Jin Yang Africa (Pvt) Ltd v Angela Chandaengerwa & 3 Ors

### Preamble
1
HB 297/20
HC 1446/20
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JIN YANG AFRICA (PVT) LTD

Versus

ANGELA CHANDAENGERWA

And

PROVINCIAL MINING DIRECTOR MIDLANDS

And

MINISTER OF MINES & MINING DEVELOPMENT

And

THE COORDINATOR, CID MINERALS

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 2 NOVEMBER & 17 DECEMBER 2020

Opposed Application

Advocate T. Mpofu for the applicant

Advocate Siziba for the respondent

MAKONESE J:	This is an application to set aside the order of this court for MABHIKWA J dated 7th July 2020.  The application is brought in terms of Rule 449 of the High Court Rules 1971.  The application is opposed.

On 2nd November 2020 I heard oral argument and reserved judgment in the matter.  I indicated at the time that it appeared that 1st respondent was duly barred for failing to file heads of argument.  1st respondent’s counsel indicated that he intended to file an application for condonation for the late filing of such heads of argument.  I did not deem it desirable to hear the parties on the merits.  I proceeded to reserve judgment in the matter.  I have taken some time to consider the matter.  The following are the reasons for my judgment.

Factual background

The facts of this matter make interesting reading and have been adequately captured in applicant’s founding affidavit.  In essence, applicant and first respondent have certainly over pegged each other in their respective mining claims.  1st respondent is the registered owner of a mining claim known as Olympia Mine situated in Shurugwi.  Applicant is the owner of mining claims known as Bonsor South West and Bonsor South.  Applicant is the party that was the first time in pegging.  The dispute between the parties was first resolved by the department of mines which made a recommendation that first respondent’s claims were to be cancelled.  The recommendation was interfered with by the third respondent who held that the applicant was to operate within the confines of the location it acquired.  Applicant was happy to do so.  With the passage of time, first respondent approached the court claiming that applicant had encroached onto its claims.  KABASA J interdicted first respondent from encroaching on applicant’s claims by order dated 27 March 2020.  Applicant does not contest the correctness of that decision.  Under cover of HC 961/20 1st respondent approached the court on an urgent basis seeking an order that applicant be interdicted from operating on 1st respondent’s claim.  On 7th July 2020 applicant and 1st to 4th respondents appeared before MABHIKWA J who entered a consent order in the following terms:

“(i)	That the Provincial Mining Director, Midlands Province is directed to go to the ground i.e. Bonsor South Mine and Olympia 7 Mine and ascertain the correctness  coordinates that confine each party to their lawful and rightful mining claims without over pegging within seven days of this order.

(ii)	Following the decision by the Provincial Mining Director in (i) above the parties are directed to abide to confine themselves to their respective mining claims as pegged.

(iii)	All mining operations on the disputed claims are suspended until the proper determination in accordance with clause (i) above.

(iv)	 There be no order as to costs.”

The learned judge proceeded to hand down an order by consent as laid out above.  Aggrieved by the consent order, the applicant now seeks that the order handed by MABHIKWA J be set aside as it was entered by mistake.  Applicant alleges that what the parties agreed on, leading to the consent, order is at variance with the law as the parties laboured under a law mistake at common law.  1st respondent argued that the application is not properly before the court as there was no mistake leading to the grant of the order.

Whether the 1st respondent is barred and ought not to be barred

Applicant filed its heads of argument on the 28th September 2020.  The record does not show when the heads were served on 1st respondent.  The matter was set down for hearing on 2nd November 2020.  1st respondent’s heads of argument were filed on 30th October 2020.

Rule 238 2(a) provides as follows:

“Heads of argument referred to in sub rule (2) shall be filed by the respondent’s legal practitioner not more than ten days after the heads of argument of the applicant or recipient, as the case may be, were delivered to the respondent in terms of sub rule (1).

Provided that –

No period during which the court is on vacation shall be counted as part of the ten day period;

The respondent’s heads of argument shall be filed at most five days before the hearing.”

As I have pointed out, no condonation for the late filing of the heads of argument was made.  No reasons were placed before the court for such non-compliance.  In such an event, the court may, not go out of its way to grant condonation in circumstances where such non-compliance was not even explained.

In Taremba v Phiri HH-153-11, CHITAKUNYE( J) (as he then was) held as follows:

“By virtue of sub rule 2(b), respondent was automatically barred.  A party barred in the circumstances may apply for the upliftment of the bar.

In casu, respondent’s legal practitioner did not apply for the upliftment of the bar before or after the late filing of the heads of argument despite acknowledging that he was barred for the late filing of the heads of argument.

When the parties stood before me on 2nd march 2011 respondents stood barred.  When this fact was raised counsel for the respondent conceded that no application for the upliftment of the bar had in fact been made.

As the respondent was barred and had not applied for the upliftment of the bar respondent could not be heard on the merits.”

I find myself in exactly the same scenario.  Advocate Siziba, appearing for the 1st respondent did concede that there was no application for the upliftment of the automatic bar.  He did concede that there was no application for condonation for the late filing of the heads of argument.  Advocate T. Mpofu, appearing for the applicant did not consent to the upliftment of the automatic bar. He had no instructions to do so.  He left it to the court to decide on what course to adopt.

I am inclined to agree with the approach adopted by MAKARAU J (as she then was) in Vera v Interim Asset Management Company HH-50-06 when faced with a similar situation.  The learned judge stated at page 3 of the cyclostyled judgment that:

“It is my further view that as the bar against a respondent in such circumstances is automatic and brings about a technical default a review of either case at this stage of the proceedings, will unnecessarily fetter the discretion of a future court that may be seized with an application to rescind the default judgment that the applicant is entitled to at this stage.”

Accordingly, I find no legal basis upon which I can proceed to entertain the matter and hear the respondents on the merits.

I, would accordingly make the following order:

The application be and is hereby granted.

The order of this court of the 7th July 2020 issued under HC961/20 is hereby set aside on the basis that it was granted by reason of mistake (s) common to all parties.

The report of the 2nd respondent of7th August 2020 is hereby set aside.

1st respondent to pay the costs of suit on the ordinary scale.

Mutatu & Mandipa Legal Practice, applicant’s legal practitioners

Tanaka Law Chambers, 1st respondent’s legal practitioners