MAKONI J: This is an application for leave to execute pending appeal. The
background to the matter is that the applicant carries on farming operations at
Frogmore Farm in Mazoe (“farm”). The first respondent took occupation of part
of the farm on 13 May 2007 on the basis of an offer letter issued to him by the
second respondent. The applicant issued summons, out of this court, claiming
spoliatory relief. The matter went to a full trial and on 29 July 2009 this
court granted the applicant's claim. On 30 July 2009 the respondent filed a
Notice of Appeal to the Supreme Court. The applicant then instituted the
present proceedings.
The law applicable to applications
of this nature is well settled. The leading case on this point is the case of South Cape Corporation (Pty) Ltd
v Engineering Management Services (Pty) Ltd
1977 (3) SA 534 A at 545 D-F. It sets out the factors to be considered in
such an application. These can be summarised as the prospects of success on
appeal, the potentiality of irreparable harm or prejudice being sustained by
the parties and where there is potentiality of irreparable harm to both
appellant and respondent, the balance of hardship or convenience. The South Cape Corporation case has been
followed in a number of decisions in our jurisdiction. See Dabengwa & Anor v Minister
of Home Affairs & Ors 1982 (1) ZLR 233 (H), Archer(Pvt) Ltd v Guthrine Holdings (Pvt) Ltd 1989 (1) ZLR 152 H and Kyriakos & Kyriakos v Chasi
Ors 2003 (2) ZLR 399 H.
Prospect of Success
I would approach this issue from two
angles viz whether the farm was
acquired and if so whether the offer letter issued to the respondent would
entitle him to take occupation before the applicant has been lawfully evicted.
Acquisition
The applicant contended that the
preliminary notices issued in terms of s 5 of the Land Acquisition Act Cap 20 had been set aside by
various judgments of this court before
and after the coming into being of Constitutional Amendment Act No. 17. The
Constitutional Amendment Act could not purport to legalise that which was
declared null and void.
I would agree with the analysis of
the issue and the conclusion arrived at by PATEL J in Forrester Estate (Pvt) Ltd v MCR Vengesayi & the Minister of Lands. in the Office of the President and Cabinet HH 19-10.
I will quote in extensio his concluding paragraph on p 2 of the cyclostyled
judgment:
“Section 16B of the Constitution and
Schedule 7 thereto were brought into operation in September 2005 through Act
No. 5 of 2005. The clear object of s 16B as read with item 30 of Schedule 7 was
to acquire Frogmore Farm in September 2005 and vest title therein in the State.
Although s 16B does not explicitly override pre-existing court decisions, the
specific and clear intention of the Legislature was to validate the acquisition
of all the properties listed in Schedule 7 and to effectuate the vesting of
title in the State. By necessary implication, this was intended notwithstanding
any prior decisions of the courts to the contrary. The intention emerges fairly
unequivocally not only from s 16B(2)(a), which acquires all the lands listed in
Schedule 7, but also from the wording of s 16B(3)(a), which precludes any
challenge to these acquisitions before the courts. It is abundantly clear,
therefore, that Frogmore Farm was duly acquired by the State in terms of s 16B
and continues to vest in the State”.
I will now turn to consider the
second issue relating to the offer letter. The applicant contends that the
offer letter does not entitle the respondent to take the law into his own hands
and occupy the farm without the consent of the applicant or a court order.
What comes to mind is the question
posed by CHIDYAUSIKU CJ in Nyasha Chikafu
v Dodhill (Pvt) Ltd 2 Ors SC 28/09 which is:
“Can unlawful occupation constitutes
a defence to a claim for mandament van
spolie?”
After posing the above question,
CHIDYAUSIKU CJ continued with the following remarks:
“It is quite clear that the
authorities are divergent on this issue. One line of authorities, which
includes judgments of the High Court of Zimbabwe, supports the contention that
unlawful occupation can be a defence; while other authorities that include High
Court of Zimbabwe judgments as well, are to the effect that unlawful occupation
is irrelevant. Given this situation, whichever party lost in the High Court had
prospects of success as its contention is supported by a line of cases.”
PATEL J in Forrester Estate (Pvt) Ltd, supra
was of the view that the respondent in that matter, who is in the same
situation as the respondent in casu,
had minimal prospects of success. He said the view expressed by CHIDYAUSIKU CJ
in Chikafu supra were made orbisar
and that it cannot be relied upon to overrule the decision of the full bench of
the Supreme Court in Botha & Anor
v Berret 1996 (2) ZLR 73 (S) of 79
which enunciate the traditional requirements for the grant of a spoliation
order.
With the greatest of respect to
PATEL J, I am of the view that the respondents has prospects of success on appeal.
The judgments of this court regarding spoliation have sent divergent views to
litigants. The issue is now before the Supreme Court for the court to make a
pronouncement on the various conflicting judgments of the court. The judgments
which support the respondents position make very good reading. See Konrad Van der Merwe v Nixon Chirinda & 2 Ors HC 3217/07, Top Crop (1976) Pvt Ltd & Anor v Minister
of Lands, Land Reform and Resettlement & Anor HH 74-09 and Andrew Roy Ferera & Anor v Bessie Nhendera HC 3995/08. In view of
that the best approach, in the circumstances, would be to await the Supreme
Court decision which might go either way.
Both parties had made
preparation for 2009/2010 farming season. They are both likely to suffer some
prejudice. In view of my finding regarding prospects of success the balance of
convenience favours that the first respondent remains on the farm pending the
determination of the appeal.
Accordingly, I make the
following order
1.
The
application is dismissed.
2.
The
applicant to pay first respondent's costs.
Wintertons, applicant's legal practitioners
Antonio, Mlotshwa
& Company, 1st respondent's legal practitioners