E. A Fundira Trust v Regis Mining Syndicate and Robert Chipwanyira

The respondents filed an application under HC 1425/16 on 7 June 2016 seeking a declaratur of mining rights and cancellation of a special mining grant (SG 5751) issued in favour of the applicant. The application was served on the applicant in 2017. The applicant filed a notice of opposition and opposing affidavit on 8 June 2017. The respondents failed to file an answering affidavit or set down the matter for hearing. On 27 October 2020, after more than three years of inaction, the applicant filed an application for dismissal of the respondents' application for want of prosecution in terms of Order 32 Rule 236(3)(b) of the High Court Rules, 1971. The respondents opposed the dismissal application, attributing the delay to financial challenges. The respondents had held a prospecting licence and were in the process of obtaining a mining claim when the applicant obtained a special grant over the same area. The area in question was subsequently reserved under section 35 of the Mines and Minerals Act, Chapter 21:05.

• Whether the applicant established grounds for dismissal of the respondents' application for want of prosecution
• What factors must be considered in an application for dismissal for want of prosecution
• Whether the length of delay and explanation thereof justified dismissal
• Whether the respondents had prospects of success in the underlying application HC 1425/16
• Whether the balance of convenience and prejudice favoured dismissal
• Whether the respondents' prospecting rights ceased upon reservation of the area under section 35 of the Mines and Minerals Act
• Whether the respondents complied with section 38(2) of the Mines and Minerals Act regarding notice to the land occupier

The application for dismissal succeeded with costs at the ordinary scale. The application filed under case number HC 1425/16 was dismissed for want of prosecution, with costs to be paid by the respondents at the ordinary scale.

In an application for dismissal for want of prosecution under Order 32 Rule 236(3)(b), the court must exercise judicial discretion by considering three factors: (1) the length of delay and explanation thereof; (2) prospects of success on the merits; and (3) balance of convenience and possible prejudice. These factors must be considered cumulatively, not in isolation. Under section 35 of the Mines and Minerals Act, when an area is reserved, the rights of holders of prospecting licences cease, unless they fall within the proviso as holders of a "mining location" - which requires that mining rights have already been acquired, not merely that the process of acquisition has commenced. A person who holds only a prospecting licence and is in the process of seeking a mining claim does not hold a "mining location" for purposes of the section 35 exemption.

The court observed that matters should not be allowed to clog the court system "just for the sake of it" and questioned why the respondents would continue to prosecute an application seeking to vacate a special grant that had already lapsed due to effluxion of time and non-renewal. The court suggested that the respondents' continued prosecution of the matter appeared designed to interfere with the applicant's operations rather than to pursue legitimate relief. The court also noted that while it would normally have awarded punitive costs given the circumstances, it declined to do so because the respondents did at least oppose the dismissal application (albeit with much prodding) rather than doing nothing at all.

This case is significant in Zimbabwean civil procedure for its application of the Guardforce test for dismissal for want of prosecution. It demonstrates that while delay alone may not justify dismissal, when combined with no prospects of success and prejudice to the opposing party, dismissal is warranted. The case also clarifies important principles under the Mines and Minerals Act, particularly that holders of prospecting licences who have not yet obtained registered mining claims do not fall within the exemption in the proviso to section 35 and lose their prospecting rights when an area is reserved. The judgment emphasizes that courts should not allow matters without merit to clog the system merely for the sake of it, and that applications rendered moot by supervening events (such as lapse of the contested grant) should not be allowed to continue.