CHATUKUTA
J: The applicant seeks a spoliation
order. He claims to have been in
peaceful and undisturbed possession of 8 Welston Farm in the district of Mashonaland East Province
(the farm). He alleges that the
possession was disturbed by the 2nd respondent on 5 February 2009
when a group of 10 youths drove to the farm when he was away for the day. The group, acting under the instruction of
the 2nd respondent, took occupation of the farm and the main homestead
and locked the applicant out. The
applicant submits that the 2nd respondent did not have any lawful authority
to despoil him.
Mr Parenye, for the 1st respondent, submits that the
1st respondent would abide by the court's decision. The 2nd respondent submits that he
does not dispute that he has taken occupation of the farm. He however raises two issues in limine, that, by operation of law,
the applicant does not have the locus
standi to seek spoilatory relief and the court does not have the
jurisdiction to grant the relief sought.
The 2nd respondent contents that the applicant is occupying
the farm in contravention of section 3(1) of the Gazetted Lands (Consquential
Provisions) Act [Chapter 20:28]
(Gazetted Lands Act). It has been submitted
that any finding that the applicant has the locus
standi would be tantamount to sanctioning and facilitating an illegal
act. Mr.
Mlotshwa, for the 2nd respondent, has referred me, in support of
this contention, to a number of cases such as Airfield Investments P/L v Minister of Lands & Ors SC 36/04, Zakeyo Mereki v Bell In Pvt) HH 113/05, Airport Gamepark P/L & Anor v Kenny
Karidza & Anor SC 14/04 .
Mr. Nyandoro, for the applicant, submits
that in determining an application for a spoliation order, the court is not
concerned with the ownership of the farm or the lawfulness of the possession. He concedes that the farm was acquired by the
State. He however contends that the applicant
should only be dispossessed by due process of the law.
Spoliation has been described as a
wrongful deprivation of possession. The
essential requirements for spoliation are set out in Botha & Anor v Barret 1996 (2) ZLR 73 where at 79D-E, GUBBAY CJ
(as he then was) stated that:
"It is clear that in order to obtain
spoliation order, two allegations must be made and proved. These are:
(a)
that
the applicant was in peaceful and undisturbed possession of the farm; and
(b)
that
the respondent deprived him of the possession forcibly or wrongfully against his consent."
(also see van t'Hoff v van t'Hoff & Ors (1)1988 (1) ZLR 294 (HC), Chisveto v Minister of Loal Government and
Town Planning 1984 (1) ZLR 248 (H), Davis v
Davis 1990 (2)
ZLR 136 (HC), Matimbura v Matimbura SC 173/1998, Magadzire v Magadzire SC 196/1998, and Karori (Pvt) Ltd & Anor v Brigadier
Mujaji HH 23-07.)
I am in agreement with Mr Nyandoro's contention that it is not
for this court to determine the ownership of the farm. It appears to me that the fact that the 1st
respondent acquired the land and would therefore deal with it as it wishes is
not in issue. However, it is not
relevant in determining the applicant's locus
standi. The fact that the applicant
is in occupation unlawfully is also not the issue. The issue is whether or not the applicant can
prove, on a balance of probability, that he was in peaceful possession of the farm
and the possession was unlawfully or wrongfully interrupted by the 2nd
respondent. I do not believe that to do
so would be to facilitate a perpetuation of an unlawful act. Section 3 of the Gazetted Lands Act provides
what is required to be done in order to evict the applicant from the farm. The provision does not, in my view relate to
the main homestead only. It appears it
relates to the entire farm that has been gazetted. Section 3(3) reads:
" If a former owner or
occupier of Gazetted land who is not lawfully authorised to occupy, hold or use
that land does not cease to occupy, hold or use that land after the expiry of
the appropriate period referred to in subsection (2)(a) or (b),
or, in the case of a former owner or occupier referred to in section 2(b),
does not cease to occupy his or her main homestead in contravention of proviso
(ii) to section 2(b), he or she shall be guilty of an offence and liable
to a fine not exceeding level seven or to imprisonment for a period not
exceeding two years or to both such fine and such imprisonment."
My understanding of the section is
that a former owner or occupier of Gazetted land, be it the entire land or the main
homestead, who continues to occupy, hold and use such land without lawful
authority shall be guilty of an offence.
Section 3(3) captures two scenarios, (1) where a former owner or
occupier may continue to occupy, hold and use the entire Gazetted land
(including the main homestead) and (2) where a former owner or occupier has
ceased to occupy, hold and use the rest of the land and has confined himself or
herself to the main homestead. In the
first case, the owner or occupier would
be in possession of the entire farm. In
the second case the owner or occupier would be in possession of the main
homestead only after having voluntarily relinquished possession of the rest of
the farm. In either case, the owner or
occupier can only lose possession upon conviction and the issuance of an
eviction order by the magistrates court.
It is my view that the cases
referred to by Mr Mlotshwa do not assist
the 2nd respondent. It
appears to me that Airfield
Investments P/L v Minister of Lands & Ors (supra) and Airport Gamepark
P/L & Anor v Kenny Karidza & Anor (supra) are distinguishable from the present case. In the first case, the appellant had sought
an interim interdict against the State from proceeding with the compulsory
acquisition of the appellant's land. In
the second case the appellant sought an order for the ejectment of the 1st
respondent from a farm that had been acquired by the State. In both cases, the appellants were required
to establish the existence of some right.
In the case of spoliation, as indicated earlier, the applicant need only
establish peaceful and undisturbed possession.
It is therefore my considered view
that the applicant has the locus standi
to bring this action. The second
preliminary issue is premised on more or less the arguments advanced in support
of the first issue. I find that I have
jurisdiction to hear the matter for the same reasons advanced above.
Turning to the merits, the
definition of spoliation and the requirements for an order for spoliation have
already been discussed above. The
parties are agreed that the applicant was in peaceful and undisturbed
possession of the farm. It is not in
issue that the 2nd respondent is in occupation of the farm. Mr.
Mlotshwa has attempted to discredit the application. He submits that the applicant has not placed
before the court proof that there had been some disturbances on the farm. He suggested that this would have been
achieved by way of an affidavit by the person who witnessed the disturbances as
the applicant was not at the farm at the relevant time. I am of the view that this is a red herring as
the 2nd respondent has conceded in the opposing affidavit and Heads
of Argument that the applicant was in peaceful and undisturbed possession of
the farm and was dispossessed by operation of law. The import of this concession is that the
applicant's possession was disturbed. It
is irrelevant whether or not the disturbance was peaceful or as a result of the
youths who applicant alleges locked him out of the property.
What
in my view is in issue is whether or not the 2nd respondent deprived the applicant of the
possession wrongfully. Mr. Nyandoro, for the applicant, submits
that respondent deprived the applicant of his possession wrongfully in that the
due process prescribed in the Gazetted Land Act was not followed. The applicant does not dispute that the offer
letter is lawful authority for the 2nd respondent to take
occupation. It is contended that it must
however be implemented lawfully.
Mr. Mlotshwa contends that the 2nd
respondent is in lawful possession by operation of law. He submits that the 2nd respondent
was at all times acting lawfully in terms of the offer letter lawfully issued
to him by the 1st respondent.
It was further contended that the Gazetted Lands Act permits only those
persons with lawful authority to occupy, hold and use Gazetted land. The applicant did not have the authority
prescribed in the Gazetted Lands Act to occupy, hold or use the farm. The 2nd respondent is a holder of
an offer letter. His attempt to occupy
and use the land cannot therefore be said to be unlawful. Mr. Mlotshwa submitted that the offer
letter was therefore a valid defence to spoliation.
It
is my considered view that an offer letter cannot be a defence because of the
requirements of section 3(5) of the Gazetted Lands Act. As rightly conceded by both parties section
3(1) of the Act precludes any person to hold, occupy or use Gazetted land
without lawful authority. An offer
letter is such authority. It appears to
me that in order for the recipient of the offer letter to enjoy occupation and
use of that land s/he must have vacant possession. Vacant possession can only be achieved where
the due process of law set out in section 3(5) of the Act is followed. Section 3(5) clearly provides that upon
conviction of a person who has violated the provisions of the Gazetted Lands
Act, the court shall issue an order to evict the person convicted from the land
to which the offence relates. It appears
to me that until that is done a former owner or occupier of Gazetted land can
not be dispossessed whether or not his or her possession of the land is lawful.
Earlier
on I alluded to Mr. Mlosthwa's submissions that the applicant is
entitled to protection only in so far as the protection relates to the main
homestead. It is my view that the main
homestead cannot be separated from the entire farm by an order of this
court. It is an integral part of the
farm. The Gazetted land is 8 Welston
Farm in the district of Mashonaland. There
has not been any subdivision such that the main homestead is a stand
alone. The homestead still constitutes
Subdivision 8 of Welston. The 2nd
respondent's proposed draft order seems to acknowledge this fact. The draft order reads:
"Pending
Applicant's eviction, by a competent Court, from Subdivision 8 of Welston, it
is hereby declared that Applicant and/or his invitees is (sic) entitled to confine his and /or their presence on the said farm
to the main homestead....."
The draft order does not state that the applicant
will be evicted from the main homestead.
Had the position been that the applicant was dispossessed of the rest of
the farm, excluding the main homestead, by operation of law, then the 2nd
respondent would have been seeking an order for the eviction of the applicant
only from the homestead. The effect of
the 2nd respondent's contention is that the applicant was evicted
from the rest of the farm (excluding the main homestead) by operation of
law. Had this been the intention of the legislator,
it appears to me that the Gazetted Lands Act would have specifically stated so.
I am of the view that the applicant has established his
case on a balance of probability that the status
quo ante should be restored. The
restoration of the status quo ante in
my view entails the removal of the 2nd respondent from the
farm. In this respect, the decision in Airport Gamepark P/L & Anor v Kenny
Karidza & Anor (supra) would not apply.
I however believe that as the Zimbabwe Republic Police is not before me,
it is not proper to order their involvement in the eviction of the 2nd
respondent.
In
the result, it is ordered that:
Pending
the determination of this matter, the applicant is granted the following
relief, that:
1.
The applicant's possession, use and occupation of 8
Welston Farm in the district of Mashonaland
East Province
be and is hereby restored, so that the status
quo ante is achieved.
2.
The 2nd respondent and all persons claiming
occupation and possession through him be and are hereby ejected from 8 Welston
Farm in the district of Mashonaland
East Province.
Musunga & Associates, applicant's
legal practitioners
Civil Division, Attorney General's Office,
1st respondent's legal practitioners
Messrs Antonio,
Mlotshwa & Co, 2nd respondent's legal practitioners
