ACR, together with five subsidiary companies, cited Mines and Mining Development minister Obert Mpofu, the Minerals Marketing Corporation of Zimbabwe and the Zimbabwe Mining Development Corporation as respondents.
Justice Hungwe on September 6 this year cancelled an earlier ruling he made last year which confirmed ACR’s claims in the Marange fields.
ACR through its lawyer, Jonathan Samkange , said Justice Hungwe’s rescission of his own judgment given in September last year was erroneous as he had “issued directions” in a case which was no longer before him.
In terms of High Court rule 4C, Samkange argued, directions may only be issued by a judge in relation to a case before him.
“The judge did not in fact issue directions as contemplated by the rule 4C,” said Samkange. “He erred by descending into the arena and giving the first respondent legal advice on the procedure to be adopted in applying for rescission of his judgment of 24 September, 2009.”
Samkange also said the judge erred when he amended his judgment after it had been read out in an open court.
“In the absence of proof, and in light of the clear dispute of fact on papers, the judge erred in finding that the first respondent had discharged the onus of establishing the existence of a ground for restitution in integrum (restoration to original position), namely fraud on the part of the appellants,” said Samkange. “The judge erred in finding that the Supreme Court was not seized with the matter, and in not appreciating and failing to consider that the matter was res judicata ( a matter already settled in court). Inter alia, he failed to appreciate that the factors relied upon by first respondent were in effect merely new grounds introduced under the guise of an allegation of fraud and a reserved area.”
Samkange said Justice Hungwe had also erred in finding that the matter “was properly before him” and he was not functus officio (having performed his duties.)
In rescinding the earlier judgment, Justice Hungwe said in arriving at the decision last year, ACR had concealed certain “fundamental facts which completely disentitle the ACR group of the relief which the court granted.”
“The ACR group fraudulently concealed the facts in order to gain an unfair advantage and for the purpose of procuring favourable judgment,” said Justice Hungwe. “It is therefore our humble request that the Court, having regard to the fraud committed by the ACR group, give directions on the proper course of action and procedure to be taken at law in order to procure the rescission of the judgment procured by fraud”.
ACR chief executive officer Andrew Cranswick last week said they had repeatedly stated their desire to work with the government on the issue and to resolve the impasse outside of court in a legal and fair manner that will benefit Zimbabwe while gaining international acceptance.
“We again state our wish to move forward on the issue and assist in reversing negative international sentiments about these diamonds,” said Cranswick.
He added that the perceived lack of transparency and fairness continues to obstruct the flow of clean, ethical funding into the economy.
ACR is registered on the London Stock Exchange’s Alternative International Markets. It is a multi-commodity resource development company focused on Zimbabwe. The Company has been active in Zimbabwe since 2004 and has over 12 key projects covering gold, nickel, platinum, copper, phosphate and diamonds. ACR has acquired and developed a diversified portfolio of mineral holdings in Zimbabwe with prospects in Zambia and Mozambique.
It has however been finding problems with regards to its claims in Marange where it has been systematically elbowed out to allow a preferred partner to venture into the diamond fields with the Zimbabwe Mining Development Corporation. ACR has been fighting, through the courts, to reclaim its interests in the diamond rich area but government has continued to challenge the claims.