Jinan Mining v GMP Trading Private Limited t/a GMP Real Estate Private Limited

### Preamble
1
HH 627-18
HC 1858/17
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JINAN MINING

versus

GMP TRADING PRIVATE LIMITED t/a GMP REAL ESTATE

PRIVATE LIMITED

HIGH COURT OF ZIMBABWE

MUZOFA J

HARARE, 21 September 2018 & 10 October 2018

Pre-Trial Conference

R. Mabwe, for the applicant

E. Makaka, for the respondent

MUZOFA J: The applicant seeks leave to appeal. At the hearing of the pre-trial conference in this matter, the applicant made an application to amend its plea (applicant is the defendant in the main matter.)  I dismissed the application on 14 September 2018.  On 21 September 2018 parties appeared before me for continuation of the pre-trial conference, the applicant then made an oral application for leave to appeal.

This is a matter that has taken a couple of turns and twists that have hindered its proper resolution on the merits.  This is the second time parties intend to go on appeal to the Supreme Court while the matter is still at pre-trial conference stage.

The brief background of the matter is that parties appeared before mushore j for a pre-trial conference.  Applicant made an application to amend its plea.  The application was dismissed and the Judge gave certain directives for the parties to come up with a joint pre-trial conference minute.  The applicant’s legal practitioners failed to comply with the directives.  The respondent’s legal practitioners appeared before the Judge and applied for the striking off of the applicant’s defence.  The application was granted by an order dated 11 July 2017.  The order dismissing the application for amendment was made on 5 July 2017.  The applicant appealed to the Supreme Court against the order of the 11 of July 2017.However the first ground of appeal related to the order of 5 July. The appeal was upheld and the matter referred back to this court for continuation of the pre-trial conference before a different Judge. This is how the matter came before me. On the day of continuation of the pre trial conference the applicant made an application to amend its plea.  I heard the application and dismissed it  for the reason that the order of  5 July was still extant and therefore res judicata  applicable.

For the applicant it was submitted that the court misdirected itself in coming to a decision on res judicata without assessing cumulatively the requirements of an application for amendment.  On the authority of Toro v Vodge Investments (Pvt) Ltd and 2 others SC 15/17 which discussed the issues on re judicata, it was submitted that res judicata did not apply in the matter because the appeal of 11 July 2017 included the order of 5  July .  Further it was not for this court to determine whether the first ground of appeal before the Supreme Court was properly before that court.  That is a decision of three Judges of Appeal.

The respondent opposed the application and submitted that, the order of 5 July was still extant, the applicant did not appeal against it, and therefore it was not set aside. To demonstrate that there was no appeal against the order of 5 July, respondent indicated that, applicant did not comply with section 43 of the High Court Act (Chapter 7:06) which requires a party intending to appeal against an interlocutory order to seek leave of the Judge.  In this case applicant did not seek leave to appeal and therefore no leave was granted. Further, that although the first ground of appeal before the Supreme Court related to the order of 5 July, that ground of appeal was not properly before the court on the authority of Mine Mills Trading (Pvt) Ltd and Others v NJZ Resources (HK) Ltd SC 40/14  where the court related to the propriety of grounds of appeal. Respondent also prayed for costs on a higher scale on the basis that applicant is deliberately stalling the matter to avoid trial; there must be finality to litigation. This matter has been to the Supreme Court and back, in this instance it wants to appeal on an issue that has no prospects of success at all.

In the determination of such an application, applicant has to show that it has prospects of success on appeal.

In this case there are no prospects of success on appeal at all. The first intended ground of appeal is that the court did not address the requirements of an application for amendment. The issue should not detain the court at all. It is a settled principle that a preliminary issue is determined first ahead of the main matter. See Grain Marketing Board v Martin Muchero SC 57/07.In this case, applicant raised a preliminary point that the matter was res judicata. I considered the submissions on the preliminary point and found merit in the preliminary point and the finding disposed of the matter. It then became unnecessary to hear the submissions on the substantive application. Indeed I did not consider the requirements of an application for an amendment since the matter had been disposed by the preliminary point.

The second issue is on whether the order of 5 July was appealed and set aside together with the judgment of 11 July. The notice of appeal to the Supreme Court indicated that the appeal was against the whole judgment of 11  July. The order of 11 July did not include the order of 5 July. I enquired from counsel for the applicant on what basis she believed the judgment of the 11th of July incorporated reasons for the order of 5 July. She conceded that the judgment of 11 July did not   mention whatsoever anything about the order of 5 July. I took that to be a concession that no appeal was made against the order of 5 July. The law is very clear as to what can be taken on appeal, an appeal is directed at the order see Chidyausiku v Nyakabambo 1987 (2) ZLR, The Civil Practice of the Supreme Court of South Africa ,Herbstein and Van Winsen , 4th Ed at pages 868- 869.No appeal was filed directed at the order of the 5th of July. I did not hear the applicant’s submissions on whether it complied with s 43 (2) (d) of the Act to seek leave of the Judge to appeal against the order of 5 July and whether such leave was granted. Clearly no leave was sought and granted. For the applicant to submit that the order of 5 July was set aside would be at tangent with the established facts. Counsel for the applicant submitted that there is room that the Supreme Order setting aside the judgment of 11 July can be amended. Whether that is possible or not is not for this court, what is before the court is evidence of a notice of appeal against the judgment of 11July and not 5  July. The court can only apply itself to established facts and not anticipated facts.

As stated before there are no prospects of success.

On costs, I agree with the respondent. This matter has stalled at the pre-trial stage. There seems to be lack of desire to dispose of the matter on the merits. I am inclined to grant costs on a higher scale against the applicant. It was clear that no prospects of success exist but the applicant insisted on this futile application.

Accordingly the following order is made.

The application for leave to appeal be and is hereby dismissed with costs on a higher scale.

Mutumbwa, Mugabe & Partners, applicant’s legal practitioners

Musunga and Associates, respondent’s Legal Practitioners