Freda Rebecca Gold Mine (Private) Limited and Freda Rebecca Holdings Limited v Shantel Mbereko and The Minister of Mines and Mining Development and The Mining Commissioner

The Minister of Mines and Mining Development had on 22 May 2018 cancelled the registration of various mining claims issued to three syndicates (Rass Mining Syndicate, Chehumbe Mining Syndicate, and Community Mining Syndicate). The first respondent, Shantel Mbereko, who was not a party to or mentioned in the Minister's decision, filed an application for review of that decision in matter HC 4044/18, purporting to act in a representative capacity for the syndicates. The applicants (Freda Rebecca Gold Mine and Freda Rebecca Holdings) opposed the review application and filed their notice of opposition on 22 May 2018. The first respondent failed to file an answering affidavit to the applicants' notice of opposition. By 22 July 2018, almost three months had elapsed without the first respondent filing an answering affidavit or setting the review application down for hearing. The applicants then filed the current application for dismissal of the review application for want of prosecution.

• Whether the applicants were entitled to dismissal of the review application for want of prosecution under Order 32 Rule 236(3)(b) of the High Court Rules
• Whether the first respondent had locus standi to challenge the Minister's decision when she was not a party to the original decision
• Whether there was inequity in the application of Rule 236(4)(a) versus Rule 236(4)(b) as alleged by the first respondent

The application for dismissal of matter number HC 4044/18 for want of prosecution was granted with the first respondent paying the applicants' costs on a legal practitioner and client scale.

Where a respondent in a review application files a notice of opposition but fails to file an answering affidavit and fails to set the matter down for hearing within the prescribed dies inducie under the High Court Rules, the applicant is entitled to have the matter dismissed for want of prosecution in terms of Order 32 Rule 236(3)(b). Furthermore, a party who was not a party to an administrative decision and who is not mentioned in or affected by that decision lacks locus standi to challenge that decision on review. The court will not consider academic legal points raised by a party who lacks standing in the underlying matter.

The court noted that the first respondent appeared to have a pattern of prosecuting multiple matters without ensuring their resolution, demonstrating a tendency to unnecessarily detain the court. Mushore J also cautioned against making obiter dicta statements on unresolved related matters (HC 4096/18, HC 3310/18, and HC 1662/18) lest such statements be perceived as potentially persuasive commentary when those matters are argued in the future. The court declined to explore the first respondent's argument about alleged inequity in Rule 236(4)(a) versus (b), finding it an academic point not necessary for resolution of the matter before it.

This case reinforces important principles regarding civil procedure in Zimbabwe, particularly the consequences of failing to comply with procedural rules regarding the filing of affidavits and setting matters down for hearing. It demonstrates the court's willingness to dismiss matters for want of prosecution where a party fails to prosecute their case within prescribed time limits. The case also emphasizes the fundamental requirement of locus standi in administrative law matters, specifically that a party must have been affected by or have standing in relation to a decision before they can challenge it on review. The judgment also serves as a reminder that courts will award costs on a higher scale where opposition to an application is so devoid of merit as to constitute an abuse of court process.