RAY AND BRIAN ENTERPRISES (PRIVATE) LIMITED v THE MINISTER OF MINES AND MINERAL DEVELOPMENT and Others (249 of 2025) [2025] ZWHHC 249 (9 April 2025)

3 HH 249-25 HC 3611/24 Ref Case No. HC 4081/24 Ref Case No. HC 794/25 RAY AND BRIAN ENTERPRISES (PRIVATE) LIMITED versus THE MINISTER OF MINES AND MINERAL DEVELOPMENT and THE PROVINCIAL MINING DIRECTOR and LARYSCOPE HEALTH CARE (PRIVATE) LIMITED and SCRAVIEN NYAMUCHENGWA HIGH COURT OF ZIMBABWE MUSITHU J HARARE, 28 March & 9 April 2025 Opposed Application Review-Ruling on Application for Removal of Matter from the Roll Mr T Magwaliba, for the applicant Mr F Chimunoko, for the 1st & 2nd respondents Mr T Zhuwarara, for the 3rd respondent Ms A Mhlanga, for the 4th respondent MUSITHU J: On 20 August 2024, the applicant filed this application for the review of the first respondent’s decision to: withdraw the notice of intention to cancel the third respondent’s certificate of registration of its milling site, registration number ME18 and to cancel the certificate of registration of Kaukonde Tanyaradzwa Brian’s Block registration number 44957 and the certificate of registration of the fourth respondent’s block registration number ME 348 G of Reef Scrai A. Also being challenged is the second respondent’s intention to cancel the certificate of registration named Ayerum (registration number ME 44957) belonging to the applicant. The parties first appeared before me for arguments in HCH 3611/24 on 7 February 2025. At the commencement of the oral submissions, a preliminary point was raised on behalf of the third respondent concerning the propriety of filing the first respondent’s record of proceedings on the eve of the hearing of the matter. On 11 February 2025, I handed down my ruling dismissing the preliminary point and directed that the matter be set down for hearing during the term on a date to be agreed upon by the parties and the registrar. The matter was set down for hearing by consent on 28 March 2025. At the commencement of the hearing, the third respondent’s counsel applied for the removal of the matter from the roll, citing the reason that on 12 March 2025, the third respondent had filed an application for consolidation of matters in terms of r 7 and 34 as read with r 59 of the High Court Rules, 2021 (the Rules), under HCH 1131/25. The matters to be consolidated were the present application before me (HCH 3611/24), HCH 4081/24 and HCH 794/25. According to the third respondent, HCH 3611/24 and HCH 4081/24 were both applications for review against the decision of the first respondent. HCH 794/25 was an application for a declaratur and the issues raised therein were also similar to those raised in the two review applications. The application for the removal of the matter from the roll was opposed by the applicant herein, with Mr Magwaliba appearing for the applicant dismissing it as another strategy by the third respondent to derail the hearing of the matter. Counsel submitted that at the first hearing the court had raised the issue of the consolidation of this matter with HCH 4081/24, but the parties had all agreed that the present matter proceeds independent of the other matter. Counsel further submitted that HCH 4081/24 was an application for review by the fourth respondent, but the grounds for review were different from those in the present application. He further submitted that the decision being reviewed, and the facts relied upon were not the same as those in the present application. Counsel also submitted that HCH 794/25 was concerned with the entitlement of the third respondent to carry out mining operations using a certificate of registration in respect of a mining location, which the law did not permit. That application attacked the validity of the certificate, which issue did not arise in the present matter. It was further submitted on behalf of the applicant that there was no risk of the multiplicity of proceedings because any decision made by the court herein was only binding on the parties before me. Counsel for the first and second respondents did not oppose the application for the removal of the matter from the roll. His position was that in respect of the present matter and HCH 4081/24, the relief sought essentially challenged the same decision that was rendered by the first respondent. The proceedings leading to the decision were held before the same Mining Commissioner and a single record of proceedings was produced. Analysis The principle of the law is that related matters involving the same parties’ and the same issues must be consolidated and heard together for the convenience of the court and the parties. It bodes well with the efficient administration of justice and the need to achieve finality in litigation. It saves the administration of justice well to avoid having matters involving the same parties and the same issues being strewn all over the same court and before different judges. There is a real likelihood of having different judges reaching different conclusions in respect of the same subject matter. The request for consolidation of matters should, however, not be used as a weapon to stifle the hearing of matters that are ripe to be argued, especially as was the case with the present matter. HCH 4081/24 was issued and filed on 18 September 2024, just a month after the present application was filed. HCH 794/25 was issued and filed on 20 February 2025, some few days after the parties first appeared before me to argue this matter. When the parties appeared before me on 7 February 2025 to argue this matter, they were therefore aware that there was another pending matter under HCH 4081/24 which was related to the present matter. The third respondent ought to have approached the court for the consolidation of the matters before the present matter was set down for hearing. Allowing the registrar to set the matter down for hearing and then appear at the hearing to argue the matter without reference to the need to consolidate the matters leaves one with the impression that the application for consolidation was an afterthought intended to delay the hearing of this matter. That unnecessarily created a partly heard matter which ought to have been disposed of with minimum inconvenience to the parties. Be that as it may, having gone through the cases that the third respondent wishes to be consolidated with the present matter, the court was satisfied that the matters involved the same parties and the same subject matter. In HCH 4081/24, the fourth respondent herein was the applicant. The first to third respondents are just as they are cited herein. The applicant herein is the fourth respondent. That application for review is concerned with the same mining claims and the same decision of the first respondent just as is the case with the present application. In HCH 794/25, the applicant herein is the first applicant, while the fourth respondent is the second applicant. The third respondent herein is the first respondent in that matter, while the first respondent herein is the third respondent. The second respondent herein is the second respondent therein. The dispute is also concerned with the same mining claims as is the case with the two applications for review. It is the court’s view that these matters are connected, which warrants the removal of the present matter from the roll pending the determination of the application for consolidation. Costs As regards wasted costs, Mr Zhuwarara for the third respondent, submitted that he refrained from tendering wasted costs because all the parties had been forewarned of the third respondent’s intention to seek the removal of the matter from the roll. That position was communicated through letters of 24 and 26 March 2025. The letter of 24 March 2025 was addressed to the applicant’s legal practitioners and copied to the other parties herein and the registrar. The letter of 26 March 2025 was addressed to the registrar and copied to the other parties herein. These two letters were dispatched following the dismissal of the third respondent’s preliminary point on 11 February 2025. The applicant’s legal practitioners responded to the letter of 24 March 2025 rejecting the request for the removal of the matter from the roll pending the determination of the application for consolidation. They insisted that the parties should proceed to argue the matter on 28 March 2025. The issue of the consolidation of the matters was not raised for the first time in the March 2025 letters. On 20 January 2025, the third respondent’s legal practitioners wrote to the registrar requesting that the present matter be consolidated with HCH 4081/24. The reason given for the request was that the two matters were concerned with the same dispute which required them to be comprehensively dealt with at the same time. That letter was copied to the applicant’s legal practitioners and the fourth respondent’s legal practitioners. The registrar responded to that letter on 27 January 2024, advising the parties that the judge had directed that the parties must engage on the issue and if they reached an agreed position, then they could proceed to prepare an order by consent for the consolidation of the matters for the judge’s signature. That letter elicited a response from the third respondent’s legal practitioners on 29 January 2025 in which they wrote as follows: “We refer to the above matter and the judge’s comments. Whilst our professional view was that, the two matters are the same and best be dealt with at the same time or be consolidated. We note the complications that may be involved. We therefore accordingly withdraw our request.” It is therefore clear that when the parties first appeared before me on 7 February 2025, the third respondent’s legal practitioners had abandoned their request for the consolidation of the matters. To then turn around after the matter had been partly heard and approach the court for the removal of the matter from the roll for the same reason that had earlier been jettisoned, smacked of dishonest and litigating in bad faith. An adverse order of costs is therefore inescapable. Court business must be taken seriously. I note though that although the fourth respondent was represented at the hearing, he did not file any opposing papers to the application before me. The first and second respondents did not oppose the request for the removal of the matter from the roll. It is only the applicant that contested the request, and justifiably so because the third respondent had earlier abandoned the request for the removal of the matter from the roll. The applicant is therefore entitled to an order of costs for the prejudice occasioned by the third respondent’s turnabout. Resultantly it is ordered that: The application is hereby removed from the roll pending the hearing and determination of the application for consolidation under HCH 1131/25.The third respondent shall bear the applicant’s wasted costs on an ordinary scale. musithu J: ......................................................................................................................................... Warara & Associates, legal practitioners for the applicant Civil Division of the Attorney General’s Office, legal practitioners for the first and second respondents Kadzere, Hungwe & Mandevere, legal practitioners for the third respondent 3 HH 249-25 HC 3611/24 Ref Case No. HC 4081/24 Ref Case No. HC 794/25 3 HH 249-25 HC 3611/24 Ref Case No. HC 4081/24 Ref Case No. HC 794/25 RAY AND BRIAN ENTERPRISES (PRIVATE) LIMITED versus THE MINISTER OF MINES AND MINERAL DEVELOPMENT and THE PROVINCIAL MINING DIRECTOR and LARYSCOPE HEALTH CARE (PRIVATE) LIMITED and SCRAVIEN NYAMUCHENGWA HIGH COURT OF ZIMBABWE MUSITHU J HARARE, 28 March & 9 April 2025 Opposed Application Review-Ruling on Application for Removal of Matter from the Roll Mr T Magwaliba, for the applicant Mr F Chimunoko, for the 1st & 2nd respondents Mr T Zhuwarara, for the 3rd respondent Ms A Mhlanga, for the 4th respondent MUSITHU J: On 20 August 2024, the applicant filed this application for the review of the first respondent’s decision to: withdraw the notice of intention to cancel the third respondent’s certificate of registration of its milling site, registration number ME18 and to cancel the certificate of registration of Kaukonde Tanyaradzwa Brian’s Block registration number 44957 and the certificate of registration of the fourth respondent’s block registration number ME 348 G of Reef Scrai A. Also being challenged is the second respondent’s intention to cancel the certificate of registration named Ayerum (registration number ME 44957) belonging to the applicant. The parties first appeared before me for arguments in HCH 3611/24 on 7 February 2025. At the commencement of the oral submissions, a preliminary point was raised on behalf of the third respondent concerning the propriety of filing the first respondent’s record of proceedings on the eve of the hearing of the matter. On 11 February 2025, I handed down my ruling dismissing the preliminary point and directed that the matter be set down for hearing during the term on a date to be agreed upon by the parties and the registrar. The matter was set down for hearing by consent on 28 March 2025. At the commencement of the hearing, the third respondent’s counsel applied for the removal of the matter from the roll, citing the reason that on 12 March 2025, the third respondent had filed an application for consolidation of matters in terms of r 7 and 34 as read with r 59 of the High Court Rules, 2021 (the Rules), under HCH 1131/25. The matters to be consolidated were the present application before me (HCH 3611/24), HCH 4081/24 and HCH 794/25. According to the third respondent, HCH 3611/24 and HCH 4081/24 were both applications for review against the decision of the first respondent. HCH 794/25 was an application for a declaratur and the issues raised therein were also similar to those raised in the two review applications. The application for the removal of the matter from the roll was opposed by the applicant herein, with Mr Magwaliba appearing for the applicant dismissing it as another strategy by the third respondent to derail the hearing of the matter. Counsel submitted that at the first hearing the court had raised the issue of the consolidation of this matter with HCH 4081/24, but the parties had all agreed that the present matter proceeds independent of the other matter. Counsel further submitted that HCH 4081/24 was an application for review by the fourth respondent, but the grounds for review were different from those in the present application. He further submitted that the decision being reviewed, and the facts relied upon were not the same as those in the present application. Counsel also submitted that HCH 794/25 was concerned with the entitlement of the third respondent to carry out mining operations using a certificate of registration in respect of a mining location, which the law did not permit. That application attacked the validity of the certificate, which issue did not arise in the present matter. It was further submitted on behalf of the applicant that there was no risk of the multiplicity of proceedings because any decision made by the court herein was only binding on the parties before me. Counsel for the first and second respondents did not oppose the application for the removal of the matter from the roll. His position was that in respect of the present matter and HCH 4081/24, the relief sought essentially challenged the same decision that was rendered by the first respondent. The proceedings leading to the decision were held before the same Mining Commissioner and a single record of proceedings was produced. Analysis The principle of the law is that related matters involving the same parties’ and the same issues must be consolidated and heard together for the convenience of the court and the parties. It bodes well with the efficient administration of justice and the need to achieve finality in litigation. It saves the administration of justice well to avoid having matters involving the same parties and the same issues being strewn all over the same court and before different judges. There is a real likelihood of having different judges reaching different conclusions in respect of the same subject matter. The request for consolidation of matters should, however, not be used as a weapon to stifle the hearing of matters that are ripe to be argued, especially as was the case with the present matter. HCH 4081/24 was issued and filed on 18 September 2024, just a month after the present application was filed. HCH 794/25 was issued and filed on 20 February 2025, some few days after the parties first appeared before me to argue this matter. When the parties appeared before me on 7 February 2025 to argue this matter, they were therefore aware that there was another pending matter under HCH 4081/24 which was related to the present matter. The third respondent ought to have approached the court for the consolidation of the matters before the present matter was set down for hearing. Allowing the registrar to set the matter down for hearing and then appear at the hearing to argue the matter without reference to the need to consolidate the matters leaves one with the impression that the application for consolidation was an afterthought intended to delay the hearing of this matter. That unnecessarily created a partly heard matter which ought to have been disposed of with minimum inconvenience to the parties. Be that as it may, having gone through the cases that the third respondent wishes to be consolidated with the present matter, the court was satisfied that the matters involved the same parties and the same subject matter. In HCH 4081/24, the fourth respondent herein was the applicant. The first to third respondents are just as they are cited herein. The applicant herein is the fourth respondent. That application for review is concerned with the same mining claims and the same decision of the first respondent just as is the case with the present application. In HCH 794/25, the applicant herein is the first applicant, while the fourth respondent is the second applicant. The third respondent herein is the first respondent in that matter, while the first respondent herein is the third respondent. The second respondent herein is the second respondent therein. The dispute is also concerned with the same mining claims as is the case with the two applications for review. It is the court’s view that these matters are connected, which warrants the removal of the present matter from the roll pending the determination of the application for consolidation. Costs As regards wasted costs, Mr Zhuwarara for the third respondent, submitted that he refrained from tendering wasted costs because all the parties had been forewarned of the third respondent’s intention to seek the removal of the matter from the roll. That position was communicated through letters of 24 and 26 March 2025. The letter of 24 March 2025 was addressed to the applicant’s legal practitioners and copied to the other parties herein and the registrar. The letter of 26 March 2025 was addressed to the registrar and copied to the other parties herein. These two letters were dispatched following the dismissal of the third respondent’s preliminary point on 11 February 2025. The applicant’s legal practitioners responded to the letter of 24 March 2025 rejecting the request for the removal of the matter from the roll pending the determination of the application for consolidation. They insisted that the parties should proceed to argue the matter on 28 March 2025. The issue of the consolidation of the matters was not raised for the first time in the March 2025 letters. On 20 January 2025, the third respondent’s legal practitioners wrote to the registrar requesting that the present matter be consolidated with HCH 4081/24. The reason given for the request was that the two matters were concerned with the same dispute which required them to be comprehensively dealt with at the same time. That letter was copied to the applicant’s legal practitioners and the fourth respondent’s legal practitioners. The registrar responded to that letter on 27 January 2024, advising the parties that the judge had directed that the parties must engage on the issue and if they reached an agreed position, then they could proceed to prepare an order by consent for the consolidation of the matters for the judge’s signature. That letter elicited a response from the third respondent’s legal practitioners on 29 January 2025 in which they wrote as follows: “We refer to the above matter and the judge’s comments. Whilst our professional view was that, the two matters are the same and best be dealt with at the same time or be consolidated. We note the complications that may be involved. We therefore accordingly withdraw our request.” It is therefore clear that when the parties first appeared before me on 7 February 2025, the third respondent’s legal practitioners had abandoned their request for the consolidation of the matters. To then turn around after the matter had been partly heard and approach the court for the removal of the matter from the roll for the same reason that had earlier been jettisoned, smacked of dishonest and litigating in bad faith. An adverse order of costs is therefore inescapable. Court business must be taken seriously. I note though that although the fourth respondent was represented at the hearing, he did not file any opposing papers to the application before me. The first and second respondents did not oppose the request for the removal of the matter from the roll. It is only the applicant that contested the request, and justifiably so because the third respondent had earlier abandoned the request for the removal of the matter from the roll. The applicant is therefore entitled to an order of costs for the prejudice occasioned by the third respondent’s turnabout. Resultantly it is ordered that: The application is hereby removed from the roll pending the hearing and determination of the application for consolidation under HCH 1131/25. The third respondent shall bear the applicant’s wasted costs on an ordinary scale. musithu J: ......................................................................................................................................... Warara & Associates, legal practitioners for the applicant Civil Division of the Attorney General’s Office, legal practitioners for the first and second respondents Kadzere, Hungwe & Mandevere, legal practitioners for the third respondent