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. Herald
0 comments:
Post a Comment