IN
CHAMBERS
BHUNU
JA:
[1] 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
[2] 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 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.
[3] 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.
[4]
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.
[5] 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.”
[7].
The above order was issued in the absence of Mining Promotions
Corporation which was then the de facto owner of the disputed mining
claims.
[8]. 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.
[9] 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 intent to file in this Court. It
shows that they intent to appeal without proffering the reasons for
the order being appealed against.
EFFECT
OF THE JUDGE'S DEATH BEFORE GIVING REASONS FOR JUDGMENT
[10]
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.
[11]
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.
[12] Counsel
for the respondent has since elaborated that the late judge a
quo
gave an extempore judgment in which he gave his reasons for judgment.
A transcript of the alleged extempore judgment is however not part of
the record of proceedings before me.
[13] In
further elaboration counsel for the respondent submitted that this
application for condonation of late filing of appeal and extension of
time within which to note the appeal ought to be dismissed. This is
for the reason that the applicant has since complied with the court
order. Whereupon he drew attention to paras 13 and 14 of the founding
affidavit, where the applicant unequivocally chronicles his
endeavours to comply with the court order which he now wishes to
appeal against.
[14]
In paragraphs 13 and 14 of the founding affidavit, the applicant had
this to say;
“13. Upon
receipt of the court order and in compliance with part two thereof I
caused the issuance of the invoices to enable the respondent to make
payment in
compliance with the court order.
See annexure 'B'. (Emphasis provided).
14. The
Respondent subsequently made payment based on the issued invoices in
compliance with the court order.
See annexure 'C” (Emphasis provided).
[15]
That the applicant complied with the court order which he now wishes
to appeal against is beyond question as it emanates from his own
founding affidavit.
[16]
On that score the respondent has now placed reliance on the dictum
in the case of Dhliwayo
v Warman Zimbabwe (Private) Limited
HB–12-22 where the court a
quo
said;
“According
to the common law doctrine of peremption, a party who acquiesces to a
judgment cannot subsequently seek to challenge a judgment in which he
has acquiesced.”
[17] Undoubtedly
the applicant by complying with the order he now seeks to appeal
against acquiesced in the judgment of the court. He can now not be
heard seeking to appeal against the judgment he has complied with. He
cannot approbate and reprobate as it were. See S
v Marutsi
1990 (2) ZLR 370 (SC) where the court observed that:
“It
is trite that a litigant cannot be allowed to approbate and reprobate
a step taken in the proceedings. He can only do one or the other not
both.”
[18] The
same fate visits the second applicant because it chose to ride on the
back of the first applicant's founding affidavit without proffering
its own.
[19]
By complying with the court order the applicants deprived themselves
of the right to appeal against the order. That finding of fact and
law renders their application sterile on the basis that there can be
no reasonable prospects of success on appeal.
[20]
That being the case the application can only fail. Costs follow the
result. It is accordingly ordered that:
1.
The application be and is hereby dismissed.
2.
The applicants are to bear the respondent's costs jointly and
severally one paying and the other to be absolved.
Civil
Division of the Attorney General's Office,
applicants
legal practitioners
Mawere
Sibanda, respondent's legal practitioners
