CHEDA J: This is an application whose draft
order is couched in the following terms:
“IT
IS ORDERED
1. Glenorchie farm, Insiza,
held by Applicant under Deed No. 1888/1953 be and is hereby declared to be a
property wholly privately owned by the Applicant.
2. That an order be and is
hereby granted that First and Second Respondents and all who claim through
them, are trespassing on Applicant's privately owned property, which property
is more fully described as Glenorchie farm, Insiza District, held under Title
Deed 1888/1953.
3. Alternatively to 2
above, an order be and is hereby granted that the First and Second Respondents
unlawfully invaded Glenorchie farm in March 2008, and thereby perpetrated an
act of spoliation, as neither Applicant or its authorised representatives ever
authorised or consented that the Respondents could move their property or
cattle into occupation of part of Glenorchie Farm, Insiza, as more fully
described under Title Deed 1888/1953.
4. An order that First and
Second Respondents, their cattle and property, and all other persons presently
on Glenorchie farm, Insiza District (more fully described under Title Deed
1888/1953), who claim through them, be and are hereby immediately and forcibly
evicted from and out of Glenorchie farm, Insiza, being a property declared
above as privately owned by the Applicant.
5. An order that First and
Second Respondents pay the costs of this application on an attorney and client
scale”.
Applicant
is the owner of a property known as Glenorchie Farm (herein after referred to
as the “the farm”). The founding
affidavit was deposed to by one Jason Nuville Leanders, by virtue of a power of
attorney filed of record given to him by applicants. The deponent is the son-in-law of applicant
and is also the manager of the farm.
First
respondent is described as “an invader” and second respondent is his
foreman. I will come to this point
later.
The
brief facts which are largely undisputed, are that applicant holds title to the
farm and first respondent has been allocated the same farm or part thereof.
It
is apparent that there is a dispute as to the boundaries of first respondent'
piece of land.
It
is applicants' argument that he was in lawful and undisturbed possession of his
property until he was dispossessed of it by first respondent.
Our
law protects property rights, thereby preventing self-help. On that score applicant is indeed entitled to
his property unless there are other lawful reasons for his dispossession.
First
respondent raised two points in limine. That the matter is res judicata
and that there is a non-joinder. The res
judicata refers to case number HC 1634/08 which was adjudicated upon by
this court.
I
propose to deal with the last point raised being the non-joinder. The correct legal position in our law and indeed
the Roman Dutch- Law is that the only cases in which a defendant has, as of
right, entitled to claim a joinder of a third party is where the third party
has a joint financial interest or proprietary interest, see Amalgamated Engineering Union v Minister of
Labour 1949 (3) SA 637 and Morgan and
another v Salisbury Municipality 1935, A.D 167 at 171 Villers J. A. stated:
“The South African practice was no doubt in the first
instance founded on grounds of convenience or equity or in order to save costs,
or in order to avoid oppression or multiplicity of actions, or no other similar
grounds; but however that may be, the practice has in course of time so
hardened as to confer on a defendant a legal right of demanding that the other
joint owner, or joint contractor, or partner, shall be joined as a party to the
action. Now the feature which is common
to the cases of joint owners, joint contractors and partners, is that in all of
them there is a joint financial or proprietary interest. It has been stated that the interest is
indivisible as well as joint, but that point need not be here discussed. The feature to which I draw attention is
the joint financial or proprietary interest. The position may therefore be broadly stated
to be that by South African practice the only case in which a defendant has
been allowed to demand a joinder as of right are the cases of joint owners,
joint financial or proprietary interest, but that in other cases a
defendant, as a general rule, has not been allowed to demand such joinder.” (my
emphasis)
The
question to be asked in this matter is whether the Minister of Lands and Rural
Settlement (herein after referred to as “the Minister”) and Insiza District
Council (herein referred to as “the Council”) had a financial or proprietary interest
in this matter.
Applicant
has argued that the property was not gazetted under the provisions of the Land
Acquisition Act [Chapter 20:10].
However, on the other hand, first respondent has argued that the
property belongs to him on the basis of an offer letter from the Minister
through the council. To me, it is
essential for both the Minister and the council to be made part of the
proceedings. This principle is clearly laid
down by Herbstein Winsten in The Civil Practice of the Superior Courts
in South Africa, 3rd ed at 167 which reads:
“If a third party has, or may have, a direct and substantial interest in any
order the court might make in proceedings or if such order could not be
sustained or carried into effect without prejudicing that party, he is a
necessary party and should be joined in the proceedings, unless the court is
satisfied that he has waived his right to be joinded”.
See
also, Toekies Butchery (Edms) BPK Ltd v
Stassen 1974(4) SA 771 (T) and Erasmus
v Fourwill Motors (Edms) BPK 1975 (4) SA 57 (T).
I hold the view that in view of the
current legislation pertaining to the acquisition of land in Zimbabwe, the
Minister is the acquiring authority and that authority legally resonates down
to the council. In view of this, the
Minister and council have a direct, substantial, financial and proprietary
interest in any order the court may make with regards to the subject matter, in
this instance, the land. There is no
evidence before me that either the Minister or council have waived their rights
to be made part of the proceedings. In
the absence of such waiver, it means that they are interested parties.
Failure to join them as parties to
these proceedings will no doubt result in serious prejudice to them.
In
light of this fact alone, I am of the view that this application is still born
and it is not necessary to determine the question of res judicata
at this stage.
Applicant describes first respondent
as “an invader.” The use of the word
invader as opposed to occupier is deliberately used to impute some
illegality. Fortunately, the reality of
the situation on the ground does not support this serious yester-year
misconception based on entrenched colonial bigotry on the part of applicant and
John Neville Leanders. This unfortunate
attitude will no doubt impede applicant in his quest to normalise race
relations in this country but, if, anything will further detach him from the
spirit of co-existence.
I am inclined to comment that it is
high time those of like-mind engage their minds into self-introspection rather
than dwelling in the past wishing the reversal of the land reform programme
which all reasonable people in this country have embraced.
The
application is accordingly dismissed.
Messrs Munjanja and associates, applicant's
legal practitioners
Coghlan and Welsh, 1st
respondent's legal practitioners
