GOWORA J: In
this application the applicant sought relief in the form of a mandament van spolie, premised on an
alleged act of spoliation by persons acting on behalf and at the behest of the
second respondent. There was no substantive relief sought against the first
respondent, the Minister and as a consequence no papers were filed on his
behalf. Mr Ndlovu who appeared on behalf of the Minister appeared as a
watching brief and took no part in the proceedings. Effectively, therefore I
only had one respondent and the second respondent will therefore be referred to
as the respondent.
The day before the matter was to be
argued before me, the applicant filed a supplementary affidavit in which he
indicated that possession and control of the farm had been restored to him and
his family through the efforts of the police and that some of the stolen
property had been recovered but that recovery of the same was an ongoing
process. The applicant further indicated that it appeared that there was a
policy shift by the police from inaction to positive action. The respondent did
not raise any objection to the admission of the supplementary affidavit and it
went in unopposed. The effect of the supplementary affidavit was that the
status quo ante had been restored
some time prior to the matter being argued before me. The applicant however
persisted with the application and for relief connected thereto. There was no
application to amend the order being sought.
The
facts surrounding this dispute are as follows. The applicant and his sons
occupy Stockdale Farm, which has since been gazetted by government for
acquisition under the land reform program. In June 2008 various persons moved
forcibly onto the farm under the leadership of one George Moyo in an effort to
occupy the same. The applicant and his sons were forcibly evicted. The persons
who moved onto the farm allegedly did this on the instructions of the
respondent. An attempt to have the trespassers removed by the police having
failed to yield results, the applicant therefore approached the court on a
certificate of urgency for a mandament
van spolie and ancillary relief thereto. It is common cause that an order
for a mandament van spolie had been
granted in favour of the applicant in the past against the respondent. It is
also common cause that the respondent had been given what is commonly referred
to as an 'offer letter' by the Minister to move onto the farm under the land
reform program. The respondent denies however that she was responsible for the
latest attempt to forcibly remove the applicant from the farm and to occupy the
same.
Before
delving into the merits of the dispute I should deal with the points in limine raised by the respondent. The first
point raised was that the applicant had no locus
standi in judicio to bring the application. It was argued on behalf of the
respondent that as the relief being sought by the applicant includes an
interdict the court would have to go beyond the question of the mandament van spolie and determine
whether, in fact, the applicant has established the requisites for an
interdict. The applicant is alleged to have lost his right by virtue of the
acquisition of the farm by the government. Mr Mlotshwa premised his submissions on the dicta in a number of
judgments of this Honourable Court which have been decided in relation to land
disputes arising out of the distribution of land in terms of the Land Acquisition
Act. The respondent contends that the applicant has lost his right to institute
these proceedings because the farm has been acquired by the government. The
farm in question has been gazetted for acquisition.
On the papers before me there is no
indication of the date of such gazettting but it seems to be accepted by both
parties that it was some time prior to the alleged acts of spoliation. The
contention by the applicant is that he is entitled to possess the farm and that,
until he is lawfully evicted from the same, no-one has the right to move onto
the farm and despoil him of his possession through such occupation. He has submitted
further that where a possessor is violently despoiled of his property he is
immediately clothed with locus standi
to bring an application for the restoration of possession to that
property.
What I have therefore is a situation
where the applicant is alleging that the respondent has acted violently and
dispossessed him of his farm and in the same breath saying I should not concern
myself with the merits of his entitlement to the land in question but look at
the alleged dispossession. On the other hand the respondent contends that by
virtue of the nature of his possession the applicant does not have the locus stand in judicio to even bring the
proceedings because, in terms of statute, the applicant is committing an
offence by occupying the land in excess of the period allowed him by the Gazetted
Lands (Consequential Provisions) Act [Chapter 20: 28]. For this contention the respondent
has cited the following decisions as his authority; Van Der Merwe v Chirinda
& Ors, J W Hall (Pvt) Ltd v
Mliswa & Ors, which are judgments of this court, but which however have
not been made distributable. The
respondent has also sought reliance on Airfield Investments (Pvt) Ltd v The
Minister of Lands Agriculture and Rural Resettlement & Ors.
All three matters are concerned with residual rights of a former owner of
rural land which has been acquired by the government under the land reform program.
In the matter of Airfield Investments
(Pvt) Ltd v The Minister of Lands Agriculture and Rural Resettlement (supra) the
court was discussing section 9 of the Land Acquisition Act [Cap 20:10] which then was to this
effect:
b)
in relation to any agricultural land required for
resettlement purposes, the making of an order in terms of subs (1) of s 8 shall
constitute notice in writing to the owner or occupier to cease to occupy, hold
or use that land forty five days after the date of service of the order upon
the owner or occupier, and if he fails to do so, he shall be guilty of an
offence and liable to a fine not exceeding one hundred thousand dollars or
imprisonment for a period not exceeding two years or to both such fine and such
imprisonment:
Provided that-
(i) the owner or occupier
of that land may remain in occupation of
his living quarters for a period of not more than ninety days after the date of
service of the order;
(ii) the owner or occupier
shall cease to occupy his living quarters after the period referred to in
proviso (i) and if he fails to do so he shall be guilty of an offence and
liable to a fine not exceeding one hundred thousand dollars or imprisonment for
a period not exceeding two years or to both such fine and such imprisonment.
The
Supreme Court construed the subsection in the following terms at pp 5-6 of the
cyclostyled judgment:
'The provisions
of subs (1) of s 9 are subject to subs (3) of s 8, showing that the rights
embodied therein are a limitation to the exercise of rights of ownership by the
acquiring authority and are reserved for the former owner or occupier of the
expropriated land to the extent that the owner or occupier is there on the land
to occupy, hold or use it and the living quarters thereon for the duration of
the time prescribed. At the end of the maximum period of ninety days from the
date of service of the order of acquisition, the rights of the former owner or
occupier cease to exist and by operation of law he must leave the land or be evicted
by order of court. Should the acquiring authority withdraw a letter of offer of
the land to another person, the land reverts to the acquiring authority and not
the former owner or occupier unless of course, the acquiring authority also
revokes the order of acquisition.'
Since
the handing down of that judgment there have been further developments in the
law, to wit the promulgation of s 16B of the Constitution which section was
brought into effect by Act 2 /2005. The force and effect of this amendment was
to immediately vest ownership in the State of rural land which has been
gazetted in terms of s 5 (1) of the Land Acquisition Act [Cap 20: 10] either prior to 8 July 2005 or after 8 July 2005 but
before 14 September 2005 which is the appointed date. What is clear therefore is that once the land
is acquired the former owner or occupier loses the right, after the period
stipulated in the subsection, to occupy or use the land. This is by operation
of law and since the possession of land is premised on one's occupation of the
same, once the right to occupy is extinguished by operation of law can an
occupier of the same, who is precluded by law from occupation seek protection
of the law in continued occupation of the land in issue? In Van Der
Merwe v Chirinda (supra) (which
is unreported) OMERJEE J, in discussing the rights of a former owner or
occupier of agricultural land after it had been acquired by the acquiring
authority had this to say at p 6 of the cyclostyled judgment:
"In this regard
s. 3 is to the effect that once the acquiring authority has identified and duly
gazetted agricultural land i.t.o.s. 16B of the Constitution, the former owner
or occupier of that land shall cease to occupy, hold or use such land within 45
days of the date of posting the gazette notice, failure of which such former
owner or occupier shall be guilty of an offence and liable to prosecution and
punishment. This means the former owner is dispossessed of any right to occupy,
hold or otherwise utilize the farming land within 45 days of the land being
gazetted. It must be emphasized that the mere identifying and gazetting a
particular spread of agricultural land, by the acquiring authority, constitutes
sufficient notice to the former owner or occupier of the fact that the State has
immediately acquired the land and full rights therein are now vested in the
State."
The
learned judge went on to explain that the former owner or occupier had a grace
period of 90 days in total after the notice to remain on the farm but after the
expiration of that period any continued occupation on his part constituted a
criminal offence.
In casu, it would appear that at some
stage criminal proceedings had been instituted against the applicant for an
alleged contravention of the section. There was also some suggestion that the
notice under which such prosecution had been commenced had been alleged to be
defective. It is accepted now that the land has been properly gazetted and that
the ninety days allowed in terms of the Act has now expired. The land now
belongs to the State and by virtue of s 3 of the Act, the applicant has not
only lost any right to hold, use or occupy the land and any continued
occupation or use by him of the same constitutes an offence. His right to
possess has thus been extinguished by operation of law. Locus standi is predicated on the existence of a right or the claim
of a substantial interest in the subject matter of the litigation. The
existence of any right on the part of the applicant has now been removed by
operation of law.
However, it is trite that in spoliation
proceedings the court should not enquire into the lawfulness or otherwise of
the possession of the applicant in the subject matter of the application. The
applicant has referred this court to the matter of Mutsotso & Ors v Commissioner of Police & Ors
which was concerned with an application for a mandament van spolie. The parties to the dispute had agreed to have
a provisional order issued by consent and the learned judge therefore did not
have to decide the matter on the merits. However, when the respondent had
initially responded to the application, he had raised, as an issue, the
lawfulness of the occupation of the farm by the applicants. Without going into
the merits of the application, the learned judge discussed the basis upon which
a spoliation order is sought and granted. This is what he had to say at p
332H-334B
"If when this
matter comes before it, the court were to find that the riot police had behaved
towards the applicants in the manner alleged and that the applicants had
thereby been cowed into leaving their dwellings and the Farm against their
will, so that they had been dispossessed of their dwellings and, in the case of
certain of the applicants, their household goods through the duress applied by
the servants of the first respondent, for the benefit of the second respondent,
then the law to be applied in such a situation is clear. The general principle
was stated by INNES CJ in Nino Bonin v de
Lange 1906 TS 120 at 122 thus:
'It is a
fundamental principle that no man is allowed to take the law into his own
hands; no-one is allowed to dispossess another forcibly or wrongfully and
against his consent of the possession of property, whether movable or
immoveable. If he does so, the court will summarily restore the status quo
ante, and will do that as a preliminary to any inquiry or investigation into
the merits of the dispute.'
As
explained by MILLIN J in De Jager &
Ors v Farah & Nedstadt 1947 (4) SA 28 (W) at 35, a case where
demolition of premises was undertaken without legal process:
"What the court
is doing is to insist on the principle that a person in possession of property,
however unlawful his possession may be and however exposed he may be to
ejectment proceedings, cannot be interfered with in his possession except by
the due process of law, and if he is so interfered with the court will restrain
such interference pending the taking of action against him for ejectment by
those who claim that he is in wrongful possession. The fact that the applicants
have no legal right to continue to live in this slum and would have no defence
to proceedings for ejectment, does not mean that proceedings for ejectment can
be dispensed with, nor does it make any difference to the illegality of the
respondents' conduct that the occupation by the applicants carries with it
penal consequences'. ".
In casu,
the law has stated that the right of the applicant has been extinguished by
operation of law and he occupies in contravention of a statutory provision. By
virtue of the provisions of s. 3 of the Act the applicant has lost the right to
assert any pretension of possession of the land because such possession is now
precluded by law. In this instance that right has been extinguished by
operation of law and as a consequence the result is that the applicant no
longer has the right to occupy or use the land in question. The question that
then arises is whether as a result of the statutory provision even the right to
protect himself from self helpers has been lost to him. Any act of spoliation
is an illegal act which the law ought to, and justifiably so, frown upon. Can
one say that the mere fact that a former owner still occupies gazetted rural
land outside the requirements of a statutory provision lays that particular
occupier to the mercy of any who cares to come onto the land without due process.
The other aspect which the legal practitioner did not fully ventilate before me
is whether this court can grant an order the effect of which is to sanction a
contravention of s. 3 of the Act by the applicant. In J W Hall (Pvt) Ltd v Mliswa (supra) the court was alive to the to
the consequences of granting a mandament
van spolie to an applicant whose right to occupy had been removed by the
gazetting of the farm in terms of s. 3 of the Act. This is what CHITAKUNYE J
had to say at p 4 of his cyclostyled judgment:
'What
the applicant prays for before this court should thus not be seen as a way of
undoing what the law deems to be the position. In terms of s.3 of the Gazetted Land (Consequential Provisions) Act, the
applicant's stay is now unlawful hence his arrest and arraignment before the
magistrate in 'Mhangura. By virtue of that Act, the applicant can now not be
seen to be granted authority or an order by which to continue doing that which
the law says is unlawful. This is akin to what MALABA JA, observed in Airfield Investments Private Limited v The
Minister of Lands, Agriculture and Rural Resettlement and Others SC 36/04
wherein at page 13 of the cyclostyled judgment he said;
"Similarly the
court a quo was being asked by the appellant to sanction the continued illegal
farming operations and occupation of the living quarters on the land despite
the clear and unambiguous language of the Act to the effect that failure to
cease occupation or use of the land at the d of forty five days from the date
of service of the order of acquisition and the living quarters at the end of
ninety days of service of the order of acquisition constituted a criminal
offence."
It
is my view that a spoliator is in no better position than the former owner or
occupier of farm land in the sense that in moving onto the land without due
process he is equally guilty of an infraction of the law. As the law stands, a
former occupier still has to be evicted by lawful process from the gazetted
land and if it were the intention of the Legislature to deprive him of locus standi to protect his possession
of the gazetted land from self helpers and would be spoliators, then the Legislature
would have provided for such in specific terms. It did not do so. I do not
therefore accept that the applicant has been denuded of his right to approach
the court for an order of spoliation to restore the status quo ante. The relief of mandament
van spolie is a common law remedy and it is my view that its requirements
have not been done away with by the promulgation of legislation to do with land
acquisition. He thus has locus standi
to approach the court for a mandement van
spolie. He is however not in a position to persist with the restoration of
possession because the police have evicted the trespassers and he has been
restored possession of the farm. That part of the order sought therefore falls
away.
However as part of the interim
relief sought, the applicant also sought an interdict in the following terms:
(b) That the respondent and all other
persons claiming occupation and possession of Stockdale through them are
interdicted from in any way interfering with the possession, control and use of
Stockdale or of any property owned by or possessed by the applicant, his
representatives, agents, employees or invitees or of in any way interfering
with the normal farming and business operations of applicant, his employees,
representatives or agents.
One
of the requisites for a temporary interdict is the existence of a right, either
a clear right or prima facie right which may be open to doubt. The property in
respect of which the interdict is sought is now vested in the State which, in
the exercise of its rights of ownership has given notice to the applicant that he
no longer has the right to use, occupy or possess the land in question. The
applicant has thus lost the right by operation of law. Apart from having owned
the farm, he has no other residual rights that he can claim over the property.
Even the right to occupy or possess has been taken away by law. In Airfield Investments (Pvt) Ltd v The
Minister of Lands, Agriculture and Rural Resettlement & Ors (supra)
MALABA JA stated:
"The threshold
the appellant had to cross was the production of evidence which established the
existence in it of prima facie rights of ownership in the land at the time the
application for interim relief was made. An interim interdict is not a remedy
for past invasions of rights and will not be granted to a person whose rights
in a thing have already been taken away from him by operation of law at the
time he or she makes an application for interim relief."
Thus an interdict is an order from a
court prohibiting or compelling the doing of a particular act for the purpose
of protecting a legally enforceable right which is threatened by continuing or
anticipated harm and therefore it is appropriate only when future injury is
feared. In Stauffer Chemicals Chemical
Products Division of Cheesebrough-Ponds (Pty) Ltd v Monsato Company HARMS
J discussing the nature and purpose of interdicts had this to say:
"As far as
interdicts are concerned, the ordinary rules relating to interdicts apply.
Terrell on The Law of Patents 13th ed at 419 correctly points out
that the basis of an interdict is the threat, actual or implied, on the part of
the defendant that he is about to do an act which is in violation of the
plaintiff's right and that actual infringement is merely evidence upon which
the Court implies an intention to continue in the same course. I would have
thought it axiomatic that an interdict is not a remedy for past invasion of
rights. It is for the protection of an existing right. Cf Meyer v Meyer 1948 (1) SA 484 (T). It is therefore not strange
that Saccharin Corporation Ltd v Quincy 17 RPC at 339
held that:
"An injunction
cannot be properly granted except in respect of a patent which the defendant
has infringed, or threatened to infringe, and only during the continuance of
that patent'.'
As the applicant has lost his
ownership in the land by virtue of the acquisition process and his right to
legally occupy the same he has not established a right that would entitle him
to seek an interdict against any future acts of spoliation on the part of the
respondent. The relief he seeks is therefore not available to him.
I turn now to deal with the question of lis pendens raised by Mr Mlotshwa. He submitted that the
applicant is currently before the SADC TRIBUNAL where he and other farmers
whose farms are the subject of acquisition orders have claimed certain relief
from that body. In view of my findings above it is not necessary that I
consider this issue. The applicant cannot obtain an interdict on the papers
before me and to venture into a foray of the issues before the tribunal would
be in my view an exercise in futility.
Co-joined
with this submission is a further submission that this court lacks the
jurisdiction to hear the matter because of the process in the Tribunal and a
judgment that was passed by the Tribunal against the government of this
country. An interim judgment has indeed been handed to me but it is not a
judgment I can consider without reference to the protocol that brought the
Tribunal into force as well as the SADC Treaty. I note that in the heads of
argument the submission of lack of jurisdiction is not premised on the same
basis as it appears in the opposing affidavit. It is not clear therefore what
argument the court should follow. I will therefore deal with both issues as one
and the same.
The
Treaty makes provision for the establishment of a Tribunal. The Protocol is the
document that then sets up the Tribunal and provides for the powers of the
Tribunal. I have examined the protocol very carefully and I have not observed
therein any reference to the courts of any of the countries within SADC. If
indeed the intention was to create a Tribunal which would be superior to the
courts in the subscribing countries that intent is not manifest in the document
presented to me. The supreme law in this jurisdiction is our Constitution and
it has not made provision for these courts to be subject to the Tribunal. This
court is a court of superior jurisdiction and has an inherent jurisdiction over
all people and all matters in the country, and its jurisdiction can only be
ousted by a statutory provision to that effect. I do not have placed before me any
statute to that effect and the protocol certainly does not do that.
From
a perusal of the interim judgment it is clear that the nature of relief being
sought in the Tribunal is different to what is sought before me and there is
therefore no justification for the view that the applicant is seeking the same
relief in different fora. I hold that
this court has jurisdiction and that it has the capacity to determine the
dispute between the parties.
In view of my earlier findings on
the points in limine, there is no
need to enquire into the merits of this application. The applicant is non-suited
and the application is hereby dismissed with costs.
Gollop & Blank, legal practitioners for the applicant.
Civil Division of the Attorney-General's Office, legal
practitioners for the 1st respondent.
Antonio &
Associates, legal practitioners for the 2nd
respondent.
