KAMOCHA J: The
applicants in this matter sought and were granted a provisional order on 7
January 2010. The terms of the order
were as follows:-
“Interim
relief granted
Pending determination of this
matter, the applicants are granted the following relief:
(1)
The
respondents are interdicted from taking any steps to evict applicants from the
property described herein or from carrying out any building or farming
operation or from removing any stock or cattle being the property of the
applicant or from introducing onto the farm any stock or cattle either owned by
the third respondent or by any third party.
(2)
It
is ordered that until such time as the relief set out in the final order is
determined the applicants and all those who occupy the farm through them are
entitled to remain in peaceful and undisturbed possession of the farm and
further entitled to continue farming operations on the property and the third
respondent is interdicted from taking any steps to occupy the farm either
himself (sic) or through any agent,
servant or employee or to hinder or disturb the applicant in his occupation
thereof.”
The third respondent has anticipated the application seeking
to have the provisional order discharged.
The final order being sought by the applicants was in these terms:-
“Terms of final order
sought
That you show cause to this honourable court why a final
order should not be made in the following terms:
(1)
That
until such time as the ownership or right to occupy the property known as
Orange Groove (hereinafter called “the farm”) is determined by a court of
competent jurisdiction and until such time as the applicants are lawfully evicted
by such court and has exhausted all legal remedies available to him, the
respondents are interdicted from evicting the applicants or from taking
occupation of the farm. It is further
ordered that the respondents are interdicted from interfering in any way with
any of the farming operations carried out by the applicants. Or their employees
or servants or from entering the farm or placing property or employees thereon
(save as may be provided by law).
(2)
That
in the event that by the time this order is granted the applicants have been
evicted or the third respondent has taken occupation of the farm, then it is
ordered that the third respondent or any person occupying the farm through him
(sic), be and is hereby evicted and
the applicants be restored to possession thereof.
(3)
That
the respondents jointly and severally, one paying the others to be absolved pay
the costs of this application.”
The facts of this matter which are common cause may be summarized
as follows. The applicants used to own
Orange Groove Estate situate in the District of Bulilima hereinafter referred
to as “the farm” which was properly acquired by Government under the Land
Reform Programme in terms of section 16(B)(2)(a)(ii) of the Constitution of
Zimbabwe. The Notice of Acquisition was
published in the Zimbabwe Government Gazette of 19 June 2009. The applicants are now former owners of the
said farm. Section 3 of the Gazetted Land
(Consequential Provisions) Act [Chapter 20:28] stipulates what a former owner
of gazetted land is entitled to while at the same time it lays down what he or
she is prohibited to do. The provisions
are couched in this manner and are quoted in extenso infra.
“3. Occupation
of Gazetted land without lawful authority
(1)
Subject
to this section, no person may hold, use or occupy gazetted land without lawful
authority.
(2)
Every
former owner or occupier of gazetted land -
(a)
referred
to in paragraph (a) of the definition of “Gazetted land” in section 2(1) shall
cease to occupy, hold or use that land forty-five days after the fixed date,
unless the owner or occupier is lawfully authorized to occupy, hold or use that
land;
(b)
referred
to in paragraph (b) of the definition of “Gazetted land” in section 2(1) shall
cease to occupy, hold or use that land forty-five days after the date when the
land is identified in accordance with section 16B(2)(a)(iii) of the
Constitution, unless the owner or occupier is lawfully authorized to occupy,
hold or use that land;
Provided that -
(i)
the
owner or occupier of that land referred to in paragraph (b) may remain in
occupation of his or her living quarters on that land for a period of not more
than ninety days after the date when the land is identified;
(ii)
the
owner or occupier shall cease to occupy his or her living quarters after the
period referred to in proviso (i);
(3)
If
a former owner or occupier of gazetted land who is not lawfully authorized to
occupy, hold or use that land does not cease to occupy, hold or use that land
after the expiry of the- appropriate period referred to in subsection (2)(a) or
(b) or, in the case of a former owner or occupier referred to in section 2(b)
does not cease to occupy his or her living quarters in contravention of proviso
(ii) to section 2(b), he or she shall be guilty of an offence and liable to a
fine not exceeding level seven or to imprisonment for a period of not exceeding
two years or to both such fine and such imprisonment.
(4)
Any
person, other than a person referred to in subsection (2), who contravenes
subsection (1), shall be guilty of an offence and liable to a fine not
exceeding level seven or imprisonment for a period not exceeding two years or
to both such fine and such imprisonment.
(5)
A
court which has convicted a person of an offence in terms of subsection (3) or
(4) shall issue an order to evict the person convicted from the land to which
the offence relates.”
It is common cause that the period of 45 days permitted by
the provisions of section 3(2) above expired and so are the 90 days permitted
in terms of the proviso thereof. The
applicants should have ceased to occupy, hold or use that particular farm. They also should have ceased to occupy their
living quarters. It, therefore, admits
of no doubt that they are occupying, holding or using gazetted land
unlawfully. They have no legal basis to
occupy, hold or use the farm and living quarters. They are, in law, guilty of an offence for
which they are liable, on conviction, to a fine not exceeding level seven or to
imprisonment for a period not exceeding two years or to both such fine and such
imprisonment.
The applicants contend, however, that they can only be
removed from the farm in terms of the law which stipulated that they should be
prosecuted and on conviction the court should, in addition to the sentence
imposed, issue an order to evict them from the farm and living quarters. This has not been done yet.
It is true that although the applicants are now illegally
occupying, holding or using gazetted land they can only be removed therefrom
through an eviction order issued by the convicting court, they may not seek an
interdict from a court of law to sanction the perpetuation of an
illegality. The ownership of the farm
that they used to own vested in the state when it was acquired. They therefore have no locus standi to approach the court for an interdict because they
cannot establish a clear right since upon acquisition the farm vested in the
state leaving them without any rights.
In the case of Airfield
Investments (Pvt) Ltd v Minister of
Land & Ors 2004(1) ZLR 511(S) MALABA
J as he then was had this to say at page 520C to D:
“Similarly, the court a
quo was being asked by the appellant to sanction the continued illegal
farming operations and occupation of the living quarters on the land despite
the clear and unambiguous language of the Act to the effect that failure to
cease occupation or use of the land at the end of forty-five days from the date
of service of the order of acquisition and of the living quarters at the end of
ninety days from the date of service of the order of acquisition constituted a
criminal offence.”
The applicants farming operations are unlawful and so is
their occupation of the living quarters.
They should not approach the court to sanction their illegal activities
on the farm.
It is quite clear that they are resisting to vacate the farm
in defiance of the clear provisions of the law.
The authorities should have prosecuted them so that upon conviction an
eviction order is issued by the trial court in terms of section 3(5) of the
Gazetted Land (Consequential Provisions) Act [Chapter 20:28].
Evicting them without following the procedure laid down in
section 3(5) of the Act would, in my view, be improper as the law protects even
unlawful possessors. The legislature was
alive to this that is why it laid down the procedure to be followed in order to
avoid self help and anarchy. The respondents should not take the law into their
own hands as such conduct cannot be countenanced or condoned. This is a well established principle. When dealing with the principle ROBINSON J in Mutsotso & Ors v Commissioner
of Police & Anor 1993(2) ZLR 329(H) at 333B to H had this to say about
the general principle as stated by INNES
CJ in Nino Bonino v de Lange 1906 TS 120 at 122 as follows:
“It is a fundamental principle that no man is allowed to take
the law into his own hands; no one is permitted to dispossess another forcibly
or wrongfully and against his consent of the possession of property, whether
movable or immovable. If he does so, the
court will summarily restore the status
quo ante, and will do that as a preliminary to any inquiry or investigation
into the merits of the dispute.”
As explained by MILLIN
J in De Jager & Ors v Farah & Nestadt 1947(4) SA 28 (W) at
35, a case where demolition of premises was undertaken without legal process:
“What the court is doing is to insist on the principle that a
person in possession of property, however, unlawful his possession may be
and however exposed he may be to ejectment proceedings, cannot be interfered
with in his possession except by the due process of law, and if he is interfered
with the court will restrain such interference pending the taking of action
against him for ejectment by those who claim that he is in wrongful
possession. The fact that the applicants
have no legal right to continue to live in this slum and would have no defence
to proceedings for ejectment, does not mean that proceedings for ejectment can
be dispensed with, nor does it make any difference to the illegality of the
respondent's conduct that the occupation by the applicant carried with it penal
consequences.” Emphasis added
The learned judge went on to explain that in that case the
court held that the conduct of the respondents to demolish certain premises,
which were dilapidated, verminous and generally unsanitary, without legal
process in order to secure the ejectment of the occupiers, they had committed
acts of spoliation and they were therefore interdicted from further demolishing
those premises.
The applicants in casu
are now illegal occupiers of the farm and the living quarters and it admits of
no doubt that they would have no defence at all to an action for their
ejectment therefrom but that does not mean that respondents can interfere with
their possession without due process of law.
The applicants are liable to a fine equal to level seven or to
imprisonment for a period not exceeding two years. The penalty is indeed a severe one but it
still does not mean the respondents, in particular the third respondent, can
just occupy part of the farm thereby despoiling the applicants. The respondents should not take the law into
their hands. That is forbidden by law
and the court cannot condone that. ROBINSON J in Mutsotso
& Ors v Commissioner of Police
& Ors supra at 33H to 334A continued thus:
“As stated by DIEMONT
J in Fredericks & Anor v Stellenbosh Divisional Council 1977(3)
SA 113(c) at 117C.
“This court is not concerned with the nature of the
applicants' occupation. What it is
concerned with is that the respondent should not take the law into its own
hands … Such conduct cannot be countenanced
or condoned.”
The third respondent is a holder of an offer letter in
respect of a portion of the said farm now known as subdivision 1 of Orange Groove. She accepted the offer on 17 December
2008. Armed with the offer letter she
moved onto the farm. Whilst there she
did the following:-
(a)
She
cleared a homestead site 100 metres by 100 metres and constructed a 3 metre
security fence right round the homestead;
(b)
Constructed
workers houses comprising of two rooms under brick galvanized iron sheets and a
1 roomed flat roof house with galvanized iron sheets;
(c)
Repaired
a borehole and fitted a Lister pump engine and constructed a brick under
galvanized iron sheets pump house;
(d)
Installed
some steel water pipes from the borehole to the homestead measuring 150 metres
and installed a 5 000 litre water tank;
(e)
Cleared
a boundary line of approximately 2.5 kilometres and constructed a perimeter
fence measuring 2.5 kilometers using four strand barbed wire with steel posts
strainers; and
(f)
Fitted
a three metre steel gate and employed 10 full time workers and some casual
workers.
The third respondent did all this without due process of
law. The applicants should have been
prosecuted, convicted and sentenced to sentences the court saw fit plus
eviction orders. The third respondent
took the law into her hands – a conduct which this court cannot countenance or
condone.
Similarly this court cannot grant an
interdict which has the effect of perpetuating the applicants' illegal use,
holding or occupation of gazetted land.
In the result I would discharge the provisional order and issue the
following order:
It is ordered that:
(1)
Until
the applicants are lawfully evicted pursuant to an order of a court of
competent jurisdiction in terms of section 3(5) of the Gazetted Land (Consequential
Provisions) Act [Chapter 20:28], the respondents are interdicted from evicting
the applicants or from taking occupation of the farm;
(2)
The
third respondent or any person occupying the farm through her, be and is hereby
evicted and the applicants be restored to their possession thereof until they
are evicted through due process of law; and
(3)
The
third respondent shall meet the costs of this application.
Messrs Webb, Low & Barry applicants' legal practitioners
Cheda & Partners 3rd
respondent's legal practitioners
