against paragraph 1 of the Order. This leads me to the submission by counsel for the respondents that the appeal was against an interlocutory order and is invalid for want of leave of the court a quo to file it.
None of the grounds of appeal was directed against paragraph 2 of the Order which contains an interdict and which could have justified an approach to the Supreme Court without leave from the court a quo.
Paragraph 1 of the Order is neither final nor definitive.
It suspended the Mining Engineer's decision pending the return day. On the return day, the Mining Engineer may, if he so chooses, show cause to the court as to why his decision should not be set aside.
Even assuming the appellants had locus standi to appeal against paragraph 1 of the Order, that Order is interlocutory, and, failure to obtain leave of the court a quo to appeal against it is fatal.
These two heads are, in my view, dispositive of the appeal.
However, the criticism of the grounds of appeal by counsel for the respondents is not without justification.
The grounds of appeal contain argument, are not concise, and, many of them are directed at the reasoning of the trial Court rather than the order of the court; see Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S)…,.
They certainly do not comply with Rule 29(1)(d) of the rules of this Court.
Counsel for the appellants, while not abandoning the appeal, was understandably unable to advance any argument in support thereof, save as to the issue of costs of two counsel appearing on behalf of the respondents.
It was his submission that the matter was not so complicated as to justify the appearance of two counsel.
We are in agreement with the stance taken by counsel for the appellants that the appeal is unsupportable save on the issue of costs.
While it is the respondents' prerogative to employ two counsel if they so wish, the matter was not of such a standard of difficulty as to warrant the appearance of two counsel.
Accordingly, the appeal is dismissed and the respondents are awarded costs of one counsel.
