RioZim Limited v Breckridge Investments (Private) Limited and North Rand (Private) Limited and The Minister of Mines and Mining Development

### Preamble
1
HH 524 - 24
HC 5734/22
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RIOZIM LIMITED

versus

BRECKRIDGE INVESTMENTS (PRIVATE) LIMITED

and

NORTH RAND (PRIVATE) LIMITED

and

THE MINISTER OF MINES AND MINING DEVEOPMENT

HIGH COURT OF ZIMBABWE

CHINAMORA J

HARARE, 15 November 2024

Opposed application

Adv G Madzoka, for the applicants

Adv T Zhuwarara, for the respondent

No appearance for the 2nd and 3rd respondents

CHINAMORA J:

This application is brought in terms of Rule 39 (4) (a) of the High Court Rules, 2021, and seeks the lifting of bar operating against it. The salient facts are that, on 3 October 1996, the applicant and the 2nd respondent entered into a notarial and prospecting contract and option agreement. In terms of the agreement, the applicant transferred its mining claims to the 2nd respondent. The terms of this contract can be captured as follows:

The applicant agreed to transfer the mining claims to the 2nd respondent upon the 2nd respondent making an initial payment of one (1) million United States dollars.

Once the claims were mined, the applicant would be entitled to one hundred (100) ounces of gold produced from the claims and royalties of five (5) United States dollars per ounce in respect of each ounce of gold produced until royalty payments amounted to five (5) million United States dollars.

The 2nd respondent paid the said one (1) million United States dollars in fulfilment of its contractual obligation. In consequence, the applicant duly facilitated the transfer of the claims to the 2nd respondent. Sometime in 2018, the applicant issued out a summons under HCH 2587/18 against the 2nd respondent seeking the cancellation of the agreement between the parties, and also asked for an order compelling the 3rd respondent to transfer to the applicant all the mining claims registered in the name of the 2nd respondent. The order sought was granted by this court.

Aggrieved by this, the 1st respondent approached this court under HCH 1380/20 for rescission of judgment. After hearing argument, on 1 February 2021, this court ordered that:

The 1st respondent be joined to the proceedings in HCH 2587/18 as a third defendant; and

The applicant serve summons in HCH 2587/18 upon the 1st respondent within five days.

Subsequently, on 27 May 2022, the applicant filed its notice to plead and intention to bar. In response, the 1st respondent filed its plea. Following this, the Applicant filed its replication on the 4th of August 2022 outside the twelve-day period as provided for by the High Court Rules. It is on this basis that the applicant is approaching this court seeking the lifting of the bar in terms of the Rules of this Court. The 1st respondent opposed the application, and raised a preliminary point that the approach chosen by the applicant was improper. It is the 1st respondent’s submission that by operation of Rule 40 (9) of the High Court Rules, the applicant had been automatically barred from filing any further pleading or document. It is this bar that the applicant violated by lodging its replication. Furthermore, the 1st respondent argues that no condonation was sought for the irregular step that the applicant took in filing its replication in violation of the Rules. In its answering affidavit, the applicant noted that it had abandoned the replication and would file a fresh pleading once the bar operating against it was lifted. Although the applicant did not file a notice of withdrawal of the replication, I am inclined to take the applicant’s word and, consequently, dismiss the said preliminary point. Having done so, I will consider the merits of the case.

On the merits, the 1st respondent argued that the Rules do not provide for upliftment of a bar operating against a party. The 1st respondent’s contention was that the Rules only provide for the lodgment of an application for the removal of a bar. It is 1st respondent’s case that the factual background given by the applicant is somewhat misleading as regards the contractual relationship between the applicant and the 2nd respondent. The 1st respondent argues that, as can be gleaned from the original summons under HCH 2585/18, the applicant openly admits that it transferred its mining claims to the 2nd respondent. Accordingly, the 1st respondent contends that the transfer was not conditional as alleged. It must be noted that the 2nd respondent did obtain full rights over the claims by operation of a secondary agreement as opposed to the red herring postulated by the applicant. The Rules of this court are instructive in this regard, particularly Rule 39 (4) which provides that:

“(4) A party who has been barred may-

Make a chamber application to remove the bar; or

Make an oral application at the hearing, if any, of the action or suit concerned

and the judge or court may allow the application on such terms as to costs and otherwise as the judge or court, as the case may be, considered fit.”

It is also worth noting that, in Grain Marketing Board v Muchero 2008 (1) ZLR 216 (S) Garwe Ja (as he then was) in interpreting Rule 84 of the now repealed High Court Rules, 1971 which is similar to Rule 39 (4) above observed that:

“It is clear from the above provisions that once a party is barred the matter is treated as unopposed unless the party so barred makes an application before that court for upliftment of bar. It is also clear that in making the application to uplift the bar, the party that has been barred can either file a chamber (not court) application to uplift the bar, or where that has not been done the party can make an oral application at the hearing.”

In light of the above case authority, it is a non-issue that the applicant referred to this application as a chamber application for upliftment of bar. In my view, this court cannot deny a litigant its day in court over semantics, namely, describing this application as one for upliftment of bar, instead of calling it an application for removal of bar. In my view, what is important is that the applicant has petitioned this court to either remove the bar or confirm it, and have the main matter dealt with as an unopposed case.

In dealing with a similar situation Chatukuta J (as she then was) in African Banking Corporation of Zimbabwe and Anor v Lesley Faye Marsh (Pvt) Ltd t/a Premier Diamonds and Ors HH 425-16 held that:

“Turning to the question whether or not the bar should be lifted, these court have, time and again, pronounced that the upliftment of a bar in not automatic upon the mere asking. (See Mitizhe v. Ganda and Ors 2009 (1) 241 (S) and Chimoyo v Route Toute BV and Ors SC 20-10). A party seeking the upliftment of a bar must satisfy the requirements for such an application. These are:

the extent of the delay

the reasonableness of the explanation for the delay

whether the litigant himself is responsible for the delay

the prospects of success should be application be granted

the possible prejudice to the respondent should the application be granted.”

Both the applicant and the 1st respondent agree that the applicant is responsible for the delay, and that the extent of delay is thirty-three days. I have to consider whether the delay is inordinate. The law is settled that condonation can be granted even in cases where the delay is inordinate. See Anjin Investments (Pvt) Ltd v The Minister of Mines and Mining Development and Others SC 39-20. The applicant attributed the delay to the fact that it needed to make investigation on the issue of the second agreement which the applicant and the 2nd respondent executed. It was applicant’s case that none of the employees were readily available which prolonged the investigations to the extent that the replication could not be filed within the time prescribed by the Rules.  I find the explanation plausible given that the agreements being referred to by the parties were executed nearly two decades ago.

I note that the applicant’s claim in the main matter is for the cancellation of the agreements it entered into with the 2nd respondent. Then I observe that the 1st respondent is the current holder of the claims having received registration for the claims from the 2nd respondent. Furthermore, the claim also involves vindicating mining rights. The applicant claims that the 2nd respondent had no right to sale the mining claims as it did not acquire true ownership of the claims. In light of the above I am persuaded that the interests of justice favour the grant of condonation.  Additionally, my view is that the 1st respondent would suffer no prejudice if the bar was to be uplifted. Therefore, the decision I make is that it is in the interests of justice that the matter be heard to finality.

As a result, I make the following order:

The application for upliftment of bar be and is hereby granted.

The applicant shall file its replication within 5 working days of service of this order.

This matter shall thereafter proceed in terms of the High Court Rules.

The costs of this application shall be in the cause.

Chinamora J: ………………………………………..

Coghlan, Welsh & Guest, applicant’s legal practitioners

Lunga Attorneys, first respondent’s legal practitioners