MARANGE RESOURCES (PVT) LTD v CORE MINING & MINERALS (PVT) LTD (IN LIQUIDATION) & ORS 2016 (2) ZLR 152 (S)

Flynote

Practice and procedure: " parties " citation " error in plaintiff's citation of c party " error drawn to attention of plaintiff " plaintiff refusing to amend " not entitled to rely on its own error

Headnote

The appellant had been involved in a joint venture with a South African company called Core Mining and Mineral Resources (Pty) Ltd. A dispute arose; thereafter the South African company was placed into liquidation. The liquidators sought to have the matter dealt with by arbitration and an arbitrator was appointed. However, the appellant boycotted the proceedings, and brought an urgent application in the High Court to interdict the proceedings. Its application cited the firstrespondent. Although it was pointed out to the appellant that the citation was an error, as the correct respondent was a South African company, and that the respondents had no objection to the citation being amended, the appellant refused to amend the citation. Instead, it sought relief on the basis that there was no opposition. The judge a quo held that the application was not urgent. Against this ruling the appellant appealed, seeking relief other than the reversal of the judge's ruling on urgency.

Held, that the undeniable fact was that the appellant was seeking to have the terms of the joint venture agreement entered into by a party, whose proper and correct citation it assiduously refused to effect, affected by the order of the Supreme Court. That proper party was technically not present in the present proceedings except to the extent of protecting its interests, which it was entitled to do in terms of rules of court. The appellant had no qualms in using the fact of a liquidation to silence the director of the first respondent on the basis that he could not represent a company in liquidation and yet refused to acknowledge the true identity of the very entity in liquidation. This kind of sophistry came very close to what has been termed "fraudulent diligence in ignorance".

Held, further, that the subsequent action of the appellant of seeking to have the matter disposed of as unopposed on the basis of its own failure to properly cite the first respondent was an abuse of court process. In raisingthe preliminary point of its own mis-citation of the first respondent and seeking to benefit from the same, the appellant, the very party who had refused to correct the mis-citation, undoubtedly was seeking to benefit from its own wrong. No one can maintain an action arising out of his own wrong.

Held, further, that where a wrong party is cited, the proceedings cannot besustained. Here, the wrong citation was compounded by the appellant's stubborn refusal to rectify the error, even when assured by the other side that such an application would not be opposed. This application should therefore suffer not only the general fate consequent upon such errors, but also an exemplary order of costs wrought by the appellant's unhelpful attitude. Editor's note: for the judgment of the court a quo, see Marange Resources (Pvt) D Ltd v Core Mining & Minerals (Pvt) Ltd & Ors 2013 (1) 454 (H).