CHIWESHE JP: In this urgent chamber application the
applicants seek a provisional order in the following terms:-
“TERMS OF THE FINAL ORDER SOUGHT
1.
That the 1st to 7th respondents, their families, workers and/or
agents are hereby ordered to restore to the first to third applicant companies
and its workers to unhindered access, occupation and possession of the
remainder of Weltevrede Estate also called Bhachi Farm (hereinafter called the
farm) and specifically:-
(a)
the farm workshop complex and yards;
(b)
the 3 farm houses and yards;
(c)
all the farm structures thereon;
(d)
The various farm structures and buildings housing the
applicants' various equipment; farm materials, inputs and property and to
include:
(e)
20 tones of semi-graded tobacco from the 2009 to 2010
tobacco season awaiting bailing and loading for conveyance to the market;
(f)
The first and second applicant's joint milling business
equipment, and stocks therein;
(g)
Various irrigation equipment;
(h)
6 tractors;
(i)
2 lorries
(j)
2 pick-up trucks
(k)
Various other farming equipment and workshop materials
apart from the ones listed above;
(l)
3000 litres fuel (2000 litres diesel and 1000 litres
petrol)
(m)
Various farm chemicals and fertilizers;
(n)
Various household goods and effects and/or other
properties in and at the 3 farm houses thereon belonging to the first and
second applicant companies;
(o)
Various important office documents and records.
2.
The 1st to 7th respondents, their families, workers, and
agents shall forthwith move off the properties listed in para one (1) above
together with all their belongings, so as to restore the status quo ante
obtaining prior to the period 26 August 2010 up to 21 September 2010.
(i)
To the extent that it becomes necessary the Deputy
Sheriff Chinhoyi be and is hereby authorized and empowered to attend to the
eviction of the aforementioned persons and their belongings.
(j)
Pursuant thereto the Deputy Sheriff Chinhoyi is
authorized to and empowered to enlist the services and/or assistance of any
member of the Zimbabwe Republic Police to attend to the eviction of any such
person so that the provisions of this order are executed and implemented in
full.
3.
The first to seventh respondents, their families,
workers and/or agents are hereby prohibited from occupying or taking over
possession and/or utilizing any improvements and properties listed in para one
(1) above, through extra judicial means.
4.
The 1st to 7th respondents, their
families, workers and/or agents shall like wise make no attempt to introduce
farming equipment or any material onto the properties listed in para one (1)
above and are hereby interdicted and prohibited from interfering in any way
with the 1st to 3rd applicants' operations at Weltevrede
Estates (Bhachi Farm), Banket or with the applicants' directors, workers and/or
agents through extra judicial means.
5.
The first to seventh respondents, their families,
workers or agents shall make no further attempt to take over possession of the
said properties or to utilize any equipment, materials and farm structures on
the farm or any part of the farm, either directly or indirectly in the absence
of the due process of the law and they shall not attempt to restrain or control
the movement of any person or property onto or off the farm unless and until
the first to third applicant companies have been lawfully evicted from the farm
in terms of the laws of Zimbabwe.
6.
The 1st to 7th respondents shall pay costs
of this application, on an attorney-client scale.
INTERRIM RELIEF
Pending confirmation of the final
order the applicants are granted the following interim relief:-
(1)
That the 1st to 7th respondents
and all the other persons claiming occupation and/or possession of the
remainder of Weltevrede Estate and specifically:-
(a)
the farm workshop complex and yards;
(b)
the 3 farm houses and yards;
(c)
all the farm structures thereon;
(d)
The various farm structures and buildings housing the
applicants' various equipment, farm materials, inputs and property and to
include:
(e)
20 tones of semi-graded tobacco from the 2009 to 2010
tobacco season awaiting bailing and loading for conveyance to the market;
(f)
1st and 2nd applicant's joint
milling business and equipment, and stocks therein;
(g)
various
irrigation equipment;
(h)
6 tractors;
(i)
2 lorries
(j)
2 pick-up trucks
(k)
various other farming equipment and workshop materials
apart from the ones listed above;
(l)
3000 litres fuel (2000 litres diesel and 1000 litres
petrol)
(m)
various farm chemicals and fertilizers;
(n)
various household goods and effects and/or other
properties in and at the 3 farm houses thereon belonging to the 1st
and 2nd applicant companies;
(o)
various important office documents and records
through them and/or any other
person not being a representative, employee or invitee of the 1st to
3rd applicants shall forthwith vacate the said remainder of
Weltevrede Estate Banket and surrender all the security locks keys thereto.
(i)
To the extent that it becomes necessary the Deputy
Sheriff Chinhoyi be and is hereby authorized and empowered to attend to the
eviction of the aforementioned persons, and to remove all the respondent's
security locks with the assistance of a lock smith should the respondents fail
to remove them on their on in terms of clause (1) above.
(ii)
Pursuant thereto the Deputy Sheriff Chinhoyi be and is
authorized to and empowered to enlist the services and/or assistance of any
member of the Zimbabwe Republic Police to attend to the eviction of any such
person so that the provisions of this order are executed and implemented in
full.
(2)
That the 1st to 7th respondents
and all other persons claiming occupation or possession of the property through
them or any other person not being a representative, employee or invitee of the
1st to 3rd applicant company are interdicted from
entering upon the property or interfering with the 1st to 3rd
applicant's normal business and operations, or any of the applicant's movable
or immovable equipment or material on the farm or using any threat of violence
or force upon the applicant, its representatives, invitees or employees.
(3)
The 1st to 7th respondents, their
families, workers and/or agents are hereby prohibited from occupying or taking
over possession and utilizing any improvements and properties listed in para
one (1) through extra judicial means.
(4)
This order shall not be construed to affect in any way,
access to the farm by officers of the relevant government ministries and
members of the relevant land committees in the course of their duties in terms
of the Land Acquisition Act Cap 2:10 and allied legislation, should such a
need arise.”
The founding affidavit attested to by Kelvin Erik Windel, the first
applicant's director, representing the applicants is to the following effect:
The
three applicant companies have been in a business arrangement wherein the first
applicant and the second applicant are contracted to grow tobacco for the third
applicant on the remainder of Weltevrede Estate in Banket (commonly referred to
as Bhachi Farm). The farm belonged to Parland (Pvt) Ltd, a sister company of
the first applicant. Parland (Pvt) Ltd acquired this piece of land from Tumbleweed
Investments sometime in 1999. Of the original 1509, 6450 hectares, Tumbleweed
retained 484,1697 hectares, thereby subdividing the original farm into two
separate pieces of land. To date the business relationship between the three
applicant companies subsists.
In
September 2004 the eighth respondent issued a s 5 order followed by a s 8
acquisition order in respect of Welterede Estate in terms of the Land
Acquisition Act [Cap 20:10]. In June
2005 Parland Investments (Pvt) Ltd challenged the legality of eighth respondent's
actions in this honourable court under case number HC 2617/05 and obtained an
order setting aside the acquisition order and attendant processes.
At all material times prior to the period 26
August 2010 right up to 21 September 2010 the applicants have been having
peaceful, quiet, unhindered and undisturbed possession and control of the
property listed in the draft provisional order.
The
first applicant also states that the applicants have not been prosecuted and
convicted for any alleged contravention of the Gazetted Land (Consequential
Provisions) Act [Cap 20:28] nor has the property listed in the
draft order been compulsorily acquired in terms of the Acquisition of Farm
Equipment and Materials Act [Cap 18:23].
The
first applicant alleges various acts of spoliation by the first to seventh
respondents between 26 August 2010 and 21 September 2010. It states that the
first to seventh respondents have, through extra judicial means and in the
absence of the applicants' directors, agents or employees' consent forcibly
taken over possession, physical control and appropriated the property, thereby,
despoiling the applicants of their property.
At
the hearing of this urgent matter Mr Mlotshwa
for the first to seventh respondents raised two points in limine. The first point was that none of the applicants were
present, preferring to send only Mr Muchineripi,
their legal practitioner.
Secondly
Mr Mlotshwa contended that the
applicants had no locus standi to
bring this application. He argued that the interim relief sought is both an
eviction and an interdict. To grant that kind of interim relief the court must
be certain that the applicant has a right. Any rights that the applicants might
have had were extinguished by operation of law upon the passing of Constitutional Amendment (No. 17) Act, 2005 s
2 of which inserted a new s 16 B and Schedule 7 thereto. By operation of law,
Bachi Farm, notwithstanding the ruling of this court under case number HC
2617/05, has become gazetted land. It belongs to the State and not the
applicants. In turn the State has allocated same to the first to seventh
respondents. The respondents have therefore lawful authority to be on the farm.
In
response Mr Muchineripi conceded,
contrary to the assertions of the applicants in their founding affidavit, that
the applicants indeed have no right over the land in question. What the
applicants have applied for is a spoliation order in which the question of
rights or lawfulness does not arise. The issue should not be who has better
rights but who had physical possession of the property. He argued that the
applicant had all along had peaceful and undisturbed possession prior to the
acts of the first to seventh respondents. The respondents had despoiled the
applicants through extra judicial means. The legislature has enacted the due
process for the prosecution, punishment and eviction of anyone occupying State
land illegally. Further, with regards acquisition of farm equipment and
materials, the provisions of the Acquisition of Farm Equipment and Materials
Act [Cap 18:28] clearly establish the
procedures to be followed. In casu it
was argued that no acquisition of equipment or materials by the State had taken
place. The applicants argued further that the fact that the first to seventh
respondents had permits or offer letters does not empower them to resort to
self help or extra judicial means of evicting the applicants.
The
eighth respondent advised that the applicants have been issued with eviction
notices. The original farm in question is divided into two by the
Harare-Chinhoyi highway which passes through it. The portion on the right hand
side of the road as you face Chinhoyi has been allocated to the respondents. No
allocation has been made to the applicants on either side of the road.
According to the first to seventh respondents (and this has not been disputed)
all along the applicants have been illegally leasing the portion on the left hand
side of the road from one of the beneficiaries of the land reform programme.
The “lessor” has since died and his children have no intention of perpetuating
the illegal lease. They have removed the applicants from that portion of the
land. The first to seventh respondents argue that the present application is a
ploy by the applicants to seize land on the right hand side of the road for
their own use. They state that they have been in peaceful co-existence with the
applicants since 2002. The applicants have been supporting them with farming
inputs and tillage. They had access to the tobacco barns for storage of their
tobacco and to all the infrastructure on the farm. They argue that the
allegations that they have taken applicants' employees hostage, locked up the
sheds and storerooms and removed the property of the applicant are a
fabrication. An entry made in the records of one of the guards manning the
entrance to the farm has been brought to the attention of the court. It tends
to show that the applicants' employees have had the freedom to move in and out
of the farm ferrying whatever property. The accuracy of this entry has not been
challenged.
It
is not clear whether this is an application for eviction or spoliation or
both. While the papers show that what
was intended to be achieved was both an order for eviction and an order for
spoliation, Mr Muchineripi, for the
applicants, appeared to be leaning more towards spoliation than eviction.
As
for spoliation, it is not true that the applicants had all along enjoyed
peaceful and undisturbed possession of the farm and its infrastructure. The undisputed fact is that the applicants
and the first to seventh respondents have been in peaceful co-existence since
2002. That does not amount to quiet,
peaceful and undisturbed possession.
The
major difficulty facing the applicants in this matter is this that there are
serious disputes of fact which cannot be resolved on the papers. On that basis
alone the application cannot succeed.
In
addition, the relief sought by the applicants in so far as it includes the
eviction from the farm or any portion thereof of persons who, according to the
eighth respondent, are lawfully on the farm cannot be granted. The
applicants neither own nor lease the farm. They have no right to it. They
cannot therefore evict or restrict the movements of the respondents.
The
applicants' employees have been served with notices of eviction by the eight
respondent. They have up to 16 October 2010 (fourteen days from now) to vacate
the farm or face the consequences. In the process of vacation or eviction they
should be allowed to remove such movable property belonging to them as there
maybe on the farm, including equipment and other farm materials, subject to any
directions that the eighth respondent might give in terms of the Acquisition of
Farm Equipment and Materials Act [Cap
18:28].
On
the whole this application cannot succeed primarily because the applicants lack
locus standi, having no right to seek
the relief they seek. Further, there are disputes of facts which cannot be
resolved without hearing evidence viva
voce. By and large the balance of convenience in several respects favours
the respondents. An order of the nature sought by the applicants would fly in
the face of logic and common sense.
It
was reasonably foreseeable that there would be disputes of fact in this
application. The applicants should have proceeded by way of action. Further,
the applicants knew they had no right to the property pursuant to
Constitutional Amendment (No. 17) Act, 2005. They nonetheless proceeded to
bring the application in its present form. I agree with the first to seventh
respondents that an order of costs on the higher scale would be appropriate in
the circumstances.
Accordingly
it is ordered as follows:
1.
The application be and is hereby dismissed.
2.
The applicants pay the costs of this application on the
legal practitioner and client scale.
Muchineripi & Associates, applicants' legal practitioners
Antonio, Mlohtswa & Company, 1st to 7th
respondents' legal practitioners
Civil Division of the
Attorney General's Office,
8th respondent's legal practitioners
