Fidelis Munyoro Chief Court Reporter
Fidelity Printers and Refiners is now secure in possession of a gold claim the Supreme Court agreed had been improperly forfeited to the Ministry of Mines and Mining Development, after the ministry filed for the final appeal to the Constitutional Court without presenting the outline of its written argument against the judgment.
This is an absolute requirement in a civil case, and by not presenting its reasons the Ministry is now barred from proceeding further.
Fidelity repossessed its gold claim in Kwekwe in October last year after the Supreme Court confirmed an interim order granted to the company early last year.
It had approached the Supreme Court challenging the forfeiture of its gold claim without affording it a chance to be heard.
Unhappy with the Supreme Court ruling, the Ministry sought to appeal to the Constitutional Court, but was way out of time.
Through its legal counsel, the Ministry brought a double chamber application for condonation of breaching court rules and for leave to note an appeal.
But a Supreme Court judge, Justice Anne-Mary Gowora, queried the validity of the application in the absence of the impugned court decision from the record of proceedings.
The Ministry had not attached written reasons why it wanted to appeal the judgement to the application, as required by the rules of the court.
Professor Lovemore Madhuku, arguing the matter for the Ministry, insisted that the application was valid, saying his clients complied with all the requirements necessary despite the lack of assistance from the Supreme Court.
He said his clients had sought to obtain a judgment from the Supreme Court, but to no avail, hence they were compelled to launch the application due to the judgement’s far-reaching effects.
He moved the judge to postpone the matter to enable his clients to obtain a copy of the final judgment from the Supreme Court.
In his counter-submissions, Advocate Tawanda Zhuwara acting for Fidelity argued that the court rules compelled the Ministry to furnish the court with reasons for the order.
He opposed the postponement of the matter, saying this would not aid the Ministry as there was no guarantee that they would obtain the reasons for judgment within three months.
He then moved the judge to strike the matter off the roll.
In her ruling, Justice Gowora found that the Ministry based their application on an incorrect rule rendering their case fatally defective.
A litigant cannot institute a civil action in the courts without due observance of and compliance with the rules of that court.
The rules inform a litigant of what is required of him to access the court concerned and once a litigant fails to observe or comply with those rules, he or she will inevitably be non-suited. Based on this reasoning, Justice Gowora struck the matter off the roll for want of compliance with the rules of the court.
“The applicants are, therefore, non-suited before this court. Consequently, this application is a nullity as it stands on nothing,” she ruled.
The High Court had in May last year refused to confirm Fidelity’s provisional order to repossess its claim that had been improperly forfeited to the Ministry for allegedly failing to pay the laid down annual fees for more than six years.
Fidelity then took the matter on appeal and a three-judge panel of Justice Susan Mavangira, Justice George Chiweshe and Justice Felistus Chatukuta unanimously allowed the appeal, which the Ministry now seeks to overturn at the Constitutional Court.
In addition, the Supreme Court declared invalid any act done by the Minister of Mines and the provincial mining director for Midlands to alienate the area under Mirage 3.
The ruling meant that the Ministry of Mines and Mining Development cannot forfeit a mining claim in terms of Section 1260 of the Mines and Mineral Act, without first notifying the affected party and allowing them to make representation.
In the past, the ministry had been forfeiting mining claims all over the country by simply posting the notice of forfeiture on their notice boards.
The High Court in May last ruled that the forfeiture and subsequent re-allocation of Mirage 3 Mine gold mining claim held by Fidelity to new beneficiary Mr Jona Nyevera was lawful.
Fidelity, which had sold the gold mining claim to former Herald Editor Caesar Zvayi, was suing the Minister of Mines and Mining Development, the provincial mining director for Midlands and Mr Nyevera.
Its essential argument was that it received no prior notice of the intention to declare the claim forfeit and that there had been an understanding between the Ministry and itself that no statutory mining fees payment would be necessary.