KAMOCHA J: This
application was dismissed at the end of the hearing and I indicated that
reasons would follow. These are
they. On 19 August 2010 this court
issued an order in the following terms:
“It is ordered that:-
(1)
It
is declared that two portions of land described as Delville Park, measuring
84,7953 hectares and Delville Park Extension, measuring 23,1260 hectares under
deed of transfer 964/2009 (herein after “the land”) and registered in the name
of the applicant have not been properly acquired by the respondent;
(2)
It
is further declared applicant is the rightful title holder of the land and is
accordingly entitled to exercise all the rights of a registered owner in accordance
with law.
(3)
It
is further declared that any offer letter issued by the respondent in respect
of the land in terms of the Land Acquisition Act or any other law is invalid
and of no force or effect; and
(4)
The
respondent pay costs of this application.”
The Minister of State for National Security, Land, Land
Reform and Resettlement in the President's Office did not oppose the
application resulting in the above order being granted by default.
The present applicant Jabulani Nyoni who was not party to the
proceedings in the matter has launched this application on a certificate of
urgency seeking a provisional order in the following terms.
“Interim Relief
Granted
Pending confirmation or discharge of this provisional order,
the applicant is granted the following relief;
(i)
That
execution of the judgment obtained by 1st respondent against 2nd
respondent in respect of two portions of land described as Delville Park
Extension, measuring 84,7953 hectares and Delville Park Extension, measuring
23,1260 hectares under deed of transfer 964/2009 (hereinafter “the land”) be
and is hereby stayed;
(ii)
That
applicant be and is hereby allowed to operate his current projects on the said
land; and
(iii)
That
1st respondent only is to pay costs of this application at attorney
and client scale only if she opposes this application.”
The applicant was seeking this order pending the finalization
of an application for joinder to a matter that has already been finalized. His application for a joinder was filed on 31
March 2011 and is yet to be argued in court.
Thereafter, if successful, he would apply for the rescission of the
order granted on 19 August 2010. The
applicant averred that the land which is the subject of the court order was
offered to him by the Minister in terms of the land acquisition laws of this
country by letter dated 25 October 2007.
It must, however, be noted that when the said offer letter was
purportedly made the piece of land concerned had not yet been gazetted. It was only gazette two years later on 6
November 2009.
He further averred that he had been in effective occupation
and utilization of the said land since 2004 with the authority of the previous
owner, one Mr Alastair Gibson Drummond who has since relocated to the United
Kingdom.
He has been doing extensive farming on the land in the form
of market gardening under green house, horticulture and animal husbandry for
the benefit of the local community. He
was also into transport business on that same piece of land as a supporting venture.
He complained that Dibden Services (Private) Ltd should have
cited him as a party to the proceedings of 19 August 2010 since it was aware
that the order it sought from the court would directly interfere with his
rights, interests and entitlements in the land.
He contended that if he had been served with the application he would
have definitely exercised his rights to be heard. He would have opposed the application.
He claimed to have only become aware of the default judgment
towards the end of March 2011 when Dibden (Pvt) Ltd brought to him a lease
agreement for him to sign so that he would become its tenant. The applicant decided to launch this
application on a certificate of urgency in the light of the foregoing.
The Minister did not file any opposing papers although Mr T. Makoni from the Attorney General's
Office attended the hearing in chambers.
Dibden Services (Pvt) Ltd vehemently opposed the application
and averred that it was not even urgent and stated that it had never interfered
in any way whatsoever with the applicant's operations. It had repeatedly expressed both in writing
and verbally that it had no wish to evict applicant. All it wanted to do was to take occupation of
about half the area for its own training school and workshops and come to a
mutually agreeable arrangement with applicant in respect of the remainder. It concluded that the averment that it may
engage in perverse conduct was simply not supported by the facts.
There was no danger of imminent harm and it had never
threatened by word or deed to evict him.
On the contrary, it had shown the utmost tolerance and forbearance with
applicant. It alleged that until very
recently he had accepted the status quo
that Dibden was the lawful owner of the property and that he was in the
position of a tenant at will.
Dibden also averred that applicant had no prospects of
success in the applications for joinder and rescission but those applications
were not before this court yet. Those
arguments should be reserved for the appropriate stage. Suffice to say at this stage that this
application was ill-conceived.
There is no danger of him being evicted from the
property. The applicant has not
threatened to interfere with his current projects on the said land. Instead the applicant has repeatedly assured
him both verbally and in writing that it had no intention to do so. There, is, therefore, no harm from which the
applicant seeks to be protected. The
matter is clearly not urgent and does not deserve to jump the queue. It must fail.
In the result the application is dismissed with costs on the
ordinary scale.
Chivasa & Associates applicant's legal practitioners
Webb, Low & Barry
first respondent's legal practitioners
