Khanyisa Minerals (Private) Limited v Crowburg Resources (Private) Limited

On 16 October 2018, the applicant filed an application to set aside an order obtained under HC 8522/19. The applicant had not been cited as a party in those proceedings despite being an affected party who held mining claims that were the subject of the dispute. The applicant was barred for failure to file an answering affidavit in HC 8522/19, and a default judgment was entered against it on 28 May 2020 for want of prosecution. The applicant had acquired mining claims from JN Syndicate which had acquired them in April 2018 after they were forfeited by the fourth and fifth respondents for failure to renew inspection certificates as required by the Mines and Minerals Act. The first respondent (Crowburg Resources) had filed an application under HC 5284/19 to set aside the forfeiture but did not cite the applicant, who was the registered holder of the claims. The applicant invested extensively in developing the claims and obtained loans for this purpose. The applicant sought condonation for late filing of an application for rescission of the default judgment in terms of Rule 63 of the old High Court Rules, 1971. The delay was attributed to Covid-19 pandemic challenges, including one director being outside Zimbabwe, which affected corporate decision-making.

• Whether condonation should be granted for late filing of an application for rescission of judgment
• Whether the length of delay was inordinate and reasonably explained
• Whether the applicant had good prospects of success in the rescission application
• Whether there was material non-joinder of the applicant in HC 5284/19
• Whether a judgment affecting a party who was not cited is enforceable against that party
• Whether the applicant, as registered holder of the mining claims, was a necessary party to proceedings seeking to set aside forfeiture of those claims

1. The application for condonation of late filing of the application for rescission of judgment was granted. 2. The applicant was ordered to file its application for rescission of the default judgment within five (5) days of being served with or becoming aware of the order. 3. There was no order as to costs.

The binding legal principles established are: (1) A party with a direct and substantial interest in the subject-matter of litigation, whose rights may be prejudiced by an order, must be joined as a necessary party, not merely a party of convenience. (2) In mining disputes, the registered holder of claims that are the subject of litigation seeking to set aside forfeiture must be cited and joined to the proceedings, as they have a material interest requiring them to be heard. (3) A judgment or order affecting the rights of a party who was not cited in the proceedings is unenforceable against that party. (4) In applications for condonation of late filing, the court must consider all factors cumulatively - length of delay, reasonableness of explanation, prospects of success, and prejudice - and strong prospects of success may compensate for a long delay or weak explanation. (5) Material non-joinder of a necessary party constitutes good prospects of success in a rescission application.

The court made several non-binding observations: (1) The court noted that the Minister of Mines and Mining Development supported the position that the applicant should have been joined to the proceedings in HC 5284/19, lending weight to the applicant's case. (2) The court observed that the applicant's stance in not seeking costs against the first respondent was "eminently reasonable" given that it was seeking the court's indulgence for non-compliance with the Rules. (3) The court commented that compliance with the order by the second and third respondents was "neither here nor there" in determining whether the applicant had been properly joined. (4) The court remarked that to deny the applicant a hearing would be to ignore its argument that the forfeiture was done lawfully in terms of the Mines and Minerals Act. (5) The court noted the inconvenience and oppression that would result from non-joinder, including multiplicity of actions, which should be avoided.

This case is significant in Zimbabwean civil procedure and mining law for several reasons: (1) It reinforces the principle that parties with a direct and substantial interest in litigation must be joined, particularly in mining disputes where registered claim holders are affected; (2) It confirms that judgments affecting parties who were not cited are unenforceable against such parties; (3) It demonstrates the court's willingness to grant condonation where there are strong prospects of success, even if the explanation for delay is not compelling, applying a cumulative approach to the condonation factors; (4) It provides guidance on distinguishing between necessary parties and parties of mere convenience in the context of mining rights disputes; (5) It emphasizes the importance of procedural fairness and the right to be heard where rights and interests are affected by court orders.