Ref Case No.HC261/11, HC5208/13
MABWE MINERALS ZIMBABWE (PRIVATE) LIMITED
CHIROSWA MINERALS PRIVATE LIMITED
BASE MINERALS PRIVATE LIMITED
ORBERT MPOFU (In his capacity as Minister of Mines)
THE ATTORNEY GENERAL N.O
MRS E. KAHONDE N.O (In her capacity as the Mining Commissioner)
HIGH COURT OF ZIMBABWE
HARARE, 23 August 2013, 19 February 2014
Urgent Chamber Application
R. F. Mushoriwafor applicant
F. M. Katsande for respondents
CHIGUMBA J. This application came before me via the urgent chamber book, on 20 August 2013. After reading the papers filed of record, it was my considered view that the matter did not meet the requirements of urgency. I directed the registrar to advise the applicant of my view. I endorsed the following, in the record:
“This application does not meet the requirements of urgency. It is dismissed with costs on that basis. Further, applicant must first apply for joinder; applications in terms of rule 449 are always on notice”.
Applicant then wrote a letter to me, dated 21 August 2013, and requested leave to make oral submissions. I then directed that the applicant serve a copy of the application on the respondents, for a hearing in my chambers on the 23rd of August 2013, at 10am. After hearing submissions by both parties on that date, I dismissed the application with costs on a legal practitioner-client scale, and gave my reasons for so doing, ex tempore.
On the 2nd of January 2014, I received a minute from the registrar advising me that an appeal had been noted in the Supreme Court under case number SC311/13, and that detailed reasons for my judgment were required. These are they:
Applicant made an urgent chamber application seeking the granting of the following provisional order:
TERMS OF FINAL ORDER SOUGHT
That you show cause to the Honorable Court why a final order should not be made in the following terms-
1. That applicant be and is hereby joined to the proceedings under case number HC5208/13
2. That an order for costs on a higher scale of legal practitioner and client be made against 2nd respondent in the event that either 1st or 2nd respondent opposes this application.
INTERIM RELIEF GRANTED
Pending the determination of this matter, the applicant is granted the following relief-
1. That the order under case number HC5208/13 granted by the Honorable Justice Takuva be and is hereby rescinded.
2. That the costs be determined upon confirmation of the order.
Applicant’s founding affidavit was deposed to by one Asswell Africa Gurupira, who stated that he was applicant’s managing director. He referred to court proceedings in case number HC5208/13 and attached them to his affidavit. He stated that applicant was not a party to those proceedings. The first and second respondents in this matter, Chirosva Minerals (Pvt) Ltd and Base Minerals Zimbabwe (Pvt) Ltd were the first and second applicants under case number HC5208/13, in a chamber application. They obtained the following order on 24 July 2013 before Justice Takuva:
WHEREUPON, after reading documents filed of record
IT IS ORDERED THAT:
Upon service of the court application in case HC233/13 the 3rs respondent (Mining Commissioner) be and is hereby joined as a party to the contempt proceedings in the said case.
The notice of withdrawal tendered by the applicants to the Honorable MR. JUSTICE HLATSHWAYO on 3 May 2013 in chambers in HC233/13 be and is hereby set aside.
The pledge by the 1st respondent (Obert Mpofu in his capacity as Minister of Mines) to refer a tribute agreement purporting to comply with the directions as ordered by his lordship Mr. JUSTICE PATEL in case HH261/2011 be and is hereby declared to be irregular in that the 1st respondent did not refer the tribute agreement quoted by the said honorable judge.
The referral by the 1st respondent of the copy mentioned in paragraph 3 hereof be and is hereby deemed to be a referral of the original tribute agreement cited in paragraph 5 of the order by the said Honorable MR. JUSTICE PATEL.
Within 48 (forty eight) hours of the service of this order on them, each respondent shall take such measures as are expedient to ensure that the appropriate tribute agreement shall be processed and registered in compliance with paragraph 4 above.
Failing compliance the 1st and 3rd respondents shall be held to be in contempt of court and each respondent shall be committed to prison for a period of 30 (thirty) days.
The warrant of committal to prison in respect of each respondent shall be suspended on condition that each respondent shall comply with the order in paragraph 2 hereof.
The 3rd respondent shall bear the costs of this application.
Mr. Gurupira, in the founding affidavit to the present application, averred that Chirosva Minerals Private Limited, the first respondent in this matter, ought to have cited the applicant as a party to the chamber application determined by JUSTICE TAKUVA under HC 5208/13. He alleged that applicant has been prejudiced by the failure to be a party to those proceedings, because it is the registered owner of the mine in question, and will be affected by the registration of a tribute agreement. He alleged that the order granted by JUSTICE TAKUVA is riddled with fundamental flaws, is untenable and irregular, and was sought clandestinely.
Mr. Gurupira alluded to the fact that this court has power to vary, rescind or correct any judgment erroneously sought or granted in the absence of any affected party, and urged the court to use its powers in favor of the applicant. He set out the background to this matter as follows: the property in dispute is six mining claims together known as Dodge Mine in Shamva, which are owned by a syndicate known as the Chirosva syndicate. Certificates of registration were attached to the application. He alleged that, around May 2008, second respondent, Base Minerals Zimbabwe Private limited, applied for a tribute to mine at Dodge Mine, which was granted by first respondent and which first and second respondent have sought to have registered by fifth respondent, the mining commissioner.
Mr. Gurupira alleged that the tribute could not be registered at the time that the agreement was entered into because of a dispute between first respondent Chirosva Minerals and Vambo Mills Private Limited and Mr. Morris Nyakudya who claimed to have been granted a ten year tribute agreement. The dispute was determined by JUSTICE PATEL under case numbers HC801/09, HH261/11. He alleged that the ten year tribute agreement was nullified. He alleged further that the first and second respondent’s tribute agreement was entered into in 2008, and that it had a three year lifespan. Despite the limited lifespan of that tribute according to the applicant, first and second respondents were granted the relief of registration of the tribute agreement on 24 July 2013, by JUSTICE TAKUVA, two years after the duration of the tribute had expired. For that reason applicant was seeking the rescission of the judgment granted on 24 July 2013 for the following reasons:
On 31 July 2012, applicant purchased the six mining claims that make up Dodge mine from the Chirosva syndicate for US$234 000-00, and on the 15th of August 2012, the claims were registered in applicants name, certificates of registration attached.
At the time of registration, in August 2012, the ten year tribute had been declared invalid and the three year tribute had expired.
Mr. Groves of Chirosva Syndicate sold the claims to applicant and subsequently disinvested from the company known as Chirosva Minerals Private Limited. He is alleged to have transferred 50 % to Mr. Peter Valentine of TAG Minerals Zimbabwe Private Limited
2nd respondent Base Minerals is aware that ownership of the mine has been transferred to applicant, and is aware that it is interdicted by the Magistrates court from interfering with applicants mining operations.
Despite all this, second respondent deliberately failed to cite applicant as a party to the proceedings on 24 July 2013.
First and second respondents, and Mr. Peter Valentine wanted to clandestinely register the tribute and take over the operations of the mine, and defeat the interdict operating against them.
JUDGE PATEL’s judgment on the ten year tribute agreement had been misread and misconstrued; it had not taken away the power of the mining commissioner to register o tribute or decline to do so.
Mr. Valentine lacked the capacity, at law, to bring proceedings on behalf of the 1st respondent. This lack of capacity is the reason why the order under HC5208/13 was erroneously sought and obtained, and why its rescission is being sought.
Applicant has no other remedy.
First and second respondents, Chirosva Minerals and Base Mineral, opposed the urgent chamber application filed by the applicant, on 21 August 2013. Mr. Peter Valentive deposed to the opposing affidavit, and stated that he is a 50% shareholder in the first respondent and managing director in the second respondent. He averred that the matter was not urgent, because the third, fourth, and fifth respondents had appealed against the order HC5208/13. He attached a copy of the notice of appeal, dated 14 August 2013, Supreme Court case number 290/13. He averred further, that it would be procedurally incorrect, for this court to purport to set aside or rescind a judgment that was pending appeal before the Supreme Court.
Mr. Valentine stated that the merits of the dispute between first, second respondents and himself were also pending determination before this court, under HC 4112/13. Applicant is cited as the third defendant in that case, in which the sale of Dodge Mine to it is being challenged, on the basis of fraud. He referred to case number HC5460/13 wherein he alleges that first and second respondents applied for an interdict to restrain applicant from conducting operations pending the determination of the matter in HH261/11 in which first and second respondents obtained an order compelling 3rd respondent to refer their tribute agreement to the mining Commissioner for approval and registration in terms of the Mines and Minerals Act. It was alleged that applicant had filed opposing papers in all these matters.
Regarding the merits of the matter Mr. Valentine averred that the applicant was misleading the court on the question of non-joinder in HC5208/13 which had its roots in HH261/11 well before applicant negotiated the alleged fraudulent sale of Dodge Mine. He averred further that the fraud is evidenced by the fact that applicant paid US$200 000-00 for a mine worth millions of dollars. Lastly, Mr. Valentine averred that this application was ill conceived and devoid of merit, and an abuse of the process of law;
The parties then appeared before me for oral argument, at applicant’s insistence, after I had initially indicated that the application did not meet the requirements of urgency. The letter from applicant’s legal practitioners dated 21 August 2013, addressed to the registrar, read in part, as follows:
“We note that pursuant to perusing the urgent chamber application in this matter, her Ladyship is of the view that no urgency was disclosed and her ladyship has endorsed the papers accordingly. We advise that the applicant seeks leave to present oral argument…we are of the view that her Ladyship may be persuaded to revisit her view on the matter. As held in the case of Church of the Province of Central Africa vDiocesan Trustees, Diocese of Harare 2010 (1) ZLR 364(H), the endorsement that the matter is not urgent reflects the prima facie view of the court…”
The sheer audacity of the letter persuaded me to allow oral arguments on the question of whether or not the application met the requirements of urgency. Counsel for the applicant despite the boldness and audacity of his letter indicating that he could persuade the court to formulate a substantive, as opposed to prima facie view on the question of urgency after hearing oral argument, did not succeed in his quest. He abided by the papers filed of record and told the court that the urgency of the matter stemmed from the fact that if the court declined to grant the relief sought, applicant would be prejudiced by the execution of the order by JUSTICE TAKUVA. Mr. Katsande for the respondents, correctly in my view, argued that the court was now functus officio, having already handed down its ruling that the matter was not urgent, that the matter was now before the Supreme Court, that r 449 does not constitute urgency, and applied for costs on a higher scale on the basis that applicant was unduly wasting the court’s time.
The law on what constitutes urgency, for the purpose of jumping the first hurdle to being heard promptly via the urgent chamber book, is settled and has been settled for quite some time. It has been said that:
“Applications are frequently made for urgent relief. What constitutes urgency is 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”. See Kuvarega vRegistrar General and Anor 1998 (1) ZLR 189
It has also been held that:
“For a court to deal with a matter on an urgent basis, it must be satisfied of a number of important aspects. The court has laid down guidelines to be followed. If by its nature the circumstances are such that the matter cannot wait in the sense that if not dealt with immediately irreparable prejudice will result, the court can be inclined to deal with it on an urgent basis. Further, it must be clear that the applicant did on his own part treat the matter as urgent. In other words if the applicant does not act immediately and waits for doomsday to arrive, and does not give a reasonable explanation for that delay in taking action, he cannot expect to convince the court that the matter is indeed one that warrants to be dealt with on an urgent basis…” See Mathias Madzivanzira & 2 Ors vDexprint Investments Private Limited & Anor HH145-2002”
Clearly, the need to act arose in July 2013 when the order in HC5208/13 was granted. Applicant was not a party to those proceedings. Nothing in the founding affidavit tells us of the date when applicant became aware of the judgment. Nothing in the founding affidavit convinces the court that the matter cannot wait. No submissions were made in regards to any irreparable prejudice that was likely to befall the applicant, except a vague and unsubstantiated averment that applicant was afraid of being removed from Dodge Mine when the order was executed. We are not told whether applicant had received a notice to vacate or been served with a Writ of Execution. There is no day of reckoning that is imminent except in applicant’s mind, because no evidence of a day of reckoning is placed before the court. In the absence of prima facie evidence of the imminent arrival of the day on which irreparable prejudice will be visited upon the applicant, the matter is simply not urgent.
The certificate of urgency amply demonstrates the fallacious basis on which the application is made. Paragraph 2 thereof avers that:
“The applicant has made out a strong prima facie case entitling it to the rescission of the judgment granted in the matter HC5208/13…if this is not done urgently, there is no telling what harm can be done to the existing mining operations of the applicant should 2nd respondent be allowed to occupy the mine by virtue of registration of the tribute agreement”.
It is clear from both parties’ papers, that third, fourth and fifth respondents have appealed against the order that they be compelled to register the tribute agreement. The noting of the appeal automatically suspended the operation of that order. Until the appeal is determined, there is no prospect of the order being enforced. It cannot be said that applicant is in danger of being visited with irreparable prejudice, such that the matter cannot wait, when the operation of the order has been suspended by the noting of an appeal.
Order 49, r 449 of the High Court Rules 1971, provides as follows:
“449. Correction, variation and rescission of judgments and orders
(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order—
(a) that was erroneously sought or erroneously granted in the absence of any party affected thereby; or
(b) in which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or
(c) that was granted as the result of a mistake common to the parties.
(2) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed”.
Clearly, this court cannot, as a matter of procedure, purport to correct, vary or rescind the judgment HC5208/13 while it is pending appeal before the Supreme Court. The operation of the order has been suspended. A superior court is now seized with it. There is no basis on which this court can purport to deal with such a judgment, and r 449 does not in any way confer us with power to set aside a judgment that is the subject matter of an appeal, on the basis that it was erroneously sought or obtained. To rescind judgment, in chambers, on an urgent basis, in these circumstances, would be turning our rules of procedure on their head, and ill conceived.
At the hearing of the matter, in dismissing the application on the basis that the requirements of urgency were not met, I said:
“I will register the court’s displeasure at the blatant wasting of its time by ordering that the applicant pays costs on a legal practitioner client scale”.
Mawere & Sibanda Legal Practitioners, applicant’s legal practitioners
F. M Katsande & Partners,respondent’s legal practitioners
Attorney General N.O, 3rd, 4th, 5th respondents’ legal practitioners