This was an urgent chamber application. At the end of the hearing, I dismissed it with costs on a legal practitioner-and-client scale. I deprecated the conduct of the applicant's legal practitioners.
The purported urgent chamber application was not only bad in many respects, it was incurably bad.
What I was particularly concerned with were the patent falsehoods in the applicant's papers.
Furthermore, there was an apparent disconnection between the order sought, the facts laid out in support thereof, and the allegations in the certificate of urgency.
Here are the details....,.
(c) The Relief Sought
The applicant's draft order was couched thus:
“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, the 1st and 2nd Respondents be and are hereby interdicted from interfering with Applicant's operations on the Remainder of the Farm Ordar situate in the district of Salisbury pending determination of an application seeking the setting aside of title transfer under Deed No.2807/2015;
2. That, the 1st Respondent and 2nd Respondents (sic) shall bear the costs of this application on a legal practitioner and client scale.
INTERIM RELIEF GRANTED
Pending determination of this matter, the Applicant is granted the following relief:
1. That, the 1st Respondent be and is hereby interdicted from harassing Applicant's members and/or beneficiaries in any way whatsoever in respect of the Remainder of the Farm Odar immediately upon service of this order.”
The background to this case, in summary, and in my own words, as I understood it, and avoiding much of the contentious stuff, was that the applicant was a consortium or joint venture of some 56 members, comprising, among many others, companies, and State enterprises.
The first respondent was a private company fronted by one Phillip Chiyangwa (“Chiyangwa”).
The second respondent represented the Government.
It was said, in 2006, the Government, in terms of two written agreements, allocated to the applicant some 605,8092 hectares of a property known as Ordar Farm (“the property”).
The allocation was so that the consortium could develop, at its own cost, housing units for its members.
One important feature of the joint venture agreement was that the consortium would, through the Government, pay compensation to the former owner of the land at levels pegged by Government.
This former owner was identified in the agreements as the Zimbabwe Tobacco Association (“ZTA”).
Another feature of the agreements was that the parties to the joint venture would establish a partnership whose members contributions to the capital costs and whose entitlement to the individual land units would be in the proportions as set out.
The day to day management of the partnership would be entrusted to a committee of twelve persons appointed by the partners.
In due course, the Government would pass title to the owners of the individual units of land.
The applicant's case before me, again in my own words, and largely staying clear of the hotly contested facts, was that it had kept its side of the agreement.
Among other things, the relevant developmental permits had been put in place. The property had substantially been developed.
Yet, the Government had blatantly reneged on virtually every other undertaking that it had made to the applicant.
Among other things, the Government had surreptitiously surrendered the property to Phillip Chiyangwa, through his company, the first respondent herein.
A week before the application, the Government had, nicodemously, executed a Deed of Grant over the property in favour of Phillip Chiyangwa's company.
The applicant's members were now at Phillip Chiyangwa's mercy.
They were facing constant harassment from him as he relentlessly pursued compensation from them in return for individual title to the individual units occupied by them in terms of the agreements with the Government.
He was busy flighting malicious adverts in the media and making malicious reports to the police against the applicant's Management Committee.
The applicant did not recognise Phillip Chiyangwa or his alleged rights or title to the property.
In separate proceedings before this court, the applicant said it was challenging Government's actions. In particular, the applicant wanted the title to Phillip Chiyangwa's company reversed.
So. the applicant's case before me was that pending determination of the main case, it wanted a temporary interdict.
It was the nature of that temporary interdict that was the bone of contention.
Prima facie, the applicant had made out a case of double-dealing by the Government.
The Government's conduct was put into serious question.
It had acquired the property; it had allocated it to the applicant; the applicant had expended vast sums of money in line with the agreements; the applicant's members anticipated getting title to the individual units of land over which they had taken occupation, or were in the process of doing so; the level of compensation was, or had to be assessed by the Government.
Then, Phillip Chiyangwa zooms from nowhere, brandishing a title deed issued by the same Government - over the same property.
And the same Government was now tossing the applicant's members to Phillip Chiyangwa to whom payment of the compensation had to be made.
Thus, the Government was in the dock. It owed an explanation.
It was its secret execution of the title deed in favour of Phillip Chiyangwa's company that had prompted the applicant to approach the court on an urgent basis.
That, basically, was the applicant's case.
Unfortunately, it was not the one before me.
It was the case pending before this court for determination at another time and by another judge.
The case before me, as summarised in the interim relief sought, was that I should interdict Phillip Chiyangwa's company from “…, harassing Applicant's members and/or beneficiaries in any way whatsoever….,.”
But, there was a problem with that.
From the papers, it was not Phillip Chiyangwa's company that was doing the harm complained of - it was him personally.
But, he was not a party to the application.
Secondly, and more importantly, what really was being sought was an interdict to stop Phillip Chiyangwa from making police reports against the applicant's Management Committee.
There was attached to the founding affidavit, a document headlined “WANTED BY POLICE”.
Below were pictures of six named individuals and six other names without pictures to them. The six pictures included that of the deponent to the founding affidavit, one Benny Tangai Matenga (“Matenga”).
According to the applicant, the pictured and named individuals were the applicant's Management Committee.
The document offered a reward to anyone who reported them to the police.
However, before me, there was no telling whether the document had been from Phillip Chiyangwa himself or the police.
Also attached to the applicant's papers was another document headlined “PUBLIC NOTICE - WARNING MBAVHA KU SOUTHLEA PARK.”
“Mbavha” is Shona for thief or thieves.
In essence, the document informed the public, that, it had come to the attention of the first respondent that the named individuals, and other “unscrupulous” elements, were illegally selling residential Stands to unsuspecting members of the public.
The document said a report had been made to the police and that only the company could legitimately issue title deeds over the property.
In his affidavit, Phillip Chiyangwa said those individuals were the so-called land barons who had illegally sold off pieces of land from his company's property and whom he had reported to the police.
The point is: it is everyone's right to report what they may perceive to be criminal conduct.
The interim order sought was manifestly incompetent.
In substance, it was sought to gag someone from exercising his right or freedom.
Although not really conceding the point, counsel for the applicant seemed to appreciate the difficulty.
She sought to amend the draft order so that the interdict would read something like this:
“…, to restrain the first respondent from interfering with the applicant's operations at the property; or disposing of any Stands thereon and from harassing the applicant's members and from publishing any false statements pending the determination of the main case….,.”
The first respondent opposed the proposed amendment.
Among other things, counsel for the first respondent pointed out, that, it was the applicant, not the respondents, that was selling off units of land.
In my view, the proposed amendment still amounted to the same thing.
The applicant's real case was that it was for Government to answer why it was ditching its members.
But, no relief was being sought against the Government.
Furthermore, other than the two documents aforesaid, and the single allegation in the founding affidavit to the effect, that, such documents had been flighted in the media by the first respondent, there was nothing else said or shown that amounted to harassment.
There was simply a disconnection between what the application said or highlighted in its application, and the relief sought in the draft order.
Such defect was incurable.
That was yet another reason why I refused to deal with the application.
(d) Falsehoods or material facts concealed
The applicant blatantly neglected to take the court into its confidence. Material facts were omitted from the founding papers.
This was fully exposed and exploited by the first respondent - with fatal consequences.
One example stuck out prominently.
As summarised above, the applicant condemned the Government for, as it were “selling” out to Phillip Chiyangwa.
The applicant did not recognise Phillip Chiyangwa or his company.
The applicant's position was that its members would pay compensation to no one else other than the Government.
The applicant's case, particularly that for urgency, was that it was only after the Government had surreptitiously issued title to Phillip Chiyangwa's company, on 8 July 2015, that it had finally become aware of the Government's sinister dealings.
That was what had triggered the urgent chamber application a week later.
To expose the falsehoods, the first respondent produced several correspondence and documents.
These showed, that, as far back as December 2014, the Government had written to the first respondent, inter alia, confirming its resolution to hand over the property back to it and advising that the first respondent would now receive its compensation directly from the applicant.
The first respondent, had, in turn, copied that letter to the applicant some five days later.
In answer to that, the applicant claimed not to have received the correspondence.
