This is an application for condonation for the late filing of an application for leave to appeal conjoined with the application for leave to appeal.
The applicants have filed this application in terms of Rule 5 as read with Rule 32 of the Constitutional Court Rules 2016 (the Rules). It is a composite chamber application for condonation and for leave to note an appeal against the decision of the Supreme Court in case number SC107-21.
FACTUAL BACKGROUND
The first applicant in this matter is the Minister of Mines and Mining Development, with the second applicant being the Provincial Mining Director for Midlands Province.
In the case before the Supreme Court, they were the first and second respondents respectively.
The first respondent in this application is Fidelity Printers & Refineries (Pvt) Ltd, a company duly incorporated following the laws of Zimbabwe. The first respondent was the appellant in the Supreme Court.
The second respondent is a male Zimbabwean citizen who was cited as the third respondent a quo.
The subject of the dispute is a mine, namely, Mirage 3 (hereinafter referred to as the mine). It is situated in Kwekwe in the Midlands Province.
The first and second respondents were deadlocked in a dispute regarding the ownership of the mine as they both claimed the right to occupy the mine and to exploit gold sand ore contained therein. Both parties claimed ownership rights from their respective certificates of registration in the mine with the Ministry of Mines and Mining Development.
The mine was initially registered in favour of the first respondent under certificate of registration No.8132. In June 2020, the applicant revoked the certificate of registration in favour of the first respondent and declared the mine forfeit. In July 2020, a new certificate was issued and registered in the name of the second respondent under Special Grant No.8202.
Subsequent to these developments, the first respondent wrote to the first and second applicants and requested information about any arrears relating to statutory payments over the claim. In response, the second applicant informed the first respondent, that, he could not issue an inspection invoice for a forfeited mine. The second applicant indicated, that, the mine had been forfeited on 5 June 2020 in terms of section 260 as read with section 272 of the Mines and Minerals Act [Chapter 21:05] (the Act).
The first respondent reacted to the notification and filed an urgent chamber application in the High Court under case number HC85/21. It submitted, that, the forfeiture of its claims, in June 2020, was invalid, palpably arbitrary, and violated every known procedure in the Administrative Justice Act [Chapter 10:28] (the Administrative Justice Act) which ensured fairness.
In the application, the first respondent challenged the forfeiture and relocation as unlawful on the premise that the procedure adopted by the applicants failed to comply with the dictates of the law as prescribed in section 220 of the Mines and Minerals Act.
The first respondent sought the following as interim relief:
(i) Suspension of the operation of the forfeiture order by the Provincial Mining Director;
(ii) The suspension of the operation of the special grant to the second respondent;
(iii) An interdict against the second respondent from entering the mine; and
(iv) The setting aside of the forfeiture of the mine.
The interim relief sought was granted on 17 February 2021.
After the grant of the interdict in HC85/21, the second respondent filed his urgent chamber application in Bulawayo under case number HC55/21.
In his founding affidavit, he averred, that, Fidelity Printers and Refiners (Pvt) Ltd had failed to pay inspection fees and the mine was forfeited to the State in June 2020. In addition, the second respondent averred, that, the first respondent had gone on a looting spree of the gold ore sands and that it was carrying out illegal mining activities by transporting the gold ore sands from the mine to another mine, namely, GMI Red Baron Mine.
The second respondent sought the following orders as interim relief:
(i) An interdict restraining the first respondent from removing the gold ore sands from the mine; and
(ii) That he, the second respondent, be granted the right to put in place security both at the mine and at GMI Red Barons premises to prevent the removal and processing of the gold ore sands.
The protracted dispute between the parties resulted in the consolidation of the matters by the High Court.
The judgment from that consolidation was the subject of appeal in the Supreme Court.
At the hearing of the consolidated application before the High Court, the first respondent argued, that, in terms of section 260 of the Mines and Minerals Act, the mining authorities should have afforded it an opportunity to make representations before a decision to forfeit its mining claim was made.
It further argued, that, the first and second applicants were obliged by law to have sent a notice of forfeiture to the miner before deeming the mine forfeited.
Finally, it argued, that, it did not suffice for the second applicant to place forfeiture notices on a board and that his or her approach violated the right to be heard in terms of section 3 of the Administrative Justice Act.
On the contrary, the applicants and the second respondent submitted, that, the first respondent wished to read unspecified provisions into the Mines and Minerals Act.
They argued, that, no notice of forfeiture was required to be issued in terms of the Mines and Minerals Act and that, although the first respondent was a wholly owned Government entity, its status did not absolve it from paying inspection fees as required by statute.
In its determination, the High Court held, that, the miner had an obligation to motivate the annual inspection of his or her mining location, after which the miner would pay a renewal fee. After that, an inspection certificate would be granted.
It further determined, that, sections 260 and 270 of the Mines and Minerals Act, which formed the crux of the first respondent's argument, were not the beginning and the end of the forfeiture process, but had to be read in conjunction with section 197 to section 199 of the Mines and Minerals Act which provide for the preservation of mineral rights and the processes to be followed by both the miner and the authorities regarding inspection certificates and the forfeiture of mines.
The court further held, that, section 260 of the Mines and Minerals Act was worded in peremptory terms and that a failure to obtain an inspection certificate made the mine liable to forfeiture.
Lastly, it ruled that the right to be heard was embedded in section 271 of the Mines and Minerals Act and that the provision in contention did not grant an individual the right to be given notice, a warning, or a letter of forfeiture. There was, in addition, no provision for the demand of payment of outstanding fees in respect of a mining location.
It was against this decision that the first respondent launched its appeal to the Supreme Court.
The grounds of appeal, and the subsequent relief sought, did not relate to any constitutional issues.
The grounds of appeal were the following:
“1. The court a quo erred in its interpretation and implementation of section 260 of the Mines and Minerals Act [Chapter 21:05]. Such provision does not permit the first and second respondent to act arbitrarily and without due notice to an affected party such as the appellant.
2. Concomitantly, the court a quo also misdirected itself in finding, that, the second respondent had acted lawfully when such respondent had not given proper prior notice before forfeiting the appellant's mining rights in Mirage 3 Kwekwe.
3. Furthermore, the Court a quo also erred in determining the provisions of the Mines and Minerals Act [Chapter 21:05] and excused the first and second respondent from giving credence to the appellant's rights as espoused in the Administrative Justice Act [Chapter 10:28].
4. Additionally, the court a quo grossly misdirected itself in finding, that, in the circumstances, the third respondent had lawfully been issued a Special Grant, which Grant only came into existence because of the unlawful forfeiture of the appellant's mining rights in respect of Mirage 3 Kwekwe.”
In the premises, the first respondent sought the following as relief on appeal:
“1. THAT, the instant appeal succeeds with costs.
2. THAT, the order of the court a quo be set aside and substituted with the following:
2.1 The Provisional Order issued by this Court in HC85/21 on 17 February 2021 is hereby confirmed.
2.2. The forfeiture of the appellant's claim, Mirage 3, Registered under Certificate Number 18132, purportedly done on 5 June 2020, is hereby set aside.
3. For the avoidance of doubt, further to para 2 hereof, any act done by the first and second respondents further to the forfeiture aforesaid, whose effect is to alienate the area under Mirage 3, Registered under Certificate Number 18132, is declared invalid and consequently null and void.
4. The Respondents shall pay the costs of suit.”
From the grounds of appeal, and relief sought a quo, it is apparent that the appeal did not raise constitutional issues for determination by the court a quo.
Thereafter, on 21 October 2021, the court a quo handed down judgment ex tempore in favour of the first respondent.
Consequent to the court's decision, the applicants have filed the present application.
THIS APPLICATION
This application is for condoning the late noting of an application for leave to appeal by the applicants and an application for leave to appeal. Accordingly, the applicants seek the following relief:
“1. The application for condonation for late filing of the application for leave to appeal be and is hereby granted.
2. The application for leave to appeal against the judgment of the Supreme Court in SC107-21 be and is hereby granted.
3. The applicants shall file their notice of appeal within ten (10) days of the date of this order.
4. There shall be no order as to costs.”
The applicants aver, that, they make this application in terms of Rule 5 as read with Rule 32 of this Court's rules.
The applicants seek leave to appeal against the decision of the court a quo.
It is common cause that they failed to note the requisite application for leave to appeal to this Court within the fifteen days stipulated by Rule 32 of this Court's rules.
The first respondent opposed the application.
The second respondent did not oppose the grant of the relief sought and chose to abide by the decision of the Court. Accordingly, he did not attend the virtual hearing.
The first respondent has raised a preliminary point, to the effect that this application is improperly before this Court on the premise that it is filed in defiance of Rule 32(3)(b) of the Constitutional Court Rules in that the decision against which the appeal is brought has not been attached to the application.
The first respondent contends, that, the reasons for the court's judgment are not attached to the application, thus rendering the application fatally defective.
On this issue, counsel for the applicants and counsel for the first respondent made the following submissions:
Counsel for the applicants submitted, that, the applicants case was founded on Rule 5 of the Constitutional Court Rules. He further submitted, that, the Rule justified their course of action of filing a hybrid application for condonation and an application for leave to note an appeal.
The court queried the validity of the application in the absence of the impugned Supreme Court decision from the record of proceedings.
The court asked counsel for the applicants to address whether the application for condonation was not invalid, considering that the applicants had not attached written reasons of the judgment to the application as required by both Rule 35 and Rule 32 of the Constitutional Court Rules.
Counsel for the applicants posited, that, there was a gap in the current rules of the Court as they failed to consider circumstances wherein an applicant would have taken all the reasonable steps to obtain a judgment from the lower court.
In casu, he reasoned that the applicant had sought to obtain a judgment from the Supreme Court to no avail.
Counsel for the applicants intimated, that, the applicants were compelled to launch the application due to the judgment's far-reaching effects. He submitted, that, after the order was issued by the court a quo, the owners of previously forfeited mines were now putting pressure on the mining authorities to set aside the forfeitures in respect of the mines. The mines were now the subjects of disputes as the dispossessed owners sought to retrieve ownership based on the judgment.
The applicants criticized the ex-tempore ruling for imposing an undue burden on them with respect to the forfeiture of mining claims.
Counsel for the applicants was adamant that the application before the Court was valid.
He contended that the applicants had complied with all the requirements necessary despite the lack of assistance from the Supreme Court.
To this end, he submitted that the primary consideration of the interests of justice ought to guide the Court's approach in disposing of the matter regardless of the absence of the written judgment.
Accordingly, he argued that the Court should postpone the matter to enable the applicants to obtain the decision from the Supreme Court.
Per contra, counsel for the first respondent submitted, that, the tenor of Rules 32 and 35 of the Constitutional Court Rules compelled the applicant to furnish the Court with reasons for the order. To buttress his point, he cited the authority of Rushesha v Dera CC24-17.
He insisted that there was no valid application on record and that the Court could not postpone a nullity as was apparent in the present case.
Counsel for the first respondent stated, that, the dicta in Tamanikwa v Zimdef SC73-17 were authority for the principle, that, a court of superior record could not amend nullities. He reasoned that what was not suitable for the Supreme Court to countenance in Tamanikwa v Zimdef SC73-17 could similarly not survive scrutiny in the Constitutional Court.
In addition, counsel for the first respondent submitted, that, Practice Direction 3/2013 militated against the Court's ability to grant the postponement order sought by the applicants. He posited, that, according to paragraph 10 of the Practice Direction, a matter that has been postponed sine die would be deemed abandoned if not set down within three months from the aforesaid date.
Therefore, counsel for the respondent contended, that, a postponement did not aid the applicants case as there was no guarantee that they would obtain the reasons for judgment within three months.
He, therefore, urged the Court to strike the matter off the roll.
On the question of costs, the first respondent sought imposition of costs against the applicants due to their alleged perverse conduct in petitioning the court with full knowledge that their suit did not satisfy the essential elements for condonation or leave to appeal.
In response, counsel for the applicants vehemently opposed the disposal of the matter in the manner prayed for.
He contended that he did not have instructions to make any concessions. However, he conceded that there was no request to condone the absence of the judgment in the applicant's founding affidavit.
Counsel for the applicants concluded his submissions by maintaining that there was a valid application. As such, it could not be regarded as a nullity by the Court. He submitted, that, postponing the matter with directions proffered to the Supreme Court would aid the interests of justice....,.
Rule 35 of the Constitutional Court Rules is the applicable law for this application, it is only proper that I set out the pertinent provisions thereof. It reads as follows in relevant parts:
(1) An application for condonation for the late noting of an appeal or for an extension of time within which to appeal shall be by chamber application and shall be signed by the applicant or his or her legal practitioner and shall be accompanied by a copy of the judgment against which it is sought to appeal.
(2) An application for condonation shall have attached to it —
(a) A draft notice of appeal in accordance with rule 33;
(b) An affidavit setting out the facts upon which the applicant intends to rely.
(3) An application for an extension of time within which to appeal shall —
(a) Have attached to it a notice of appeal in accordance with rule 33(1) and (2); and
(b) An affidavit setting out the reasons why the appeal was not entered in time or leave to appeal was not applied for in time and any relevant facts; and
(c) Where it relates to a matter in which leave to appeal is necessary, comply with the requirements of subrule (2).
(4) (not relevant)
(5) (not relevant)
(6) (not relevant)
(7) A Judge may make such order on the application as he or she thinks fit and shall, if an extension of time is granted, also deal with any question of leave to appeal which may be involved.”
The above Rule sets out the steps an applicant seeking condonation must undertake.
It further informs the applicant of the need to file an affidavit that explains the delay in applying. It makes provision for the necessary documents to be annexed to the application.
A draft notice of appeal and the decision appealed against are required to be part of the record....,.
