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 section 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.
(i)
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.
(ii)
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
pp5-7 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 (3ed
LTC Harm and JH Hugo, Butterworths at pp276-277) 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 250A-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 (s3 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
(SC36/04).
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-a-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
