This is an application for condonation of late noting of an appeal and extension of time within which to note the appeal. The application is brought in terms of Rule 43 of the Supreme Court Rules 2018.
BRIEF FACTS
The first applicant is the erstwhile Mining Commissioner for Masvingo, a post which he says has since been abolished. No issue arises from the said abolition of the post.
The second applicant is a quasi-judicial Board established in terms of section 6 of the Mines and Minerals Act [Chapter 21:05] whereas the third applicant is the Minister responsible for the administration of the Act.
On the other hand, the respondent is a mining concern holding various mining blocks within the first applicant's area of jurisdiction.
Following a dispute over failure to pay inspection fees, the applicants forfeited the respondent's mining claims and offered them to another company called Mining Promotions Corporation.
The company accepted the offer and has since taken over the disputed mining claims through a special grant issued by the Secretary of the Ministry of Mines.
Aggrieved by the alienation of its mining claims, the respondent approached the High Court (the court a quo) alleging fatal procedural irregularity in the process of executing the forfeiture of its mining claims.
The matter went before the late Honourable Justice Phiri, may his soul rest in eternal peace.
After reading documents filed of record and hearing counsel, the learned judge issued the following order on 15 January 2020;
“IT IS ORDERED THAT:
1. The application succeeds.
2. The first respondent's decision to forfeit applicants bear (sic) the following registration numbers, 12379BM, 12380BM, 12381BM, 12382BM, 12383BM, 10913, 10914, 10915, 10916; 10917, 10918, 10919, 10921, 10922, 12666BM, 12667, 126668, 1269, 12670, 12671, 12672, 12673, 12674, 12675 and 12578 is hereby set aside in terms of section 4(2)(a) and (e) of The Administrative Justice Act [Chapter 10:28].
3. The first and second respondents are hereby ordered, within (7) days of this order, to reinstate the applicant's name on the claim's card for the mining claims bearing registration numbers listed in clause 2 of this order and all such other official mining documents for such claims in their custody.
4. The first and second respondents be and are hereby ordered to allow applicant to opportunity (sic) to settle all outstanding inspection fees in respect of the claims listed (in) terms of the law up to the date of this order.”
The above order was issued in the absence of Mining Promotions Corporation which was then the de facto owner of the disputed mining claims.
Dissatisfied with the decision of the court a quo, the applicants sought to appeal to this Court for relief.
They were however out of time, hence this application for condonation of late noting of appeal and extension of time within which to file the appeal.
It is common cause that Justice Phiri died on 1 February 2021 before he had prepared and delivered his reasons for judgment.
The applicants have filed a copy of the appeal they intend to file in this Court. It shows that they intend to appeal without proffering the reasons for the order being appealed against.
EFFECT OF THE JUDGE'S DEATH BEFORE GIVING REASONS FOR JUDGMENT
Various issues and arguments, including the effect of the learned judge's demise before he had given formal written reasons for his judgment were advanced.
I consider that it is prudent to deal with this aspect of the case first as it has the potential of disposing of all the other issues and arguments raised in this application.
While preparing judgment, I felt the need to hear further submissions from counsel on the effect of the death of the late honourable judge before he had delivered his formal written reasons for the order sought to be appealed against.
Counsel for the respondent has since elaborated that the late judge a quo gave an ex tempore judgment in which he gave his reasons for judgment.
A transcript of the alleged ex tempore judgement is however not part of the record of proceedings before me.
