MATHONSI J: In this
urgent application filed on 5 December 2011, the 2 applicants seek the
following relief.
“Terms of final order sought
That you show cause to this honourable court why a final
order should not be made in terms of the following terms (sic);
It and is hereby ordered that:
1.
The
eviction and removal of the applicants from subdivision 1 and subdivision 2 of
Marcedale Farm due to be effected on 6 December 2011 be and is hereby set
aside.
2.
The
judgment of the court in HC 1539/11 is hereby set aside.
3.
The
respondent shall pay the costs only in the event that he opposes this prayer.
In the alternative
1.
The
execution of the judgment entered in favour of the respondent against the
applicant on the 6th October 2011 in case number HC 1539/11 be and
is hereby stayed pending the outcome of the applicant's application for
rescission of that judgment.
2.
The
first and second respondents shall pay the costs of this application.
Interim relief granted
Pending the return date the applicant be and is hereby
granted the following relief:
A.
The
eviction and removal of the first and second applicants be and is hereby
suspended pending the return day of this provisional order.
B.
The
Deputy Sheriff of this court is instructed not to assist the respondent to
remove the applicants and their goods and possessions from subdivision 1 and
subdivision 2 of Marcedale farm.
C.
The
property will not be interfered with pending the return day and should not be
sold or otherwise disposed of, or encumbered by the applicants or the
respondent”
In his founding affidavit the 2nd applicant states
that on 30 November 2011 the Deputy Sheriff served the applicants with a notice
of ejectment from the farm, subdivision 1 and 2 of Marcedale Farm in Bulilima
District of Matabeleland South and a writ of ejectment from the said farm. This was in pursuance of an order of this
court granted on 6 October 2011.
The order in question interdicts the
applicants and those claiming through them from continuing with the illegal
occupation of the 2 pieces of land. It
also directs the Deputy Sheriff to evict the applicants and those claiming
through them from the land. That order
was issued following the applicant's failure to file heads of argument in a
summary judgment application made by the respondents in case number HC 1539/11
resulting in them being automatically barred.
Following a chamber application made
by the respondents in case number HC 2203/11 an order was made on 19 September
2011 granting them leave to set down
case number HC 1539/11 on the unopposed roll resulting in the order of 6
October 2011 I have already referred to.
Although the applicants were aware
of the pending eviction on 6 December 2011 from 30 November 2011, it was not
until the 11th hour, that is, 5 December 2011, that they filed this
urgent application. The matter was
placed before NDOU J who directed that it be set down for hearing on 13
December 2011 and that the application, together with a notice of set down, be
served upon the respondents.
It has since come to my attention, through submissions made
by Mr Ndlovu for the respondents,
that the application and the notice of set down aforesaid were only served upon
him barely 2 hours before the scheduled time of hearing. In fact, the notice of set down was only
filed on the date of hearing, 13 December 2011.
It has also been brought to my
attention that eviction was carried out on 6 December 2011 as scheduled and the
Deputy Sheriff's return of service to that effect has been submitted. In spite of that development, the applicants
have not seen it fit to revise their application to reflect the latest
developments. More importantly they have
not disclosed those facts at all.
Throughout his submissions, Mr Majwabu
for the applicant made no reference whatsoever to the eviction of the
applicants, contenting himself with leading evidence from the bar, as it were,
on the number of families and cattle on the farm and the inconvenience they
will suffer as a result of eviction, an eviction which has already taken
place. There has been serious material
non-disclosures in this application and if service upon the respondents had not
been ordered, I would have determined
the matter without knowing that the applicants have already been evicted.
The utmost good faith must be
observed by litigants making such applications.
They are enjoined to place all the material facts before the court in
order to equip the court with sufficient information to arrive at a just
decision. Graspeak Investments v Delta
Corporation (Pvt) Ltd 2001 (2) ZLR 551 (H) at 554D; Qalisa (Pvt) Ltd v ZIMRA
& Anor HB-106-11.
The applicants seek interim relief
for a stay of execution which has already taken place. No attempt has been made to amend the claim
in recognition of the fact that it is no longer possible to stay execution. As it stands, the relief sought is clearly
incompetent.
As if that was not enough, one would
assume that execution would be stayed for purposes of allowing the applicants
to make an application for rescission of judgment. Usually such application would be filed at the
same time the application for a stay of execution is made. A full week had lapsed at the time of hearing
but no application for rescission had been made epitomizing the lackadaisical
manner in which the applicants have conducted themselves throughout this
litigation. It is that lack of diligence
which resulted in them being barred and judgment being entered in default.
One would be inclined to cast a
sympathetic view on this application if, on the merits, there was something for
them to argue. Regrettably I am not
persuaded the applicants have any case even on the merits.
The farm occupied by the applicants
was gazette as state land in July 2002.
The 2 respondents are holders of offer letters issued to them by the
acquiring authority in terms of the law, in respect of the 2 pieces of land
occupied by the applicants. They
therefore possess the right of occupation of the land in question which right
has been lost by the former farm owner.
The applicants have sought to argue
that they occupy the land in terms of a bilateral agreement between the
government of Zimbabwe and that of Germany, which agreement permits them as
German nationals, to occupy Marcedale Farm.
This is the sole defence advanced in the applicants' plea in case number
HC 1019/11.
However, that issue, along with
others, has long been determined by the Supreme Court to the extent that there
is nothing else to be argued before this court.
In Commercial Farmers Union &
Ors v Minister of Lands and Rural
Resettlement and Ors S-31-10 (as yet unreported) Chief Justice Chidyausiku
stated as follows in respect of Bilateral Investment Protection Agreements at
page 17.
“The effect of section 16B of the Constitution is that it
renders agricultural land occupied under Bilateral Investment Protection
Agreements (BIPAs) liable to compulsory acquisition if the acquiring authority
considers that it is required for resettlement purposes or any other purpose as
prescribed under section 16B (2) (a) (iii) of the Constitution.”
On the continued occupation of farm
land by former occupiers, he stated at pages 21-22 as follows:
“On the other hand section 3 (of the Gazetted Lands
(Consequential Provisions) Act [Chapter 20:28]) of the Act criminalises the
continued occupation of acquired land by the owners or occupiers of land
acquired in terms of section 16B of the Constitution beyond the prescribed
period. The Act is very explicit that
failure to vacate the acquired land by the previous owner after the prescribed
period is a criminal offence. It is
quite clear from the language of section 3 of the Act that the individual
applicants as former owners or occupiers of the acquired land have no legal
right of any description in respect of the acquired land once the prescribed
period has expired.”
On the rights of holders of offer
letters, the Supreme Court stated at page 23 as follows:
“An offer letter issued in terms of the Act is a clear
expression by the acquiring authority of the decision as to who should possess
or occupy its land and exercise the rights of possession or occupation on
it. The holders of the offer letters,
permits or land settlement leases have the right of occupation and should be
assisted by the courts, the police and other public officials to assert their
rights.”
As holders of offer letters the
respondents approached this court seeking the eviction of the applicants from
the farm. This court has granted that
relief and for the applicants to rescind that judgment they must show more than
just the lack of diligence by their legal practitioners in failing to file
heads of argument. After all, the
cornerstone of our justice system is that there must be finality to litigation.
It would be an improper exercise of
discretion for this court to stay execution of judgment in circumstances where
the respondents' claim is unassailable, in order to allow the applicants to
file a rescission of judgment application which is unlikely to succeed. Before a judgment of this court is rescinded
it behoves an applicant to show, not only the lack of willingness in the
default, but also the bona fides of
the applicant's defence on the merits. I
am not satisfied that the applicants' intended rescission of judgment
application passes that test. Perhaps
that explains why they have failed to put it together and file it up to now.
I therefore come to the conclusion
that this application is devoid of any merit.
Accordingly, the application is
dismissed with costs on an attorney and client scale.
Webb, Low & Barry, applicant's legal practitioners
R Ndlovu & Company
respondent's legal practitioners
