Bilboes Holdings (Private) Limited v Mlauzi Syndicate and The Mining Commissioner N.O and Officer in Charge, Criminal Investigating Department Minerals and Border Control, Inyathi Police Station

### Preamble
1
HB 53.20
HC 2650/19
XREF HC 187/19
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BILBOES HOLDINGS (PRIVATE) LIMITED

Versus

MLAUZI SYNDICATE

AND

THE MINING COMMISSIONER N.O

AND

OFFICER IN CHARGE, CRIMINAL INVESTIGATING

DEPARTMENT MINERALS AND BORDER CONTROL,

INYATHI POLICE STATION

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 17, 26 MARCH AND 21 MAY 2020

Opposed Application

Advocate T Zhuwarara, for the applicant

L Mcijo, for the 1st respondent

KABASA J:		The applicant seeks leave to be allowed to amend its pleadings in HC 187/19.  The applicant is the first defendant in that matter and the 1st respondent is the plaintiff.  Before filing this application the applicant sought the consent of the 1st respondent to no avail.

In terms of order 20 Rule 132, which provides that:-

“Subject to rules 134 and 151, following consent by all parties, the court or a Judge may, at any stage of the proceedings, allow either party to alter or amend his pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in

controversy between the parties,” with the refusal of such consent the applicant filed this court application.

It is important at this juncture to give a background of this matter.  It is this:  The applicant is the holder of a mining certificate issued by the second respondent on 7th May 1986 for a mining claim known as Calcite South Mine.  The applicant also had a certificate of registration for the same claim issued on 20th March 2012.

On 1st February 2019 the 1st respondent instituted an action against the applicant seeking a declaratur, the import of which is to declare its certificate of registration 46920 as valid and effective and consequently to be allowed to proceed with mining operations at the mining claim.  The action is under case number HC 187/2019.  The applicant entered an appearance to defend and filed its plea.

In the meantime there were proceedings within the purview of the Mines and Minerals Act, meant to rectify the issuance of two certificates of registration for the same claim to two different entities.

On 25th June 2019 and in terms of section 50 of the Mines and Minerals Act (Chapter 21:05) the 2nd respondent gazetted his intention to cancel the 1st respondent’s certificate of registration 46920.  The certificate was ultimately cancelled.

The applicant then sought to amend its pleadings by filing a counter-claim for the ejectment of the 1st respondent from the mining claim. This is the relief the 1st respondent is opposed to.

The issue is whether the applicant has made a case for the relief it seeks.

In Tapera William Nyemba and 2 others v Alshams Building Materials SC 58/2013, a matter in which the appellant was seeking to amend its grounds of appeal, GOWORA JA had this to say:-

“In an application to amend pleadings, the court has a wide discretion, which discretion should however be exercised judicially.  The discretion reposed in the court in respect of amendments must be exercised in a manner which allows the issues between parties to be fairly tried, and the possibility that an amendment to the

pleadings might lead to the defeat of the other party is not the kind of prejudice that should weigh with the court.”

Advocate Zhuwarara’s argument in support of the application resonates with these remarks by the learned JA.  Counsel’s argument was that the issue of amendment is a discretion to be exercised at any time.  As long as the rules of court allow a party to amend pleadings before judgment the question of delay is not the determinant issue.  The real issue is what is necessary for the court to come up with a wholistic decision.

Mr Mcijo on the other hand has a different view.  The parties were approaching pre-trial conference stage and so pleadings are closed in HC 187/19 and so the delay in seeking the amendment will prejudice the 1st respondent, so counsel argued.

To bolster this argument counsel cited the case of Bauplant Services (Private) Limited v Sicon Africa (Private) Limited and Another HH 160-2003.  I do not intend to go into detail as regards the facts of that matter, suffice it to say the amendment sought therein was to withdraw an admission the applicant had made.

The learned Judge’s decision not to grant the application is captured at page 4 of the judgment.  He had this to say:-

“What has moved me to give the order that I will give is the serious prejudice that respondent is likely to suffer should I grant the application for the withdrawal of an admission.  Mr De Bourbon attempted to minimise this prejudice by reducing it to being restricted to amendment of pleadings.  It seems to me that the effect of the grant of the admission goes beyond that.  Without first respondent (plaintiff) having been afforded an opportunity to explain circumstances leading to the drawing up of certain documents, it would suffer immense prejudice in the prosecution of its case.  Its claim may be met with the defence of prescription.”

In casu the amendment is not a withdrawal of an admission but it seeks to place before the court a counter claim which speaks to the same subject matter of the 1st respondent’s claim for a declaratur.

The Bauplant Services case (supra) is therefore distinguishable, a point correctly made by the applicant in its heads of argument.

It is however important to note that HUNGWE J (as he then was) acknowledged the wide discretion a court has in applications of this nature.

The learned Judge cited, with approval, WESSELS J’s remarks in Whittaker v Ross and Another 1911 TPD 1092 at 1102-3:

“The court has the greatest latitude in granting amendments, and it is very necessary that it should have.  The object of the court is to do justice between the parties …..  We are not going to give a decision upon what we know to be wrong facts.”

What is important therefore is that the court determines the matter in a manner that is just and fair, and meant to resolve the dispute between the parties with finality.

But even where there is a delay in seeking an amendment as argued by Mr. Mcijo, and even if such amendment would have the effect of defeating the other party’s claim, that in itself would be no reason to refuse the application.  Advocate Zhuwarara referred to the decision in Angelique Enterprises (Pvt) Ltd v Albco (Pvt) Ltd 1990 (1) ZLR 6 (HC) and Lamin v Duly & Company Ltd 1983 (2) ZLR 35.

The headnote in the Angelique case (supra) reads:-

“In an application to amend the defendant’s pleadings by the introduction of a claim in reconvention, opposition was based on lengthy delay in seeking the amendment and on a claim that the cause of action sought to be introduced had prescribed.

Held; in the first instance, that delay in itself is no obstacle to amendment, the court has a discretion to condone any delay that is sufficiently explained (my emphasis)

Held further; that prescription may be raised at any time but ought not to be allowed so as to dispose of a case at the stage of amendment of pleadings while it remains possible that some defence to the alleged prescription may yet be available.”

I would say this puts paid to the 1st respondent’s argument regarding the delay in bringing the application and equally the argument that the cancellation of the 1st respondent’s certificate upon which the counter claim is hinged is “not valid.”  The validity of that cancellation, to borrow from SMITH J’s decision in the Angelique case, “ought not to be allowed so as to dispose of a case at the stage of amendment of pleadings while it remains possible that the 1st respondent’s assertion on the invalidity of the cancellation of its certificate of registration may well be wrong.”

In Lamin v Duly & Company Ltd (supra), the application for an amendment was made on the date of the trial and such amendment was a complete answer to the plaintiff’s claim.  The brief facts were that the plaintiff had bought a motor vehicle from a seller he believed was the defendant.  The motor vehicle had become defective and the plaintiff returned the

vehicle and claimed, inter alia, damages on the basis that the warranties included in the contract of sale had been breached.  It turned out that it was not the defendant who had sold the motor vehicle to the plaintiff but a company which had bought that motor vehicle from the defendant had in turn sold it to the plaintiff’s company.  The defendant was therefore not liable.  Both parties were not aware of the true facts and with that knowledge the defendant had an unassailable defence which would completely defeat the plaintiff’s claim.

In allowing the application for amendment of the defendant’s plea, PITTMAN J had this to say:-

“But what in my opinion puts the matter beyond doubt is the fact that the parties have agreed that the amendment as regards the identity of the parties to the sale is the truth.  Because of this agreement, the following extract from the well known judgment of WESSELS J in Whittacker v Roos and Another 1911 TED 1092 at 1102-3, must be considered:

“This court has the greatest latitude in granting amendments and it is very necessary that it should have.  The object of the court is to do justice between the parties; it is not a game we are playing, in which, if some mistake is made, the forfeit is claimed.  We are here for the purpose of seeing that we have a true account of what actually took place, and we are not going to give a decision upon what we know to be wrong facts.  It is presumed that when a defendant pleads to a declaration he knows what he is doing, and that, when there is a certain allegation in the declaration, he knows that he ought to deny it, and that, if he does not do so, he is taken to admit it.  But we all know, at the same time, that mistakes are made in pleadings, and it would be a very grave injustice, if for a slip of the pen, or error of judgment or the misreading of a paragraph in pleadings by counsel, litigants were to be mulcted in heavy costs.  That would be a gross scandal.  Therefore, the court will not look to technicalities, but will see what the real position is between the parties.”

The real issue between the parties in casu is the title holder to the mine claim.  Mr Mcijo correctly articulated that in HC 187/19 the 1st respondent is talking of title to the mine.  Surprisingly counsel then sought to make a distinction between this claim as per the action in HC 187/19 and the issue to be ventilated in the counter-claim the applicant seeks to introduce

by saying that issue talks of occupation of the mine.  Title and occupation cannot be divorced and if the applicant is saying I now have a basis to counter-claim for the 1st respondent’s eviction how can it be said the two issues are different?

It would therefore be a gross scandal to say to the applicant: - “yes you have a counter-claim and yes your counter-claim is premised on the fact that the 1st respondent’s title to the mine you both lay claim to has been cancelled but you should institute your own action for eviction, let the 1st respondent respond to it and eventually seek a consolidation of your matter with that under HC 187/19.”

The foregoing encapsulates Mr Mcijo’s argument. Counsel submitted that the applicant should institute its own action for eviction and then seek a consolidation of its matter with the action under HC 187/19.  This argument gives the impression that instituting an action involves some rite of passage to be earned such that 1st respondent is desirous of protecting that rite of passage, effectively saying to the other party, work for your own rite of passage, do not ride on ours!

This is far from what litigation seeks to achieve.  The principle of finality to litigation can never be over emphasized.

Where a party has a counter-claim and explains why such counter-claim was not filed timeously, a refusal to allow them to amend their pleadings defeats the hallowed principle of having finality to litigation.

Mr Mcijo’s argument is self defeating.  I say so because by submitting that the applicant ought to institute fresh proceedings for eviction and then seek consolidation, counsel has unwittingly conceded that the two issues should be ventilated and determined in one action.

Order 13 r 92 provides that:-

“Where separate actions have been instituted and it appears to the court convenient to do so, it may upon the application of any party thereto and after notice to all interested parties, make an order consolidating such actions, whereupon –

The said actions shall proceed as one action

The court may make any order which it considers proper with regard to the further procedure, and may give one judgment disposing of all matters in dispute in the said actions.”

The question therefore is, why institute fresh proceedings and seek consolidation when by amending its pleadings to allow for a counter-claim the applicant would have done what is convenient not only to the court but to the parties as well, as with one judgment the court will dispose of the dispute between the parties.

In Lourenco v Raja Dry Cleaners and Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (SC), DUMBUTSHENA CJ pronounced himself on when an amendment can be refused.  I quote hereunder from the headnote:-

‘… In terms of order 20 Rule 132 of the High Court (General Division) Rules 1971 a party may apply for and the court may grant an amendment to the pleadings at any stage during the proceedings.  The mistake or neglect of one of the parties in placing the issues properly before the court must not be allowed to stand in the way of the principal object of the proceedings, which is to do justice to the parties.  An amendment would only be refused if it caused prejudice to the defendant which was not remediable by payment of costs.”

Mr Mcijo appeared to argue that the prejudice lies in the delay to be occasioned by the amendment since the matter in HC 187/19 is approaching pre-trial conference stage.  This argument does not make much sense when in the same breath, counsel argues that the applicant must file its own proceedings and then seek consolidation.  What is likely to cause more delay between allowing the amendment and waiting for the applicant to institute an action for eviction and then seek consolidation?  The answer is surely that an amendment is the best course of action in order to allow for a resolution of the matter with minimal delay.

The cases cited by counsel in the heads of argument, UDC Ltd v Shamva Flora (Pvt) Ltd 2000 (2) ZLR 210 (HC), Copper Trading Company Pvt Ltd v City of Bulawayo 1997 (1) ZLR 134 speak to the approach of our courts which favour allowing amendments quite liberally.

The following appears in the headnote to the UDC v Shamva case (supra), a judgment by CHINHENGO J:

“The court may at any stage allow either party to amend his pleadings.  The court has to exercise its discretion judicially.  The approach of our courts is to allow amendments quite liberally.  The liberality is only affected where the amendment would cause considerable inconvenience to the court or prejudice to a party, or where

there is no prospect of the point raised in the amendment succeeding or where the matters in the amendment are vague and embarrassing.  There will be no prejudice if the parties can be placed in the same position as they were when the pleading was originally filed.  If the other party suggests that the facts are false or cannot be proved, its remedy is to show that at the trial.”

In casu the 1st respondent’s claim is to seek a declaratur, declaring that which the applicant, if allowed to file its counter-claim, intends to show that there is no basis for such a declaratur and if it succeeds, the direct off shoot of such a finding by the trial court would be the eviction of the 1st respondent from the contentious mining claim.

The explanation given by the applicant for not filing the counter-claim at the time it filed its plea cannot be described as a “delay of their own making.”

I say so because the applicant explained that with the cancellation or the commencement of the process of such cancellation of 1st respondent’s certificate of registration, its cause of action arose necessitating the amendment in order to file the counter-claim.

In Peebles v Dairibord Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 (HC) a cause of action was described as:-

“simply a factual situation the existence of which entitled one person to obtain from the court a remedy against another person.”

A reading of the pleadings reveals that there has been a tussle between the parties over this mining claim which necessitated the intervention of the Mining Commissioner.  Such intervention culminated in the cancellation of 1st respondent’s certificate.  The 1st respondent’s Managing Director’s opposing affidavit reveals that even with such cancellation, 1st respondent is of the view that it still has a valid title to the mining claim.

If 1st respondent still displays that attitude notwithstanding the cancellation of its certificate, is it not clear why the applicant deemed such cancellation as marking the ripening of its cause of action?

There is therefore no self-made delay in the circumstances.  I see no prejudice to be suffered by the 1st respondent.  If anything, it ought to welcome the determination of such counter-claim as that will mark the end of the dispute between the parties.

That said, I am of the considered view that the 1st respondent ought not to have opposed this application.  The opposition unnecessarily dragged out this issue, a damning indictment on the 1st respondent’s assertion that it desires to have the matter resolved without delay.

The several letters the applicant wrote to counsel for the 1st respondent ought to have resulted in the 1st respondent consenting to the application.  More so as the applicant had accepted that it would not pursue an order for costs against the 1st respondent.

It is my considered view that the applicant has been put out of pocket bringing an application which ought not to have been opposed in the first place.

Tenacity is a virtue but it ceases to be so when the party being tenacious is being so through a refusal to see reason.

This brings me to the issue of costs.  Applicant asked for costs on a punitive scale.  Costs are in the discretion of the court and to be awarded where there is reason for censure.  I believe the 1st respondent’s intransigence in insisting on arguing this matter is deserving of censure.  The court ought to frown upon conduct that is calculated to cause unnecessary delays in the resolution of matters.

That said, I make the following order:

The application succeeds

Leave be and is hereby given to the applicant to file the counter-claim attached to its notice in terms of Rule 132.

The 1st respondent shall file its plea to the counter-claim within 12 days of this order.

The 1st respondent shall pay costs of this application on a legal practitioner and client scale.

Scanlen & Holderness c/o Webb, Low & Barry, applicant’s legal practitioners

Liberty Mcijo & Associates, plaintiff’s legal practitioners