KUDYA
J: On 30 October 2009 the applicant company filed an urgent chamber application
seeking spoliatory relief. The draft order was couched in these terms:
TERMS OF THE FINAL ORDER SOUGHT
That you show cause why an order
in the following terms should not be granted;
1. That respondents or any person acting on their behalf shall
be and are hereby
barred from in
any way interfering with applicant's possession and control of the portion of
Friedwell Farm (that it controlled immediately before 29 October 2009),
including in any way interfering with the possession by the applicant's workers
of the farm compound and shall so refrain from any such future interference
save as may be authorised by a binding and operational order of a court of competent
jurisdiction.
2. That the first respondent shall pay
costs of suit (if he opposes this application)
and that such
costs shall be at an Attorney-Client scale.
INTERIM RELIEF
Pending the return day, it is
hereby ordered;
1.
That the respondents or any person acting on their
behalf or for the purpose of furthering their interests shall be and are hereby
ordered to restore to the applicant's possession such amenities as were
immediately before 29 October 2009 under the applicant's use and control including
proper access to the main entrance to the farm, the piggery, the crocodile
pens, the paddocks, the farm compound, the office house, until the finalization
of this matter on the return date.
2.
That the respondents shall not in any way stop the
applicant's representatives and workers from accessing the piggery, the
crocodile pens, the main entrance to the farm, the homestead, the compound and
such amenities the applicant had access to immediately before 29 October 2009,
until the finalization of this matter on the return date.
SERVICE OF THE PROVISIONAL ORDER
The
applicant's legal practitioner shall be and are hereby granted leave to serve
this provisional order upon the respondents.
On
4 November 2009, after hearing counsel, I delivered judgment and granted an
order in terms of the first paragraph of the interim relief sought. In
September 2010, the file of proceedings was brought to my attention with a
request that I reduce my reasons to writing as the first respondents had noted
an appeal against the provisional order on 5 November 2009.
The facts
It
was common cause that Friedwell of Reinfield farm in Makonde District of
Mashonaland West Province was compulsorily acquired by the State and the first
defendant was on 27 July 2007 issued with an offer letter for the entire farm.
In July 2007 the first respondent occupied a portion of the farm. The applicant
remained on the portion that the first respondent could not occupy because it
was being used by the applicant for pig, crocodile and cattle farming. On 29
October 2009 the second respondent, who happened to be the farm manager of the
first respondent denied access to the piggery, paddocks and crocodile pens to
the applicant's workers. The cattle were driven from the paddocks to the
abattoir where there is no grazing and a truck which brought feed was refused
entry at the main gate. On 30 October 2009, the respondents attempted to
forcibly take over the farm compound from the applicant resulting in the gun
shot injury to five of the applicant's employees and the destruction of the
property of its employees. While the first respondent filed an opposing
affidavit denying the averments made by the applicant, it was apparent from the
supporting affidavit attributed to the second respondent that the applicant had
full control and custody of a portion of the farm that was referred to its
founding affidavit from July 2007 until the events of 29 and 30 October 2009.
The preliminary issues
The
first respondent raised three preliminary issues. The first was that the application
was defective for the non-joinder of the acquiring authority. The second was that
the applicant did not have the locus
standi to bring the present application and the third was that the court
did not have jurisdiction to deal with the application. I dismissed all the
preliminary points that were raised and proceeded to hear the matter on the
merits.
In
my view, the non-joinder of the acquiring authority was not fatal to the
application for the reason that the applicant sought relief against the parties
it alleged had forcibly removed it from the farm. The acquiring authority did
not use physical force to remove the applicant from the farm. It was apparent
from the averments of the applicant that the acquiring authority was utilizing
the criminal justice system to remove the applicant from the farm through the
medium of the provisions of s 3 (5) of the Gazetted Land
(Consequential Provisions) Act [Cap 20:28].
The
contention by Mr Mlotshwa that the
applicant lacked the necessary locus
standi to launch these proceedings was rooted in ownership rights. In Chisveto
v Minister of Local Government and
Town Planning 1984 (1) ZLR 248(H) at 250B-D REYNOLDS J stated that:
“Lawfulness of
possession does not enter into it. … Thus it is my view that the lawfulness or
otherwise of the applicant's possession of the property in question does not
fall for consideration at all. In fact, the classic generalisation is sometimes
made in respect of spoliation actions that even a robber or a thief is entitled
to be restored to possession of the stolen property.”
These views were affirmed by
KORSAH JA in Magadzire v Magadzire & Ors SC 196/98 at p 2 of
the cyclostyled judgment when he stated:
“A spoliation
order has nothing to do with the rights of ownership in the property as the
trial court suggested.”
The
last preliminary issue was that this court did not have authority to restore
the status quo ante because in so
doing it would grant the applicant the right to stay on the property. It seems
to me that this court has the jurisdiction to entertain spoliatory proceedings.
A plethora of cases have set out the basis for granting such an extraordinary
remedy. It is to prevent self help. It seeks to encourage the despoiler to have
recourse to the due process. The restoration of the despoiled party is not
permanent but temporary. It does not stop the despoiler from seeking the proper
eviction of the despoiled party.
It
was for these reasons that I dismissed all the three preliminary issues raised
by the first respondent.
The merits
Mr
Mpofu submitted that the applicant
was merely required to establish evidence of a prima facie right of spoliation against the respondents. That
submission is contrary to authority. In Blue
Rangers Estates (Pvt) Ltd v
Muduviri & Anor SC 29/09 at p 13 of the cyclostyled judgment MALABA DCJ
stated that “a spoliation order cannot be granted on the evidence of a prima facie right”. The onus lies on the
applicant to establish on a balance of probabilities that it has been
despoiled.
Counsel
were agreed on the two essential elements for spoliation. They were set out by
GUBBAY CJ in Botha & Anor v Barret 1996 (20 ZLR 73 (S) at 79 D-F
thus:
“It is clear law
that in order to obtain a spoliation order two allegations must be made and
proved. These are:
(a) that the applicant was
in peaceful and undisturbed possession of the property; and,
(b) that the respondent
deprived him of the possession forcibly or wrongfully against his consent.
See Nino Bonino v de Lange supra at 122;
Kramer v Trustees Christian Coloured
Vigilance Council, Grassy Park 1948 (1) SA 748 (C) at 753; Davis v
Davis
1990 (2) ZLR 136 (H) at 141C”.
Mr
Mpofu submitted that the applicant
made and proved both these essential elements. I am satisfied that the
applicant demonstrated that it was in possession of the portion of the farm
which the respondents have forcibly taken away from it. Mr Mlotshwa, however, argued that while the applicant was in
possession of the portion in issue, that possession was neither peaceful nor
undisturbed. He contented that the possession was shaken by the compulsory
acquisition and the criminalization of the applicant's continued stay in
defiance of the Gazetted
Land (Consequential
Provisions) Act, supra.
In
Gifford v Muzire & Ors HH 69-07 at p 7 of the cyclostyled judgment I
expressed myself on the point in this manner:
“In my view, it was common cause that the applicant
had physical control of the farm in question before the new farmers occupied it
on 22 August 2007. I however hold that, by operation of law, by 4 February
2007, his possession was no longer peaceful and undisturbed. The Gazetted Land (Consequential Provisions) Act was
the source of the disturbance. Transient relief came for him in the form of the
notice of eviction of 12 March 2007, which was served on him on 3 April 2007.
The acquiring authority authorized him, as it is wont to do by virtue of s 3(2)
(a) of the Gazetted
Land (Consequential
Provisions) Act, to stay until 30 June 2007. From 30 June to 22 August 2007 he
remained in physical control of the farm even though his continued stay was
illegal. In my view, possession that is tainted with illegality cannot be
peaceful and undisturbed. The notice of eviction and his response to it of 16
April 2007 underscored the point that he was no longer in a peaceful and
tranquil state of mind. I, therefore find that he neither had the right of nor
the right to possess the farm. The absence of the mental right undermined the
physical act. In my view, by operation of law, he did not have peaceful and
undisturbed possession of the farm after 30 June 2007. But even if I am wrong
on the application of the mental aspect of possession, and such possession
denotes physical control only, it seems to me that the applicant's case would
still fail on the basis of the second essential element of spoliation.”
The
submission of Mr Mlotshwa and the
sentiments I expressed in the Gifford
case overlooked the definition of undisturbed and peaceful possession that was
approved by ADAM J in Davis v Davis
1990 (2) ZLR 136 (H) and affirmed by GUBBAY CJ in Botha & Anor v Barret, supra. At 41E-F ADAM J quoted with
approval the observations of ADDELSON J in Bennett Pringle (Pty) Ltd v
Adelaide Municipality 1977 (1) SA 230(E) that:
In terms of all
the authorities cited, the 'possession', in order to be protected by a
spoliatory remedy, must still consist of the
animus - the 'intention of securing some benefit to' the possessor; and of detentio, namely the 'holding' itself .
. . If one has regard to the purpose of this possessory remedy, namely to
prevent persons taking the law into their own hands, it is my view that a
spoliation order is available at least to any person who is (a) making physical
use of property to the extent that he derives a benefit from such use; (b)
Intends by such use to secure the benefit to himself; and (c) is deprived of
such use and benefit by a third person."
It
is apparent from the definition of possession that the mental element is met
once the possessor intends to derive some benefit from his possession. That intention
does not appear to be affected by the criminalization of his conduct.
The
facts adduced on behalf of the applicant in the founding affidavit demonstrated
that it had both the intention of securing some benefit and the physical
control of the portion of the farm in question. These were not affected by the
compulsory acquisition of the farm or by provisions of the Gazetted Land
(Consequential Provisions) Act. Unlike in the Gifford case, supra, the
applicant demonstrated and the respondent did not challenge its averment that
it did not consent to the dispossession of its possessory right. The applicant
established on a balance of probabilities that it had been despoiled and is
thus entitled to the remedy it sought.
In
Airfield Investments (Pvt)
Ltd v Minister of Lands & Ors
2004 (1) ZLR 511 (S) 518C MALABA JA, as then was, held that an interim
interdict as a remedy for unlawful conduct could not be granted for the
protection of the illegal activities of the appellant. Paragraph 2 of the
interim relief sought is in the nature of an interim interdict. It is a remedy
that is not available to the applicant. I will accordingly delete this
paragraph from the draft order.
I, accordingly
grant the following interim relief;
Pending the
return day, it is hereby ordered that:
The
respondents or any person acting on their behalf or for the purpose of
furthering their interests shall be and are hereby ordered to restore to the applicant's
possession such amenities as were immediately before 29 October 2009 under the
applicant's use and control including proper access to the main entrance to the
farm, the piggery, the crocodile pens, the paddocks, the farm compound, the
office house, until the finalization of this matter on the return date.
Coghlan Welsh & Guest, applicant's legal practitioners
Antonio, Mlotshwa
& Co, respondents' legal practitioners
