Urgent Chamber Application
HUNGWE J: This
matter was placed before me under a certificate of urgency on 17
January 2008. I gave directions that it be heard the following day as
I deemed it appropriate that the rules of court be dispensed with in
the interests of achieving justice in this particular matter.
At
the hearing Mr Takaendesa,
for first respondent, raised two procedural points in
limine regarding the
lack of appropriate certification of urgency on behalf of the
applicants. His second point was that the applicants ought to have
anticipated the rule nisi rather than approach this court through the
Chamber Book.
In
the exercise of my powers in terms Order 4(c) of the High Court Rules
I dispensed with the need for certification from a firm other than
that preparing the applicant's papers. I accepted Mr Masterson's
confession of ignorance of a judgement of this court against the
practice and that no prejudice was suffered by failure to adhere to
the rule as no conflict of interest was apparent on the papers.
As
the matter touched upon the propriety of the handling of a class of
cases in the lower courts I deemed it appropriate to deal with it in
this court to enable a proper ventilation of the allegations of bias
raised on the papers and, if substantiated, give appropriate
directions to that court.
In
any event I directed that the papers be served on the concerned
institution to enable the appropriate response to be elicited from
that court rather than proceed ex-parte
as Mr Masterson
had originally sought on his papers.
Applicants
seek the following order;
“1.
Final Order sought
(a)
The order of the Magistrate in Chinhoyi Civil Case No, 22/08 on 8
January 2008 be and is hereby set aside.
(b)
The costs of this Application are awarded to the applicants.
2.
Interim Relief
Granted
Pending
the finalisation of this Application and of any other order that may
be given by this Court before this matter is brought to finality:-
(a)
The order given by the Magistrate Chinhoyi in case 22/08 is forthwith
suspended.
(b)
No further litigation between the Applicants and the first respondent
herein shall be dealt with by any of the judicial officers
officiating at Magistrates Court at Chinhoyi.”
At
the conclusion of the hearing I issued the following order:
“1.
The Order issued by the Magistrate in Chinhoyi Civil Case No. 22/08
on 8 January be and is hereby set aside.
2.
The costs of this application are awarded to the applicants.”
I
have been asked to give reasons for this order. These are they.
On
8 January 2008, the first respondent (applicant in the magistrate's
court) obtained the following order;
“1.
A rule nisi
do issue returnable to this honourable court sitting at Chinhoyi on
the 7 day of February 2008 at 8:30am or soon thereafter as the matter
may be heard calling upon the respondents their agents or employees
to show cause why they should not be prohibited from:-
1.
Continuing to deny applicant and his employees access to the fields
at the Remaining Extent of Romsey Farm.
2.
Continuing to carry out agricultural activities at the Remaining
Extent of Romsey Farm.
3.
Visiting the fields at the Remaining Extent of Romsey Farm.
INTERIM
RELIEF GRANTED
4.
That pending the return date hereto, this order operates as a
temporary order prohibiting the Respondents and their agents or
employees from visiting the fields or carrying out agricultural
activities at the Remaining Extent of Romsey Farm.
3.
That a copy of this order shall be served immediately by the
messenger of Court or by a duly attested member of the Zimbabwe
Republic Police.
4.
That in the event that any of the Respondents breaches any terms of
this interim order the Messenger of Court, Chinhoyi, is hereby
authorised to enlist the services of the Zimbabwe Republic Police to
enforce this order. Should there be any further resistance the
Zimbabwe Republic Police is hereby ordered to detain the respondents
upon sight and bring them to court forthwith to answer charges of
contempt of court.”
Applicants
approached this court for urgent relief upon being served with the
above order.
The
first ground of complaint is the irregular manner by which the order
was obtained. The second ground relates to lack of jurisdiction of
the Magistrates Court to issue the order.
The
papers show that there has been litigation going on between the
parties prior to the order complained of being issued. Particularly
disturbing is the following sequence of events.
On
6 December 2007, the Magistrate presiding over the matter between
these two parties under case number B140/07 in which the first
respondent was seeking a peace order against the second applicant
recused himself on the basis that commercial farmers had expressed
their misgivings about the partiality of judicial officers at his
court. As respondent was a commercial farmer, he shared the same
sentiments as expressed by his colleagues. The Magistrate did not
feel that in those circumstances justice would seem to be done if he
presided over the matter. He therefore recused himself. He recorded
these reasons on the record.
Under
B170/07 the same magistrate who had recused himself in B140/07
granted a default judgement against the applicants where he knew or
must have known that the respondents were opposed to the order being
sought. B170/07 had been postponed when both parties appeared before
him. The reason had been that the application was supported by wrong
offer letters. On 13 December 2007 somehow applicants' legal
practitioner could not make it to court by the appointed time of
0830hours. This fact was relayed to the respondents' legal
practitioners and the parties were agreed that the applicants'
legal practitioners would only be at court at soon after 0900hours.
This courtesy was not reciprocated when the matter was duly called.
Respondents applied for default judgement before the applicants'
legal practitioner arrived at/or around 0930hours.
This
was in spite of the fact that both the Magistrate and the respondents
knew applicants' opposition to the order sought. This was also in
spite of the fact that the same magistrate had recused himself from
the same case two days before.
As
to the contents and effect of the order itself, the applicants
complain that the order has the effect of preventing both applicants
from continuing with their farming operations without having been
afforded an opportunity to be heard on such a drastic issue.
Secondly,
access to the fields and crops already in the ground is an asset
worth billions of dollars and therefore greatly in excess of the
Magistrates Court jurisdiction.
The
applicants have grown 40 hectares of tobacco, 300 hectares of soya
beans, 30 hectares of maize and 20 hectares of horticultural crops
for the current season. The applicants have spent in excess of $300
billion and will have to spend a further $100 billion up to
harvesting of the crops. The temporary interdict threatens to disrupt
farming operations and economically ruin the applicants in the
process.
Applicants
argued that the Magistrate's Court had no power to issue such an
interdict. That such a court could grant an interdict such a wide
interdict, in applicants' view, demonstrated the institutional bias
against white commercial farmers pervading this magisterial station.
If
this was the view of the applicants, the appropriate step for the
applicants would have to apply for the recusal of the specific
presiding officer citing the fact, as Mr Masterson
did, that such presiding officer could not, by virtue of the fact
that he is a beneficiary of the land reform program, discharge his
duties fairly in a given case placed before him.
As
demonstrated elsewhere on the papers judicial officers are keenly
aware of their duty to not only ensure that justice is done but that
it be seen to be done.
As
I understood Mr Masterson,
of particular concern to him was the fact that a senior magistrate at
that station now farms on part of his client's farm. Whether it is
the Remaining Extent of Romsey, it was not made clear. There was
belief, however, among his clients that Ministry of Lands officers
housed in the same building somehow influenced the manner in which
matters on former commercial farms were adjudicated at magistrates
court, Chinhoyi.
When
pressed by court on whether in his view an application for recusal
could not afford his clients appropriate relief rather than a blanket
prohibition of such matters being heard at Chinhoyi court, he
conceded that such a course was more appropriate.
He
did not persist on the order he sought on the papers.
Where
it is intended to make such an allegation as institutional bias,
legal practitioners must place before the court such facts as would
support such allegations of general institutional bias, especially
where judicial officers are involved, if only in the hope that
corrective administrative action may be taken.
It
is not fair for a party to make a blanket and unsubstantiated
allegation of bias regarding how judicial matters are presided upon
by a magisterial station.
When
it was brought to Mr Masterson's
attention that his clients had in fact obtained an order favourable
to them, he literally abandoned the allegation of bias. As this
prayer was abandoned nothing more will be said of it.
Mr
Takaendesa,
for the first respondent, argued that applicant jumped the gun by
approaching this court. Their remedy lay in anticipating the rule
nisi in the
magistrate's court in terms of the rules of that court. As such the
application should be dismissed on that basis.
Secondly,
he urged the court to refuse to entertain the application on the
basis that they come to court with dirty hands as they have not
complied with the magistrate's court order.
In
any event the applicants cannot be heard for the further reason that
their continued stay on the farm constitutes a criminal offence. The
farm is now State property and they hold no lawful permission to
remain on the farm. That permission which was granted to them expired
and was not renewed. He argued that the court will be perpetuating
the commission of a criminal offence were it to grant the order
sought.
He
relied on an affidavit from one Marius Dzinoreva, a Director for
Acquisition in the Ministry of State for National Security in the
President's Office Responsible for Lands, Land Reform and
Resettlement for the submission that first respondent had a cession
of the right to bring the action on behalf of the acquiring
authority.
Further
respondents hold a valid offer letter. It requires them to assume
occupation and embark on farming operations. As such the applicants
have no right to be on that piece of land.
The
matter before me requires me to decide whether on the papers the
applicants have made a case for the setting aside of the temporary
interdict granted by the magistrate on 13 December 2007. That order
is impugned on the grounds of lack of jurisdiction by the court and
gross irregularity in the procedure adopted in obtaining the order.
First
respondent states that where the magistrate had good reasons to
recuse himself, he has previously done so. As there was no basis for
refusing to grant a default judgement he granted it. This was in
spite of the fact that this was in a matter in which he had
previously recused himself. There could be no basis for setting the
matter aside on the ground that this constituted gross irregularity.
Ms
Mwatse,
for the second respondent and in support of the first respondent,
relied on the cession of rights by the acquiring authority to the
beneficiary.
The
issue for the decision of this court is whether that court had
jurisdiction to grant the order it granted and if so whether, taking
into account the manner in which it was granted, it is not liable to
be set aside.
I
believe the matter could be disposed of on these two grounds.
Section
27 of the High Court Act [Chapter
7:06] sets out the
grounds upon which a decision of an inferior court may be brought on
review. Lack of jurisdiction, interest in the cause, bias, malice or
corruption on the part of the presiding officer and gross
irregularity, among others are such grounds.
Not
all procedural irregularities will qualify a superior court setting
aside the proceedings leading to the result complained of.
The
irregularity must be so gross as to have prevented the presiding
officer from deciding the issues which he had to decide. Put
differently, the irregularity must have resulted in a miscarriage of
justice to be sufficient ground for review.
In
Telcordia Technologies
Inc v Telcom SA Ltd 2007
(3) SA 266 (SCA)
HARMS JA says about this ground of review:
“It
is useful to begin with the oft quoted statement from Ellis
v Morgan where Mason
J laid down the basic principle in these terms:
'But
an irregularity in proceedings does not mean an incorrect judgment;
it refers not to the result, but to the methods of a trial, such as,
for example, some high-handed or mistaken action which has prevented
the aggrieved party from having his case fully and fairly
determined.'
The
Goldfields Investment qualification to this general principle dealt
with two situations.
The
one is where the decision-making body misconceives its mandate,
whether statutory or consensual. By misconceiving the nature of the
inquiry a hearing cannot in principle be fair because the body fails
to perform its mandate.
Goldfields
Investment provides a good example.
According
to the applicable Rating Ordinance any aggrieved person was entitled
to appeal to the magistrates' court against the value put on property
for rating purposes by the local authority. The appeal was not an
ordinary appeal but involved, in terms of the Ordinance, a rehearing
with evidence.
The
magistrate refused to conduct a rehearing and limited the inquiry to
a determination of the question whether the valuation had been
'manifestly untenable'. This meant that the appellant did not have an
appeal hearing (to which it was entitled) at all because the
magistrate had failed to consider the issue prescribed by statute.
The
magistrate had asked himself the wrong question, that is, a question
other than that which the Act directed him to ask.
In
this sense the hearing was unfair.
Against
that setting the words of SCHREINER J should be understood:
'The
law, as stated in Ellis
v Morgan (supra) has
been accepted in subsequent cases, and the passage which has been
quoted from that case shows that it is not merely high-handed or
arbitrary conduct which is described as a gross irregularity;
behaviour which is perfectly well-intentioned and bona fide, though
mistaken, may come under that description. The crucial question is
whether it prevented a fair trial of the issues. If it did prevent a
fair trial of the issues then it will amount to a gross irregularity.
Many patent irregularities have this effect. And if from the
magistrate's reasons it appears that his mind was not in a state to
enable him to try the case fairly this will amount to a latent gross
irregularity.
If,
on the other hand, he merely comes to a wrong decision owing to his
having made a mistake on a point of law in relation to the merits,
this does not amount to gross irregularity.
In
matters relating to the merits the magistrate may err by taking a
wrong one of several possible views, or he may err by mistaking or
misunderstanding the point in issue.
In
the latter case it may be said that he is in a sense failing to
address his mind to the true point to be decided and therefore
failing to afford the parties a fair trial. But that is not
necessarily the case. Where the point relates only to the merits of
the case, it would be straining the language to describe it as a
gross irregularity or a denial of a fair trial. One would say that
the magistrate has decided the case fairly but has gone wrong on the
law. But if the mistake leads to the Court's not merely missing or
misunderstanding a point of law on the merits, but to its
misconceiving the whole nature of the inquiry, or of its duties in
connection therewith, then it is in accordance with the ordinary use
of language to say that the losing party has not had a fair trial.
I
agree that in the present case the facts fall within this latter
class of case, and that the magistrate, owing to the erroneous view
which he held as to his functions, really never dealt with the matter
before him in the manner which was contemplated by the section. That
being so, there was a gross irregularity, and the proceedings should
be set aside.'
From
these authorities it appears, firstly, that the ground of review
envisaged by the use of this phrase relates to the conduct of the
proceedings and not the result thereof. This appears clearly from the
following dictum of MASON J in Ellis
v Morgan;
Ellis v
Dessai 1909
TS 576 J
at 581: 1993 (1) SA p43 BRAND AJ:
'But
an irregularity in proceedings does not mean an incorrect judgment;
it refers not to the result but to the method of a trial, such as,
for example, some high-handed or mistaken action which has prevented
the aggrieved party from having his case fully and fairly
determined.'
(See
also, for example, R v
Zackey 1945
AD 505 at 509.)"
Secondly
it appears from these authorities that every irregularity in the
proceedings will not constitute a ground for review on the basis
under consideration.
In
order to justify a review on this basis, the irregularity must have
been of such a serious nature that it resulted in the aggrieved party
not having his case fully and fairly determined. (See, for example,
Ellis v Morgan
(supra); Coetser v
Henning and Ente NO
1926
C
TPD 401 at 40 1996 (4) SA 4; Goldfields Investment Ltd and Another v
City
Council of
Johannesburg and Another 1938
TPD 551;
and also
S v Moodie
1961
(4) SA 752 (A)).
It
is clear to me that the learned trial magistrate committed two gross
procedural errors warranting this court to infer prejudicial bias on
his part.
(i)
First having correctly decide that it was appropriate for him to
recuse himself, he then went ahead and presided over the same or
similar matter.
It
does not matter that the matter was technically one proceeding by
default. It was even more relevant that the matter so proceeded
because it gave the other side fertile ground to complain that
justice was not done. This is even more apparent when regard is had
to the fact that the applicants raised the question of jurisdiction.
Had
they been allowed to fairly state their case, one can say they would
have place this issue before the learned trial Magistrate who would
have directed his mind to all the issues to be decided. Because of
the procedure he adopted he has prevented the other side from placing
its case before him when he knew they had a case to present.
A
Court of the Magistrate can only do those things the Act prescribes
to it. It cannot do or act outside the four corners of the statute
creating it. The court cannot ascribe to itself jurisdiction not
expressly granted to it by the Act.
In
respect of interdicts, s12(1) provides that subject to the limits of
jurisdiction prescribed by the Act, the court may grant such
interdicts.
The
effect of the wording of the interim interdict, in my view, is to
shut the present applicant out of his home and farm. This in essence
is constructive eviction of the applicant.
I
am fortified in this conclusion by the effect a plain reading of the
order.
Applicant
is prohibited from visiting or working his fields. If he does so he
risks an arrest by police on sight on a contempt of court charge.
Assuming he can access his homestead without going through his
fields, he still is foul of the order. He cannot ask his servants to
tend the crops. He is virtually evicted from the land.
Clearly
this is in violation of the jurisdictional limit of $5 million being
the current ceiling of the monetary jurisdiction of the magistrate's
court. The Act places a statutory limit of $5 million being “clear
value to the occupier” on matters which the magistrate can
entertain.
I
did not hear the respondents to argue that the interdict was within
the jurisdiction prescribed by s11(1)(iii) of the Act.
The
thrust of the respondents' argument remained that being the
previous owners, the applicants did not have lawful authority to
remain on the farm.
It
is trite that the right to claim eviction in respect of land
acquired in terms of the Gazetted Lands (Consequential Provisions)
Act [Chapter 20:28]
is only exercisable by the holder of the residual rights in the land.
Such
rights repose only with the acquiring authority.
Only
the Minister of Lands can bring an action claiming eviction from land
on behalf of the President of the Republic of Zimbabwe, being the
acquiring authority. That process is not initiated by a beneficiary
under that land reform programme, or by an officer of the acquiring
ministry. The process is set out in the Act.
It
is set in motion by a criminal prosecution of the recalcitrant
farmer.
The
farmer is allowed to raise a defence of lawful authority. The Court
is enjoined to investigate his defence before convicting such a
farmer or occupier. Upon conviction by that court the occupier is
automatically issued with an order evicting him.
The
process is meant to deliver vacant possession of the land to the
beneficiary and avoid possible breaches of the peace that otherwise
are frequent where a beneficiary is given an offer letter where the
former owner is still in situ.
There
can be good reasons for the former owner remaining on acquired land.
He could have lawful permission or some such defence to put forward
upon being prosecuted. It is therefore up to the acquiring authority
to initiate such prosecution thereby open the way for orderly take
over by the beneficiary.
It
is sound principle that resort is had only to the law.
I
cannot envisage clearer procedural requirements to deliver vacant
possession.
Mrs
Mwatse
acknowledged that I have previously pointed out that the acquiring
authority ought to prosecute those farmers who, in the authority's
view, are in breach of the law by remaining on gazetted land without
lawful authority. Upon securing a conviction, and only then, should
an offer letter be issued over that land. She advises that no
prosecution of these alleged offenders has so far taken place
although my advice has been passed on to the relevant authorities.
Such
a step, in my respectful view, will help clear the air and give a
clearer direction to the land reform programme for the national
benefit.
The
economic benefits following stability, certainty and predictability
on the farms cannot be underestimated. It remains for the authorities
to adopt their programmes to accord with the law as it stands.
The
present application for the reasons given above was allowed with
costs.
Coghlan Welsh & Guest,
legal practitioners for the applicants
Mavhunga & Sigauke,
legal practitioners for the 1st
respondents
Civil Division, A-G's Office,
legal practitioners for the 2nd
respondents
