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HH25-12 - TAFIREYI NYIKADZINO vs JOHN ASHER and MINISTER OF LANDS & LAND RESETTLEMENT and DEPUTY SHERIFF HARARE

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Procedural Law-viz urgent application re stay of execution.
Law of Property-viz land acquisition re lawful authority to occupy gazetted land iro offer letter.
Administrative Law-viz the presumption of validity of documents issued in the course of duty.
Procedural Law-viz appeal re interlocutory judgement iro nature of relief granted.
Procedural Law-viz appeal re interim proceedings iro effect of relief granted.
Procedural Law-viz appeal re abandonment of an appeal iro Rule 44 of the Supreme Court Rules.
Procedural Law-viz final orders re enforcement of court orders iro writ of execution.
Procedural Law-viz final orders re enforcement of judgments iro sitting on a court order.
Procedural Law-viz enforcement of a court order re sitting on a judgment iro superannuation.
Procedural Law-viz final orders re writ of  execution iro effect of ex post facto legislation.
Procedural Law-viz final orders re writ of execution iro effect of subsequent legislation.
Procedural Law-viz final orders re case law authorities iro the doctrine of stare decisis.
Procedural Law-viz final orders re judicial precedent iro the doctrine of vertical stare decisis.
Procedural Law-viz urgent chamber application re provisional order iro interim interdict pendente lite.
Procedural Law-viz urgent application re interim interdict iro provisional order pendente lite.
Procedural Law-viz jurisdiction re judicial deference iro assessment of prospects in the main matter.
Procedural Law-viz jurisdiction re judicial deference iro recognition of competent judicial tribunals.
Procedural Law-viz court management re judicial directives iro judicial mora.
Procedural Law-viz court management re directions of the court iro judicial mora.
Procedural Law-viz final orders re principle of finality to litigation iro sitting on a provisional order.
Procedural Law-viz final orders re principle of finality in litigation iro siting on an interim interdict.
Procedural Law-viz principle of finality to litigation re sitting on a judgment iro superannuation.
Procedural Law-viz principle of finality in litigation re sitting on a judgement iro super-annuation.

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Interlocutory Judgments & Nature and Effect of Relief Granted

On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court.

 As a result, no heads of argument were filed with the Supreme Court.

Land Acquisition re: Eviction, Offer Letters and the Lawful Authority to Occupy Gazetted Land


On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes 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 rights of any description in respect of the acquired land once the prescribed period has expired….,.

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. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

It is accordingly ordered:

1. That, the execution of the Provisional Order issued under case number HC612/09 be and is hereby stayed pending an application for leave to appeal out of time to be lodged by the applicant in the Supreme Court in respect of case number HC1020/09.

2. That, such leave to appeal shall be lodged in the Supreme Court within seven days of granting this order.

3. That, in the event that such appeal is not lodged within the time-frame aforesaid, this order shall automatically cease to be of any force or effect. With the result that execution of the Provisional Order issued under case number 612/09 shall proceed without the need for further application by the first respondent.

4. That, this order shall not be construed as authorizing the first respondent to occupy, or use, the disputed land without a Court Order as such occupation might constitute an illegality.

5. There shall be no order as to costs, but, in the event that execution proceeds pursuant to paragraph 3 above, the applicant shall bear the first respondent's costs on a legal practitioner and client scale in respect of these proceedings and the resultant costs, if any, of the subsequent execution aforesaid.

SERVICE OF THE ORDER

That, leave be and is hereby granted to the applicant's legal practitioners, or the Deputy Sheriff /Messenger of Court, to attend to the service of this Order forthwith upon the respondents in accordance with the rules of the High Court of Zimbabwe.

Vindicatory Action or Rei Vindicatio re: Possessory Rights


On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes 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 rights of any description in respect of the acquired land once the prescribed period has expired….,.

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. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

It is accordingly ordered:

1. That, the execution of the Provisional Order issued under case number HC612/09 be and is hereby stayed pending an application for leave to appeal out of time to be lodged by the applicant in the Supreme Court in respect of case number HC1020/09.

2. That, such leave to appeal shall be lodged in the Supreme Court within seven days of granting this order.

3. That, in the event that such appeal is not lodged within the time-frame aforesaid, this order shall automatically cease to be of any force or effect. With the result that execution of the Provisional Order issued under case number 612/09 shall proceed without the need for further application by the first respondent.

4. That, this order shall not be construed as authorizing the first respondent to occupy, or use, the disputed land without a Court Order as such occupation might constitute an illegality.

5. There shall be no order as to costs, but, in the event that execution proceeds pursuant to paragraph 3 above, the applicant shall bear the first respondent's costs on a legal practitioner and client scale in respect of these proceedings and the resultant costs, if any, of the subsequent execution aforesaid.

SERVICE OF THE ORDER

That, leave be and is hereby granted to the applicant's legal practitioners, or the Deputy Sheriff /Messenger of Court, to attend to the service of this Order forthwith upon the respondents in accordance with the rules of the High Court of Zimbabwe.

Double Sales or Competing Claims, Self-Hep and the Assessment of Bona Fides and Dominant Rights


On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes 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 rights of any description in respect of the acquired land once the prescribed period has expired….,.

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. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

It is accordingly ordered:

1. That, the execution of the Provisional Order issued under case number HC612/09 be and is hereby stayed pending an application for leave to appeal out of time to be lodged by the applicant in the Supreme Court in respect of case number HC1020/09.

2. That, such leave to appeal shall be lodged in the Supreme Court within seven days of granting this order.

3. That, in the event that such appeal is not lodged within the time-frame aforesaid, this order shall automatically cease to be of any force or effect. With the result that execution of the Provisional Order issued under case number 612/09 shall proceed without the need for further application by the first respondent.

4. That, this order shall not be construed as authorizing the first respondent to occupy, or use, the disputed land without a Court Order as such occupation might constitute an illegality.

5. There shall be no order as to costs, but, in the event that execution proceeds pursuant to paragraph 3 above, the applicant shall bear the first respondent's costs on a legal practitioner and client scale in respect of these proceedings and the resultant costs, if any, of the subsequent execution aforesaid.

SERVICE OF THE ORDER

That, leave be and is hereby granted to the applicant's legal practitioners, or the Deputy Sheriff /Messenger of Court, to attend to the service of this Order forthwith upon the respondents in accordance with the rules of the High Court of Zimbabwe.

Final Orders re: Finality in Litigation iro Approach, Decree of Perpetual Silence, Sitting on Judgment & Superannuation


On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes 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 rights of any description in respect of the acquired land once the prescribed period has expired….,.

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. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

It is accordingly ordered:

1. That, the execution of the Provisional Order issued under case number HC612/09 be and is hereby stayed pending an application for leave to appeal out of time to be lodged by the applicant in the Supreme Court in respect of case number HC1020/09.

2. That, such leave to appeal shall be lodged in the Supreme Court within seven days of granting this order.

3. That, in the event that such appeal is not lodged within the time-frame aforesaid, this order shall automatically cease to be of any force or effect. With the result that execution of the Provisional Order issued under case number 612/09 shall proceed without the need for further application by the first respondent.

4. That, this order shall not be construed as authorizing the first respondent to occupy, or use, the disputed land without a Court Order as such occupation might constitute an illegality.

5. There shall be no order as to costs, but, in the event that execution proceeds pursuant to paragraph 3 above, the applicant shall bear the first respondent's costs on a legal practitioner and client scale in respect of these proceedings and the resultant costs, if any, of the subsequent execution aforesaid.

SERVICE OF THE ORDER

That, leave be and is hereby granted to the applicant's legal practitioners, or the Deputy Sheriff /Messenger of Court, to attend to the service of this Order forthwith upon the respondents in accordance with the rules of the High Court of Zimbabwe.

Final Orders re: Writ of Execution iro Approach, Execution Powers, Ex Post Facto Legislation and Superannuated Orders


On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes 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 rights of any description in respect of the acquired land once the prescribed period has expired….,.

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. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

It is accordingly ordered:

1. That, the execution of the Provisional Order issued under case number HC612/09 be and is hereby stayed pending an application for leave to appeal out of time to be lodged by the applicant in the Supreme Court in respect of case number HC1020/09.

2. That, such leave to appeal shall be lodged in the Supreme Court within seven days of granting this order.

3. That, in the event that such appeal is not lodged within the time-frame aforesaid, this order shall automatically cease to be of any force or effect. With the result that execution of the Provisional Order issued under case number 612/09 shall proceed without the need for further application by the first respondent.

4. That, this order shall not be construed as authorizing the first respondent to occupy, or use, the disputed land without a Court Order as such occupation might constitute an illegality.

5. There shall be no order as to costs, but, in the event that execution proceeds pursuant to paragraph 3 above, the applicant shall bear the first respondent's costs on a legal practitioner and client scale in respect of these proceedings and the resultant costs, if any, of the subsequent execution aforesaid.

SERVICE OF THE ORDER

That, leave be and is hereby granted to the applicant's legal practitioners, or the Deputy Sheriff /Messenger of Court, to attend to the service of this Order forthwith upon the respondents in accordance with the rules of the High Court of Zimbabwe.

Final Orders re: Composition of Bench iro Precedents, Stare Decisis, Disparate Facts & Effect of Ex Post Facto Legislation


On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes 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 rights of any description in respect of the acquired land once the prescribed period has expired….,.

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. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

It is accordingly ordered:

1. That, the execution of the Provisional Order issued under case number HC612/09 be and is hereby stayed pending an application for leave to appeal out of time to be lodged by the applicant in the Supreme Court in respect of case number HC1020/09.

2. That, such leave to appeal shall be lodged in the Supreme Court within seven days of granting this order.

3. That, in the event that such appeal is not lodged within the time-frame aforesaid, this order shall automatically cease to be of any force or effect. With the result that execution of the Provisional Order issued under case number 612/09 shall proceed without the need for further application by the first respondent.

4. That, this order shall not be construed as authorizing the first respondent to occupy, or use, the disputed land without a Court Order as such occupation might constitute an illegality.

5. There shall be no order as to costs, but, in the event that execution proceeds pursuant to paragraph 3 above, the applicant shall bear the first respondent's costs on a legal practitioner and client scale in respect of these proceedings and the resultant costs, if any, of the subsequent execution aforesaid.

SERVICE OF THE ORDER

That, leave be and is hereby granted to the applicant's legal practitioners, or the Deputy Sheriff /Messenger of Court, to attend to the service of this Order forthwith upon the respondents in accordance with the rules of the High Court of Zimbabwe.

Interim Interdict or Final Order re: Relief Conflicting with Statutes, Extant Court Orders & Prima Facie Lawful Conduct


On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes 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 rights of any description in respect of the acquired land once the prescribed period has expired….,.

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. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

It is accordingly ordered:

1. That, the execution of the Provisional Order issued under case number HC612/09 be and is hereby stayed pending an application for leave to appeal out of time to be lodged by the applicant in the Supreme Court in respect of case number HC1020/09.

2. That, such leave to appeal shall be lodged in the Supreme Court within seven days of granting this order.

3. That, in the event that such appeal is not lodged within the time-frame aforesaid, this order shall automatically cease to be of any force or effect. With the result that execution of the Provisional Order issued under case number 612/09 shall proceed without the need for further application by the first respondent.

4. That, this order shall not be construed as authorizing the first respondent to occupy, or use, the disputed land without a Court Order as such occupation might constitute an illegality.

5. There shall be no order as to costs, but, in the event that execution proceeds pursuant to paragraph 3 above, the applicant shall bear the first respondent's costs on a legal practitioner and client scale in respect of these proceedings and the resultant costs, if any, of the subsequent execution aforesaid.

SERVICE OF THE ORDER

That, leave be and is hereby granted to the applicant's legal practitioners, or the Deputy Sheriff /Messenger of Court, to attend to the service of this Order forthwith upon the respondents in accordance with the rules of the High Court of Zimbabwe.

Spoliation or Mandament van Spolie re: Approach, Abandonment, Arbitrary Eviction and Self Help


On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes 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 rights of any description in respect of the acquired land once the prescribed period has expired….,.

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. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

It is accordingly ordered:

1. That, the execution of the Provisional Order issued under case number HC612/09 be and is hereby stayed pending an application for leave to appeal out of time to be lodged by the applicant in the Supreme Court in respect of case number HC1020/09.

2. That, such leave to appeal shall be lodged in the Supreme Court within seven days of granting this order.

3. That, in the event that such appeal is not lodged within the time-frame aforesaid, this order shall automatically cease to be of any force or effect. With the result that execution of the Provisional Order issued under case number 612/09 shall proceed without the need for further application by the first respondent.

4. That, this order shall not be construed as authorizing the first respondent to occupy, or use, the disputed land without a Court Order as such occupation might constitute an illegality.

5. There shall be no order as to costs, but, in the event that execution proceeds pursuant to paragraph 3 above, the applicant shall bear the first respondent's costs on a legal practitioner and client scale in respect of these proceedings and the resultant costs, if any, of the subsequent execution aforesaid.

SERVICE OF THE ORDER

That, leave be and is hereby granted to the applicant's legal practitioners, or the Deputy Sheriff /Messenger of Court, to attend to the service of this Order forthwith upon the respondents in accordance with the rules of the High Court of Zimbabwe.

Spoliation or Mandament van Spolie re: Conferred Possessory Rights and Right of Access Contracts


On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes 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 rights of any description in respect of the acquired land once the prescribed period has expired….,.

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. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

It is accordingly ordered:

1. That, the execution of the Provisional Order issued under case number HC612/09 be and is hereby stayed pending an application for leave to appeal out of time to be lodged by the applicant in the Supreme Court in respect of case number HC1020/09.

2. That, such leave to appeal shall be lodged in the Supreme Court within seven days of granting this order.

3. That, in the event that such appeal is not lodged within the time-frame aforesaid, this order shall automatically cease to be of any force or effect. With the result that execution of the Provisional Order issued under case number 612/09 shall proceed without the need for further application by the first respondent.

4. That, this order shall not be construed as authorizing the first respondent to occupy, or use, the disputed land without a Court Order as such occupation might constitute an illegality.

5. There shall be no order as to costs, but, in the event that execution proceeds pursuant to paragraph 3 above, the applicant shall bear the first respondent's costs on a legal practitioner and client scale in respect of these proceedings and the resultant costs, if any, of the subsequent execution aforesaid.

SERVICE OF THE ORDER

That, leave be and is hereby granted to the applicant's legal practitioners, or the Deputy Sheriff /Messenger of Court, to attend to the service of this Order forthwith upon the respondents in accordance with the rules of the High Court of Zimbabwe.

Interim Interdict Pendente Lite and Stay of Execution re: Approach


On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes 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 rights of any description in respect of the acquired land once the prescribed period has expired….,.

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. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

It is accordingly ordered:

1. That, the execution of the Provisional Order issued under case number HC612/09 be and is hereby stayed pending an application for leave to appeal out of time to be lodged by the applicant in the Supreme Court in respect of case number HC1020/09.

2. That, such leave to appeal shall be lodged in the Supreme Court within seven days of granting this order.

3. That, in the event that such appeal is not lodged within the time-frame aforesaid, this order shall automatically cease to be of any force or effect. With the result that execution of the Provisional Order issued under case number 612/09 shall proceed without the need for further application by the first respondent.

4. That, this order shall not be construed as authorizing the first respondent to occupy, or use, the disputed land without a Court Order as such occupation might constitute an illegality.

5. There shall be no order as to costs, but, in the event that execution proceeds pursuant to paragraph 3 above, the applicant shall bear the first respondent's costs on a legal practitioner and client scale in respect of these proceedings and the resultant costs, if any, of the subsequent execution aforesaid.

SERVICE OF THE ORDER

That, leave be and is hereby granted to the applicant's legal practitioners, or the Deputy Sheriff /Messenger of Court, to attend to the service of this Order forthwith upon the respondents in accordance with the rules of the High Court of Zimbabwe.

Land Acquisition re: Compulsory Acquisition iro Urban Development and Settlement


On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes 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 rights of any description in respect of the acquired land once the prescribed period has expired….,.

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. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

Passing of Ownership, Proof of Title and Jus in re Propria re: Rural, Communal and Urban State or Public Land


On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes 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 rights of any description in respect of the acquired land once the prescribed period has expired….,.

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. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

Land Development, Change of Use of Land, Housing Co-operatives, Informal or Illegal Settlements and Regularization


On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes 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 rights of any description in respect of the acquired land once the prescribed period has expired….,.

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. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

Jurisdiction re: Judicial Deference iro Assessment of Prospects on Appeal, Review or Main Proceedings


On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes 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 rights of any description in respect of the acquired land once the prescribed period has expired….,.

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. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

Court Management re: Approach, Case Management, Postponement of Proceedings and Judicial Directives of the Court


On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes 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 rights of any description in respect of the acquired land once the prescribed period has expired….,.

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. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

It is accordingly ordered:

1. That, the execution of the Provisional Order issued under case number HC612/09 be and is hereby stayed pending an application for leave to appeal out of time to be lodged by the applicant in the Supreme Court in respect of case number HC1020/09.

2. That, such leave to appeal shall be lodged in the Supreme Court within seven days of granting this order.

3. That, in the event that such appeal is not lodged within the time-frame aforesaid, this order shall automatically cease to be of any force or effect. With the result that execution of the Provisional Order issued under case number 612/09 shall proceed without the need for further application by the first respondent.

4. That, this order shall not be construed as authorizing the first respondent to occupy, or use, the disputed land without a Court Order as such occupation might constitute an illegality.

5. There shall be no order as to costs, but, in the event that execution proceeds pursuant to paragraph 3 above, the applicant shall bear the first respondent's costs on a legal practitioner and client scale in respect of these proceedings and the resultant costs, if any, of the subsequent execution aforesaid.

SERVICE OF THE ORDER

That, leave be and is hereby granted to the applicant's legal practitioners, or the Deputy Sheriff /Messenger of Court, to attend to the service of this Order forthwith upon the respondents in accordance with the rules of the High Court of Zimbabwe.

Urgent Application

BHUNU J: On 12 June 2007 the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled that the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result no heads of argument were filed with the Supreme Court.

On 16 October 2009 the Supreme Court ruled in terms of Rule 44 of its Rules that the appeal had been abandoned.

Despite that ruling the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31/10.

In that case the LEARNED CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes 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 rights of any description in respect of the acquired land once the prescribed period has expired.…

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. The individual applicants as former owners or occupiers of acquired land lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position it is the holders of offer letters, permits and land settlement leases and not the former owners or occupiers who should be assisted by public officials in the assertion of their rights.” (My underlining.)

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law as now articulated by the Supreme Court it would appear that the first respondent may have been divested of any right to own, occupy and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this I am mindful of the first respondent's argument that peri-urban land is not susceptible to compulsory acquisition. That position however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

It is accordingly ordered:

1. That the execution of the Provisional Order issued under case number HC612/09 be and is hereby stayed pending an application for leave to appeal out of time to be lodged by the applicant in the Supreme Court in respect of case number HC1020/09.

2. That such leave to appeal shall be lodged in the Supreme Court within seven days of granting this order.

3. That in the event that such appeal is not lodged within the time-frame aforesaid, this order shall automatically cease to be of any force or effect. With the result that execution of the Provisional Order issued under case number 612/09 shall proceed without the need for further application by the first respondent.

4. That this order shall not be construed as authorizing the first respondent to occupy or use the disputed land without a Court Order as such occupation might constitute an illegality.

5. There shall be no order as to costs, but in the event that execution proceeds pursuant to para 3 above, the applicant shall bear the first respondent's costs on a legal practitioner and client scale in respect of these proceedings and the resultant costs, if any of the subsequent execution aforesaid.

SERVICE OF THE ORDER

That leave be and is hereby granted to the applicant's legal practitioners or the Deputy Sheriff /Messenger of Court to attend to the service of this Order forthwith upon the respondents in accordance with the rules of the High Court of Zimbabwe.



G N Mlotshwa & Company, applicant's legal practitioner

Musunga & Associates, 1st respondent's legal practitioners

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