Urgent
Chamber Application
BERE
J:
The
first applicant is Dodhill (Pvt) Ltd, a company with limited
liability duly registered in accordance with the laws of Zimbabwe.
The second applicant is the director and shareholder of first
applicant.
First
respondent is the Minister of Lands and Rural Resettlement, cited in
his capacity as the acquiring authority and is responsible for the
administration and implementation of the Land Acquisition Act [Cap
20:10]
and other allied pieces of legislation currently in force.
Second
respondent is Nyasha Chikafu who is in terms of the Land Acquisition
Act [Cap
20:10]
is the beneficiary of subdivision 1 of Dodhill in Chegutu District,
Mashonaland West Province which incidentally the applicants claim to
have legitimate right over. For purposes of this judgment I will
refer to the property in question as Dodhill farm.
THE
BACKGROUND
From
the papers filed of record coupled with the submissions made by the
two legal practitioners representing the applicants and the second
respondent there are conflicting perceptions as regards the current
status of Dodhill farm.
The
applicants feel very strongly that annexure '2' confirms their
legitimate possession of the property.
Annexure
'2' is a court order which was consented to at a time when the
other portions of the property were voluntarily conceded to the State
for purposes of agricultural resettlement following the formal
gazetting of the applicants farm in January of 2005.
The
second respondent's position is that following the promulgation of
the constitutional amendment number 17/05 Dodhill farm was properly
allocated to her by first respondent.
I
accept the position adopted by the second respondent that annexure
'2' was overridden by the subsequent promulgation of
constitutional amendment number 17/05 which culminated in the
introduction of inter
alia
section 16B(2)(a)(i)
of the Constitution which conferred the ownership of the farm in
question firmly in the hands of first respondent.
I
will therefore proceed on the basis that Dodhill, farm was indeed
allocated to the second respondent.
APPLICANTS
CASE
The
applicants case is predicated upon the mandament
van spolie.
Their
argument is that on the evening of Thursday, 5th
day of February 2009, the second respondent without applicants prior
knowledge and consent summarily entered Dodhill farm and set up a
camp near the main security gate housing the applicants residence,
barns and other buildings. A tent was put up as well as a makeshift
shelter. The allegations went further to say that the second
respondent introduced or brought with her some youth who camped in
the premises.
On
20 February 2009 the second respondent summarily and without the
consent of the applicants commenced ploughing in the applicants
fields where tobacco had just been harvested and on which the
applicants had intended to plough an onion crop, in conformity, with
the applicants programme of rotational cultivation.
The
applicants outlined other incidents which amounted to the second
respondent's summary occupation of Dodhill farm.
The
applicants sought the services of the police to have the status quo
ante
restored but to no avail.
According
to the applicants, when the second respondent was confronted she said
she had a right to occupy Dodhill farm on the strength of her offer
letter, a copy of which is marked annexure '3' in the papers
filed of record.
THE
SECOND RESPONDENT'S CASE
The
second respondent's response to the allegations of unlawful
dispossession were basically three-pronged, viz lack of urgency in
this matter, lack of locus
standi
on the party of the applicants in bringing this application and in
the alternative, a complete denial of the allegations levelled
against her by the applicants.
In
order for one to effectively deal with the second respondent's two
main defences one must consider whether the allegations by the
applicants are true or not. If they are not, the two main defences
would fall away.
If
the allegations are found to be true, the court must then proceed to
deal with those allegations in so far as they impact on the defences
of lack of urgency and locus
standi
on the applicants.
THE
ALLEGATIONS BY THE APPLICANTS
In
her notice of opposition, the second respondent has emphasized the
point that the ownership of Dodhill farm now vests in first
respondent and the fact that her offer letter authorizes her to stay
on the farm in question to carry out agricultural activities.
I
wish to re-affirm the accepted legal position that in applications
for a spoliation order the question of ownership of the property in
issue does not arise. As I will demonstrate later in this judgment,
lawfulness to possession of the farm is equally irrelevant.
There
are numerous aspects which can be gleaned from the second
respondent's notice of opposition which confirm the allegations
levelled against her not only on a balance of probabilities but
beyond reasonable doubt.
(i)
Firstly, despite her attempt to paint the picture that the applicants
consented to her occupation of the farm the second respondent gives a
completely different picture when she states:
“….
Applicants seem to be complaining that I should have sought their
permission first before ploughing and that they wanted to plant
onions on the land which I ploughed. I am advised which advise I
accept that I have the lawful authority to carry out agricultural
activities at the farm in the farm of an offer letter. Since
applicants do not own the farm there
is no reason at all for me to seek their permission to do that which
is lawful.
In
any event the applicants have no right whatsoever to continue
carrying out agricultural activities at the farm since doing so
amounts to a criminal offence.
I intend to allow applicants to finish harvesting their crops before
I commence to prepare the land….”
my emphasis.
In
my view, the above averments confirm the point made by the applicants
that the second respondent simply moved on to Dodhill farm without
their consent because in her view (of course as advised by her
counsel) the applicants have no right to be on the farm.
It
is inconceivable that given her perception of the law as advised by
her counsel, the second respondent would have sought the consent of
the applicants before occupying the disputed property.
Further
in her affidavit the second respondent confirms that there were
fights between her own employees and those of the applicants which
culminated is some employees being arrested by the police from
Chegutu.
If
the second respondent had occupied the farm in question by consent
there would have been no cause to have such running battles on the
farm between the two groups of employees.
All
in all, I am satisfied that a cursory perusal of the second's
respondent's affidavit lends credence to the allegations raised by
the applicants. I have absolutely no doubt in my mind that the second
respondent acted in the manner complained of by the applicants.
THE
QUESTION OF URGENCY
If
the court accepts the allegations as raised by the applicants (which
the court is inclined to accept) for reasons already outlined, then
it was inevitable that this matter be brought to court on an urgent
basis.
There
is no standard formula which determines the issue of urgency. Every
case must be looked at within its own context.
This
is one case where urgency is justifiable because of the manner in
which, the second respondent took occupation of Dohill farm.
It
must be understood that the applicants initial decision to involve
the police was both natural and reasonable in the circumstances. It
was only when the police could not assist that the applicants thought
of lodging the instant application.
In
any event, our courts have held in some cases that delays in
instituting mandament
van spolie
proceedings do not necessarily amount to acquiescence in the
dispossession.
LOCUS
STANDI
The
issue of locus
standi
on the part of the applicants cannot be looked at in a vacuum. It
must be looked at in the light of the legal position governing the
principle of the mandament
van spolie.
THE
LEGAL POSITION
There
can be no doubt that spoliation as a remedy has its core value or
objective, protection to possession of property against unlawful
dispossession.
This
is a remedy that has been recognized in our jurisdiction and beyond
for over decades.
In
dealing with the principles of spoliation I find the views of
HERBSTEIN J quite apposite when the learned judge stated:
“…
two
allegations must be made and proved, namely, (a) that applicant was
in peaceful and undisturbed possession of the property, and (b) that
the respondent deprived him of the possession forcibly or wrongfully
against his consent”
In
Amler's Precedents of Pleadings
it is stated, “Unlawfulness in this context means a dispossession
without plaintiff's consent or due legal process”.
This
time honoured principle of our law has been enunciated in a plethora
of cases in our jurisdiction and beyond. See for example, Nino
Bonino v De Lange,
Silo
v Naude,
Mutsotso
and Others v Commissioner of Police and Anor,
Chisveto
v Minister of Local Government and Town Planning.
In
the classic and leading case of Nino Bonino (supra)
INNES CJ (as he then was) had this to say:
“It
is a fundamental principle that no man is allowed to take the law
into his own hands; no one is permitted to dispossess another
forcibly or wrongfully and against his consent of the possession of
property, whether movable or immovable. If he does so, the court will
summarily restore the status
quo ante,
and will do that as a preliminary to any enquiry or investigation
into the merits of the dispute.”
In
Chisveto's case (supra)
REYNOLDS J remarked as follows;
“Lawfulness
of possession does not enter into it. The
purpose of the mandament van spolie is to preserve law and order and
to discourage persons from taking the law into their own hands.
To give effect to these objectives, it is necessary for the status
quo
ante
to be restored until such time as a competent court of law assesses
the relative merits of the claims of each party …. The
lawfulness or otherwise of the applicants possession of the property
does not fall for considerations at all.
In fact the classic generalization is sometime made that in respect
of spoliation actions… even a robber or thief is entitled to be
restored possession of the stolen property.”
Counsel
for the second respondent passionately argued that the applicants had
no locus
standi
to bring an application for spoliation.
The
main thrust of his argument was that because the applicants had
exceeded the 45 and 90 day statuary maximum periods which allows them
to remain on the farm and the homestead respectively,
therefore the applicants must not be protected by this court.
In
counsel's view, which borrowed heavily from the position adopted by
my learned brother UCHENA J in the case of Andrew
Roy Ferrera and Katambora Estates (Pvt) Ltd v Bessie Nhandara,
if this court accepted locus
standi
on the part of the applicants, then the court would be sanctioning an
illegal stay on Dodhill farm by the applicants since the applicants
are occupying that farm in complete violation of the law.
There
was also an attempt by the second respondent's counsel to seek to
rely on the decision by their Lordships in one of the much celebrated
land cases in this country, viz Airfield
Investments (Private) Limited v (1) The Minister of Lands,
Agricultural and Rural Resettlement; (2)
The
Minister of Justice Legal and Parliamentary Affairs; (3)
The
Member in Charge, Chegutu Police Station; (4)
The
Attorney General of Zimbabwe; and (5) R Sango.
Simplified,
the argument as put forward by second respondent's counsel was that
because the applicants hands are tainted with their illegal
occupation of Dodhill farm, the court could not entertain them let
alone grant them an order that would perpetuate their continued stay
on the farm.
Applicants
counsel held a different view.
She
argued that once the applicants possession is established and there
is proof of dispossession without reference to due process applicants
locus
standi,
is thereby established.
I
agree with this position.
The
position adopted by the second's respondent's counsel is fraught
with so many challenges.
Firstly,
his approach would be an attempt to re-define the very basic
requirements of a mandament
van spolie
which
is not concerned with the legality or otherwise of the possession
itself. See the remarks of REYNOLDS J in Chisveto's case (supra).
I
am fully cognisant of other decisions from South Africa which have
attempted to shift from the orthodox approach in dealing with
spoliation matters.
One
such matter is the case of Parker
v Mobil Oil Southern Africa (Pvt) Ltd
where VAN DEN HEEVER J stated as follows;
“Moreover,
the rule that goods dispossessed against the will or the possessor
must be restored forthwith, is not an absolute one.
The
reason for the rule is, according to the authorities, certainly not
because the fact of possession is elevated to a right stronger than
plenum
dominimum,
but
to discourage breaches of the peace by self help in the case of
disputes.
Despite
generalizations that even the thief or robbers entitled to be
restored to possession, I know of no instance where our courts, which
disapprove of metaphorical grubby hands, have come to the assistance
of an applicant who admits that he has no right vis-a-vis the
respondent to the possession he seeks to have restored to him”.
(my emphasis)
Commenting
on Parker's case and another similarly decided case of Coetzee
v Coetzeethe
learned judge MAKARAU J in the recent case of Shiriyekutanga
Bus Service v Total Zimbabwe
remarked as follows:
“With
respect, the weight of authority appears to be against the learned
judge. It has not been established as part of our law in any other
decided case that an application for spoliation order has to show
some reasonable or plausible claim to the property despoiled.
The
learned judge seems to suggest that the court determining an
application for a spoliation order will look into but possession of
the applicant. (See Coetzee
v Coetzee,
(supra).
I
hold a different opinion and do so with the greatest of respect and
due deference to the learned judge.
The
decided cases referred to by, GUBBAY CJ in Botha
and Another v Bennet (supra)
are
quite clear that the court does not at all look into the juridical
nature of the possession claimed.
The
doctrine of stare
decisis
binds me to follow the decision in Botha
and Another v Bennet (supra)
and Coetzee
v Coetzee
(supra)”
(my
emphasis)
I
entirely associate myself with the position adopted by the learned
judge MAKARAU J that in an application for spoliation order an
applicant does not have to prove some reasonable or plausible claim
to the property, let alone the legality or otherwise of his
possession of the property in question.
With
extreme due deference to the learned judge UCHENA J, I do not agree
with the approach he seems to have adopted in the Andrew Roy Ferreira
case (supra)
when he made a finding that because the applicant in that case had
defiantly continued to be on the farm in question, therefore he could
not be granted spoliation.
In
my view the learned judge prematurely dealt with the rights of the
parties to the farm when in fact this was not the issue at stake.
It
does seem to me that all the learned judge was supposed to consider
was whether or not the applicant had been in peaceful and undisturbed
possession of the farming land prior to the alleged dispossession and
not to consider who was legally supposed to have been in possession
of the farming land at the time of the alleged dispossession by the
offerree.
In
any event, such an approach in my view went against the weight of
decades of precedent in spoliation matters.
The
second challenge which is apparent from the position adopted by the
second respondent's counsel is the failure to appreciate that by
denying the applicants locus
standi
the court will be sanctioning and encouraging self-help exercise by
those in the position of the second respondent.
In
my view such a position would be tantamount to perpetuating an
infraction of the law to the dispossession by the second respondent
without following due process of law.
I
hold a very strong view that it was certainly not the intention of
the legislature to give those armed with offer letters like the
second respondent powers of evicting defiant former farm owners like
the applicants.
Such
a scenario would create chaos in our farms.
Our
courts must be careful not to encourage lawlessness in our farms by
subtley condoning by implication or inference the conduct of land
beneficiaries who believe they have a legitimate right to occupy land
which hither-to belonged to those farm owners who choose to
stubbornly or defiantly remain on the farm at a time they should have
vacated.
It
is not a question of weighing who between the former owner and a
beneficiary has a preferred or a more appealing right. It is simply a
question of encouraging due process of law. This is not achieved by
giving court orders which give the impression offerrees can
themselves carry out eviction processes.
The
legislature was quite conscious that there would be defiant former
farm owners who would endeavour to continue with farming operations
after the lapse of the 90 day statutory period.
In
its wisdom the legislature created a specific procedure to deal with
such errant or defiant farmers. This procedure is well spelt out in
the Gazetted Lands (Consequential Provisions) Act.
My
brother judge HUNGWE J correctly summed up the procedure when he
stated:
“There
is a specific procedure for eviction in respect of land acquired in
terms of the Gazetted Lands (Consequential Provisions) Act, [Cap
20:28].
The right to claim eviction in only exercisable by the acquiring
authority. That process is not initiated by a beneficiary under the
land reform programme or by an officer of the acquiring authority”
Consistent
views were also echoed by my brother judge BHUNU J when he stated:
“Although
the applicant is entitled to occupy the land he is not entitled to
evict the former owner……. because he does not own the land and
has not at any stage acquired possession.
It
is now settled law that a lessee who has not acquired vacant
possession cannot evict anyone from the property. It is the
prerogative of the acquiring authority to evict the first
respondent”.
I
note with extreme discomfort that second respondent's counsel has
referred to the Airfield Investment (Pvt) Ltd case (supra)
as authority for the proposition that applicants have no locus
standi
in this case.
With
respect that case has been quoted out of context.
That
case is quite distinguishable from the instant case. In that case the
focus was on considering the requirements of an interim interdict as
opposed to the instant case which is primarily focused on considering
the requirements of a mandament
van spolie.
These
two principles are quire distinct and cannot be mistaken for each
other.
Counsel
for the second respondent also argued that according to his
understanding section 16B of the Constitution of Zimbabwe as well as
section 3 of the Gazetted Lands (Consequential Provisions) Act
(supra)
have taken away the remedy of spoliation from our common law.
I
have painstakingly perused the cited sections. I do not agree with
such sentiments.
In
the final analysis, I am more than satisfied that the applicants have
locus
standi
to bring this action and having accepted their allegations against
the second respondent I am inclined to grant the provisional order
sought in terms of the papers filed.
Gollop
& Blank,
applicant's legal practitioners
Mr
K. Gutu,
for 1st
respondent
Mavhunga
& Sigauke,
2nd
respondent's legal practitioners
1.
The Constitution of Zimbabwe
2.
Para 13 of second respondent's opposing affidavit
3.
Manga v Manga 1991 (b) ZLR 251 @ 255
4.
Bennet Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230E at
233
5.
3rd
Edition LTC Harm and JH Hugo, Butterwarths at pp276-277
6.
1906 TS 120 at 122
7.
1929 Ad 21
8.
1993 (2) ZLR 329 (H)
9.
1984 (1) ZLR 248 (H)
10.
Page 250A-D
11.
Section 3 of Gazetted Land (Consequential Provisions) Act [Cap
20:28]
12.
HC3995/08
13.
SC36/04
14.
1979 (4) SA 250 @ 255
15.
1982 (1) SA 933
16.
HH64-2008
17.
Section 3-5 of Chapter 20:28
18.
Pondoro (Pvt) Ltd and Another v Nemakonde and Anor HH18-08
19.
Zakeyo Mereki v Bell In (Pvt) Ltd and Deputy Sheriff Harare (N.O.)
