NDOU J: The
applicant, a company with limited liability obtained a provisional order with
interim relied evicting the 1st and 2nd respondents from
land referred to as Lot 3A, Dete Valley 3, Gwayi Conservancy ("Lot 3A"). The provisional order also granted the
applicant further interim relief in the form of a mandatory interdict binding
the 1st and 2nd respondents to keep peace with applicant and not interfere
with applicant's peaceful possession of the said Lot 3A. The background facts are the following. The land referred to as Lot 3A was acquired
by the Government in 2002 under the land reform and resettlement
programme. It is trite that after such acquisition
the previous title and ownership of the said land was extinguished by operation
of law and ownership of the said land vested in the State in terms of section
16B of the Constitution of Zimbabwe. The
said Lot 3A was then subdivided by the Government in 2002 into various portions
which include subdivision 1, subdivision 2 and subdivision 3. The said subdivisions of Lot 3A were offered
by the Government to various beneficiaries who include the 1st
respondent who was offered and duly accepted subdivision 1 pursuant to an offer
letter dated 2 February 2005. The crux
of the matter here is whether the 1st and 2nd respondent
took occupation of the said piece of land after the allocation. If they occupied the land since the date of
allocation to date of issuance of this application, then there is no
spoliation. According to the applicant,
since 12 December 2007 it has been in peaceful and undisturbed occupation of
Lot 3A. Applicant states that the 1st
and 2nd respondents only moved into the property on 27 January 2011
in a clear act of spoliation. The 1st
and 2nd respondents on the other hand state that they also have been
in peaceful and undisturbed occupation of the property i.e. the applicant and
the 1st and 2nd respondents co-existed on the farm since
2005. This is a material dispute of fact
to be dealt with when the issue of the ownership of property is
determined. I am dealing here with the
question of spoliation. The respondents
raised two points in limine which I
propose to consider in turn.
Whether
there is property known as "Lot 3A, Dete Valley 3, Gwayi Conservancy"
It is common cause that prior the
acquisition by Government, the property was known as Lot 3A, Dete Valley 3,
Gwayi Conservancy. Lot 3A was acquired
by Government under the land reform and resettlement programme. Upon such acquisition by the state in 2002,
the previous title and ownership of the said land was extinguished. Ownership then vested in the State in terms
of section 16B of the Constitution of Zimbabwe.
The Government, in its wisdom, subdivided Lot 3A into various portions
namely subdivision 1, subdivision 2 and subdivision 3. These subdivisions were offered to three
beneficiaries by offer letters dated 2 February 2005. The 1st respondent was offered and
duly accepted subdivision 1. The legal
effect of the subdivision is that land known as "Lot 3A, Dete Valley 3, Gwayi
Conservancy" no longer exists - N & R
Agencies (Pvt) Ltd v The Minister of
lands and Rural Resettlement and Others HB-189-11. It therefore follows that the final order
sought by the applicant of permanently interdicting the 1st and 2nd
respondents from visiting or staying . or interfering with applicant's
operations or peaceful occupation of "Lot 3A Dete Valley 3, in Gwayi
Conservancy" is incompetent as no such land exists. Factually and legal there is no piece of land
known as Lot 3A Dete Valley 3, Gwayi Conservancy. Further because the 1st respondent
is a holder of an offer letter in respect of subdivision 1 he or she has the
legal right to occupy and use the land allocated to him/or her - Commercial Farmers Union & Others v The Minister of Lands & Rural Resettlement and Others SC-31-10 at
pages 28-29 of the cyclostyled judgment.
On this preliminary point alone the application has no merit.
Accordingly the provisional order
granted by this court on 8 February 2011 be and is hereby discharged with costs
on the ordinary scale.
Dube-Banda, Nzarayapenga & Partners applicant's legal practitioners
Cheda & Partners, 1st
and 2nd respondents' legal practitioners
