Tenke Fungulume Mining S.A.R.L v Bruno Enterprises (Pvt) Ltd (Under Judicial Management)

The respondent (Bruno Enterprises) instituted action against the applicant (Tenke Fungulume Mining) for delictual damages arising from alleged negligence and/or breach of duty of care. The claim arose from an incident in the Democratic Republic of Congo (DRC) in 2010 where the respondent's trucks were damaged by arson allegedly committed by the applicant's employees during an unlawful and riotous collective job action. The respondent obtained an order for attachment to found jurisdiction in Zimbabwe (HC 10736/14). The applicant applied for absolution from the instance, which was dismissed by the High Court under HC 2036/15. The applicant appealed to the Supreme Court (SC 421/19), which allowed the appeal by consent and remitted the matter back to the High Court for determination of all issues placed before it. The High Court re-wrote its judgment (HH 390/21) and again dismissed the application for absolution from the instance. The applicant then sought leave to appeal against the second dismissal.

• Whether the High Court erred by rendering a determination on remittal without hearing the parties again
• Whether the court erred in not requiring proof of Congolese law where the delict occurred in the DRC
• Whether vicarious liability can attach to an employer for employees engaged in unlawful and riotous collective job action
• Whether the respondent established a prima facie case sufficient to resist absolution from the instance
• Whether the respondent's claim had prescribed
• Whether the court erred in finding evidence of breach of duty of care and damages
• Whether leave to appeal should be granted

The application for leave to appeal was dismissed. The applicant was ordered to pay costs on an ordinary scale.

The binding legal principles established are: (1) When the Supreme Court remits a matter for determination of issues placed before the court, the High Court may properly determine those issues from the existing record without a further hearing, provided the Supreme Court's order does not expressly require one; (2) A party who submits to the jurisdiction of a court by defending an action accepts the application of that court's law, and the burden of proving foreign law rests with the party seeking to rely on it; (3) At the absolution from the instance stage, the test is whether the plaintiff has established a prima facie case, not whether the plaintiff has proved its case on a balance of probabilities; (4) Leave to appeal against an interlocutory order will be refused where there are no reasonable prospects of success and the application is mounted to delay the finalization of proceedings, particularly where it is a second application for leave on the same interlocutory issue.

The court made observations about the undesirability of indefinite postponement of litigation and emphasized that delays inevitably compromise and bring the administration of justice into disrepute, leading to loss of public confidence in the justice system. The court observed that both parties deserve finality, the public desires it, and courts are better served by it as they have many other litigants to attend to. The court noted it is intrinsically undesirable that a judge should be seized with a matter for an indeterminate period. The court also made sympathetic observations about the applicant's position, borrowing from Savage and Lovemore Mining (PTY) Ltd v International Shipping Co. (PTY) LTD 1987 (2) SA 149(W) that the appeal might be understood as "a straw at which a drowning man may be expected to grasp", but held this alone could not justify granting leave to appeal.

This case is significant in Zimbabwean civil procedure for several reasons: (1) it clarifies the procedure to be followed when a matter is remitted by the Supreme Court, holding that a rehearing is not always required and the High Court may determine issues from the existing record; (2) it reinforces the principle that parties who submit to the jurisdiction of a court are bound by its applicable law and the burden of proving foreign law rests with the party relying on it; (3) it demonstrates the court's commitment to finality in litigation and willingness to refuse leave to appeal where applications are mounted merely to delay proceedings, particularly on repeated interlocutory applications; (4) it applies the established test for absolution from the instance and confirms that prima facie establishment of the elements of delict is sufficient to resist absolution at the close of the plaintiff's case.