IN
CHAMBERS
BERE
JA:
This
is an opposed chamber application for condonation of late noting of
an appeal and extension of time within which to appeal in terms of
Rule 43 of the Supreme Court Rules, 2018. The applicant seeks an
order couched in the following terms:
“It
is hereby ordered that;
(a)
The application for condonation for non-compliance with Rule 38(1)(b)
of the Supreme Court Rules, 2018 be and is hereby granted.
(b)
The application for an extension of time to note the applicant's
appeal be and is hereby granted.
(c)
The appeal is deemed noted in terms of the Notice of Appeal attached
hereto from the date of this order.
(d)
Costs of this application shall be costs in the cause.”
The
facts giving rise to this application can be gleaned from the filed
papers and are as follows:
The
applicant had been conducting mining operations in Chiadzwa District
from 2009 under a Special Grant and stated that it was in undisturbed
possession and occupation until February 2016. On 22 February 2016,
the first respondent wrote a letter to the applicant notifying it
that the special grant issued to it had expired therefore the
applicant had to cease all mining activities with immediate effect
and had to vacate the mining area. The applicant together with its
employees was forced to vacate the mining location on the same date
by armed police, leaving its assets on the site.
In
March 2016 the applicant filed an urgent chamber application in the
High Court against the respondents seeking restoration of the
parties' status quo ante. This application was further necessitated
by the first respondent's decision to terminate the applicant's
right to conduct mining operations under a Special Grant. In the
application, the applicant stated that it was substantially
prejudiced by the respondents' conduct and resultantly, there was
significant financial harm. In addition to this the applicant sought
to justify its continued operations on the strength of the special
grant which it alleged had been ceded to it by the first respondent.
That
application was opposed by the first respondent who argued that the
matter was not urgent and that the relief sought by the applicant
sought to perpetuate an act of illegality. It stated that the
applicant had no rights in the special grant as it had expired some
years before. Further, it stated that the mining grant had been
issued to the 'Zimbabwe Mining Corporation' and not to the
applicant.
The
application was argued before the court a quo and judgment in the
matter was handed down on 30 March 2016. In that judgment, the court
a quo stated that although several points in limine had been raised
by the respondents, it was of the view that the application had to be
disposed of on substance and not on technicalities.
On
substance, the court a quo found that the special grant relied on by
the applicant had expired five years before it was declared expired
in February 2016. It also held that the clause which allowed the
applicant to work on sites ceded to it for an indefinite period was
contrary to the peremptory provisions of section 291 of the Mines and
Minerals Act [Chapter 21:05]. Resultantly the applicant's
application was dismissed.
Mr
Magwaliba for the applicant argued that the explanation of the delay
in filing the appeal was reasonable as the applicant sought to deal
with his Constitutional Court application before seeking remedy in
the Supreme Court. In addressing prospects of success in the intended
appeal Mr Magwaliba, for the applicant submitted that the court a quo
erred in finding that the special grant had expired and thus the
applicant had not acquired any rights through the grant. He further
contended that the question of legality or unlawfulness on the part
of the applicant was irrelevant. He also contended that the court a
quo had erred in not finding that the applicant was entitled to an
order restoring the status quo ante when it had established that it
was in peaceful and undisturbed possession of the mining location and
further that the court a quo had also erred in finding that the first
respondent was entitled to summarily cancel the special grant, even
without following due process.
Per
contra, Mr Uriri for the first respondent argued that the applicant,
in deciding not to appeal and instead choosing to approach the
Constitutional Court had deliberately lost its right to appeal. He
further stated that by approaching the Constitutional Court, the
applicant showed acquiescence of the judgment of the High Court.
Counsel further argued that the applicant, by raising issues of
entitlement to the special grant had invited the court a quo to make
a determination on the substantive issue between the parties and that
the court had proceeded to properly do so, as a result of which he
opined that the applicant had no prospects of success on appeal.
APPLICATION
OF THE LAW TO THE FACTS
In
the case of Tel-One (Pvt) Ltd v Communication and Allied Services
Workers Union of Zimbabwe SC01/06, GWAUNZA JA (as she then was) said
the following:
“Essentially,
in an application of this nature, the applicant must satisfy the
court, firstly, that he has a reasonable explanation for the delay in
question and secondly that his prospects of success on appeal are
good.”
Further,
in the case of Florence Chimunda v Arnold Zimuto1
the court per ZIYAMBI JA held that the approach of the courts when
dealing with applications of this nature is to consider the
cumulative effect of the following:
“(i)
The extent of the delay;
(ii)
The reasonableness of the explanation tendered therefor;
(iii)
The prospects of success on appeal;
(iv)
The prejudice, if any, that is likely to be caused to the respondent
should the application be granted; and
(v)
The need to bring finality to the proceedings.”
EXTENT
OF THE DELAY AND REASONABLENESS OF THE EXPLANATION
In
the case of Ganda v First Mutual Life Assurance Society2
SC01/05, it was stated that:
“In
addition, it is pertinent to note that it has been stated in a number
of cases that a person seeking condonation of the late noting of an
appeal should give a reasonable explanation, not only for the delay
in noting the appeal, but also for the delay in seeking condonation
…”
From
the record, the judgment which the applicant seeks to appeal against
was handed down on 30 March 2016 and the present application was
filed on 13 July 2018 following the handing down of the
Constitutional Court judgment on 29 June 2018. The extent of the
delay is therefore 2 years 3 months.
It
is apparent that the delay was quite inordinate.
The
applicant stated that it did not file a Notice of Appeal at the time
it was supposed to because it had filed an application in the
Constitutional Court under case number CCZ38/2016. In that
application, the applicant sought relief in terms of section 85(1)(a)
of the Constitution of Zimbabwe against the respondents together with
'ZMDC and ZCDC.'
In
my view the explanation for the delay is unreasonable in the sense
that the time lines for an appeal have no relevance to any form of
remedy desired in the Constitutional Court.
It
was not necessary for the applicant to either wait for or link its
appeal to the outcome of the Constitutional Court application. It was
therefore unreasonable for the applicant to awake from his slumber
after the dismissal of his application in the Constitutional Court on
29 June 2018 to file the instant application.
PROSPECTS
OF SUCCESS
In
the case of Kombayi v Berkout3,
KORSAH JA stated thus:
“The
broad principles the court will follow in determining whether to
condone the late noting of an appeal are: the extent of the delay;
the reasonableness of the explanation for the delay; and the
prospects of success. If the tardiness of the applicant is extreme,
condonation will be granted only on his showing good grounds for the
success of his appeal.” (my emphasis)
As
alluded to in the above case, it is imperative for an applicant
making an application for condonation for the late noting of an
appeal, to demonstrate to the court that the appeal enjoys prospects
of success on the merits.
The
issue to be determined in the intended appeal is whether the first
respondent could summarily cancel the special grant without following
due process.
The
requirements and defences for a spoliation order were re-stated in
the case of Augustine Banga & 2 Ors v Solom Zawe SC54/14 by
GWAUNZA JA (as she then was) to be as follows:
“(i)
the applicant was in peaceful and undisturbed possession of the
thing; and
(ii)
he was unlawfully deprived of such possession.”
In
the case of Botha and Anor v Barrett 1996 (2) ZLR 73 (S) at 79E, also
cited by the learned judge a quo, the court qualified “unlawful
deprivation” to mean that the respondent deprived the applicant of
possession 'forcibly and wrongfully against his consent'.
The
court a quo went on to list the valid defences against a spoliation
claim, among them that:
“(i)
the applicant was not in peaceful and undisturbed possession of the
thing in question at the time of dispossession; and
(ii)
the dispossession was not unlawful and therefore did not constitute
spoliation.”
In
the case of Chesveto v Minister of Local Government and Town Planning
1984 (1) ZLR 240 (H) REYNOLDS J at 250 A-D stated that:
“It
is a well-recognised principle that in spoliation proceedings it need
only be proved that the applicant was in possession of something and
that there was a forcible or wrongful interference with his
possession of that thing – that spoliatus ante omnia restituendus
est (Beukes v Crous & Another 1975 (4) SA 215 (NC)).
Lawfulness
of possession does not enter into it.
The
purpose of the mandament van spolie is to preserve law and order and
to discourage persons from taking the law into their own hands. To
give effect to these objectives, it is necessary for the status quo
ante to be restored until such time that a competent court of law
assesses the relative merits of the claims of each party. Thus it is
my view that the lawfulness or otherwise of the applicant's
possession of the property in question does not fall for
consideration at all.” (my emphasis)
From
the cited cases, the position of the law is quite clear in that an
application for a spoliation order is not concerned with the legality
or otherwise of the applicant's conduct. The court would be called
upon to determine whether one was in a peaceful and undisturbed
possession and whether he was dispossessed unlawfully.
The
situation that confronted the court a quo was adequately dealt with
in a recent decision of this Court, viz, Minister of Mines and Mining
Development and 2 Others vs Grandwell Holdings (Private) Limited and
2 Others4
which reaffirmed the requirements for spoliation.
The
case which was placed before the court a quo was by way of an urgent
chamber application which sought to have the status quo ante of the
parties restored after the applicant had been evicted from its mining
activities without due process on 22 February 2016. The judgment of
the court a quo completely ignored dealing with the issue to do with
spoliation and decided to deal with the application on the
substantive issues between the parties, that is, on the existence or
otherwise of the special grant which applicant claimed to have.
In
my view, it is doubtful if such issues could have been adequately
determined in an urgent chamber application.
It
does seem to me, as argued by Mr Magwaliba that the dominant issue
that the court ought to have dealt with was the issue of spoliation.
It was a misdirection for the court not to deal with this issue and
focus exclusively on the substantive rights of the parties which
could have been dealt with on the return day.
It
is precisely because of this that I believe that there are prospects
of success in the intended appeal.
I
accept there was tardiness on the part of the applicant as argued by
Mr Uriri but the prospects of success on appeal has tilted the
balance in favour of the applicant.
As
observed by CHIDYAUSIKU J (as he then was) in the case of Lovemore
Sango vs Chairman of Public Service Commission and Anor5:
“In
deciding whether to condone the delay or not two factors are of
paramount importance.
(a)
Firstly, the period of the delay and the reasons for such a delay.
(b)
Secondly, the prospects of success on the merits.”
In
the result I make the following order:
1.
The application for condonation of non-compliance with Rule 38(1) of
the Supreme Court Rules, 2018 be and is hereby granted.
2.
The application for an extension of time to note the applicant's
appeal be and is hereby granted.
3.
The appeal is deemed noted in terms of the notice of appeal attached
hereto from the date of this order.
4.
Costs of this application shall be costs in the cause.
Hussein
Ranchhod & Co., applicant's legal practitioners
Civil
Division of The Attorney-General's Office, 1st respondent's legal
practitioners.
1.
SC76/14
2.
SC01/05
3.
1988 (1) ZLR
4.
SC34/18
