HUNGWE J: This is an application for the rescission of a judgment of my own that I gave on 24 September 2009 in favour of the applicant’s regarding the legality of the registration of various mining claims in the names of the applicants. It is important that I set out the order which I gave then and what thereafter occurred leading to the present proceedings. On 24 September 2009, I gave the following order: “1.
African Consolidated Resources pic claims issued to the third, fourth, fifth and sixth applicants within the area previously covered by Exclusive prospecting order 1523 held by Kiniberlitic Searches (Pvt) Ltd are valid and have remained valid since the date they were originally pegged. 2. The right granted to the third respondent by virtue of the special grant shall not apply in respect of the African Consolidated Resources pic claims area as indicated on annexure ‘B’ to the papers.
In that regard it is hereby ordered that third respondent cease all its prospecting and mining activities in the said area. IT IS FURTHER ORDERED AS FOLLOWS: 3. That the second respondent returns to the applicants’ possession the 129 000 carats of diamonds seized from the applicants’ offices in I larare on 15 January 2007. 4. The second respondent returns to the applicants all diamonds acquired by the second respondent from the African Consolidated Resources pic claims area using the register kept by the second respondent in compliance with the Kiniberlitic Process Certification Scheme.
5. That fourth respondent be and is hereby ordered to direct the police to cease interfering with the applicants’ prospecting and mining activities. 6. That first, second and third respondents pay applicants’ costs on a legal practitioner and client scale, the one paying the others to be absolved. 7. Any appeal noted against this order shall not suspend the operation of this order. ” The second and third respondents noted an appeal to the Supreme Court. They made a chamber application under SC 230/09 seeking to set aside para 7 of the above order.
In SC 1/10 the Supreme Court issued an order effectively setting aside that paragraph. The appeal is, however, still pending in the Supreme Court. In the meantime, on 28 April 2010, first respondent, through his legal practitioners, addressed correspondence to the registrar of this court seeking directions in terms of Rule 4C of the Rules of this Court. The relevant portion of that correspondence reads: ‘”3. In arriving at this decision (the order of 24 September 2009 above) the court determined the issue of the currency of De Beers 1520 and 1523 Exclusive Prospecting Orders.
(“EPOs”) over the Marange area (“Marange”) and whether an application for the extension of EPO 1523 had the effect of reserving the ACR claims area from prospecting and pegging. 4. The court held that the EPO’s were invalid by reason of their expiration and that, consequently, the application for extension of EPO 1523 did not have the effect of reserving the ACR claims area. 5. The Court further held that the ACR claims area was open for prospecting and pegging at the time that ACR pegged and registered their claims, and further that the ACR claims were valid and remained valid from the date they were pegged.
6. In arriving at the decisions aforementioned, the ACR group concealed certain fundamental facts which completely disentitle the ACR group of the relief which the court granted. The ACR group fraudulently concealed the facts in order to gain an unfair advantage and for the purpose of procuring a favourable judgment. It is therefore our humble request that the Court, having regard to the fraud committed by the ACR group, give directions, on the proper course of action and procedure to be taken at law in order to procure the rescission of the Judgment procured by fraud.
7. We assert that the following facts were fraudulently concealed by the ACR group:- 7. 1. The subsidiary companies; Dashaloo Investments (Private) Limited, Possession Investments (Private) Limited, Olebilc Investments (Private) Limited, and Heavy Stuff Investments (Private) Limited L’lhc ACR subsidiaries”) did not exist at the lime of the prospecting, pegging and registration of the mining title that is subject of the above matter. 7. 2. section 20 of the Act provides that only a ‘person’ can be granted a prospecting licence.
A ‘person’ in this context refers to a juristic person, so constituted by the act of incorporation, or a natural person; 7. 3. It is clear that at the time that the Certificates of registration were issued to the ACR subsidiaries, there was no such person to who such certificates could be granted because all mining rights purportedly held by the ACR subsidii incs were acquired between 4 April and 19 June 2006. yet the ACR subsidiaries were incorporated on 29 June 2006 up lo 14 July 2006.after the purported issue of the certificates of registration (mining claims);
7. 4. 7. 5. …………………………………………………………………………….. 7. 6. further and more importantly, at the tunc of the ACR group pegged their claims, the Marange area was reserved againsi prospecting and pegging byvirtue of the operation of Reservation Notice 1518 issued on 19 February 2004, which notice was posted on the Notice Boards of the Mining Commissioner’s offices in Mutare and Harare, and recorded in a ‘Reservation Notice Register’. 7.
7 It is incompetent to acquire mining title through a prospecting licence or the pegging of claims in an area reserved against prospecting and pegging. The ACR group fraudulently concealed the fact of the existence of the reservation from the court and procured the registration of their claims by fraud I directed the registrar to seek the other parties’ response to the request. On 19 May 2010 the applicants, through their legal practitioners, responded in the following terms: “1. As the honourable judge has handed down his judgment and an appeal has been noted, the honourable judge is functus officio.
He can no longer deal with the matter and indeed it is not ‘before him” as contemplated in rule 4(C) of the High Court Rules. Mis decision in HC 641 1/07 can only be considered by the Supreme Court on appeal. 2. Nonetheless our clients have requested that for record purposes we respond to the false allegations made on behalf of the Minister of Mines and Mining Development, without in any way conceding that they give rise to a need for directions in terms of rule 4(C) of the High Court Rules. 3.
Our clients deny that they have fraudulently concealed that their subsidiary companies did not exist at the time the ACR claims were duly registered by the Assistant Mining Commissioner Mutare. When our clients decided to register the claims that had been pegged, they purchased shelf companies for this purpose from a local company. Paracor Company registration Services. This is common practice and indeed our client has purchased over 80 shelf companies from Paracor in this manner.
Our clients were assured that the companies had been duly registered and accordingly they utilized the names of the shelf companies in order to obtain registration of the claims. To knowingly use unregistered companies would have been of no benefit to ACR and indeed would have been inexplicable in logic. The Minister was however a party to case number HC 641 1/07 and he filed opposing papers. In none of the opposing papers filed by him were any of these “new” and supposedly fraudulent issues mentioned, despite their existence at that time.
It would seem that the reckless and unsubstantiated allegation of fraud is mi-rely an allempl lo conceal the incompetence and ineptitude on the part of the Minister in failing lo mention these objections (which, surprisingly, now seem to have assumed huge importance). 4. liven if the shelf companies were incorporated a short time after the claims were registered in their names, there was no prejudice to the public interest.
In Rajah & Rajah (Pvt) Ltd v Ventersdorp Municipality_& Others 1961 (4) SA 402 (A) the Appellate Division considered a case where a trading licence had been issued to a company which had not been registered at the time the licence was issued. The court held that since there had been no intention to deceive on the part of the brothers who had applied for the licence in the name of the company, and in view of the fact that the municipality had failed to prove that there had been any prejudice or that it would be in the public interest to cancel the existing licence of the company, the licence would be considered valid 5.
Furthermore section 58 of the Mines and minerals Act provides for the barring of impeachment of title where a mining location has been registered for a period exceeding 2 years. It is not competent in terms of that section for any person to dispute the validity of title to the ACR claims on the ground that the pegging was invalid or illegal or the provisions of the Act were not complied with prior to the issue of the certificates of registration 6. Our clients deny that when the ACR group registered the claims the Marange Area was reserved against prospecting and pegging in terms of RA 1518 that was purportedly issued in 2004.
Minister does not admit, although he is well aware of it, that the Mining Commissioner, Harare purported to exercise her powers outside her area of jurisdiction. He also fails to disclose that notice of the said RA was not advertised in the Gazette as required by s. 35(l) of the Act. ……… Further he does not disclose that in 2006 the Mining Commissioner Harare and the Mining Commissioner, Mutare recommended that the reserved area mentioned in RA 1518 “be extended'” to include the Marange area and it was extended long after the ACR claims had been registered……….
” Upon careful consideration of the matters raised in both correspondences and having due regard to and mindful of the need for finality to litigation, 1 decided that it would not be in the interest of justice to ignore a party’s effort to draw the court to a possible fraud. 1 therefore directed that the first respondent files a court application in terms of Rule 449 of the esteemed Rules of Court dealing with the issues he raised in the correspondence.
Consequently, papers were filed in which the first respondent seeks rescission of judgment on the basis that applicant had obtained a judgment favourable to its case by fraudulently suppressing certain information which would have disentitled it to the orders it eventually got in its favour. The applicants strenuously oppose the application for rescission and raise live points in limine which, in the applicants’ view, ought to preclude this court from hearing the application.
As I understood it, the first point raised on behalf of the applicants was that this court should not allow the respondents any audience since they come to this court with dirty hands. They had flagrantly and contemptuously refused to comply with the Supreme Court order of 25 January 2010. Mr Samukunge who appeared for the applicants put this issue as follows: “The Respondents have not complied with this order. They have not ceased all mining operations as ordered by the Chief Justice. They have gone further and auctioned the diamonds mined from Applicants’ claims, in total violation of the Chief Justice’s order.
They have therefore approached the court with dirty hands. They should not be Heard. The respondents have not shown respect for the rule of law. The principle for the rule of law is that court orders are obeyed, especially by the first respondent who took an oath to obey the laws of this country ” Mr Samukange submits that the respondents, by failing to comply with the order of the Supreme Court in the particular circumstances in which they have done so, have approached this court with dirty hands; and that by reason of that status they have forfeited the right to apply for any such indulgence as they now apply for. He relies for this submission on a number of cases.
The first such case is an unreported 2005 judgment of this court in which reliance was placed on the American case of Tegan v Casaus (the citation of which is not given). He also placed reliance on a paragraph recited by the judge in the unreported 2005 judgment of this court from the judgment of De Waal J in the South African case of Mulligan v Mulligan 1925 WLD 164. Secondly, Mr Samukange took the point that as this court had pronounced itself in the judgment of the 24 September 2009, this court was functus officio.
The third point taken by the applicants was that as the matter is under appeal in the Supreme Court, and since that court had made an order suspending the order of this court, then this court has no jurisdiction to entertain this application The fourth point in limine was that there is another pending matter i. e. HC 2230/10 brought by applicant against the respondents where first respondent’s decision is being challenged. First respondent can still raise these issues in that matter.
In any event that matter deals with the same issues which are being raised here. Finally, Mr Sumnkange look the point that since this application is premised on an allegation of fraud, the first respondent adopted the wrong procedure. He ought to have realized that there would be a serious dispute of fact requiring proper ventilation through action rather than motion proceedings. On behalf of the first respondent Mr Miitamangira argued that the points in limine really amount to arguments directed to the merits of the matter.
As for the first point taken in limine, that the respondents are in contempt of court and as such must not be heard, in view of their failure to comply with the order of 25 January 2010 by the Chief Justice, Mr Mutamangira pointed out that the judgment will show that only the second and third respondents appealed to the Supreme Court. The first respondent did not. As he was not before the Supreme Court, the order made thereat does not in any way bind him. In the circumstances therefore the first respondent cannot, by any stretch of imagination, be said to be in contempt of that order.
The dirty hands principle cannot preclude the first respondent against whom there is no order requiring him to do or to refrain restraining him from doing anything from approaching the court for relief. As to whether the feet that the matter is pending in the Supreme Court, Mr Mutamangira argued that the present proceedings are not the same as the matters under appeal. In any event there is nothing preventing this court from entertaining an application of this nature as it is completely different from that with which the Supreme Court is seized.
Mr Muchuda, for the second respondent, added that the Supreme Court, in effect, struck down paragraph 7 of the 24 September judgment. The result was that the judgment under appeal was now suspended by operation of law not by the interim relief granted to the applicants therein. It will be seen, he went on, that the second respondent does not carry out mining operations. As such since the interim relief was directed at maintaining a standstill position at the mining site, the dirty hands principle does not affect any of the parties now,before, this court. … ,.
Mr Tsivama, for the third respondent, look this point a step further, lie reminded the court that the second and third respondents did not file any application in the present proceedings nor do they seek any relief out of these proceedings. In the circumstances therefore, the dirty hands principle cannot affect the respondents. Second and third respondents are in court as interested parties not as petitioners seeking relief After hearing submissions regarding the points raised in limine, I directed that I be addressed on the merits so that a composite judgment is rendered.
This is an application for rescission by the first respondent of a judgment granted in favour of the applicant, lire present application is premised on allegations that the applicant procured judgment in its favour by willfully suppressing evidence relevant for the determination of the issues before the court. Had the court been appraised of the true facts, it would not have granted judgment favourable to the applicant. Put differently, the first respondent alleges that the applicants obtained and secured judgment in their favour by fraud. The allegation of fraud relates to two points.
First, it is alleged that the applicants did not disclose that at the time they registered the claims under the names of the subsidiaries, those subsidiaries were not yet incorporated. Second, it is alleged that the applicants did not disclose that the area under which the claims in issue fell were part of an area reserved against prospecting and pegging. In his founding affidavit the first respondent avers that it was discovered, after judgment, that all ACR subsidiaries were incorporated well after they had registered claims in their respective names.
As an example, Certificates of Registration of claims numbered G1402 to G1419 and G 1704 to G1722 issued to Dashaloo are dated between 4 April and 1 June 2006. Dashaloo was only incorporated on 29 June 2006. The same can be said in respect of each of the ACR subsidiaries. The subsidiaries fraudulently misrepresented to the Chief Mining Commissioner that each of them was incorporated at the time when Certificates of Registration were issued. However this was not the case at the time.
As the subsidiaries were not’by then incorporated, they did not in fact exist. By falsely misrepresenting to the Mining Commissioner that they were incorporated and thus entitled to take title to the claims, the subsidiaries are guilty of fraudulent misrepresentation. That disentitles them to the order which this court granted in applicants’ favour. Section 20 of the Mines and Minerals Act, [Chapter 31:05/ provides that only a person can be granted a prospecting licence. A juristic person is created by an act of incorporation.
Since none of the subsidiaries were incorporated, then there was no “person” to whom the Certificates of Registration could be validly issued, first respondent argued. Armed with the fraudulently acquired Certificates of Registration, the subsidiaries then embarked on a slew of litigation asserting that the subsidiaries had lawfully and validly acquired the Certificates of Registration. The first respondent asserts thai the applicants fraudulent! )’ concealed the true facts from this court and as a result obtained a judgment in their favour on the basis of this fraud.
In an affidavit deposed to by Ian Harris on behalf of the applicants, the deponent denies that any fraud wars committed. He avers that the companies were bought as shelf companies. It was believed that they were already registered and were used to register claims to be held by them. He claims that since the companies were registered soon thereafter no-one suffered any prejudice. In any event, any attack on applicants” title is saved by the provisions of section 58 of the Mines and Minerals Act aforesaid.
The applicant counter-applies for an order declaring illegal all mining carried out by anyone else other than the applicant upon the area covered by Special Grants and a further order declaring as expired the said Special Grants. The first issue to resolve is whether this court is properly seized with this matter. As I pointed out in my directive to the first respondent’s legal practitioners, the allegation of fraud was directed at the judgment obtained before me.
It is a serious matter for one party to make against another, especially where both parties arc represented by counsel. Can this court rescind its own judgment without falling foul of the Rules of Court? In other words when can a court grant rescission of a judgment? Mr Samukange, for the applicants, submitted that once this court pronounced itself on the matters before it on 24 September 2009, it became fundus officio. As such there is no basis at law upon which it could consider itself properly seized with the matter. Mr Samukange needed no authority for this trite position.
It is well established in our law that once a court has duly pronounced a final judgment, it becomes fundus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter ceases. Firestone SA (Ply) Lid v ticntiruco AC! 1977 (4) SA 298 at 3061″; Chirambasukwu v Minister of Justice, Legal and Parliamentary Affairs 1998 (2) 7. 1. R 567 (SC). On the other hand, Mr Mulainangira, for the first respondent, urged the court to find that there is ample basis under common law permitting the court to exercise its inherent jurisdiction in addition to the Rules.
Rule 449(1) of the High Court Rules provides: ‘”449 (1) The court or a judge may, in addition to any other power it or he may have mero motu or upon the application of any parts’ affected, correct, rescind, or vary any judgment or order- (a) that was erroneously sought or erroneously granted in the absence of any party affected thereby; or (b) in which there is an ambiguity or patent error or omission, but only to the extent of such ambiguity, error or omission; or (c) that was granted as the result of a mistake common to the parties.
” (my own emphasis) In terms of the common law, the court has power to rescind a judgment obtained by default of appearance provided that sufficient cause has been shown. In respect of rescission of judgment in terms of the rules, it has been held that this is a matter for the discretion of the court, which discretion should be exercised judicially.
Where willful default was found it has been held that there was no room for the exercise of this discretion but this approach has been questioned and the better view seems to be that willful default or gross negligence on the part of the applicant constitutes no absolute bar to the grant of the indulgence of rescission but that it is a factor, although a weighty one, to be considered in the broad conspectus of the application which is to be taken into account together with the merits of the defence raised to the plaintiffs claim, in the determination of whether good cause for rescission has been shown. De IVitls Auto Body Repairs (Ply) Ltd v Fedgen Insurance Co Ltd 1994 (4) SA 705 at page 7081- to 70911.
Ilehstein & Van Winsert 4th Edition at p 691-2. In Pe Wet tfc Others v Western Bank Ltd 1977 (4) 770 ( f) it was held (@ p776) inter alia that: “Before a judgment would be set aside under the common law, an applicant would have lo establish a ground on which restitutio’ in integnim would be granted by our law such as fraud or Justus error in circumstances. ; Childerley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163 at pp 166-168; Semme v Incorporated Law Society 1933 (1) TPD 213 at p 215; Makins v Makins 1958 (1) SA 338 (AD) at p 343 Alhanassiou v Schultz 1956 (4) SA 357 (W).
It would appear that the procedure to set aside a judgment on grounds justifying restitutio in integrum is by way of action”. The position set out above recognizes the finality of a judgment once deliveied oi issued (vide. Estate Carlick v The Commissioner of Inland Revenue 1934 AD 499 at pp 502-503) Under the common law, a judgment can be altered or set aside only under limited circumstances. In Stumbles A Roue v Mattinson; Matlinson v Stephens & Others 1989 (1) ZI. R 172 GREENLAND .
1 had occasion to consider whether this court can set aside its own interIoculor orders. He held that while the court normally does not have jurisdiction to temper or interfere with its own judgments, because in relation thereto, it is functus officio, it does have jurisdiction over orders made in interlocutory and procedural matters. He held further that in terms of this jurisdiction, the court has powers to set aside such orders on good and sufficient reasons, including the feet that the basis of the order has been destroyed or shown to be non-existent.
At page 178 he stated; ‘This is particularly so when the matter is interlocutory, (per SQUIRES J in Sayprin! Textiles v Girdlestone 1983 (2) ZLR 322). It is also so where the matter is procedural; (per STRATFORD JA in Ex parte Barclays Bank 1936 AD 431). I support the propositions that the court is entitled to regulate its own rules. It is trite that the rules are intended to expedite procedure and relief. To insist that the court is bound by a procedural order which it knows to be fatally defective is to insist on the court conducting a sham trial.
It is illogical, senseless unjust and unreasonable to say to a litigant, “We will proceed with this expensive and protracted exercise, which is a trial and you can start all over again when the Supreme Court rightly sets aside the proceedings because of this fatal procedural defect. ” fie goes on to make a very clear distinction between interlocutory matters and those in which final orders are made and observed that the distinguishing feature is that in final orders and judgments, the matter takes on the character of res judicata, the essence of which is that the issue, having been fairly contested by the parties, is finally resolved.
It seems to me that, by extension, it cannot be said that a matter was fairly contested when the party resorted to concealing relevant information from the court in what may amount to fraud. Where therefore a party could show such fraudulent concealment of information relevant to the determination of the issue to be decided then the court should under its common law discretion, exercise its powers and grant rescission. In Harare Sports Club & Another v United Bottlers Ltd 2000 (1) ZLR 264 (w p268 GILLESPIE .
1 took up the discussion on the discretionary powers of court in respect of rescission at common law thus: ‘The perceived strictures of this common law were seen as abated by rules of court. These permit the rescission of default judgment ‘on good and sufficient cause’; the rescission, variation or correction of judgments or orders for error and the rescission of judgments entered in terms of a written consent for ‘good and sufficient cause”. The rules (especially it 56 and 63) were seen as relaxing the common law.
Our law, however, is not aptly a casuistic set of rules and exceptions but rather a just and logical application of principle. It is therefore not surprising, and most to be welcomed, that this rigid and brittle view of this area of the law has been reconsidered. It is now recognised that the complicated rules may be explained in principle and that the principle is by no means as intractable as was defined earlier in the last century. Thus, 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 recognised 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 final judgment would be res judicata as between the parties and would appear to be a complete discharge of the court’s office.
On principle, however, justice demands that a final discharge tainted by fraud should not be permitted to stand. The other traditionally recognised exceptions are also explained on the basis that policy prefers to regard a judgment procured in some circumstances of ignorance of relevant documents to the contrary (for example) as not constituting a final discharge of the court’s function. Further instances where the court is not held to be functus officio arc those specified in r 449.
As has been said in connection with the counterpart in South Africa of this rule, this rule – “sets out exceptions to the general principle that a final order, correctly expressing the true decision of the court cannot he altered by the court … the court has a general discretion whether or not to grant an application for rescission under r 42(I). ” The apparently ill-assorted, eclectic instances gathered under that rule do share the common thread that in each case there are sound policy reasons, counteracting any suggestion offundus officio, for recognising a court’s discretion to revisit its order.
1 he rule does not provide statutory exceptions to, but has been said to codify (or perhaps better consolidate) the common law. ” I respectfully associate myself with these sentiments. Whilst the common law rule regarding rescission of orders in interlocutory matters is settled as having been trammeled by the rules, the position regarding rescission of final judgments is that it can only be permissible in circumstances where a party could establish a ground for restitution in integrum such as fraud or Justus error. I am satisfied that in casu the first respondent has discharged the onus in that regard.
Consequently I find that this matter is properly before me. I he line ol authorities uhich caution against reisiling one’s judgment proceed on the basis that the final judgment has been fairly obtained. 1 doubt whether in eases where there is strong evidence that judgment was not properly procured theses authorities would maintain the same position. I express no views on this but leave the question open as to what constitute a fairly procured judgment. One that was obtained by fraud or some such malfeasance cannot qualify to be treated as having been fairly obtained.
Having decided that this court is properly seized with the matter the next issue to decide is whether by reason of contempt, the first respondent should not be heard. I have set out in detail the basis upon which this point was raised on behalf of the applicant. It is that the respondents have failed to comply with the order of the Supreme Court of 25 January 2010 therefore they have approached the court with dirty hands. 1 must decide lirst whether the first respondent should be considered as having shut himself out of the doors of this court by virtue of lack of clean hands.
What qualifies a litigant for the title of dirty hands? Is this some immutable principle of our law or is it just a moral precept aimed at compliance with court orders? If it’s a rule of law, what is its content? In Mulligan v Mulligan 1925 WL1) 164 the following appears; “… Before a person seeks to establish his rights in a court of law, he must approach the court with clean hands; where he himself