Before: CHIDYAUSIKU
CJ, In Chambers
This is an application
for leave to appeal against a provisional order granted by BERE J against
the applicant in the High Court, such application for leave to appeal against
the provisional order having first been made to and refused by BERE J.
The facts of this matter
are briefly as follows.
Dodhill (Pvt) Ltd
(hereinafter referred to as "Dodhill") owns Dodhill Farm ("the
farm"). Dodhill and the Minister of
Lands and Rural Resettlement ("the Minister") were involved in litigation
concerning the compulsory acquisition of the farm by the Minister. The litigation culminated with an agreement
between Dodhill and the Minister. In
terms of that agreement the farm was divided into two portions. The one portion of the farm was acquired by
the Minister for agricultural purposes and the other portion was left in the
ownership of Dodhill. This agreement
was made part of the court order by consent of the Administrative Court. Notwithstanding the agreement and court
order, the Minister subsequently acquired or purported to acquire that portion
of the farm which the Minister had agreed to leave in the hands of
Dodhill. The Minister acquired the farm
in terms of s 16B(2)(a)(i) of the Constitution of Zimbabwe ("the
Constitution"). Having acquired the
farm, the Minister, in terms of an offer letter allocated the farm to the
applicant (hereinafter referred to as "Chikafu").
Upon acquisition,
Dodhill was required to terminate farming operations within forty days of the
notice and vacate the farm within ninety days.
It is common cause that both periods have expired, but Dodhill continues
to occupy the farm contrary to the provisions of the Land Acquisition Act [Cap 20:10] ("the Act") and
therefore unlawfully. Chikafu moved
onto the farm and Dodhill sought to have him removed from the farm and launched
an urgent Chamber application in the High Court. The learned Judge in the court a quo concluded -
1. That
the farm had been legally acquired by the Minister and legally offered to
Chikafu; and
2. That although
Chikafu had been legally offered the farm, he could not move onto the farm
without due process in terms of the Act.
Chikafu was
dissatisfied with the judgment and applied for leave to appeal to this Court. The application for leave to appeal was
refused on the ground that Chikafu had no prospects of success on appeal. Chikafu now appeals against the refusal to
grant him leave to appeal. The issue that
falls for determination in this application is whether Chikafu has prospects of
success in an appeal against the judgment of BERE J.
I concluded that Chikafu
had prospects of success on appeal. I
accordingly granted leave to appeal.
I granted Chikafu leave
to appeal for two reasons. Firstly, it
is common cause that decided cases in this and other jurisdictions support both
Dodhill and Chikafu. In other words,
there was a divergence of authorities on the issue that fell for determination
by the court a quo. Given this divergence of decided cases,
whichever party lost had prospects of success on appeal. Secondly, a proper reading of the judgment
of the court a quo reveals that
it interdicted Chikafu from occupying the farm until Dodhill had been removed
from the farm in terms of the Act. The
judgment is not interlocutory it is definitive, in which case Chikafu is
entitled to appeal as of right.
The learned Judge in the
court a quo analysed the factual
dispute between the parties and concluded that the farm belonged to the
Minister. Dodhill does not, according
to its counsel, accept that conclusion.
There is, however, no cross-appeal against that conclusion. The probabilities are that Dodhill, having
succeeded in keeping Chikafu out of the farm, did not see much point in taking
up this issue.
After reaching a
conclusion on the facts, the learned Judge in the court a quo analysed the legal position. The learned Judge's analysis of the legal
position was thorough and detailed.
This is what he had to say at pp 5-7 of his judgment (judgment No.
HC 40/2009):
"THE LEGAL
POSITION
There can be no doubt that
spoliation as a remedy has (as) its core value or objective protection to
possession of property against unlawful dispossession.
This is a remedy that has been
recognised 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 (the) 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.' (Bennet Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230
(E) at 233)
In Amler's Precedents of Pleadings (3 ed LTC Harm and J H Hugo,
Butterworths at pp 276-277) it is stated 'Unlawfulness in this context means a
dispossession without (the) 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 (1906 TS 120 at 122), Silo v Naude (1929 AD 21), Mutsotso and Ors v Commissioner of Police
and Anor (1993 (2) ZLR 329 (H)), (and) Chisveto
v Minister of Local Government and Town Planning (1984 (1) ZLR 248 (H)).
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
applicant's possession of the property does not fall for consideration at all. In fact the classic generalisation is
sometimes made that in respect of spoliation actions . even a robber or thief
is entitled to be restored possession of the stolen property.' (Page 250 A-D)
Counsel for the second respondent (Chikafu)
passionately argued that the applicants (now the first and second respondents) 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 statutory maximum periods which (allow) them to remain on the farm and
the homestead respectively (s 3 of the Gazetted Land
(Consequential Provisions) Act [Cap 20:28]),
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 (HC 3995/08), 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 (Chikafu'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 (Pvt) Ltd v (1) The Minister of Lands, Agriculture 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 (SC 36/04).
Simplified, the argument as put
forward by the 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."
Dodhill argued that once
its possession was established and there is proof of dispossession without
reference to due process, Dodhill's locus
standi was established. The learned
Judge was persuaded by Dodhill's argument.
He rejected Chikafu's contention.
In doing so he reasoned as follows:
"Firstly, his (Chikafu's) 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 (1979 (4) SA 250 at
255), where VAN DEN HEEVER J stated as follows:
'Moreover,
the rule that goods dispossessed against the will (of) 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 dominium,
but to discourage breaches of the peace by self help in the case of
disputes. Despite generalisations
that even the thief or robber (is) 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-Ã -vis the respondent to the
possession he seeks to have restored to him.' (my emphasis)
Commenting on Parker's case supra and
another similarly decided case of Coetzee
v Coetzee (1982 (1) SA 933) the learned (JUDGE PRESIDENT) MAKARAU (JP)
in the recent case of Shiriyekutanga Bus
Services P/L 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 (applicant) for (a)
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 not closely, the
juridical nature of the 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 Anor v Bennet supra (1996 (2) ZLR 73 (S)) 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 Anor v Bennet supra and not to follow Mobil v Parker supra and Coetzee
v Coetzee supra. (HH 64-2008) (my
emphasis)
I
entirely associate myself with the position adopted by the learned (JUDGE PRESIDENT)
MAKARAU (JP) that in an application for (a) 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 Ferrera 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."
Can unlawful occupation constitute
a defence to a claim for mandament van
spolie? It is quite clear that the
authorities are divergent on this issue.
One line of authorities, which includes judgments of the High Court of
Zimbabwe, supports the contention that unlawful occupation can be a defence;
while other authorities that include High Court of Zimbabwe judgments as well,
are to the effect that unlawful occupation is irrelevant. Given this situation, whichever party lost
in the High Court had prospects of success as its contention is supported by a
line of decided cases.
Apart from this, the
fact that different Judges of the High Court have come to different conclusions
on the same issue creates uncertainty in the law, a situation that is totally
undesirable. A Judge faced with this
situation should facilitate the resolution of the issue by the highest court in
the land.
Although the learned
Judge has labelled his order as a provisional order, the judgment has all the
hallmarks of a final judgment. I have
some difficulty envisaging that which would happen on the return day of the
so-called provisional order. A proper
reading of the judgment reveals that the learned Judge has interdicted or
barred Chikafu from the farm until such time as Dodhill has been removed from
the farm in terms of the Act. There is
nothing interlocutory about the judgment apart from the label. If my understanding of the judgment is
correct, then Chikafu can appeal as of right and does not need the leave of the
Judge.
When I granted the leave
to appeal, I overlooked setting the period within which the appeal has to be
filed. I hereby rectify that
oversight. The notice of appeal has to
be filed within fifteen days of the handing down of these reasons for judgment.
Mavhunga & Sigauke, applicant's
legal practitioners
Gollop & Blank, first and second respondents' legal practitioners