MINISTER MINES & MINING DEVELOPMENT & ORS v AFRICAN CONSOL RESOURCES PLC & ORS 2010 (2) ZLR 307 (H)

Flynote

Court - contempt - refusal by court to hear a party guilty of contempt - when appropriate - only justified for grave considerations of public policy - party guilty of contempt not a fugitive from justice - party not precluded from presenting its case

Mines and minerals - mining claim - registered- title to claim - may not be disputed after having been held for two years - interruption of running of period - Mines and Minerals Act [Chapter 31:05] — s 58 — section assumes that person seeking protection thereunder has valid title to claim - E company possessing title to mining claims not being duly registered at time it acquired such rights - effect - exclusive prospecting order - reservation against pegging of claims - effect

Mines and minerals - prospecting and mining rights - dominium vesting in President - rights held in trust for the public - public having vested interest in identity of persons registered to mine for minerals - need for transparency in mining affairs

Practice and procedure-judgment - rescission-grounds - original judgment tainted by fraud - failure of party to make full disclosure in regard to mining claims - position at common law - broad discretion of court to rescind its own judgment even if it be a final judgment - fraudulent concealment of information from court - court entitled to rescind its own judgment

Practice and procedure - judgment - rescission - application - when may be made - case on appeal to Supreme Court - nothing to preclude a party from seeking rescission - motion proceedings when such proceedings may be utilized

Practice and procedure - parties - locus standi - party in contempt - whethercan be heard - distinction from fugitive from justice

Headnote

"Where the judgment sought to be rescinded was given in default, no question of a final judgment having been given on the merits can arise. Hence, no considerations of functus officio or res judicata apply to thwart an application for rescission. In such a case, even at common law, it is recognized that the court has a very broad discretion to rescind (on sufficient cause shown) a judgment given by default. Even where judgment is given in the presence of the parties and where the merits of the cause are considered, the court still retains a power to rescind that judgment. The power in this case would be more sparingly exercised since the final judgment would be res judicata as between the parties and would appear to be a complete discharge of the office. On principle, however, justice demands that a final discharge tainted by fraud should not be permitted to stand" (dicta per Gillespie J in Harare Sports Club & Anor v United Bottlers Ltd 2000 (1) ZLR 264 at 268 followed).

"It is a strong thing for a court to refuse to hear a party to a cause and it isonly to be justified by grave considerations of public policy. It is a step which a court will only take where the contempt itself impedes the course of justice and where there is no other effective means of ensuring his compliance" (dicta per Denning LJ in Hadkinson v Hadkinson [1952] 2 All ER 567 at 574 followed).

On 24 September 2009, the applicants had obtained an order from the High Court concerning the legality of registration of various mining claims in their favour. In April 2010, however, the respondents sought directions from the judge who had granted the order, upon the basis that the applicants had fraudulently concealed certain facts from the court when seeking that order. In particular, the respondents alleged that the applicants had failed to disclose that the second to fifth applicants (all being subsidiary companies of the first applicant) did not exist at the time of the prospecting pegging and registration of the mining claims which were the basis of the court application. The respondents further alleged that at the time the claims were being prospected and pegged, the area in question had been reserved against prospecting and pegging because of the existence of certain exclusive prospecting orders which the judge had subsequently held to have been invalid by reason of their expiration.

As a result of the respondents' application for directions, and after submission from the applicants, the judge directed that the matter proceed on the basis of an application for the rescission of judgment in respect of the court order of 24 September 2009. At the commencement of argument, the applicants raised a number of points in limine which, they submitted, ought to preclude the court from hearing the application. In particular, they submitted that the court order having been given, the court was now functus officio and that, in any event, as that order was under appeal to the Supreme Court, the High Court had no jurisdiction to entertainthe application. The applicants also submitted that as the respondents had failed to comply with an interim order of the Supreme Court, they were approaching the court with dirty hands and had forfeited any right to be heard.

The applicants further argued that, in any event, as there were serious disputes of facts the matter would have to proceed by way of trial action rather than a court application. On the merits, the applicants disputed the respondents' claim that they were guilty of fraudulent non-disclosure, arguing that, unbeknown to them, while the second to fifth applicants had indeed not been registered as companies at the time of the prospecting, pegging and registration of the claims, no prejudice to the respondents had arisen. As far as the alleged existence of the exclusive prospecting orders were concerned, the applicants argued that the concession made on behalf of the respondent, at the initial application, that the cancellation of the registration of applicants claims was wrongful, was a correct concession. The court, the applicants argued, correctly held that those exclusive prospecting orders did not the reserve area of the claims against prospecting and pegging. In any event, the applicants submitted that s 58 of the Mines and Minerals Act [Chapter 21:05] barred any attempt to impeach the applicants' title to the claims as the mining location had been registered for a period excess of two years.

Held, that where a party can show a fraudulent concealment of information relevant to the issue to be decided, the court is entitled under its common law discretion to exercise its powers and to grant rescission. On the facts, the court was satisfied that a basis had been established for such a fraudulent concealment by the applicants and that as a result the court was not functus officio and the matter was properly before it.

Held, further, that the fact that the order of 24 September 2009 was under appeal to the Supreme Court did not deprive the court of its jurisdiction to hear the matter. There is nothing in principle preventing a party from pursuing an application for rescission while an appeal from the same judgment is pending.

Held, further, that the argument that the respondents could not be heardbecause they were in contempt could not be sustained. Even if correct, the first respondent was not a fugitive from justice and was still amenable to justice. The second and third respondents were parties in the matter at the direction of the court and sought no order of court. The interests of justice would not be served if they were precluded from arguing their cases.

Held, further, that as far as the merits were concerned, the initial proceedings had been brought by way of motion proceedings and there was no reason why the present proceedings could not similarly be determined. The applicants could not be heard to say that the fact that the second to the fifth applicants had not been registered as companies at the time when the mining claims had been registered in their names resulted in no prejudice. This is because the dominium in and right of searching and mining for minerals vests in the President in terms of s 2 of the Mines and Minerals Act. The President holds these rights in trust for and on behalf of the public. The public has a vested interest in who is registered to extract minerals, how transparently the registration of such rights are conducted and who stands to benefit therefrom. Therein lay the prejudice.

Held, further, that the applicants could not rely on "rights" protected by s 58 of the Act as they never acquired any such "rights" in the first place. When they were granted such "rights" they did not exist, as their registration as companies had not been effected. Further, and on the facts, the

area of the mining claims was reserved against pegging in terms of a pre- existing exclusive prospecting order.

Held, further, that on the facts, the applicants were guilty of fraudulent non-disclosure of material facts when they were granted the court order of 24 September 2009. The court had been misled and its order must be rescinded with costs