Seabridge Mine (Pvt) Ltd v The Mining Director, Mashonaland Central N.O. and Others

In 1994, the applicant acquired mining rights consisting of 4 blocks known as Dulana 45, under registration number 21483. Twelve years later, on 25 June 2006, mining claim Appex 205/7, Registration no. 44638/40 was registered in favour of the 3rd respondent (BBL Mining Syndicate). A dispute arose between the applicant and 3rd respondent concerning the boundaries of their respective claims. The Mining Director for Mashonaland Central directed a survey to be conducted. The Mine Surveyor's report found that Appex 205, 206, 207 and Dulana 45 were co-existing on the same place. The Mining Director decided that Dulana 45 was on the ground in the wrong position as compared to its registration papers and that Dulana 45 should revert back to its original position. Aggrieved by this decision, which appeared contrary to the surveyor's findings, the applicant launched an application for review purportedly in terms of Order 33 Rule 256 of the High Court Rules 1971.

• Whether the application for review complied with the procedural requirements of Order 33 Rule 256 as read with Rule 257 of the High Court Rules 1971
• Whether non-compliance with procedural rules could be raised as a point in limine where the factual basis was not pleaded in opposing affidavits
• Whether the legal practitioner should bear costs where gross procedural incompetence resulted in a defective application

The application was summarily struck out for failure to comply with the High Court Rules, with costs to be borne by the applicant's legal practitioners. The court noted it did not dismiss the application as one cannot dismiss something which does not exist, the application being null and void ab initio.

When an application for review is brought in terms of Order 33 Rule 256 of the High Court Rules 1971, compliance with Rule 257 is mandatory and requires that the grounds for review must be stated in the notice of application itself. Failure to comply with this requirement renders the application null and void ab initio. Non-compliance with procedural rules is a matter of law that can be raised at any time and does not require the factual basis to be pleaded in opposing affidavits. A nullity does not become valid because evidence of non-compliance has not been pleaded. Where a legal practitioner's failure to appreciate relevant procedural requirements results in a nullity, the legal practitioner must bear the costs personally.

The court observed that the applicant's draft order could have been couched better but did not dwell on it given the fatal procedural defects. The court noted that wise counsel, upon having the procedural defects pointed out in the respondents' heads of argument, would have immediately withdrawn the defective application and filed an appropriate one. The court emphasized that legal practitioners are expected to competently advise their clients and draw up proper pleadings, and where they fail to do so exhibiting less than reasonable appreciation of the rules and procedures for which their expertise is sought, they must bear the consequences through personal costs orders.

This case reinforces the strict procedural requirements for review applications in Zimbabwean law. It establishes that when an applicant elects to bring a review application under Order 33 Rule 256, compliance with Rule 257 is mandatory - the grounds for review must be stated in the notice of application itself, not merely in supporting affidavits or heads of argument. The case also demonstrates that procedural non-compliance is a matter of law that can be raised at any time and does not require factual pleading. Furthermore, it provides important guidance on when legal practitioners may be ordered to bear costs personally - where their incompetence or failure to understand basic procedural requirements renders a disservice to their clients. The judgment serves as a warning to practitioners to ensure proper compliance with procedural rules from the outset rather than attempting to cure defects through subsequent papers.