MATHONSI J: The Applicant and the Respondent are neighbours
occupying adjoining farm land being Lot 2 of Biano of Woodlands occupied by the
applicant and the remainder of Biano of Woodlands occupied by the
Respondent. The land was previously
owned by one Africa Ncube who subdivided it and sold Lot 2 of Biano of
Woodlands to one Robert Christopher Ndebele, who in turn sold it to the
applicant. Africa Ncube sold the
remaining extent of Biano Woodlands to the Respondent.
The parties
have co-existed peacefully on the land for quite sometime. It so happens that when Africa Ncube sold the
pieces of land as he did, he had not undertaken the subdivision in accordance
with the provisions of the Regional Town and Country Planning Act [Chapter
29:12]. In fact the boundaries were estimated
without a permit and the proper subdivision was done much later with the result
that the boundaries produced by the subdivision are at variance with what the
applicant and the respondent were shown by Africa Ncube.
The
respondent holds his piece of land by Deed of Transfer number 684/05 which is
also the Diagram Deed showing the survey boundaries registered at the Deed
Registry and Surveyor General's offices.
The applicant does not appear to have taken title of his own piece as
yet. In pursuance of his registered
title the Respondent enlisted the services of a surveyor to locate the pegs of
his land and that surveyor concluded that the boundary between the 2 farms is
not as the parties had always known it and fenced but is in fact 145 metres into
what had always been generally regarded as the applicant's land.
This has then
created a simmering boundary dispute between the applicant and the respondent
with the applicant maintaining that the boundary should remain as fenced and
shown to him at the time he purchased the land.
In an effort to assert his rights the respondent has, without the
consent of the applicant or a court order, gone ahead to clear the 145 metre
strip attempting to move the boundary into the land previously occupied by the
applicant in accordance with the beacons shown to him by his surveyor.
The applicant
brought an urgent application and obtained interim relief interdicting the
respondent from encroaching onto his property and from cutting down trees. It is the confirmation of that provisional
order which the respondent strongly opposes arguing that the disputed strip
belongs to him and he has registered title to it.
Mr Mazibuko
for the applicant conceded that the agreement of sale between the applicant and
Robert Christopher Ndebele was in breach of the Regional Town and Country
Planning Act in that it involved the sale of land which had not been
surveyed. Section 39(1) of that Act
provides:
“Subject to subsection (2), no
person shall-
(a) subdivide any property; or
(b) enter into any agreement-
(i) for the change of ownership of any
portion of a property; or
(ii) for the lease of any portion of a
property for a period of ten years or more or for the lifetime of the lessee;
or
(iii) conferring on any person a right to
occupy any portion of a property for a period of ten years or more or for his
lifetime; or
(iv) for the renewal of the lease of, or right
to occupy, any portion of a property where the aggregate period of such lease
or right to occupy, including the period of the renewal, is ten years or more;
or
(c) consolidate two or more properties into
one property except in accordance with a permit granted in terms of section
forty.”
In X-trend-a-home (Pvt Ltd v Hose Law
Investments (Pvt) Ltd 2000(2) ZLR 348 at 355 B-C McNally JA stated:
“The agreement with which we
are concerned is clearly 'an agreement for the change of ownership' of the
unsubdivided portion of a stand. What
else could it be for? Whether the change
of ownership is to take place on signing, or later on an agreed date, or when a
suspensive condition is fulfilled, is unimportant. It is the agreement itself which is
prohibited. The evil which the statute
is designed to prevent is clear.
Development planning is the function and duty of planning authorities,
and it is undesirable that such authorities should have their hands forced by
developers who say 'but I have already entered into conditional agreements,
major developments have taken place; large sums of money have been spent. You cant possibly now refuse to confirm my
unofficial subdivision or development'”.
The law is
therefore now settled on the issue of a sale or subdivision without a
permit. Clearly therefore when the
applicant entered into an agreement for the purchase of that land before a
survey had been commissioned or a permit issued, he was engaging in an exercise
in futility. That agreement remains
invalid.
However, I am
not sitting here to determine the lawfulness or otherwise of the subdivision
nor the validity of the sale agreement.
The issue before me relates to spoliation it being common cause that the
applicant has been in peaceful and undisturbed possession of the disputed piece
of land since 2002 to the full knowledge of the respondent.
The
respondent invaded that piece of land without a court order and started felling
trees. This was without the consent of
the applicant. The requirements of an
interlocutory interdict are;
(a) a prima facie right, even if it is open to
doubt;
(b) an infringement of such right by the
respondent or a well grounded apprehension of such an infringement;
(c) a well-grounded apprehension of
irreparable harm to the applicant if the interlocutory interdict should not be
granted and if he should ultimately succeed in establishing his right finally;
(d) the absence of any other satisfactory remedy; and
(e) that the balance of convenience favours the granting of an
interlocutory interdict.
See Setlogelo v Setlogelo 1914 AD 221; Bozimo Trade and Development Company (Pvt)
Ltd v First Merchant Bank of Zimbabwe Ltd and Others 2000(1) ZLR 1 (H) at 9
E-G. Carslone Enterprises (Pvt) Ltd v Svova HB 35/11 at page 2.
I am
satisfied that those requirements have been met in the present case. I am fortified in that conclusion by the fact
that the land which the respondent has been clearing and the new boundary he
seeks to enforce cuts right through the applicant's homestead at the farm. There will therefore be devastating
consequences should the respondent move the boundary as he intends to do before
the respective rights of the parties have been determined.
In a
spoliation application, the applicant has to prove possession and that he was
unlawfully dispossessed. I am in total
agreement with the pronouncement made by Reynolds J in Chisveto v Minister of Local Government and Town Planning 1984(1)
ZLR 248 at 250 A –D where he said:
“It is a well-recognised
principle that in spoliation proceedings it need only be proved that the
applicant was in possession of something and that there was a forcible or
wrongful interference with his possession of that thing – that spoliatus
ante omnia restituendus est (Beukes v Crous and Another 1975 (4) SA 215 (NC). Lawfulness of possession does not enter into
it. The purpose of the mandament van
spolie is to preserve law and order and to discourage persons from
taking the law into their own hands. To
give effect to these objectives, it is necessary for the status quo
ante to be restored until such time that a competent court of law
assesses the relative merits of the claims of each party. 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.”
Mr Nzarayapenga
for the respondent conceded that the respondent committed an act of spoliation
by resorting to self-help. He however
argued that the remedy of spoliation was availed to the applicant at the time
that he obtained interim relief. In his
view at the stage of confirmation of the provisional order, the court cannot
ignore the fact that respondent has proved ownership of the disputed
strip. Instead the court should bring
finality to litigation by protecting the right of ownership. I do not agree.
I am not
sitting to determine the right of ownership.
In fact there is no such application before me and I am not fully
equipped to determine who has better title.
That is what has to be determined when the parties institute proper
proceedings for the resolution of the boundary dispute.
I agree
though that the terms of the final order sought by the applicant are too vague
and generalised as not to give a definitive direction the matter should
follow. There is need to place the
parties on terms as to the finalisation of the dispute.
In the
result, the provisional order made on 17 June 2011 is confirmed in the
following terms; that
1. The respondent be and is hereby
directed to stop interfering with the applicant's occupation of property
identified by land surveyor Ignatio Sean Maingehama as Lot 2 of Biano of
Woodlands Umzingwane including the disputed strip pending the proper
determination of the boundaries.
2. The applicant should institute
proceedings for such determination within 14 days from the date of this order.
3. The respondent shall bear the costs of suit on an ordinary
scale.
Munjanja and
associates, applicant's legal practitioners
Messrs Dube-Banda,
Nzarayapenga and partners, respondent's legal
practitioners