Brigade Construction Limited v Bangweulu Batteries Limited and Anor (APPEAL NO. 22/2020) [2021] ZMCA 224 (26 July 2021)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 22/2020 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: BRIGADE CONSTRUCTION LIMITED AND BANGWEULU BATTERIES LIMITED ATTORNEY GENERAL 1 ST RESPONDENT 2ND RESPONDENT CORAM: KONDOLO SC, CHISHIMBA AND NGULUBE, JJA. On 19t h May, 2021 and 26th July, 2021. For the Appellant: Ms. C. Chibawe, of Messrs. Ferd Jere & Company. For the 1st Respondent: Mr. G. W. Simukoko, of Messrs. G. W. Simukoko & Company. For the 2 nd Respondent: No Appearance. JUDGMENT NGULUBE, JA delivered the judgment of the Court. Cases referred to: 1. 2. 3. 4. 5. Dean Mung'omba and Others vs Attorney General and Others (2003) ZR 17. Attorney General vs Law Association of Zambia, SCZ Judgment No. 3 of 2008. Dora Siliya and Others vs The Attorney General and Others (2013) ZMHC 2013. Fredrick Jacob Titus Chiluba vs Attorney General, Appeal No . 125 of 2002. Ridge vs Baldwin (1963) 2 ALL ER 66. -J2- 6. 7. Zambia Revenue Authority vs G. Transport, SCZ Judgment No. 2 of 2007. Chakaka Village Country House Limited, Lawrence Sikutwa, Chakaka Procurement Company Limited vs African Banking Corporation Zambia Limited, Selected Judgment No. 5 of 2018. 8. Access Bank (Zambia) Ltd vs Group Five/ZCON Business Park Joint Venture, SCZ/ 8/ 52/ 201. 9. Wilson Masauso Zulu vs Avondale Housing Project Ltd (1982) ZR 172. Legislation referred to: 1. 2. The Mines and Minerals Development Act No. 11 of 2015. The High Court Act, Chapter 27 of the Laws of Zambia. Other works referred to: l. The Rules of the Supreme Court, 1965 (White Book) RSC, Volume 1, 1999 Edition. INTRODUCTION 1. This is an appeal against a ruling of the High Court delivered by the Honourable Mr. Justice Mwila Chitabo SC (as he then was) on 19th August, 2019, which dismissed a preliminary issue raised by the appellant after finding that the judicial review proceedings were properly commenced by the first respondent. BACKGROUND 2. The brief background of this appeal is that on 18th July, 201 7, the first respondent made an application to the Cadastre Department of the Ministry of Mines and Minerals Development for the renewal of small-scale mining licence. The application was rejected on 8 th -J3- February, 2018, by way of a notice of rejection of application signed by the Chief of Mining Rights, acting for and on behalf of the Director of the Mining Cadastre Department. Dissatisfied by that decision, the first respondent wrote to the Minister of Mines and Mineral Development appealing against the decision. 3. The first respondent was further disenchanted by the Minister's alleged failure to make a decision on the appeal. On 27th June, 2018, their advocates wrote to the Minister demanding that he renders and communicates his decision within two days. The Minister replied on 16th July, 2018, explaining that he had forwarded their concerns to his team who were studying the matter and would revert to them after being furnished with the details, with a view to amicably resolving the matter. He further advised the first respondent that they were at liberty to pursue other avenues that they deemed fit. 4 . It is against this background that the first respondent took out judicial review proceedings against the second respondent and the appellant on 10th August, 2018, challenging the Minister's alleged failure to render a decision on the appeal. They lamented that despite its pending appeal, the Ministry of Mines and Minerals -J4 - Development had issued a mining licence to the appellant 1n respect of the same area. 5. The second respondent opposed the action by way of an affidavit in opposition sworn by the Director of Mining Cadastre Department who deposed that the application for renewal of the license was tabled before the Mining Licensing Committee on 31st January, 2018 and was rejected. He told the court below that the Minister upheld the refusal to renew the licence and his decision was communicated by the Mining Cadastre Department in a letter dated 23rd March, 2018, but the letter had not been collected by the first respondent. The letter was exhibited together with a supportin g document which showed that the Minister upheld the refusal to renew the license. It was his evidence that after the Minister's decision, the mining area was open to the public and the appellant applied for a mining license which was granted on 5 th April, 2018. 6 . It is against this background that the second respondent sought the indulgence of the lower court to dismiss the judicial review proceedings since a decision had been made by the Minister. After hearing the parties, the court below granted leave to commence judicial review proceedings. -JS- THE PRELIMINARY OBJECTION BEFORE THE HIGH COURT 7. This matter has come to us on appeal following a notice to raise a preliminary issue that was made by the appellant pursuant to Order 14A Rule 1 of the RSC, seeking determination of the following questions: 1 . Whether this matter could proceed for judicial review when the provisions of Section 97 (2) of the Mines and Mineral Development Act had already been effected; 2 . Whether this matter could proceed for judicial review when section 97(4) of the Mines and Mineral Development Act provides for the procedure of appeal; and 3 . Whether this matter could proceed before the court be low having regard to the fact that the Minister already made a decision in view of the reliefs which the first respondent was seeking. 8. In support of the preliminary issues, the appellant argued that the application for judicial review h ad been overtaken by events as the Minister already m ade a decision, which was communicated by the Mining Cadastre Department in the letter of 23 rd March, 2018. They contended that the Minister determined the appeal in accordance with Section 97(2) of the Mines and Minerals Development Act and therefore, the judicial review proceedings -J6- could not proceed because they were commenced for the purpose of compelling the Minister to make a decision. The appellant contended that if the first respondent was aggrieved by the Minister's decision, it cou ld have appealed to the Mining Appeals Tribunal as provided by Section 97(4) of the Mines and Minerals Development Act. 9. The notice to raise preliminary issues was opposed by the first respondent whose primary contention was that it was incompetent for the appellant to make an interlocutory application pursuant to Order 14A Rule 1 of the RSC because the order was inapplicable to judicial review proceedings. They argued that judicial review is a self-contained process confined to order 53 RSC and interlocutory applications under judicial review proceedings the said can only be made pursuant to Order 53. They r elied on the case of Dean Namulya Mung'omba and Others vs Attorney General and Others1 , where the court h eld tha t once it is accepted that our Rules do not provide for the practice and procedure on judicial review and we a dopt the practice and procedure followed in England, our rules for the purposes of judicial review a re completely discarded and there is strict followin g of the procedure and practice in Order 53 of the RSC. -J7- 10. The first respondent argued, in the alternative, that the prelimin ary application was misconceived, dilatory and ill-intended as the Minister did not make a decision. It was their submission th at the decision purported to be that of the Minister was in fact made by the Director of the Mining Cadastre Department and was merely sent to the Minister who endorsed the decision. They argued that the Minister was yet to make a decision on the appeal becau se th e decision had not been communicated to the first respondent in accordance with Section 97(2) of the of the Mines and Minerals Development Act. DECISION OF THE HIGH COURT 11 . After hearing the parties, the court below agr eed with the first respondent that there is no practice and procedur e pertaining to judicial review under our own rules and we adopt the practice and procedure followed in England. The lower court felt bou nd by th e case of Dean Namulya Mung'omba and Others vs Attorney General and Others1 , where the court h eld that our rules for the purposes of judicial review are completely discarded and there is strict following of the procedure and practice contained in Order 53 Of The RSC. The lower court accordingly agreed with the first respondent that Order 53 Rule 8 (1) of the RSC provides for -JS- interlocutory application in judicial review proceedings. It therefore held that this was not a fit and proper case in which a party could move the court using Order 14A of the RSC. 12. On the question of whether the Minister made a decision on the first respondent's appeal, the court below first considered the letter written to the first respondent by the Director of the Mining Cadastre Department on 23rd March, 2018 and the supporting documents which the appellants relied upon in advancing the argument that the Minister made a decision. The court was of the view that the document on which the Minister indicated that the "the cancellation is sustained and upheld", could not be read in isolation. It must be read together with t h e Minister's response to the appellant's advocates in the letter of 16th July, 2018, in which the Minister explained that he had forwarded their concerns to his team who were studying the matter and would revert to them after being furnished with details. 13. The court below took the view that it was clear from the Minister's letter of 16 th July, 2018, that the first respondent was not notified of the determination of the appeal. It found that there was no evidence that notice was given to the first respondent on the Minister's decision as required by Section 96 of the of the Mines -J9- and M i nerals Development Act. The court opined that if a decision was made by the Minister and notice was given, the Minister would have said so in his response to the appellant's advocates in his letter dated 16th July, 2018. 14. The court below therefore reasoned that the document on which the Minister had indicated that the "the cancellation is sustained and upheld", did not amount to a decision of the Minister otherwise the Minister would have notified the first respondent. The court agreed with the first respondent that the said document showed comments from the Mining Cadastre Department which rejected the application for renewal of a mining license and was merely endorsed by the Minister. Having found that there was no decision made by the Minister and no notice given to the first respondent in writing, the court below held that the judicial review proceedings were properly before it and dismissed the preliminary application. THE APPEAL TO THIS COURT 15. The appellant was not satisfied with the pronouncements and orders contained in the ruling of the court below. It appealed to this Court on four grounds of appeal as follows: - -JlO- 1. That the lower court erred in law and in fact by holding that the Minister of Mines did not make a decision pertaining to the respondent's application; 2 . That the lower court erred in law and in fact by finding that the appellant did not comply with the White Book (1999) Edition when they made an interlocutory application; 3. That the lower court erred in fact when it held that non-notification of the decision rendered it not being made; and 4. That the lower court misdirected itself when it failed to consider the real question before it, namely, whether or not a decision had been made by the Minister of Mines. 16. Counsel for the appellant and the first respondent filed head s of argument in support of th eir respective positions, which they relied upon at the hearing of this appeal. However, there was no appearance on behalf of the second respondent and there were no heads of argument filed on its' behalf. THE APPELLANT'S CONTENTIONS 17. In support of ground one, Ms . Chibawe on behalf of the appellant contended that the court below erred by h olding that th e Minister did not make a decision on the appeal. She argued that the Minister wrote a letter to the fir st respondent on 23 rd March, 2018, informing them about his decision to reject th e appeal. She cited -Jll- Section 97(2) of the Mines and Minerals Development Act, which provides that the Minister shall determine an appeal in accordance with the said Act and the circumstances of the cases. It was her submission that the Minister determined the appeal and made a decision in line with the provisions of the law. 18. Ms. Chibawe further referred to the case of Attorney General vs Law Association of Zambia2 , in which the court frowned upon the making of academic orders, after finding that even if the petitioner was to be successful on the cross-appeal in that case, it was clear that the order would serve no purpose apart from being an academic exercise. She argued that the letter of 23rd March, 20 18 amounted to a decision h aving been made by the Minister and therefore, the judicial review application had been overtaken by events as the Minister h ad already made a decision on the appeal. 19. On ground two, Ms. Chibawe contended that the court below erred in finding that the appellant did not comply with the RSC when it made the interlocutory application to raise a preliminary issue pursuant to Order 14A Rule 1 of the RSC. She further referred to Section 10 (1) of the High Court Act, which provides that: "(1) The jurisdiction vested in the court shall, as regards practice and procedure, be exercised in the manner provided by this Act, the Criminal Procedure Code, the -J12- Matrimonial Causes Act, 2007 or such written law, and in default thereof in substantial conformity with the Supreme Court Practice, 1999 (White Book) of England and subject to subsection (2), the law and practice applicable in England in the High Court of Justice up to 31 st December, 1999. " 20. Counsel further relied on the case of Dora Siliya and Others vs The Attorney General and Others3, where the court opined that in order to do justice and determine the application on its merit, there was need to go beyond the technicality in light of the fact that the application could have been validly brought u n der Order 53 RSC which was the legitimate source and could thus be still considered under that provision. She submitted that the court below should have determined the application on its merit and addressed the fact that a decision by the Minister h ad been made. 21. Under ground three, Ms. Chibawe argued that the lower court erred when it held that non-notification of the decision rendered it not being made. She submitted that the letter dated 23rd March, 2018 from the Mining Cadastre Department clearly stated that the Minister rejected the appeal. She referred us to Section 97(2) of the Mines and Minerals Development Act, which gives power to the Minister to determine an appeal in accordance with the law and the circumstances of the cases. -J13- 22. Counsel further relied on the case of F. J . T Chiluba vs Attorney General4 , where it was held that the remedy of judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but th e decision-making process itself. It was her argument that the Minister made a decision and therefor e this matter should n ot proceed to judicial review as it was commenced for th e pu rpose of compelling the Minister to make a decision which had already been made. 23. On the fourth ground, Ms. Chibawe argued th at the cou rt misdirected itself when it failed to consider the real question before it, which was whether a decision had been made by the Minister. She submitted that the first respondent commenced this action to compel the Minister to make a decision on the appeal, as evidenced by its affidavit filed on 16th January, 20 19. She again relied on the Section 97(2) of the Mines and Minerals Development Act in contending that the court below misdirected itself when it held that the Minister had not made a decision. Ms. Ch ibawe urged us to reverse the decision of the cou rt below and allow this appeal. -J14- RESPONDENTS'CONTENTIONS 24. The appeal was opposed by the first respondent. Mr. Simu koko on behalf of the first respondent countered ground one and su pported the decision of the court below. He submitted that the Minister did not determine the appeal. Th e decision pu rported to be that of the Minister was in fact made by the Mining Cadastre Department and was merely sent to the Minister for his endor sement and signature . He referred to th e case of Ridge vs Baldwin5 , where Lord Reid gave the following analogy on the appeal process: " I need not consider what the result would have been if the Secretary of State had heard the case for the appellant and then had given his own independent decision that the appellant should be dismissed. But the Secretary of State did not do that. He merely decided ''that there was sufficient material on which the watch committee could properly exercise their power of dismissal under s 191(4)" of the Municipal Corporations Act, 1882. So. the only operative decision is that of the watch committee, and if it was a nullity, I do not see how this statement by the Secretary of State can make it valid." 25. Counsel further argued that the Minister did not make an in dependent decision on th e appeal for two reasons. The fir st was that the Director of the Mining Cadastre Department sent his -Jl5- decision to the Minister who merely endorsed it. The second was that by 16th July, 2018, which was way after the Minister purportedly made the decision, the Minister appeared to be unaware that a decision was made on appeal. He argued that if the Minister had made a decision on 23 rd March, 2018, he would not have responded in the manner he did in his letter of 16th July, 2018. The Minister would have told the first respondent's advocates that a decision had already been reached. It was therefore argued that ground one cannot succeed and should be dismissed. 26. In response to ground two, Mr. Simukoko argued that the notice to raise a preliminary issue which the appellant made pursuant to Order 14A Rule 1 of the RSC, was improperly brought before the court. He argued that judicial review is a self-contained process in that once the proceedings are commenced , any interlocutory applications can only be made pursuant to Order 53 of the RSC. Counsel cited the case of Dean Namulya Mung'omba and Others vs Attorney General and Others1 , where it was held that: "Once it is accepted that our Rules do not provide for the practice and procedure on judicial review and we adopt the practice and procedure followed in England, our Rules for the purposes of judicial review are completely discarded and there is strict following of the procedure and practice in Order 53 of RSC. It will be -Jl6- noted from the learned editors of the White Book (RSC), that Order 53 created a uniform, flexible and comprehensive code of procedure for the exercise by the High Court of its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and other persons or bodies which perform public duties or functions. " 27. Mr. Simukoko argued that the procedure and practice to be followed in judicial review proceedings is that provided under Order 53 of the RSC, which should be strictly adhered to, and other provisions should be completely discarded. He referred us to Order 53 Rule 8(1), which provides that: "Unless the court otherwise directs, any interlocutory application in proceedings on an application for judicial review may be made to any judge or a master of the Queen's Bench Division, notwithstanding that the application for judicial review has been made by motion and is to be heard by a Divisional Court." 28. Counsel argued that Order 14A of the RSC was inapplicable in this judicial review application and the appellant should h ave made the application to raise a preliminary issue pursuant to Order 53 Rule 8(1) of the RSC. He further contended that if the appellant had issue with the grant of leave to commence judicial review proceedings, the correct procedure was to apply for the leave to be -Jl 7- discharged. He cited Order 53/14/4 of the RSC, which says it is open to a respondent to apply for the grant of leave to be set aside, where leave to move for judicial review has been granted ex parte. 29. Mr. Simukoko went on to cite the case of Zambia Revenue Authority vs G. Transport6 , which he said is illustrative of the requirement to comply with the court rules. He also referred to the case Chakaka Village Country House Limited and Others vs African Banking Corporation Zambia Limited7 , where it was held that one of the risks of non-compliance with court rules is that an appeal can incur the terminal sanction of dismissal as a result of failure to strictly adhere to what the rules dictate. The other case we were ref erred to is that of Access Bank (Zambia) Ltd vs Group Five/ZCON Business Park Joint Venture8 . It was his argument that failure to observe court rules results in dismissal of a matter. We were urged to accordingly dismiss ground two . 30. On ground three, Mr. Simukoko supported the finding of the lower court that the non-notification of the Minister's decision rendered it not having been made. We were ref erred to Section 96 of the Mines and Minerals Act which provides that: "Whenever the Minister, the committee, any of the directors or an authorized officer makes a decision against which an appeal lies by virtue of a provision of -J18- this Part, the holder or applicant affected by the decision shall be informed of the decision by notice, in wri.ting and the notice shall inform the person notified of that person's ri.ght of appeal." 31. Counsel contended that if a decision was really made by the Minister on 23 rd March, 2018, it would have been communicated to the first respondent instead of revealing it in an affidavit filed after the commencement of this action. He argued that there was no notice given by the Minister and therefore, the application was misconceived. We were urged to also dismiss ground three. 32. As regards ground four, Mr. Simukoko argued that it is absurd for the appellant to contend that the lower court misdirected itself when it failed to consider whether a decision had been made by the Minister, because the appellant's first ground is contesting the decision of the lower court on that question. He submitted that contrary to the appellant's assertions, the court below addressed that issue and therefore ground four is not only contradictory to the whole import of the appeal, but is also misconceived. He urged us to dismiss this appeal with costs to the first respondent. CONSIDERATION OF THE MATTER BY THIS COURT AND VERDICT 33. We have considered the evidence on record, the heads of argument filed by Counsel and the authorities they have cited. Grounds one -J19- and three revolve around the same issue and we shall address them together. The vexing issue in both grounds is whether the Minister made a decision on the respondent's appeal. The appellant in ground one contends that the court below erred by holding that there was no decision made by the Minister and in ground three, it has argued that the court below erred when it held that the non notification of the decision rendered it not being made. It is their argument that the Minister made a decision on 23 rd March, 2018 which was communicated by the Mining Cadastre Department by way of a letter which was not collected by the first respondent. 34. These arguments have been opposed by the first respondent who contend that there was no decision made by the Minister. They argue that if the Minister made a decision, he would have notified the first respondent in writing as required by Section 96 of the Mines and Minerals Act and informed the first respondent's advocates in his letter of 16th July, 2018. 35. We have weighed the competing arguments of the parties and the evidence that is on record. We take the view that the decisive piece of evidence in this case is a document captioned: "APPEAL BY BANGWEULU BATTERIES LIMITED AGAINST DECISION TO REJECT RENEWAL OF SMALL-SCALE MINING LICENCE 7327-HQ-SML". This -J20- document has five parts with the following headings: PART I - DECISION BY MINING LICENSING COMMITTEE; PART II - APPEAL AND INTERVENTION BY THE APPELLANT; PART III - COMMENTS BY DIRECTOR OF MINING CADASTRE; PART W - CONSIDERATION BY PERMANENT SECRETARY; and PART V - DECISION BY MINISTER OF MINES. This document has comments made by the officials of the Ministry of Mines and Minerals Development on the first respondent's appeal, including those of the Minister. 36. What is worth-noting is that on 23rd March, 2018, the Minister on his part upheld the decision to reject the first respondent's application for renewal of the licence by stating that "The cancellation is sustained and upheld". This is sufficient evidence, in our view, that the Minister made a decision on the appeal. 3 7. We further accept the evidence which was given by the second respondent that the decision of the Minister was communicated to the first respondent by the Director of the Mining Cadastre Department on the same d ay it was made, but the first respondent did not collect the letter. The Director of the Mining Cadastre Department informed the first respondent that their appeal had been rejected by the Minister. This was sufficient notice in line with Section 96 of the Mines and Minerals Act because the law does -J21- not require the notice to be signed by the Minister himself. The law only requires that an applicant affected by the decision should be informed of the decision by notice, in writing. 38 . We therefor e do not find substan ce in Mr. Simukoko's argum ent that if the Minister had made a decision, he would have notified the first respondent in writing, as notice was duly given in this case. The Minister may not have reiterated to the first responden t's advocates in his letter of 16th July, 2018, that he made a decision , but that does not change the fact that a decision was made . 39. The court below was certainly wrong to have held that that th ere was no decision made by the Minister and that th e non-notification of the decision rendered it not being made. We think th at this is an appropriate case in which we can reverse findings of fact by a trial court. We are fortified by the case of Wilson Masauso Zulu vs Avondale Housing Project Ltd2 , wh ere the Supreme Court said: "Before this court can reverse findings of fact made by a trial judge, we would have to be satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly could reasonably make." -J22- 40 . We take the view that the finding of the court below that there was no decision made by the Minister was made on a misapprehension of facts . We accordingly reverse that findings and hold that the Minister actually made a decision. There is force and substance in grounds one and four. They are accordingly allowed. 41. Coming to ground two, the issue is whether it was competent for the appellant to make an application to raise preliminary issues pursuant to Order 14A Rule 1 of the RSC, in a judicial review action. The view taken by the lower court was that Order 53 Rule 8 (1) of the RSC provides for interlocutory applications in judicial review and it was not wrong for the appellant to move the court pursuant to Order 14A Rule 1 of the RSC. The appellant has challenged this finding by the court below and has argued that the lower court should have gone beyond the technicality and determined the application on its merit. 42. It is settled law that in this jurisdiction we have no procedure and practice pertaining to judicial review under our own rules. We have adopted the procedure and practice under Order 53 of the RSC. We are guided by the decision of the Supreme Court in the case of Dean Namulya Mung'omba and Others vs Attorney General and Others1 , which held that our rules for the purposes of judicial -J23- review are completely discar ded and there is strict following of th e procedure and practice in Order 53 of RSC. In th is regard , Order 53 Rule 8(1) of the RSC provides for interlocutory applications in judicial review proceedings. It states that: "Unless the court otherwise directs, any interlocutory application in proceedings on an application for judicial review may be made to any judge or a master of the Queen's Bench Division, notwithstanding that the application for judicial review has been made by motion and is to be heard by a Divisional Court." 43. We therefore agree with Mr. Simukoko that the appellant sh ould h ave made their in terlocutory application in accordance with Order 53 Rule 8(1) of the RSC. However, looking the circum stances of th is case, we agree with the appellant that the lower court should h ave gone beyond the technicalities and considered the justice of the case. This approach was adopted in Dora Siliya and Others vs The Attorney General and Others3, where the court held that: "In order to do justice and determine this application on its merit, there is need to go beyond the technicality in light of the fact that the application could have been validly brought under Order 53 RSC which is the legitimate source and can thus be still considered under the same." -J24- 44. We have come to the conclusion that the Minister made a decision on the first respondent's appeal and if the lower court had a properly evaluated the evidence, it would have come to the same conclusion. The fact that this action was commenced to challenge the Minister's alleged failure to render a decision, the lower would have come to the inescapable conclusion that this action cannot be sustained and would have dismissed it. The trial court erred in that regard. Ground two partially succeeds. 45. We now turn to ground four. The appellant has accused the court below of having failed to consider the real issue, which was whether a decision had been made by the Minister. We have considered this argument and we take the view that the lower court considered the issue in contention. It is against that backdrop that the court found that there was no decision made by the Minister and the non notification of the decision rendered it not being made. The appellant has even challenged these findings in grounds one and three of this appeal. We find this ground of appeal illogical. Ground four is hereby dismissed for being misconceived and illogical. 46. We wish to reiterate in conclusion, that these proceedings were commenced to challenge the Minister's alleged failure to render a decision and since we have found that the Minister actually made a . . -J25- decision, it follows that the action has no legs to stand on and the case automatically collapses. We hereby dismiss this action in its entirety. This appeal is allowed. We make no order as to costs. M. M. KONDOLO SC COURT OF APPEAL JUDGE ~ F. M. CHISHIMBA COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE