This is the last and final instalment of a serialised article by a veteran lawyer on the court battle between government and African Consolidated Resources plc (ACR, now Vast Resources), a London Stock Exchange-listed local firm which owned the Chiadzwa diamond claims after South African global mining giant, the De Beers Group — the world’s leading diamond company — had moved out following the expiry of its exploration permit.
In deciding to rescind his earlier judgment, High Court judge Justice Charles Hungwe said that he was satisfied that the Minister had proved that the evidence before him was made fraudulently and with intent to mislead.
However, in his judgment he kept alleging that it was the failure on the part of ACR to lead evidence about its subsidiaries not being incorporated and about Reserved Area (RA) 1518 that was fraudulent. Nowhere does he make any mention of any evidence produced by ACR which was allegedly made fraudulently.
Moreover, in ordering the setting aside of his judgment, he did not declare that his order was set aside and substitute another order. He did not order that the “fraud” on the part of ACR meant that the registration of their claims was unlawful. He merely set aside his judgment, which meant that he was refusing to grant the application to declare the cancellation of the registration of the claims by the Mining Commissioner Mutare to be unlawful.
What clearly emerges from the judgment are the following:
- When Hungwe issued his directions at the request of the Minister of Mines, they were purportedly issued in terms of Rule 4C of the High Court Rules. Directions can only be issued in terms of that rule if the matter is before the judge.
As he had given his judgment more than six months earlier and an appeal had been noted, he was functus officio and the matter was before the Supreme Court. The judge admitted that the matter was not before him, though he tried to downplay that by saying “strictly speaking”.
The fact that he also directed the registrar that the matter had to be placed before him once all the proceedings were completed shows that he was well aware that the matter was not before him. However, he went ahead and issued the direction when he was not entitled to do so;
- The direction amounted not only to legal advice to the minister on the route he should follow in order to be able to obtain rescission of the judgment, but also to an instruction as to what the minister had to do. It is unacceptable for a judge to give one of the parties legal advice;
l The directions given were that the minister should file an application in terms of Rule 449 of the High Court Rules. However, that rule only empowers a judge to rescind his judgment if the circumstances set out in paragraph (a), (b) or (c) of that rule are applicable.
None of them were applicable, as the judge found, because he decided to rescind his judgment on the grounds conferred on a judge by the common law. Since the application had been made in terms of Rule 449, as directed, the judge should have dismissed the application;
- Although Hungwe ruled that ACR had fraudulently withheld from the court information about the non-incorporation of the subsidiary companies, nowhere in his judgment does he state what the fraud was.
With regard to the issue of prejudice, he intimated that the general public had been prejudiced, by virtue of the “vested interests” it allegedly has in minerals and mineral rights through Section 2 of the Mining Act, which provides that the dominium in and the right of searching and mining for and disposing of all minerals is vested in the president. A very surprising finding, which does not in any way indicate prejudice, as alleged by the judge;
l The finding by the judge that the “more damning piece of evidence” which was not placed before him in September 2009 related to RA1518 is incredible. If that notice was of any relevance, it was the duty and responsibility of the minister to place the information before the court. It was the officials in his ministry who allegedly issued the notice, either on the instructions, or with the subsequent approval, of the minister and the officials were responsible for ensuring that it was enforced.
Furthermore, even if evidence of RA1518 had been placed before the court and the judge accepted that the ACR claims fell within the RA, that would not have affected the case. It would not have made the registration of the claims automatically unlawful. They would have remained valid until cancelled by the Mining Commissioner.
Only the Mining Commissioner could have done so, not a court;
- In his letter of request for directions, the minister alleged that it is incompetent to acquire mining title through a prospecting licence or the pegging of claims in an area reserved against prospecting and pegging and that the ACR group fraudulently concealed the fact of the existence of the reservation and procured the registration of their claims by fraud.
Those allegations are completely false. Section 50 of the Mining Act shows very clearly that such title is competently acquired, because it provides that the Mining Commissioner may cancel the registration of such claims.
However, the judge obviously merely accepted that the legal position as alleged by the minister was correct and that it was the responsibility of ACR and not the minister to lay such evidence before the court, because he said that “a more damning piece of evidence which was not placed before me in September 2009 is reservation order 1518 made in terms of a Section 35(1) of the Mining Act”; and
- Hungwe rescinded his earlier judgment, which presumably had the effect of also rescinding his order, but he failed to set out what order would be substituted. Therefore the purported cancellation of the claims, which the judge had ruled was unlawful, has not been set aside and there is no order as to the costs incurred in connection with HC6411/07.
Effectively, the parties are now in limbo. The effect of the judge’s rescission of his earlier judgment is that the order he issued has also been rescinded and there is no order in case HC6411/07, which must now be regarded as pending.