On
20th
September 2016, the applicant filed an urgent chamber application for
an order to be joined in the proceedings pending in this court under
case number HC2208/16. I directed that the application be served on
the respondents.
The
first respondent opposes the application. The application is not
opposed by the second, third and fourth respondents.
The
first respondent dwelt, to a large extent, on the preliminary issues;
namely, that the matter was not urgent and that the draft order ought
to have a provisional order.
Counsel
for the first respondent abandoned his arguments on the points in
limine when it was brought to his attention that an application for
joinder, by its very nature, may be brought at any stage of the
proceedings.
It
is observed that, on the merits, the application is resisted on the
grounds set out in paragraph 29 of the founding affidavit in the
following terms:
“As
indicated earlier on, the application is fatally defective and if at
all the applicant is eager for co-joinder proper applications should
be filed. The applicant should not at all be joined in these
proceedings, particularly by way of an urgent chamber application
which does not even have a provisional order. One of the applicant's
remedies is to file a procedurally proper application for co-joinder.
Issues of environmental degradation can always be addressed by the
Environmental Management Agency (EMA) if at all there are such fears.
The applicant should never be allowed to succeed in an urgent chamber
application couched in this fashion.”
The
question for determination before this court is whether the
requirements of Order 87(2)(b) of the High Court, Rules have been
met. Rule 87(2)(b) provides as follows:
“At
any stage of the proceedings, in any cause or matter, the court may,
on such terms as it thinks just, and either of its own motion or on
application –
(a)
Order any person who has been improperly or unnecessarily made a
party or who has any reason ceased to be a proper or necessary party,
to cease to be a party;
(b)
Order any person who ought to have been joined as a party or whose
presence before the court is necessary to ensure that all matter in
dispute in the cause or matter may be effectively and completely
determined and adjudicated upon, to be added as a party;
but,
no person may be added as a plaintiff without his consent, signified
in writing, or in such other manner as may be authorized.
(3)
A court application by any person for an order under sub-rule (2),
adding him as a defendant, shall, except with the leave of the court,
be supported by an affidavit showing his interest in the matters in
dispute in the cause or matter.”
It
is the clear position of our
law that the purpose of Rule 87(2)(b) is to ensure that all matters
in the cause may be effectively and completely determined and
adjudicated upon. It is to prevent unnecessary multiplicity of
litigation by adding anyone and everyone with a real and substantial
interest as a party to the proceedings in order that justice may be
done.
A
clear reading of Rule 87(3) leaves no room for any doubt that an
application for joinder should be made by way of a court application.
Such an application shall be supported by affidavit except with the
leave of the court.
The
applicant in these proceedings has, despite the clear provision of
the Rules, opted to proceed by way of an urgent chamber application.
Factual
Background
The
first respondent was issued with Certificate of Registration for
mining claims for Dundrum North and Dundrum North 1 mines,
registration numbers 30371 and 30372, respectively, on 12th
July 2016. Following allegations that the said certificates had been
issued fraudulently, the second,
third,
and fourth respondents caused the licences to be suspended pending an
assessment of the validity of these licences.
On
the 16th
and 28th
of July 2016 the applicant instituted legal proceedings for an
interdict under case numbers HC1716/16 and HC1892/16.
On
the 19th
July 2016 the court granted a provisional order interdicting the
first respondent from conducting any mining operations at Dundrum
North and Dundrum North 1 mines. The provisional order is still
extant and has not been discharged. The order is interlocutory, and,
as such, before any appeal is noted against such order leave must be
sought and obtained.
The
first respondent purported to appeal against the provisional order by
filing a Notice of Appeal with the Supreme Court. No leave to appeal
against the interlocutory order was sought or granted. The appeal was
noted to hoodwink the second, third and fourth respondents into
granting the first respondent access to the disputed mining claims.
It is, however, the province of the Supreme Court to determine the
validity of such Notice of Appeal.
On
5th
September 2016, the first respondent filed a court application, under
case number HC2208/16, seeking the following relief:
“It
is declared that:
1.
Registration certificates numbers 30371 and 30372, in respect of
Dundrum North and Dundrum North 1,
respectively, be and are hereby declared to have been duly issued to
the applicant.
2.
The 1st
respondent's letter dated 18th
July 2016 suspending mining operations on Dundrum North and Dundrum
North 1 be and is hereby set aside and the application to exercise
its rights in terms of the Certificate of Registration numbers 30371
ad 30372.
3.
That respondents pay the costs on attorney and client scale.”
It
is noted that the first respondent, the Provincial Mining Director,
has filed an opposing affidavit under case number HC2208/16. This
court cannot ignore the factual details contained in that opposing
affidavit as it has a direct bearing on the application before this
court. In paragraph 3 of the opposing affidavit the first respondent
states as follows:
“…,
applicant knows very well that the area it registered is subject
matter of legal wrangles which saw a number of interested parties
approaching the High Court. Applicant is quick to forget that Beki
Sibanda, a farmer upon the land which applicant registered its mining
locations, challenged the legality of the said certificates and
obtained a provisional order on 18th
of July 2016 which interdicted the applicant from carrying out mining
operations at Dundrum North (registration number 30371) and Dundrum
North 1 (registration number 30372) respectively…,.”
It
has been pointed out to the first respondent that the claims
registered by the applicant are the subject of a dispute. The
Ministry has still not produced its findings on the dispute. It is
common cause that while attempting to note an appeal against a
provisional order of the court, the first respondent is well aware
that this order has not been discharged.
To
put it in simple terms, the first respondent may not seek to commence
operations before the mining dispute is resolved.
The
attempt by the first respondent to compel the court, under case
number HC2208/16, to grant it an order to resume operations on the
disputed claims before the dispute has been resolved is clearly
disingenuous at the very least.
Now,
turning back to the issue of the application for joinder, there can
be no doubt that the applicant has a substantial interest in the
outcome of the matter.
The
Ministry of Mines and Mining Development has indeed confirmed that
the applicant has obtained an interdict against the first respondent
in this court in view of the mining dispute that has arisen. I have
no doubt in my mind that the applicant's interest in the matter is
common cause.
As
regards the appropriateness of the Form that has been used by the
applicant to bring this application, I have already observed that the
provision under Rule 87(3) envisages the filing of a court
application. However, in terms of Rule 4C of the Rules, the court may
order a departure from the rules as it deems fit. The Rule provides
as follows:
“4C
The court or a judge may, in relation to any particular case before
him, as the case may be –
(a)
Direct, authorize or condone a departure from any provision of these
rules, including an extension of any period specified therein, where
it or he, as the case may be, is satisfied that the departure is
required in the interests of justice…,.”
See
the cases of Sumbereru
v Chirunda
1992 (1) ZLR 240 (H) and Village
Construction (Pvt) Ltd v Alpha Brick (Pvt) Ltd
HH52-92.
The
purpose of Rule 87(2)(b) is to prevent unnecessary multiplicity of
litigation and to facilitate the speedy and wholesale resolution of
disputes by ensuring that everyone whose legal interests are likely
to be affected by the outcome of the proceedings is joined as a party
to the proceedings.
See
the case of Eunice
Shumbairerwa vs Priscilla Chiraramo and Ors
HH731-15.
In
this matter, the learned Judge referred to the cases of Macey's
Supermarket & Bottlestore (Greencroft) (Pvt) Ltd v Edwards
1964 RLR 13 (SR) and Marais
& Another v Pangola Sugar Milling Company & Ors
1961
(2) SA 698 (N), where it was stated that in order to qualify to be
joined as a party to any proceedings;
(a)
A party must have a direct and substantial interest in the issues
raised in the proceedings before the court; and that
(b)
His rights may be affected by the judgment of the court.
This
court has a discretion to determine whether the interest in the
issues raised is “sufficient”. This discretion must be exercised
judiciously upon a consideration of all the facts and circumstances
of the case. Joinder will usually be refused where it will embarrass
or prejudice the other party.
It
is my view that the balance of convenience favours a granting of the
application.
This
court will, in terms of Rule 4C of the High Court Rules, permit a
departure of the Rules which obliges the applicant to have proceeded
by way of a court application for the following reasons:
(a)
The first respondent was served with the application for joinder.
(b)
The first respondent was given an opportunity to respond to the
application.
(c)
The first respondent has not denied that the applicant has a
substantial interest in the matter.
(d)
The first respondent suffers no prejudice by the granting of the
application for joinder.
For
the reasons, and in the interests of justice, I consider it
appropriate that the applicant be co-joined to the proceedings.
The
nature of the relief sought by the first respondent, under case
number HC2208/16, directly affects the land owner upon which the
mining claims are located.
The
law on the subject of joinder is well established in our
jurisdiction. In my view there should have been no opposition to this
application at all….,.
1.
The applicant be and is hereby co-joined to the proceedings under
case number HC2208/16 as the 5th
respondent.
2.
The applicant be and is hereby ordered to file its opposing papers
within 7 days of the grant of this order.
