Urgent Chamber Application
UCHENA J: The first
applicant is a public company listed on the London Stock Exchange.
The second to fifth applicants are Zimbabwean companies duly
incorporated in terms of the laws of Zimbabwe. They are wholly owned
subsidiaries of the first applicant.
The second to fifth applicants are holders, of registered mining
claims, in the Chiadzwa diamond mining area of Manicaland. Their
claims have been subjected to cancellations and litigation over such
cancellations. The claims were declared valid by HUNGWE J in
HC6411/07.
The respondents appealed against that decision to the Supreme Court,
were the appeal is still pending.
The first respondent is the Minister of Mines and Mining Development.
The second respondent is the Permanent Secretary in the Ministry of
Mines and Mining Development. The third respondent is the Chief
Mining Commissioner in the Ministry of Mines and Mining Development.
The second respondent gave notice
to the second to fifth applicants of his intention to cancel their
claims with effect from 10 March 2010. The notice is dated 28 January
2010. The cancellations are premised on the applicants' claims
having been registered over a reserved area in contravention of the
Mines and Minerals Act [Cap
21:05]
the (“Mines Act”). He advised the applicants that the area was
reserved against pegging and prospecting by reservation 1558, dated
19 February 2004.
The applicants filed an urgent application on 5 March 2010, seeking a
provisional order interdicting the respondent's from canceling
their claims on 10 March 2010.
The respondents opposed the application and raised the following
preliminary issues:
1. That the application was not
urgent.
2. That the applicants had not
exhausted domestic remedies, and had not complied with Order 33 of
the High Court rules.
3. That the second to fifth
applicants, who are the holders of the claims, did not exist at the
time the claims were registered.
Urgency
Mr Mutamangira
for the respondents submitted that the applicants' application is
not urgent because the applicants' who where notified of the
cancellations on 28 January 2010, waited until the eleventh hour,
before filing their application.
He further submitted that the applicants have not exhausted domestic
remedies provided in s50(2) of the Mines Act.
He further submitted, that the
applicants appealed to the Minister, on 9 March 2010, therefore that
process must be completed before this court can intervene.
Mrs Wood
for the applicants submitted that the delay was caused by the
applicants' attempt to persuade the second respondent to withdraw
the cancellation. The applicants had previously succeeded in getting
the respondents to withdraw the 8 December 2009 cancellations. They
believed communication with the second respondent would achieve
similar results.
She further submitted that the
applicants had applied to this court against the 8 December 2009
cancellations, and appealed to the Minister. Those proceedings were
rendered academic by the second respondents' withdrawal of the 8
December cancellations.
The applicants had incurred heavy litigation expenses and wanted to
avoid the same in respect of the 28 January cancellations.
The second to fifth applicant
received the 8 December 2009 notices to cancel from the Acting Mining
Commissioner Manicaland. They challenged the cancellations, by
pointing out that there was no Mining Commissioner for Manicaland.
That led to the withdrawal of that cancellation by the second
respondent in this case.
In his letter of 28 January 2010 the second respondent advised the
applicants that he had in terms of s341 of the Mines Act taken over
the functions of the Mining Commissioners, Harare, Masvingo and
Manicaland, and was withdrawing the 8 December 2009 cancellations to
avoid unnecessary litigation.
The second respondent then gave the 28 January 2010 notices of the
cancellation of the second to fifth applicants' claims. He again
advised them that he had in terms of section 341 of the Mines Act
assumed the functions of the afore-said Commissioners.
The second respondent's conduct was clearly aimed at correcting the
error pointed out by the applicants, and to personally repeat the
same act with resolve. The fact that the withdrawal and the
subsequent cancellations took place on the same day must have been of
significance to the applicants.
The applicants attached to their application the letters they wrote
to and received from the second respondent before they filed this
application. They attached the second respondents' letters dated,
28 January 2010, 12, 19 and 23 February 2010, and their letters to
the second respondent dated 1, 11, 16, 23 and 24 February 2010.
The correspondence reveals the applicants' attempt to settle the
dispute without litigation and the second respondent's insistence
that the cancellations were not going to be reversed.
It is clear that the applicants genuinely wanted to avoid litigation,
and hoped the second respondent could be persuaded to withdraw the
cancellation. It is also equally clear from the second respondent's
letters that the applicants' attempts were not going to be acceded
to. This must have warned the applicants that their delay in applying
to the courts or appealing to the Minister may in the circumstances
be to their own disadvantage.
I am therefore satisfied that the applicants' explanation for the
delay is not satisfactory.
Mr Mutamangira
made forceful submissions on the effect of the applicants' coming
to this court before exhausting domestic remedies.
He submitted that s50(2) of the
Mines Act, provides for an appeal to the Minister.
The second respondent in his
notices of cancellation drew the applicants' attention to their
right to appeal. He submitted that the applicants had not appealed to
the Minister, when they filed this application. He further submitted
that this was a deliberate abstention from exhausting domestic
remedies. He further submitted that the applicants have now appealed
to the Minister. They did so on 9 March 2010, a day before the date
of cancellation, and four days after they filed this application.
Mrs Wood
submitted that the applicants had no hope of a fair hearing before
the Minister. She referred to HUNGWE J's comments in HC6411/07
where the applicants' chance for a fair hearing by the Minister was
compared to that of “an ice block against hell fire”.
She pointed out the applicants'
allegations of the Minister's alleged involvement with companies
which have been granted rights to mine diamonds from the disputed
claims.
If these were the true facts they
would have been a fair response to Mr Mutamangira's
submissions.
An analysis of the applicants'
appeal to the Minister is revealing.
It seeks the Minister of Mines
and Mining Development's recusal from considering the applicant's
appeal. This means if that request is acceded to the Minister, who is
alleged to be biased will not decide the applicant's appeal. If he
considers the appeal against them without good grounds for refusing
to recuse himself the applicants can take his decision on review. The
applicants therefore have a fair chance of their appeal being
properly considered on the merits.
The appeal was submitted a day before the date of cancellation, and
four days after this application was filed.
The filling of the appeal places
this court in competition with the Minister on the determination of
the dispute between the parties. When such a situation arises the
court must defer to the determination of the issues through domestic
remedies.
That is consistent with the courts' clear position on the need for
a party to first exhaust domestic remedies before seeking a remedy
before this court.
In
the case of Girjac
Services
(Private)
Limited
v Mudzingwa
1999 (1) ZLR 243 (SC) at 249 B-E GUBBAY CJ commenting on the need to
exhaust domestic remedies said:
“In
its opposing affidavit, the appellant specifically raised the
complaint that the respondent had adopted the wrong procedure in
applying to the High Court for relief rather than following the
domestic procedure outlined in the code of conduct. In his answering
affidavit, the respondent significantly proffered no explanation for
taking the route he did. He appears to have been of the view that
both options were open; the choice being uninhibited.
The learned judge a quo
did not deal with this
issue although it was argued and the relevant authorities referred to
him. He ought to have done so.
In Tutani
v Minister of Labour &
Ors 1987 (2) ZLR 88
(H) at 95D, MTAMBANENGWE J observed that where domestic remedies are
capable of providing effective redress in respect of the complaint
and, secondly, where the unlawfulness alleged has not been undermined
by the domestic remedies themselves, a litigant should exhaust his
domestic remedies before approaching the courts unless there are good
reasons for not doing so.
The same approach was applied by
SMITH J in Musandu
v Chairperson Cresta
Lodge Disciplinary and
Grievance Committee
HH115-94 (not reported); and was referred to with approval by MALABA
J in Moyo
v Forestry Commission
1996 (1) ZLR 173 (H) at 191 D-192B.
I respectfully endorse it.”
In this case the applicants did
not only come to court before exhausting domestic remedies. They are
asking this court to determine the legality of the respondents'
handling of the cancellations when an appeal is pending before the
first respondent or another Minister who will decide the case if the
first respondent accedes to the applicants' request for his
recusal.
The later should in terms of the
case law referred to above, and s7 of the Administrative Justice Act
[Cap 10:28],
hereinafter referred to as the (AJ Act), be sought first.
The simultaneous filing of an application before this court, and an
appeal before the first respondent, or his substitute, as already
said places this court in competition with the determiner of the
domestic remedy.
When that happens, this court must defer to domestic proceedings, and
allow them to be exhausted before it can hear the dispute between the
parties.
The pendency of the domestic remedy would in my view take away
urgency from an application to this court.
Section
7 of the AJ Act provides as follows:
“Without
limitation to its discretion, the High Court may decline to entertain
an application made under section four,
if
the applicant is entitled to seek relief under any other law, whether
by way of appeal or review or otherwise, and the High Court considers
that any such remedy should first be exhausted”.
My understanding of s7 is that this court can decline to hear an
application, based on an alleged failure to comply with the
provisions of the AJ Act., if it is of the view that the applicant
has other legal remedies through which he can obtain the remedy
sought before it and it considers that such remedy should first be
exhausted.
The court can exercise its discretion, but it should not do so in a
manner that terminates pending domestic remedies unless there are
compelling reasons for it to do so.
The intention of the legislature in providing domestic remedies must
be respected by the courts, and the officials charged with the
authority, to determine, domestic appeals or reviews must be allowed
to do their work before this court intervenes.
In my view this court should only intervene in cases where it is
obvious that domestic remedies will not do justice in the case before
it.
This approach is consistent with
the principle of judicial deference, commented on, in the South
African cases of Bato
Star Fishing (Pty)
v Minister of
Environmental Affairs
2004 (4) SA 490 at 513, and Ekuphuleni
Metropolitan
Municipality
v Dada NO
& Ors
2009 (4) SA 463 (SCA) at p468, where HURT AJA commented on judicial
deference as follows:
“In Logbro
Properties CC v
Bedderson NO
& Ors
2003 (2) SA 460 (SCA) (2003) 1 All SA 424, para 21, CAMERON JA
referred, in the context of a necessity for 'judicial deference',
with approval to the following passage from an article by Cora
Hoexter entitled The
Future of Judicial Review in South African
Administrative Law
(2000) 117 SALJ 484, at 501-2, which is to the following effect:
'. . . the sort of deference we should be aspiring to consists of a
judicial willingness to appreciate the legitimate and
constitutionally-ordained province of administrative agencies; to
admit the expertise of these agencies in policy-laden or polycentric
issues; to accord their interpretation of fact and law due respect;
and to be sensitive in general to the interests legitimately pursued
by administrative bodies and the practical and financial constraints
under which they operate. This type of deference is perfectly
consistent with a concern for individual rights and a refusal to
tolerate maladministration.'
This passage was also referred to
with approval and the theme taken up by SCHUTZ JA in Minister
of Environmental Affairs and Tourism
& Ors
v Phambili
Fisheries
(Pty)
Limited;
Minister of
Environmental Affairs and Tourism
& Ors
v Bato Star Fishing
(Pty)
Limited 2003
(6) SA 407 (SCA) ([2003] 2 All SA 616), paras 52 and 53, where, after
quoting the passage set out above, the learned judge said:
I agree with what is said by Hoexter (op cit at 185):
'The important thing is that
judges should not use the opportunity of scrutiny to prefer their own
views as to the correctness of the decision, and thus obliterate the
distinction between review and appeal'.
(53) Judicial deference is
particularly appropriate where the subject-matter of an
administrative action is very technical or of a kind in which a court
has no particular proficiency. We cannot even pretend to have the
skills and access to knowledge that is available to the Chief
Director. It is not our task to better his allocations, unless we
conclude that his decision cannot be sustained on
rational grounds”.
In the present case the urgency
of the application is diluted by the applicants' conduct. They
appealed to the Minister a day before the date of cancellation when
this application was already pending before this court.
They knew from 28 January 2010,
that they had a right to appeal to the Minister. They avoided that
option preferring to communicate with the Minister's subordinate,
whose letters show that he was not prepared to budge. They then
applied to this court, before appealing to the Minister well knowing
that they would also appeal to the Minister. They appeared before
this court on 9 January 2010 when the case was postponed, to 12 March
2010, with the respondents' counsel undertaking to ensure that the
applicants' claims would not be cancelled before the determination
of this application.
They therefore resorted to
applying to this court simultaneously with an appeal to the Minister.
This tends to show that the applicants deliberately delayed,
appealing to the Minister, so that they could apply to this court on
the pretext that they did not expect justice from the Minister, when
they knew that they would appeal to the Minister and ask him to
recuse himself so that their appeal would be heard by an impartial
acting Minister.
No explanation was given as to
why the applicants did not appeal to the Minister in the manner they
did before 9 March 2010.
The delay in approaching this
court or appealing to the Minister was therefore a result of a
deliberate abstention from acting when the urgency arose on 28
January 2010.
In the case of Kuvarega
v Registrar General &
Anor 1998 (1) ZLR 188
at 193F-G CHATIKOBO J said:
“What constitutes urgency is
not only the imminent arrival of the day of reckoning; a matter is
urgent, if at the time the need to act arises, the matter cannot
wait. Urgency, which stems from, a deliberate or careless abstention
from action until the deadline draws near is not the type of urgency
contemplated by the rules.”
In the circumstances it cannot be said that the application is urgent
as I have to defer to the appeal under domestic remedies. I therefore
hold that the applicants' application is not urgent.
Other points in limine
The respondents had also sought
the dismissal of this application, on the grounds that the
application does not comply with Order 33 of the High Court Rules,
and that the applicants had not yet been incorporated when they
registered the claims in dispute.
Mr Mutamangira
submitted that the
fact that they were not in existence when the claims were registered,
means the registration is invalid in terms of the Mines Act.
In view of my finding that the application is not urgent, I need not
determine the other preliminary issues.
Once a case is judged to be not urgent, no further consideration
should be given to any other aspect of it. This is because urgency is
the key entitling a case to this court's attention on an urgent
basis and ahead of other cases awaiting the court's attention.
The
appropriate Order
Mr Mutamangira
urged this court to dismiss the application if the court found in
favour of any of the respondents' preliminary issues.
As I cannot deal with other issues in view of my finding that the
application is not urgent, the order sought by the respondents is not
appropriate.
A finding that a case is not
urgent, does not mean that the applicant's case has no merits. It
means the case does not qualify for hearing on an urgent basis in
terms of Rule 244 of the High Court Rules. It should therefore be set
down and heard like any other case. It should simply take its place
among cases awaiting to be set-down for hearing in terms of the rules
applicable to none urgent applications. See the comments of CAMERON
JA in the case of Commissioner,
South African Revenue Services
v Hawker Air Services
(Pty)
Ltd; Commissioner,
South African Revenue Service
v Hawker Aviation
Partnership & Ors
2006 (4) SA 292 (SCA) at 299F- 300A.
A case judged to be not urgent should simply be struck off the roll
for it to be proceeded with like any other case.
In the result the applicant's application is struck off the roll.
Venturas & Samukange, applicants' legal practitioners
Mutamangira & Associates, respondents' legal
practitioners
