IN
CHAMBERS
CHAMBER
APPLICATION FOR CONDONATION AND LEAVE TO APPEAL
GOWORA
JCC: 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 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 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
Act.
They
argued that no notice of forfeiture was required to be issued in
terms of the 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 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 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 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 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) 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, Mr. Madhuku,
and counsel for the first respondent, Mr. Zhuwarara,
made the following submissions:
Mr.
Madhuku
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 Mr. Madhuku
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.
Mr.
Madhuku
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
resoned that the applicant had sought to obtain a judgment from the
Supreme Court to no avail.
Mr.
Madhuku
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.
Mr.
Madhuku
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,
Mr.
Zhuwarara
submitted that the tenor of Rules 32 and 35 compelled the applicant
to furnish the Court with reasons for the order. To buttress his
point, he cited the authority of Rushesha
v Dera
CCZ24/17.
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.
Mr.
Zhuwarara
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 the Tamanikwa
case (supra)
could
similarly not survive scrutiny in the Constitutional Court.
In
addition, Mr. Zhuwarara
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 para 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,
Mr. Zhuwarara
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, Mr. Madhuku
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.
Mr.
Madhuku
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.
WHETHER
THE APPLICATION IS PROPERLY BEFORE THE COURT
Before
this Court proceeds to determine the merits of the application, an
important and crucial issue has exercised the Court's mind, which
may be dispositive of this matter. This issue has arisen due to the
applicants reliance on Rule 5 as the enabling law for an approach to
the Court to obtain an indulgence to condone their failure to bring
the application for leave within the stipulated period.
The
issue goes to the validity of the application itself and whether or
not it is properly before the Court.
The
requirements for an order of condonation are well settled.
The
leading authority in Zimbabwe is the case of Bishi
v Secretary for Education
1989 (2) ZLR 240 (H), where CHIDYAUSIKU J (as he then was) said:
“Rule
259 provides that the court may extend the time for bringing an
application for review if good cause is shown. The first issue that
falls for decision is, therefore, whether good cause has been shown
to justify the court in extending the time or condone the delay in
bringing this application. The principles that guide the court in an
application for condonation were set out in the case of United
Plant Hire (Pty) Ltd v Hills & Ors
1976 (1) SA 717 (A). In that case, Holmes JA had this to say at
p720F-G:
'It
is well settled that, in considering applications for condonation,
the Court has a discretion, to be exercised judicially upon a
consideration of all of the facts; and that, in essence, it is a
question of fairness to both sides. In this enquiry, relevant
considerations may include the degree of non-compliance with the
Rules, the explanation therefor, the prospects of success on appeal,
the importance of the case, the respondent's interest in the
finality of his judgment, the convenience of the Court, and the
avoidance of unnecessary delay in the administration of justice. The
list is not exhaustive.
These
factors are not individually decisive but are interrelated and must
be weighed one against the other; thus, a slight delay and a good
explanation may help to compensate for prospects of success which are
not strong.'
In
support of the above proposition, the learned judge of appeal cited
several authorities.
Holmes
JA's approach has been approved and followed in a number of
subsequent cases. Among these cases are
Hermannsburg Mission & Anor v Sugar Industry Central Board &
Anor
1981 (4) SA 278 (N) and Vereniging
van Bo-Grondse Mynamptenare van Suid-Afrika v President of the
Industrial Court & Ors
1983 (1) SA 1143 (T).
These
authorities establish that the following are the factors to be taken
into account in considering whether good cause has been shown:
(a)
the degree of non-compliance with the rules;
(b)
the explanation therefor;
(c)
the prospects of success on the merits;
(d)
the importance of the case;
(e)
the convenience of the court;
(f)
the avoidance of unnecessary delay in the administration of justice.”
The
applicants have brought this application in terms of Rule 5 of the
rules of this Court.
The
first respondent has submitted that the applicants must be non-suited
for bringing their application under the wrong rule.
Given
the litigants divergent views, a comparative analysis of the
competing rules becomes inevitable.
Rule
5(1), upon which the application is premised, provides for departures
from rules and directions as to procedure. It states that:
“(1)
The Court or a Judge may, in relation to any particular case before
it or him or her, as the case may be -
(a)
direct, authorise or condone a departure from any provision of these
rules, including an extension of any period specified therein, where
it or he or she, as the case may be, is satisfied that the departure
is required in the interest of justice;
(b)
give such directions as to procedure in respect of any matter not
expressly provided for in the rules as appear to it or him or her, as
the case may be, to be just and expedient.”
In
their founding affidavit, the applicants, in no uncertain terms,
express that the first component of the application in respect of
condonation is made pursuant to Rule 5 of this Court's rules.
The
application is premised on Rule 5.
In
so doing, the applicants are requesting the Court to accept that the
application may be granted primarily on the applicants failure to
comply with the rules and that such failure must be pardoned as of
right.
A
party cannot base any application before this Court on Rule 5 as it
does not provide for a party to institute proceedings. It is a rule
available to the Court where litigants have failed to comply with the
rules of court but the Court considers it is in the interests of
justice to condone the departure.
The
applicants cannot predicate an application for condonation.
Rule
5 is a tool in the hands of the Court. Thus, it is meant for
instances where a party has instituted proceedings but fails to
comply with any provision of the rules. In that instance, the Court
may then direct, authorise or condone the departure from the rules in
the interests of justice.
The
rule under which an application for condonation is provided is Rule
35, which is the law upon which the applicants should have premised
this application.
To
put the matter beyond doubt, that Rule 35 and not Rule 5 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:
“35.
Application for condonation and extension of time within which to
appeal
(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.
Its
provisions accord with the factors to be considered by a court seized
with an application for condonation.
The
applicants did not premise their application for condonation on the
above-stated rule and, from the interchange with counsel, it is
apparent that its import and significance were lost on them.
It
is unclear why the applicants would institute their application for
condonation premised on Rule 5 when Rule 35 is available and is the
correct rule for bringing such an application.
On
the other hand, a perusal of Rule 5 shows that it is devoid of the
procedural requirements set out in Rule 35. Instead, Rule 5 provides
for the exercise of discretion on the part of the Court to condone a
departure or failure by a litigant to adhere to the procedure.
It
is not a rule allowing the bringing of an application for
condonation.
An
applicant may refer to the rule as a basis for the exercise of the
Court's discretion in considering the application for condonation.
Basing their application on an incorrect rule renders their
application fatally defective.
The
rules of this Court expressly dictate the procedure to be followed in
applications of this nature.
The
importance of citing the rule on which an application is based was
adequately articulated in Bushu
v Grain Marketing Board
HH326/17,
wherein the court noted that:
“However,
in practice, any astute legal practitioner making an application in
terms of a statutory provision including a rule of court is expected
to indicate the rule or provision concerned. The need to cite the
relevant provision of the law under which the application is made,
where applicable, of course, cannot be overemphasized. The citation
of the correct and relevant provision attunes the court to its
jurisdiction and the judge or court as the case may be immediately
opens up to the provision and, if need be, researches on the
provision if it is not one that immediately comes to mind.”
It
must be emphasised that litigants must proceed in terms of the
relevant rule as that is what informs the respondent and the court as
to the nature of the application and the relief sought. It is the
rule that delineates the processes to be followed by the parties and
the time frames demanded for each process.
While
Rule 35 is replete with what each party must comply with, including
the Registrar, Rule 5 does not have any of those stipulations.
It
therefore follows that Rule 5 applies to a matter that is already
before the Court.
In
hearing that matter the Court may give directions, for example on
further time within which parties may file papers, or condone a
departure for example failure to file heads of argument within the
period stipulated in the rules.
Therefore,
the latter rule cannot, under the circumstances, be the correct rule
for an application for condonation for the late filing of an
application for leave to appeal and the application for leave itself.
The
court's rules regulate access to this or any other court. The need to
pay regard to the rules when instituting proceedings was emphasised
in Mupungu
v Minister of Justice, Legal and Parliamentary Affairs
CCZ 07/21, where this court stated that:
“One
cannot institute an action or application in the High Court, or any
other court, without due observance of and compliance with the Rules
of that court. The Rules inform a litigant of what is required of him
to access the court concerned. If he fails to observe or comply with
those Rules, he will inevitably be non-suited. To conclude this
aspect of the matter, I am satisfied that the proceedings a
quo
were fatally defective and constitute a nullity for failure to comply
with Rule 18 of the High Court Rules….”
When
the draft order annexed to the application is read against the two
rules, it becomes evident that the relief sought is more in line with
Rule 35 than Rule 5.
A
closer examination of the two rules reveals that the relief sought by
the applicants is provided under Rule 35(1) and sub-rule (3)(a), (b),
and (c).
Therefore
Rule 5, under which the applicants purport to approach the court for
relief, is not the applicable law as it does not make provision for
the filing of an application and does not provide for the relief
sought.
It
is not a rule to premise an application upon.
Based
on this rule, the applicants cannot be said to have filed a proper
application for condonation for the late filing of an application for
leave.
The
applicants are, therefore, non-suited before this Court.
Since
this point is dispositive of the matter, it is unnecessary to
consider the other preliminary point. Consequently, this application
is a nullity as it stands on nothing.
DISPOSITION
It
would be futile for this Court to proceed to determine the
preliminary point raised by the first respondent. Before this Court
can consider the contents of this application, it must be satisfied
that a valid application is before it.
This
application is not; it must be therefore struck off the roll.
The
first respondent sought costs on the legal practitioner and client
scale in its papers. However, it failed to motivate why the
applicants should be mulcted by an award of costs on a higher scale.
It is not
suggested that the applicants are guilty of vexatious conduct or that
the application is frivolous.
I
see no reason to deviate from the general approach in constitutional
matters, that is, that no party should be penalised with an order of
costs, save in exceptional circumstances. No such special
circumstances as would justify an order of costs even on the ordinary
scale are evident in this matter.
Accordingly,
the following order is made:
The
application is struck off the roll with no order as to costs.
Civil
Division of the Attorney General's Office,
legal practitioners for the applicants
Coghlan
Welsh & Guest, legal
practitioners for the first respondent
1.
At
p242D-243C
