HUNGWE
J: This is an application for the
rescission of a judgment of my own that I gave on 24 September 2009 in favour
of the applicant's regarding the legality of the registration of various mining
claims in the names of the applicants. It is important that I set out the order
which I gave then and what thereafter occurred leading to the present
proceedings.
On 24 September
2009, I gave the following order:
"1. African Consolidated Resources plc claims
issued to the third, fourth, fifth and sixth applicants within the area
previously covered by Exclusive prospecting order 1523 held by Kimberlitic
Searches (Pvt) Ltd are valid and have remained valid since the date they were
originally pegged.
2. The right granted to the third
respondent by virtue of the special grant shall not apply in respect of the African
Consolidated Resources plc claims area as indicated on annexure 'B' to the papers.
In that regard it is hereby ordered that third respondent cease all its
prospecting and mining activities in the said area.
IT IS FURTHER
ORDERED AS FOLLOWS:
3. That the second respondent returns to
the applicants' possession the 129 000 carats of diamonds seized from the
applicants' offices in Harare
on 15 January 2007.
4. The second respondent returns to the
applicants all diamonds acquired by the second respondent from the African
Consolidated Resources plc claims area using the register kept by the second
respondent in compliance with the Kimberley Process Certification Scheme.
5. That fourth respondent be and is hereby
ordered to direct the police to cease interfering with the applicants'
prospecting and mining activities.
6. That first, second and third
respondents pay applicants' costs on a legal practitioner and client scale, the
one paying the others to be absolved.
7. Any appeal noted against this order
shall not suspend the operation of this order."
The
second and third respondents noted an appeal to the Supreme Court. They made a
chamber application under SC 230/09 seeking to set aside para 7 of the above
order. In SC 1/10 the Supreme Court issued an order effectively setting aside
that paragraph. The appeal is, however, still pending in the Supreme Court.
In
the meantime, on 28 April 2010, first respondent, through his legal practitioners,
addressed correspondence to the registrar of this court seeking directions in
terms of Rule 4C of the Rules of this Court. The relevant portion of that correspondence
reads:
"3. In arriving at this decision (the order
of 24 September 2009 above) the court determined the issue of the currency of
De Beers 1520 and 1523 Exclusive Prospecting Orders, ("EPOs") over the Marange
area ("Marange") and whether an application for the extension of EPO 1523 had
the effect of reserving the ACR claims area from prospecting and pegging.
4. The court held that the EPO's were
invalid by reason of their expiration and that, consequently, the application
for extension of EPO 1523 did not have the effect of reserving the ACR claims
area.
5. The Court further held that the ACR
claims area was open for prospecting and pegging at the time that ACR pegged
and registered their claims, and further that the ACR claims were valid and remained
valid from the date they were pegged.
6. In arriving at the decisions
aforementioned, the ACR group concealed certain fundamental facts which
completely disentitle the ACR group of the relief which the court granted. The
ACR group fraudulently concealed the facts in order to gain an unfair advantage
and for the purpose of procuring a favourable judgment. It is therefore our
humble request that the Court, having
regard to the fraud committed by the ACR group, give directions, on the proper
course of action and procedure to be taken at law in order to procure the
rescission of the Judgment procured by fraud.
7. We assert that the following facts were
fraudulently concealed by the ACR group:-
7.1 The subsidiary companies; Dashaloo
Investments (Private) Limited, Possession Investments (Private) Limited,
Olebile Investments (Private) Limited, and Heavy Stuff Investments (Private)
Limited ("the ACR subsidiaries") did not exist at the time of the prospecting,
pegging and registration of the mining title that is subject of the above
matter.
7.2 section 20 of the Act provides that only
a 'person' can be granted a prospecting licence. A 'person' in this context
refers to a juristic person, so constituted by the act of incorporation, or a
natural person;
7.3 It is clear that at the time that the
Certificates of registration were issued to the ACR subsidiaries, there was no
such person to who such certificates could be granted because all mining rights
purportedly held by the ACR subsidiaries were acquired between 4 April and 19
June 2006, yet the ACR subsidiaries were incorporated on 29 June 2006 up to 14
July 2006, after the purported issue of the certificates of registration
(mining claims);
7.4 . ............................
7.5 ...............................
7.6 Further and more importantly, at the time
of the ACR group pegged their claims, the Marange area was reserved against
prospecting and pegging by virtue of the operation of Reservation Notice 1518
issued on 19 February 2004, which notice was posted on the Notice Boards of the
Mining Commissioner's offices in Mutare and Harare, and recorded in a
'Reservation Notice Register'.
7.7
It is incompetent to acquire mining
title through a prospecting licence or the pegging of claims in an area
reserved against prospecting and pegging. The ACR group fraudulently concealed
the fact of the existence of the reservation from the court and procured the
registration of their claims by fraud....
I
directed the registrar to seek the other parties' response to the request. On
19 May 2010 the applicants, through their legal practitioners, responded in the
following terms:
"1. As the honourable judge has handed down his
judgment and an appeal has been noted, the honourable judge is functus
officio. He can no longer deal with the matter and indeed it is not 'before
him' as contemplated in rule 4(C) of the High Court Rules. His decision in HC
6411/07 can only be considered by the Supreme Court on appeal.
2.
Nonetheless
our clients have requested that for record purposes we respond to the false
allegations made on behalf of the Minister of Mines and Mining Development,
without in any way conceding that they give rise to a need for directions in
terms of rule 4(C) of the High Court Rules.
3.
Our
clients deny that they have fraudulently concealed that their subsidiary
companies did not exist at the time the ACR claims were duly registered by the
Assistant Mining Commissioner Mutare. When our clients decided to register the
claims that had been pegged, they purchased shelf companies for this purpose
from a local company, Paracor Company registration Services. This is common
practice and indeed our client has purchased over 80 shelf companies from
Paracor in this manner. Our clients were assured that the companies had been
duly registered and accordingly they utilized the names of the shelf companies
in order to obtain registration of the claims. To knowingly use unregistered
companies would have been of no benefit to ACR and indeed would have been
inexplicable in logic.
The
Minister was however a party to case number HC 6411/07 and he filed opposing
papers. In none of the opposing papers filed by him were any of these "new" and
supposedly fraudulent issues mentioned, despite their existence at that time.
It would seem that the reckless and unsubstantiated allegation of fraud is
merely an attempt to conceal the incompetence and ineptitude on the part of the
Minister in failing to mention these objections (which, surprisingly, now seem
to have assumed huge importance).
4.
Even
if the shelf companies were incorporated a short time after the claims were
registered in their names, there was no prejudice to the public interest. In Rajah
& Rajah (Pvt) Ltd v Ventersdorp
Municipality & Others 1961 (4) SA 402 (A) the Appellate Division
considered a case where a trading licence had been issued to a company which
had not been registered at the time the licence was issued. The court held that
since there had been no intention to deceive on the part of the brothers who
had applied for the licence in the name of the company, and in view of the fact
that the municipality had failed to prove that there had been any prejudice or
that it would be in the public interest to cancel the existing licence of the
company, the licence would be considered valid..............
5.
Furthermore
section 58 of the Mines and minerals Act provides for the barring of
impeachment of title where a mining location has been registered for a period
exceeding 2 years. It is not competent in terms of that section for any person
to dispute the validity of title to the ACR claims on the ground that the
pegging was invalid or illegal or the provisions of the Act were not complied
with prior to the issue of the certificates of registration............
6.
Our
clients deny that when the ACR group registered the claims the Marange Area was
reserved against prospecting and pegging in terms of RA 1518 that was
purportedly issued in 2004. Minister does not admit, although he is well aware
of it, that the Mining Commissioner, Harare
purported to exercise her powers outside her area of jurisdiction. He also
fails to disclose that notice of the said RA was not advertised in the Gazette
as required by s.35(1) of the Act. ..... Further he does not disclose that in
2006 the Mining Commissioner Harare and the Mining Commissioner, Mutare
recommended that the reserved area mentioned in RA 1518 "be extended" to
include the Marange area and it was extended long after the ACR claims had been
registered....."
Upon
careful consideration of the matters raised in both correspondences and having
due regard to and mindful of the need for finality to litigation, I decided
that it would not be in the interest of justice to ignore a party's effort to
draw the court to a possible fraud. I therefore directed that the first
respondent files a court application in terms of Rule 449 of the esteemed Rules
of Court dealing with the issues he raised in the correspondence. Consequently,
papers were filed in which the first respondent seeks rescission of judgment on
the basis that applicant had obtained a judgment favourable to its case by
fraudulently suppressing certain information which would have disentitled it to
the orders it eventually got in its favour.
The
applicants strenuously oppose the application for rescission and raise five
points in limine which, in the
applicants' view, ought to preclude this court from hearing the application. As
I understood it, the first point raised on behalf of the applicants was that this
court should not allow the respondents any audience since they come to this
court with dirty hands. They had
flagrantly and contemptuously refused to comply with the Supreme Court order of
25 January 2010. Mr Samukange who
appeared for the applicants put this issue as follows:
"The Respondents
have not complied with this order. They have not ceased all mining operations
as ordered by the Chief Justice. They have gone further and auctioned the
diamonds mined from Applicants' claims, in total violation of the Chief
Justice's order. They have therefore approached the court with dirty hands.
They should not be heard. The respondents have not shown respect for the rule
of law. The principle for the rule of law is that court orders are obeyed,
especially by the first respondent who took an oath to obey the laws of this
country...."
Mr Samukange
submits that the respondents, by failing to comply with the order of the
Supreme Court in the particular circumstances in which they have done so, have
approached this court with dirty hands; and that by reason of that status they
have forfeited the right to apply for any such indulgence as they now apply
for. He relies for this submission on a number of cases. The first such case is
an unreported 2005 judgment of this court in which reliance was placed on the
American case of Tegan v Casaus (the citation
of which is not given). He also placed reliance on a paragraph recited by the
judge in the unreported 2005 judgment of this court from the judgment of De
Waal J in the South African case of Mulligan v Mulligan
1925 WLD 164.
Secondly,
Mr Samukange
took the point that as this court had pronounced itself in the judgment of the
24 September 2009, this court was functus
officio.
The
third point taken by the applicants was that as the matter is under appeal in
the Supreme Court, and since that court had made an order suspending the order
of this court, then this court has no jurisdiction to entertain this
application.
The
fourth point in limine was that there is another pending matter i.e. HC 2230/10
brought by applicant against the respondents where first respondent's decision
is being challenged. First respondent can still raise these issues in that
matter. In any event that matter deals with the same issues which are being
raised here.
Finally,
Mr Samukange took the point that
since this application is premised on an allegation of fraud, the first
respondent adopted the wrong procedure. He ought to have realized that there
would be a serious dispute of fact requiring proper ventilation through action
rather than motion proceedings.
On
behalf of the first respondent Mr
Mutamangira argued that the points in limine
really amount to arguments directed to the merits of the matter.
As
for the first point taken in limine, that the respondents are in
contempt of court and as such must not be heard, in view of their failure to
comply with the order of 25 January 2010 by the Chief Justice, Mr Mutamangira pointed out that the
judgment will show that only the second and third respondents appealed to the
Supreme Court. The first respondent did not. As he was not before the Supreme
Court, the order made thereat does not in any way bind him. In the
circumstances therefore the first respondent cannot, by any stretch of
imagination, be said to be in contempt of that order. The dirty hands principle
cannot preclude the first respondent against whom there is no order requiring
him to do or to refrain restraining him from doing anything from approaching
the court for relief.
As
to whether the fact that the matter is pending in the Supreme Court, Mr Mutamangira argued that the present
proceedings are not the same as the matters under appeal. In any event there is
nothing preventing this court from entertaining an application of this nature
as it is completely different from that with which the Supreme Court is seized.
Mr Muchada, for the second respondent,
added that the Supreme Court, in effect, struck down paragraph 7 of the 24 September
judgment. The result was that the judgment under appeal was now suspended by
operation of law not by the interim relief granted to the applicants therein.
It will be seen, he went on, that the second respondent does not carry out
mining operations. As such since the interim relief was directed at maintaining
a standstill position at the mining site, the dirty hands principle does not affect
any of the parties now before this court.
Mr Tsivama, for the third
respondent, took this point a step further. He reminded the court that the
second and third respondents did not file any application in the present
proceedings nor do they seek any relief out of these proceedings. In the
circumstances therefore, the dirty hands principle cannot affect the
respondents. Second and third respondents are in court as interested parties
not as petitioners seeking relief.
After
hearing submissions regarding the points raised in limine, I directed that I be addressed on the merits so that a
composite judgment is rendered.
This
is an application for rescission by the first respondent of a judgment granted
in favour of the applicant. The present application is premised on allegations
that the applicant procured judgment in its favour by willfully suppressing
evidence relevant for the determination of the issues before the court. Had the
court been appraised of the true facts, it would not have granted judgment favourable
to the applicant. Put differently, the first respondent alleges that the
applicants obtained and secured judgment in their favour by fraud. The
allegation of fraud relates to two points. First, it is alleged that the
applicants did not disclose that at the time they registered the claims under
the names of the subsidiaries, those subsidiaries were not yet incorporated.
Second, it is alleged that the applicants did not disclose that the area under
which the claims in issue fell were part of an area reserved against
prospecting and pegging.
In
his founding affidavit the first respondent avers that it was discovered, after
judgment, that all ACR subsidiaries were incorporated well after they had
registered claims in their respective names. As an example, Certificates of
Registration of claims numbered G1402 to G1419 and G 1704 to G1722 issued to
Dashaloo are dated between 4 April and 1 June 2006. Dashaloo was only
incorporated on 29 June 2006. The same can be said in respect of each of the
ACR subsidiaries. The subsidiaries fraudulently misrepresented to the Chief
Mining Commissioner that each of them was incorporated at the time when
Certificates of Registration were issued.
However
this was not the case at the time. As the subsidiaries were not by then
incorporated, they did not in fact exist. By falsely misrepresenting to the
Mining Commissioner that they were incorporated and thus entitled to take title
to the claims, the subsidiaries are guilty of fraudulent misrepresentation.
That disentitles them to the order which this court granted in applicants'
favour.
Section
20 of the Mines and Minerals Act, [Chapter 31:05] provides that
only a person can be granted a prospecting licence. A juristic person is
created by an act of incorporation. Since none of the subsidiaries were
incorporated, then there was no "person" to whom the Certificates of Registration
could be validly issued, first respondent argued.
Armed
with the fraudulently acquired Certificates of Registration, the subsidiaries
then embarked on a slew of litigation asserting that the subsidiaries had
lawfully and validly acquired the Certificates of Registration. The first
respondent asserts that the applicants fraudulently concealed the true facts
from this court and as a result obtained a judgment in their favour on the
basis of this fraud.
In
an affidavit deposed to by Ian Harris on behalf of the applicants, the deponent
denies that any fraud was committed. He Hhavers that the companies were bought as shelf companies. It was
believed that they were already registered and were used to register claims to
be held by them. He claims that since the companies were registered soon
thereafter no-one suffered any prejudice.
In
any event, any attack on applicants' title is saved by the provisions of section
58 of the Mines and Minerals Act aforesaid.
The
applicant counter-applies for an order declaring illegal all mining carried out
by anyone else other than the applicant upon the area covered by Special Grants
and a further order declaring as expired the said Special Grants.
The
first issue to resolve is whether this court is properly seized with this
matter.
As
I pointed out in my directive to the first respondent's legal practitioners,
the allegation of fraud was directed at the judgment obtained before me. It is
a serious matter for one party to make against another, especially where both
parties are represented by counsel. Can this court rescind its own judgment
without falling foul of the Rules of Court? In other words when can a court
grant rescission of a judgment?
Mr Samukange,
for the applicants, submitted that once this court pronounced itself on the
matters before it on 24 September 2009, it became functus officio.
As such there is no basis at law upon which it could consider itself properly
seized with the matter. Mr Samukange needed no
authority for this trite position. It is well established in our law that once
a court has duly pronounced a final judgment, it becomes functus officio;
its jurisdiction in the case having been fully and finally exercised, its
authority over the subject matter ceases. Firestone
SA (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 at 306F; Chirambasukwa
v Minister of Justice, Legal and Parliamentary Affairs 1998 (2) ZLR 567 (SC).
On
the other hand, Mr Mutamangira, for the first
respondent, urged the court to find that there is ample basis under common law
permitting the court to exercise its
inherent jurisdiction in addition to the
Rules. Rule 449(1) of the High Court Rules provides:
"449
(1) The court or a judge may, in
addition to any other power it or he may have, mero motu or upon the application of any party affected, correct,
rescind, or vary any judgment or order-
(a)
that was erroneously sought or
erroneously granted in the absence of any party affected thereby; or
(b)
in which there is an ambiguity or patent
error or omission, but only to the extent of such ambiguity, error or omission;
or
(c)
that was granted as the result of a
mistake common to the parties." (my own emphasis)
In
terms of the common law, the court has power to rescind a judgment obtained by
default of appearance provided that sufficient cause has been shown. In respect
of rescission of judgment in terms of the rules, it has been held that this is
a matter for the discretion of the court, which discretion should be exercised
judicially. Where willful default was found it has been held that there was no
room for the exercise of this discretion but this approach has been questioned
and the better view seems to be that willful default or gross negligence on the
part of the applicant constitutes no absolute bar to the grant of the indulgence
of rescission but that it is a factor, although a weighty one, to be considered
in the broad conspectus of the application which is to be taken into account
together with the merits of the defence raised to the plaintiff's claim, in the
determination of whether good cause for rescission has been shown. De Witts Auto Body Repairs (Pty) Ltd v Fedgen
Insurance Co Ltd 1994 (4) SA 705
at page 708F to 709H. Hebstein & Van Winsen
4th Edition at p 691-2.
In De Wet & Others v Western Bank Ltd 1977 (4) 770 (T) it was held (@ p776) inter alia that:
"Before
a judgment would be set aside under the common law, an applicant would have to
establish a ground on which restitutio
in integrum would be granted by our law such as fraud or justus error in circumstances.; Childerley
Estate Stores v Standard Bank of SA Ltd 1924 OPD 163 at pp 166-168; Semme v Incorporated Law Society 1933 (1) TPD 213 at p 215; Makins v Makins 1958 (1) SA 338 (AD) at
p 343 Athanassiou v Schultz 1956 (4) SA 357 (W). It would appear that
the procedure to set aside a judgment on grounds justifying restitutio in integrum is by way of
action".
The
position set out above recognizes the finality of a judgment once delivered or issued
(vide, Estate Garlick v The Commissioner
of Inland Revenue 1934 AD 499 at
pp 502-503)
Under
the common law, a judgment can be altered or set aside only under limited
circumstances.
In
Stumbles & Rowe v Mattinson;
Mattinson v Stephens & Others 1989
(1) ZLR 172 GREENLAND J had occasion to consider whether this court can set
aside its own interlocutory orders. He held that while the court normally does
not have jurisdiction to temper or interfere with its own judgments, because in
relation thereto, it is functus officio,
it does have jurisdiction over orders made in interlocutory and procedural
matters. He held further that in terms of this jurisdiction, the court has
powers to set aside such orders on good and sufficient reasons, including the
fact that the basis of the order has been destroyed or shown to be non-existent.
At page 178 he stated;
"This
is particularly so when the matter is interlocutory, (per SQUIRES J in Sayprint Textiles v Girdlestone 1983 (2)
ZLR 322). It is also so where the matter is procedural; (per STRATFORD JA in Ex parte Barclays Bank 1936 AD 431). I support the propositions
that the court is entitled to regulate its own rules. It is trite that the
rules are intended to expedite procedure and relief. To insist that the court
is bound by a procedural order which it knows to be fatally defective is to
insist on the court conducting a sham trial. It is illogical, senseless unjust
and unreasonable to say to a litigant, "We will proceed with this expensive and
protracted exercise, which is a trial and you can start all over again when the
Supreme Court rightly sets aside the proceedings because of this fatal
procedural defect."
He
goes on to make a very clear distinction between interlocutory matters and
those in which final orders are made and observed that the distinguishing
feature is that in final orders and judgments, the matter takes on the
character of res judicata, the
essence of which is that the issue, having been fairly contested by the parties, is finally resolved. It seems to
me that, by extension, it cannot be said that a matter was fairly contested
when the party resorted to concealing relevant information from the court in
what may amount to fraud. Where therefore a party could show such fraudulent
concealment of information relevant to the determination of the issue to be
decided then the court should under its common law discretion, exercise its
powers and grant rescission.
In
Harare Sports Club & Another v United Bottlers Ltd 2000 (1) ZLR 264 @ p268 GILLESPIE J took up the discussion on
the discretionary powers of court in respect of rescission at common law thus:
"The
perceived strictures of this common law were seen as abated by rules of court.
These permit the rescission of default judgment 'on good and sufficient cause';
the rescission, variation or correction of judgments or orders for error and
the rescission of judgments entered in terms of a written consent for 'good and
sufficient cause'. The rules (especially rr 56 and 63) were seen as relaxing
the common law.
Our
law, however, is not aptly a casuistic set of rules and exceptions but rather a
just and logical application of principle. It is therefore not surprising, and
most to be welcomed, that this rigid and brittle view of this area of the law
has been reconsidered. It is now recognised that the complicated rules may be
explained in principle and that the principle is by no means as intractable as
was defined earlier in the last century.
Thus,
where the judgment sought to be rescinded was given in default, no question of
a final judgment having been given on the merits can arise. Hence, no
considerations of functus officio or res
judicata apply to thwart an application for rescission. In such a case,
even at common law, it is recognised that the court has a very broad discretion
to rescind (on sufficient cause shown) a judgment given by default.
Even
where judgment is given in the presence of the parties, and where the merits of
the cause are considered, the court still retains a power to rescind that
judgment. The power in this case would be more sparingly exercised since final
judgment would be res judicata as
between the parties and would appear to be a complete discharge of the court's
office. On principle, however, justice
demands that a final discharge tainted by fraud should not be permitted to
stand. The other traditionally recognised exceptions are also explained on the basis that policy prefers to
regard a judgment procured in some circumstances of ignorance of relevant
documents to the contrary (for example) as not constituting a final discharge
of the court's function. Further instances where the court is not held to be functus officio are those specified in r
449. As has been said in connection with the counterpart in South Africa of
this rule, this rule -
"sets out exceptions to the
general principle that a final order, correctly expressing the true decision of
the court cannot be altered by the court ... the court has a general discretion
whether or not to grant an application for rescission under r 42(1)."
The
apparently ill-assorted, eclectic instances gathered under that rule do share
the common thread that in each case there are sound policy reasons,
counteracting any suggestion of functus
officio, for recognising a court's discretion to revisit its order. The
rule does not provide statutory exceptions to, but has been said to codify (or
perhaps better consolidate) the common law."
I respectfully associate myself with these sentiments.
Whilst
the common law rule regarding rescission of orders in interlocutory matters is
settled as having been trammeled by the rules, the position regarding
rescission of final judgments is that it can only be permissible in
circumstances where a party could establish a ground for restitution in integrum such as fraud or justus error. I am satisfied that in casu the first respondent has discharged the onus in that
regard. Consequently I find that this matter is properly before me. The line of
authorities which caution against revisiting one's judgment proceed on the basis
that the final judgment has been fairly obtained. I doubt whether in cases
where there is strong evidence that judgment was not properly procured theses
authorities would maintain the same position. I express no views on this but
leave the question open as to what constitute a fairly procured judgment. One
that was obtained by fraud or some such malfeasance cannot qualify to be
treated as having been fairly obtained.
Having
decided that this court is properly seized with the matter the next issue to decide
is whether by reason of contempt, the first respondent should not be heard.
I
have set out in detail the basis upon which this point was raised on behalf of
the applicant. It is that the respondents have failed to comply with the order
of the Supreme Court of 25 January 2010 therefore they have approached the
court with dirty hands. I must decide first whether the first respondent should
be considered as having shut himself out of the doors of this court by virtue
of lack of clean hands. What qualifies a litigant for the title of dirty hands?
Is this some immutable principle of our law or is it just a moral precept aimed
at compliance with court orders? If it's a rule of law, what is its content?
In
Mulligan v Mulligan
1925 WLD 164 the following
appears;
".Before
a person seeks to establish his rights in a court of law, he must approach the
court with clean hands; where he himself, through his own conduct, makes it
impossible for the process of the court (whether criminal or civil) to be given
effect to, he cannot ask the court to set its machinery in motion to protect
his civil rights and interests. .were the court to entertain a suit at the
instance of such a litigant, it would be stultifying its own processes and it
would, moreover, be conniving at and condoning the conduct of a person,
who..sets the law and order in defiance,"
Mulligan, admitting that he was a fugitive
from justice, approached the Court for certain relief in civil proceedings
against his wife. DE WAAL J held that, as a fugitive from justice Mulligan was
not entitled to invoke the process of the Court.
In
Escom v Rademeyer 1985 (2) SA 654 (T) at 662 dealing
with a fugitive from justice the STEGMANN J held:
"I do not wish
to be understood to hold that the principle in question can never be invoked
against a defendant or respondent who happens to be a fugitive from justice. It
may very well be that a fugitive who is a defendant does not enjoy the right
ordinarily enjoyed by a defendant to institute a claim-in-reconvention. He may
suffer other disadvantages in respect of procedural, and even substantive,
rights ordinarily enjoyed by a litigant. It is not necessary for me to deal
with the question on so broad a basis. I hold only that whatever the
disadvantages that may be suffered by a fugitive from justice seeking to answer
process of the court issued against him, they do not deprive him of the right
to ask for such time as the Court may deem fit in the circumstances to enable
him to provide the answer he has been called upon to give. I hold that the
respondent, although a fugitive from justice, has locus standi at least to
approach the Court for an extension of time in which to comply with the
requirements of the rule nisi."
In
Sabawu v Harare
West Rural Council 1989 (1) 47
at p 49 GREENLAND J observed that the duty of
every person to obey an order of court give rise to two consequences.
The
first is that anyone who disobeys an order of the court ...is in contempt and
may be punished by committal or attachment or otherwise. The second is that no
application to court by such person will be entertained until he has purged
himself of his contempt.
It
is clear to me from the above cited authorities that the Court has discretion
in the matter. In exercising that discretion a Court will not lightly deprive a
party of his right to be heard.
As DENNING LJ (as he then was) said in Hadkinson v Hadkinson (1952) 2 ALL ER
567 (CA)
"It
is a strong thing for a court to refuse to hear a party to a cause and it is
only to be justified by grave consideration of public policy. It is a step
which a court will only take when the contempt itself impedes the course of
justice and where there is no other effective means of securing his
compliance."
This
approach was adopted by GREENFIELD J in Jackman
v Jackman 1969 (2) RLR 534 (GD),
who proceeded to hear a party still in contempt because of the particular facts
of the case.
In
Minister of Home Affairs v Bickle 1983 (1) ZLR 99 @ p106 per FIELDSEND
CJ
"If
the Courts are to fulfil the obligations put upon them by the Constitution they
cannot, save in most exceptional circumstances, deny an aggrieved person access
to them. Section 18(1) of the Constitution provides that every person is
entitled to the protection of the law and s 18(9) provides that every person is
entitled to be afforded a fair hearing within a reasonable time by an
independent and impartial Court or other adjudicating authority established by
law in the determination of the existence or extent of his civil rights or
obligations."
It
must not be forgotten that what we are dealing with in the present matter is
the impact of administrative action by Government upon the individual. In this
area the Courts should not be astute to find reasons for abdicating their
responsibility. The Chief Justice went on to counsel (@ p107) that Courts
should not deny a person an opportunity to seek their protection unless he has
by his conduct put himself outside the processes of the Court. It is not part
of the Courts' function to deny a person access to them in order, for example,
to assist some administrative process.
The
public policy consideration in this case appears to me to be governed by s 24 of
the Constitution. This grants to any person who alleges that the Declaration of
Rights has been or is likely to be contravened in relation to him the right to
apply to the Supreme Court for relief. This constitutional right of access
should prevail unless it is plain that the contempt of which the applicant may
be guilty itself impedes the course of justice.
In
Garfield v Minister of Defence 1986 (2) ZLR 116 MFALILA J had occasion to consider the
question whether a litigant should be denied access to court where he stood to
be regarded as a fugitive from justice. He said;
"The
decision in Maluleke v Du Pont NO &
Anor 1966 RLR 620 dealt with the
rights of a fugitive from justice or of one who had definitely placed himself
beyond the reach of the law. The court held per QUENET JP that 'the law will
deny its protection to those who place themselves beyond its reach'. The present
case concerns a party who is within reach of the law but in contempt of court.
The difference between a fugitive from justice and one who is merely in
contempt was highlighted by this court in Neill
v S 1982 (1) ZLR 142. In his
judgment with which McNALLY J (as he then was) concurred, SQUIRES J stated:
"Despite
the concession made by Mr Deeks, I am not at all sure that there is a
discretion in the court where a litigant is a fugitive from justice. The matter
after all is one of locus standi in judicio, the right and basis to approach
the court for relief. And in our law it seems to be clear that the only
category of person who has absolutely no right to institute proceedings at law
is the fugitive from justice or outlaw."
These
cases clearly spell out the consequences of being either in contempt of court
or a fugitive from justice. However, unlike a fugitive from justice or an
outlaw, a party in contempt is not absolutely barred from being heard in a
court of law. The court can still hear him even before he has purged his
contempt if the interests of justice demand it. This is because unlike a
fugitive from justice who has placed himself beyond the reach of the law by
leaving the jurisdiction, the person in contempt is within its reach, thus the
weight of the law can descend on him at any time. An analysis of the above cases leads me to conclude that the
first respondent has not disqualified himself from seeking the assistance of
this court in asserting his rights. This must be so firstly, because he was not
party to the order given by the Supreme Court. Secondly because he cannot be characterized
as a fugitive from justice in the sense that he has put himself beyond the physical
reach of the courts. Even if I be wrong in holding this view, I still come to
the same conclusion that the principle of dirty hands cannot apply to first
respondent because even assuming that he is in contempt of court, he is not a
fugitive from justice by virtue of which he would suffer from an absolute incapacity
to be heard.
First
respondent is still amenable to justice. There are several steps open to the
court to ensure that he purges any contempt if any is found against him. In my
view the same reasoning applies to the second respondent and third respondent
but for different reasons. Firstly, the two State enterprises are in court by
virtue of the directive of this court. It will be an absurdity if this court were
to order that a party appears before it and then turn around and refuse to hear
it on the basis of the dirty hands doctrine. Secondly, in the exercise of the
discretion vested in this court I am of the view that justice would not be
served if these two entities are not permitted to argue their case. In any
event they do not seek any order from the court.
The
other two points in limine
taken by Mr Samukange both raise the issue of jurisdiction. First was that the
matter is currently pending before the Supreme Court and therefore this court
has no jurisdiction to entertain it. No authority was cited for this
proposition but reliance was placed on the words of the Chief Justice @ p9
where he stated that the effect of his order was to suspend the 24 September
judgment of this court. He urged this court to find that it cannot rescind an
express order of a superior court. Second was that there is another pending
matter before this court where the same issues are raised by applicants.
With
respect to Mr Samukange, I do not see how an inquiry into
whether or not this court was willfully mislead into giving the judgment which
it gave could be said to overturn the judgment of the superior court. In any event
there is ample authority for the proposition that there is nothing in principle
preventing a party from pursuing an application for rescission while an appeal
of the same judgment is pending. (See Herbstein and Van Winsen 4th
Ed at p 700)
The
learned authors express the view that the pursuit of an appeal is no bar to the
success of an application for rescission.
(See also Tshivhase Royal Council
& Another v Tshivhase & Another, Tshivhase & Another v Tshivhase
& Another 1992 (4) SA 852 @
p865) where NESTADT J pointed out;
"Mr
Zeiss made one further submission, namely that the first appeal was a bar to
the application for rescission. I disagree. In principle, I can see no reason
why Kennedy and Ligege were not entitled to pursue this quite separate and
independent remedy, irrespective of the pending first appeal. Rule 42(1)(c)
does not (unlike s 36(c) of Act 32 of 1944) require that no appeal should be
pending. Nor, as counsel suggested, were the appellants put to any election
between pursuing the appeal and applying for rescission. They could do both."
I
am in respectful agreement with the opinion of that court which is highly
persuasive on the point if regard is had to the similarities between the rule
under interpretation in that matter and our very similarly worded equivalent. It was on the basis of the above that I
declined to uphold the points raised in
limine on behalf of the applicants.
The
question remaining for decision is whether on the basis of the papers before
me, a case has been made for the rescission of judgment on account of it having
been obtained or procured by fraud. Applicants urged the court to refuse to
hear the first respondent as an action was more suited for proof of fraud than
motion. In my view any matter that can be brought by action if the
circumstances indicate it, can be brought by motion. This is particularly so,
when, as in the present case, the initial proceedings were commenced by motion
proceedings.
As
I pointed out above, the matter before me in September 2009 proceeded on the
following basis and assumption; that the ACR subsidiaries were by the time they
obtained registration of certain claims in their names, duly incorporated in
terms of the laws of Zimbabwe, and as such, had the capacity to contract; that
when they pegged their claims in the Chiadzwa mining area, there was no
reservation in force but that a company called Kimberlitic Searches held
certain rights in the form of Exclusive Prospecting Orders (EPO's) for which an
application for extension had been lodged with the Mining Affairs Board but
that before a decision had been made the EPO's expired. Upon expiration of such
EPO's the land was then open for prospecting but not before since this other
company held the said rights; that the registration of the said rights by the Assistant
Mining Commissioner was therefore right and proper in those circumstances. It
is the subsequent cancellation by the Minister which failed to adhere to the
peremptory requirements of section 50 of the Mining Act which prompted the application
in HC 6411/07.
Indeed
so straightforward was the case for the applicant that counsel for the first
respondent in the initial application, one Mr
Maposa,
conceded in his Heads of Argument that the cancellation was wrongful. I agreed
with him. Although now with hindsight I am able to question the aptitude of the
officers in the Civil Division of the Attorney-General, at the time of the
previous hearing I had no reason to question their probity. It seems to me now
quiet a lot of information was kept away from the court in order to ensure a
certain outcome. The judgment of 25 September was quite clearly a desirable
outcome for the applicants although I am not sure who else desired it. The
question I must now determine is whether that judgment is liable to be
rescinded on the basis that it was obtained by fraud.
A
judgment obtained by fraud of one of the parties, whether by perjury, forgery
or in any other way such as the fraudulent withholding of documents, cannot be
allowed to stand. There is no doubt that a court can amend, alter or set aside
a judgment obtained by fraud, but only under limited circumstances.
The
view I took of the matter is that one of the parties having brought it to my
attention that judgment may have been procured by fraud, in the exercise of my
inherent powers at common law and having been seeped in the facts upon which I
based my earlier judgment it appeared to me that in all the circumstances of this
case that the ends of justice will be served taking into account the
convenience to the parties and to avoid a multiplicity of litigation at the
same time ensuring finality to litigation that I hear the respondent's
application. (See Stumbles & Rowe supra per Greenland @ p 178).
The
applicants sought to downplay the consequences of non-incorporation by averring
that since no-one was prejudiced therefore no finding of fraud could possibly
arise. I disagree. The allegation of fraud emanating from the office of the
first respondent arises from the fact that the rights in issue relate to
mining. Section 2 of the Mines and Minerals Act vests all rights to minerals in
the President of the Republic
of Zimbabwe subject to
the provisions of the Act. It recites thus:
" 2 Rights to minerals
vested in President
The
dominium in and the right of searching and mining for and disposing of all
minerals, mineral oils and natural gases, notwithstanding the dominium or right
which any person may possess in and to the soil on or under which such
minerals, mineral oils and natural gases are found or situated, is vested in
the President, subject to this Act."
The
President holds these rights in trust and on behalf of the citizens. The public
therefore has a vested interest in who is registered to extract this national
resource; how transparently was the registration of such rights conducted; who
stands to benefit from the manner the rights in question are dealt with and so
on. The list of such points of interest is not exhaustive. Suffice it to say
that whatever the intention of the applicants may have been, the court is
entitled to draw any reasonable inference that is supported by facts. If
therefore applicants chose to rely on a method of registration that fell foul
of the law they only have themselves to blame. It is difficult to appreciate
how the submission that public interest was not prejudice is made. Fair
competition by investors require that they all follow same rules regarding
registration of rights.
Serious consequences follow failure to comply
with the legal requirements set out in the Companies Act [Cap 24:03]. As an
example, where a company was not duly incorporated, it could not lawfully carry
out any juristic act unless there existed a pre-incorporation contract by
virtue of which mandated natural persons could lawfully carry out such acts for
subsequent ratification by the company.
Without
incorporation such a company could not pass any resolution to authorize anyone,
even its own promoters, to act for it in any lawful transaction. Section 20 of
the Mines and Minerals Act provides:
"20 Prospecting
licences
(1) Subject to this section and section twenty-four,
any person who is a permanent resident of Zimbabwe or any duly appointed
agent of such person may take out at the office of any mining commissioner one
or more prospecting licences on payment of the appropriate fee prescribed in
respect of each such licence.
(2) On making application for a
prospecting licence the applicant shall furnish to the mining commissioner his
full name and permanent postal address, which shall appear on the licence
issued to him, and such other information as the mining commissioner may
require.
(3) The mining commissioner may refuse
to issue a prospecting licence, but shall forthwith report each refusal to the
Secretary.
(4) Upon receipt of a report in terms of
subsection (3), the Secretary shall refer the report to the Minister and shall,
if so instructed by the Minister, direct the mining commissioner to issue a
prospecting licence."
In
respect of the Mines and Minerals Act, such a company could not apply for, let
alone accept, any mining rights without contravening the law. It could not
therefore nominate an agent in terms of the provisions of s.20 of the Act.
First applicant is a London Stock Exchange listed company. I take judicial
notice of the fact that it is manned by personnel who are highly acquainted
with the requirements of operating in foreign environments. What haste then
could have prompted such an international company to overlook such basic
requirements of the law? It could be that they were anxious to lay their hands
on the claims, like any investor would be anxious to do, but if they did so
without regard to the law, they could hardly cry foul if someone pointed to the
lack of legal personality at the relevant time.
The
act of securing "rights" without following the laid down procedure evinces an
intention to mislead. That to my mind is self-evident. What this act signifies
is that applicants were able to put up a ruse upon which the relevant officials
in the Mines Ministry acted. When they had the certificates at hand they then
launched a legal onslaught against the Ministry of Mines for "unlawful"
cancellation of "claims".
I
therefore cannot accept the bare denial that no prejudice, actual or potential,
could have been occasioned by the act of entering into a mining venture without
first acquainting itself with the legal requirements of the Zimbabwean law. The
first respondent sets out quite exhaustively the prejudice suffered by the
action of applicant's promoters. It appears from the voluminous affidavits
filed in the present and others cases before the courts that applicants cut
several corners in order to secure "rights" to certain mining claims in
Chiadzwa. The applicants had successfully wood-winked this court into granting
it a favourable judgment in the process.
Mr
Samukange for the applicants relied
on the authority of Rajah & Rajah
(Pty) Ltd and Others v Ventersdorp
Municipality and Others 1961 (4)
SA 402 (A) for the proposition that the courts will not interfere on review
with the decision of a quasi-judicial tribunal where there has been an
irregularity, if it is satisfied that the complaining party suffered no
prejudice by the grant of a licence to an incorporated body. The answer to that
is to be found in the wise words of MOSENEKE
J writing for the majority decision in South African Constitutional Court in Steenkamp NO v Provincial Tender Board,
Eastern Cape 2007 (3) BCLR 300
(CC) at p 322 where he says:
"It
is trite that a company, prior to incorporation, has no corporate personality.
Even so the applicant did not rely on any pre-incorporation agreement under
section 35 of the Companies Act. The cases the applicant cites are plainly
distinguishable. They relate to licensing procedures, which are markedly
different from the tender process which compels strict and equal compliance by
all competing tenderers on the closing day for submission of tenders,"
In
that case, as in the present, Balraz, a black-owned company, was found to have
breached the terms of section 172 of the Companies Act because it commenced
business by entering into initial tender agreements with the tender board prior
to being issued with a certificate to do so.
In
casu Mr Samukange argued that because applicants have held title to the
claims for a period in excess of two years applicants' title is now protected
by virtue of section 58 of the Mines and Minerals Act. I disagree. Applicants
never acquired any rights in the first place since they did not exist when the
Assistant Mining Commissioner purported to issue such "rights" to them. In any
event in order to benefit from s.58, the applicants should have held the title
to the mining rights for two years. It is not disputed that the applicants
acquired the "rights" in 2006. By the end of that year the first respondent had
effected the initial cancellation. To my mind that juristic act interrupted the
running of the two year prescriptive period. What is worse, they have now been
found to have misled this court and everyone else that they had acquires such "rights".
A
more damning piece of evidence which was not placed before me in September 2009
is reservation order 1518 made in terms of s.35(1) of the Minerals Act.
Section
35 provides thus:
"35 Reservations
against prospecting and pegging
(1) The mining commissioner may, and, if
so instructed by the Secretary on the authority of the Minister, shall, reserve
by notice posted at his office any area against prospecting and pegging, and
all rights possessed by the holder of any prospecting licence or exclusive
prospecting order to prospect for and peg minerals shall cease and may not be
exercised within such area as from the date and hour of the posting of such
notice or such later hour or later date and hour as may be specified in such
notice:
Provided that the
holder of a mining location, other than an exclusive prospecting reservation,
within any such area shall retain and may exercise all rights lawfully held by
him which existed at the date and hour as from which such notice takes effect
in terms of this subsection." The effect of declaring
an area reserved is plain no-one, can prospect or peg. All
rights
possessed by holders of any prospecting licence or exclusive prospective orders
to prospect for or peg minerals cease. Only the rights of a holder of a mining
location within the area which existed at the time of the pegging are
saved.
I
have already adverted to the evidence placed before me in respect of the reservation
according to the applicants. The truth of the matter is that the applicants
knew when they appeared in September before me that there had been reservation
of the area in dispute as far back as 2004. The impression they created in
September 2009 was that this reservation did not cover the area in which their
claims lay. Indeed they swore affidavit to this effect in other proceedings
arguing that an extension of the initial reservation 1518 was surreptitiously
undertaken in order to disentitle them of their already existing claims.
Presently Mr Samukange still argues
that this issue was placed before me. I am at a loss as to how he can say this.
Had this been placed before me I do not see how Mr Maposa would have made the
concession he did or how I could have missed the effects of such clear
prohibition.
Had he been forthright with the court in
September 2009, one would have expected him to clearly state that there is a
dispute as to the nature and extent of the original reservation area 1518. One
would have expected him to argue that certain of the applicants' claims are
saved from the effect of a reservation since they pre-existed the declaration
of reservation. He would have in other words confessed and avoided the issue.
He did not. To my mind his clients knew back then the effect a disclosure of
this aspect of the matter would have on their case. They chose to selectively
place certain information before me at the exclusion of this aspect of it. I am
convinced that applicants knew that had this court's attention been drawn to
the section 35 reservation, the court would not have granted the order it did.
In
order for this court to set aside the judgment of 25 September 2009, the first
respondent must prove three items namely:
(a)
That the evidence upon which the
judgment was given was in fact incorrect;
(b)
That it was made fraudulently and with
intent to mislead; and
(c)
That it diverged to such an extent from
the true facts that the court would, if the true facts had been placed before
it, have given a judgment other than what it was induced by the incorrect
evidence to give.
Having
regard to the above analysis I am satisfied that the first respondent has met
the above requirements. He is entitled to the order for rescission.
In
light of the above I see no need to express myself in respect of the counter-application.
Should a result of the counter-application be required for what it is worth, I
find that applicants have no locus standi
in judicio to seek the order that they seek in the counter-application on
the basis that they do not have any title to any claims in the Marange diamond
fields.
In
any event the counter-application suffers from a fatal deficiency for
non-joinder in these proceedings of other parties whose rights would be
adversely affected by the order which they are seeking.
Further,
a counter-application must, in the very least, in order to qualify as such in
terms of the Rules, be an answer to the main claim by the first respondent. Put
differently it must seek to counter in a similar vein, the application brought
by the first respondent. Instead applicants want via these proceedings, the
court to make a declaratuur whose
effect would be to jeopardize parties who are not before me. It is not.
In
the result therefore, I make the following order. It is ordered that:
- The
judgment of this court dated 24 September 2009 in HC 6411/07 be and is
hereby set aside.
- The
counter-application is dismissed with costs.
- Applicants
are to pay the respondents' costs.
Venturas & Samkange, applicant's
legal practitioners
Mutamangira & Associates, 1st
respondent's legal practitioners
Dube, Manikai & Hwacha, 2nd
respondent's legal practitioners
Sawyer
& Mkushi, 3rd
respondent's legal practitioners
