Glanfaries Syndicate v Provincial Mining Director – Mashonaland East N.O and Mining Commissioner – Mashonaland East N.O and Minister of Mines & Mining Development N.O and Lovemore Mutunhire

### Preamble
1
HH 391-21
HC 2299/21
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GLANFARIES SYNDICATE

versus

PROVINCIAL MINING DIRECTOR – MASHONALAND EAST N.O

and

MINING COMMISSIONER – MASHONALAND EAST N.O

and

MINISTER OF MINES & MINING DEVELOPMENT N.O

and

LOVEMORE MUTUNHIRE

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 22 July 2021

Chamber Application for condonation of non-compliance with the rules

CHITAPI J: This short judgment is intended to contextualize my order so that its rationality is appreciated when the main matter Case No. HC 112/19 is finally determined by the court should the applicant persist in it.

The background to this application is as follows in summary. The applicant claims to have been the holder of certain mining claims situated in Mutawatawa until 2016 when the claims were forfeited through the actions of the first, second and third respondents who claimed to have acted in terms of the Mines and Minerals Act [Chapter 21:05].

The applicant filed an application Case No HC 112/19 for condonation of late noting of an application for review and extension of time to file that application. The applicant was out of time in relation to the time limits for review set out in Order 33 r 259 of the High Court Rules, 1971. The application was filed on 9 January 2019. It was subsequently set down for hearing on 15 March 2021 before MUZOFA J. The application was struck off the roll. No reasons thereof were endorsed on the order.

The current application was filed on 17 May 2021. It is in the current application that the reasons for the order striking application No. HC 112/19 off the roll is mutually agreed between the applicant and the fourth respondent, being the only respondent who has filed an opposing affidavit to this chamber application. The fourth respondent as in the application HC 112/19 has an interest in that he is disputably the now registered holder of all or some of the claims which previously were registered in the name of the applicant. It is agreed by the parties in contestation in this application that MUZOFA J struck the application HC 119/21 off the roll on the basis that applicant should have filed a draft of the application for review which he intended to file if condonation be granted. It is agreed by the parties that the learned judge intimated that the court would need to refer to the proposed draft review application intented to be filed that the prospects of success could be assessed.

In terms of the Superior Courts Practice Direction 3/2013, if a matter is struck off the roll, the matter will no longer be treated as being before the court. A matter is struck off the roll if it is fatally defective for failure by the applicant to abide relevant court rules which pertain to the application. The applicant is granted a window of 30 days to rectify the defect. Therefore for a period of 30 days from the date that the matter is struck off the roll the applicant may correct the defect and simply enroll the matter. Once the window of 30 days aforesaid has lapsed, and the defect which resulted in the application being struck off the roll is not attended to the uncorrected application is deemed to be abandoned. Notwithstanding the deemed abandonment, the applicant may apply for reinstatement of the matter for good cause shown. The judge may dismiss the application or grant the reinstatement on such terms as the judge may deem fit.

The applicant in casu only revisited the struck off the roll application Case No. HC 112/19 more than 30 days after the order to strike the matter off the roll. To be specific this application was filed 61days later. The applicant did not act within 30 days to deal with the defect found by MUZOFA J to fatally afflict the application. In consequence thereof, the application was deemed abandoned. The applicant was left with the last small window to apply for reinstatement of the deemed abandoned application HC 112/19.

In casu, the applicant prays for the following order in the main as set out in the draft order:

IT IS ORDERED THAT:

Application be and is hereby granted.

Applicant be and is hereby authorized to file the draft review application challenging the forfeiture of its mining blocks, licence numbers 032672 K,  0326890 K and 032681 K, Chiwere 78 Mine, registration number 42635 as an annexure to the founding affidavit in HC 112/19 within 7 working days of the granting of this.

Costs shall be in the cause.

The fourth respondent in his opposing affidavit to this application objected to the application inter alia on the basis that the struck out application case No. HC 112/19 could no longer be cured save by the applicant filing a fresh application.  The objection is correct to the extent that the 4th respondent avers that the application HC112/19 remains fatally defective unless the defect is corrected in terms of the Practice Direction provisions.

I think that the correct interpretation is that the applicant lost the automatic right to apply for correction of the defect in the manner that it proposes to do in this application upon the lapse of 30 days from the date of MUZOFA J’s order.  The application was deemed abandoned and remains so.  Paragraph 2(5) of the Practice Direction provides that:

“5. Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.

Provided  that a judge may on application and for a good cause shown reinstate the matter on such terms as he deems fit.”

In my interpretation the proviso does not extend the 30 day window for correcting the fatal defect for which the application was struck off the roll.  If a matter is struck off the roll, the applicant who intends to still pursue the matter should rectify the defect which resulted in the striking off of the matter and to file a chamber application for the reinstatement of the corrected matter within the said period.  If this is not done, then the matter is deemed abandoned which means that there is no longer any matter to be reinstated.

In the case of Bindura Municipality v Paison Chikeya Mugago SC 32/2015, GUVAVA JA dealt with a situation wherein a defective notice of appeal led to the appeal being struck off the roll.  The applicant applied for reinstatement of the appeal.  The learned judge had occasion to interpret para 5 of the Practice Direction 3/2013 as it applies to all superior courts.  The learned judge relying on the case of Harting Pienaar 1977 (2) SA 182 (O) held that a defective compliance with rules which results in a matter being struck off the roll is not cured by an application for reinstatement.  The Learned Judge in the penultimate paragraph on the last page of the judgment stated:

“The appeal having been found to be fatally defective cannot be reinstated after being struck off the roll.  The applicant’s remedy to rectify the defect is to apply for condonation and extension of time within which to file a fresh notice of appeal in terms of r 6 of the Supreme Court (Miscellaneous Appeals and References) Rules.  He should do so within a period of thirty days provided for in the Practice Direction.”

Although, the cited case dealt with a defective, null and void notice of appeal which cannot be condoned or amended, in which case, a fresh notice of appeal if condoned would cure the defect, the same argument would mutatis mutandis apply to this application in so far as the applicant would be required to remedy the defect and apply for condonation and reinstatement within 30 days.  The defect in casu was the applicant’s failure to attach a draft of the application for review intended to be filed.  The appropriate application would therefore be an application for condonation of the failure to include the draft application for review in the min application and an extension of time within which to do so.  Upon the grant of the condonation and extension of time, the matter may be reinstated.

The applicant in this application has neither applied for condonation of his failure to apply to rectify the defect within 30 days nor applied for extension of time to rectify the defect.  In the case of Ramwide Investments (Pvt) Ltd v Ronde Build Zimbabwe HH 444/16 MATANDA-MOYO J noted that as there was no procedure set out in the rules to be followed where an application is struck off the roll. The court would not be detained by what procedure is followed but by whether such procedure resulted in prejudice to the other party. The judgment does not set a rule that the Practice direction 3/2013 on time lines to rectify the defect which led to the striking off of the matter from the roll should not be followed.

In casu, the applicant filed this application oblivious of the provisions of the Practice Direction 3/2013.  Without going into the merits of the matter in any greater detail than to amplify this judgment, the applicant stated in his affidavit that he was not aware of any rule of court which obliges an applicant who seeks condonation to prepare and file a draft of the review intended to be filed.  I will reserve my position on this because it is unnecessary to interrogate the issue. I however note that even though I was to agree with the applicant, the argument does not matter anymore because the order was made that the failure to attach a draft of the application was fatal to the application.  The order made by MUZOFA J stands and binds the applicant because no appeal was filed against it.  Its correctness or otherwise is a matter for argument on another day. The order was in the nature of laying a rule of the court to be followed in that application.  The Practice Direction 3/2013 was therefore and is applicable to this application.

In consequence, I make the order that:

The application is fatally defective for lack of compliance with the requirements of Practice Direction 3/2013 regarding how matters which are struck off the roll may again be brought before the court for determination.

The application is struck off the roll.

The applicant pays the respondent’s costs of the 4th respondent’s notice of opposition in casu.

Mutandiro, Chitsanga & Chitima, applicant’s legal practitioners

Civil Division of the Attorney General’s Office, 1st – 3rd respondents’ legal practitioners

Marume & Furidzo, 4th respondent’s legal practitioners