BERE J: It has never ceased to
amaze me how some of our citizens have developed this insatiable desire for
litigation even in circumstances where clearly the odds are heavily stacked
against them. This is one such a case and such conduct must be discouraged.
The facts
which are common cause in this case can be summarised as follows:
Sometime in 2001 the applicant
purchased from the third respondent stand 18879 Harare Township. The applicant
duly took transfer of the purchased stand under deed of Transfer 3745/2001.
Annexure 'B' to this application confirms the transfer in question.
The applicant purchased the property
with a view to constructing a school at the most opportune time and for quite
some time the land stood as a vacant one.
Sometime in 2011 the applicant
established that the first respondent had drilled a borehole on its property
and was drawing water therefrom supplying the first respondent's residence
which is about 1,5 kilometres away from the property in issue.
The applicant also established that
the first respondent had installed an electricity distribution point to
expedite the aforesaid extraction of water from its property.
The subsequent correspondence
exchanged between the applicant and the first respondent failed to dissuade the
first respondent from his unsanctioned activities on the applicant's property.
In fact the first respondent was adamant he would continue to harvest water
from the applicant's property.
Further correspondence to the second
respondent to remove its electricity distribution point constructed on the
applicant's property at the behest of the first respondent did not yield any
positive results.
When dialogue had failed to resolve
the impasse between the applicant and the first respondent the applicant issued
the instant court process seeking inter alia to have the first
respondent interdicted from drawing water from its property and to have him evicted.
When served with the application the
first respondent maintained with his intransigence in opposing the relief
sought by the applicant.
Whilst acknowledging that the
applicant owned the stand from which water was being extracted, the first
respondent made it abundantly clear that he had no intention of stopping the
extraction of water arguing that his project was above board having been
sanctioned by the third respondent. In his quest to defend his position the
first respondent stoutly stated as follows:
“14.10
I aver that whilst the applicant
owns the place, there is a clear indication of my innocence and bona fides.
I have not sought to take the law into my own hands as alleged. Whatever I did
was with the blessings of the City of Harare whom I all along thought they own
the land and whom I genuinely believed and still believe were legally competent
to authorize my project. As said above there is every indication of
acquiescence on the part of the applicant as one of its members knew about the installation
of the borehole. I have no interest in the applicant's land, just the water.”[1]
It has not and it could not possibly
have been denied by the first respondent that the applicant is the owner of the
property on which he has for quite sometime been harvesting or extracting
water. The first respondent does not deny that the whole infrastructure to
extract this water was done without the consent or permission of the applicant
which holds title to the property.
A deed of title confers a real right
to the holder therein. As Harry Silberberg puts it:
“A real right is a jus in rem.
It establishes a direct connection between a person and a thing in the sense
that the holder of a real right is entitled to control the use of a thing
within the limits of his right. In other words, a real right is enforceable
against the world at large – i.e. against any person who seeks to deal with the
thing to which a real right relates in any manner which is inconsistent with
the exercise of the holder's right to control its use…” [2]
Given the undeniable fact that none
of the cited respondents could have denied the applicant's entitlement to stand
18879 Harare Township of Salisbury Township lands, which ownership is confirmed
by deed of transfer 3745/2001 dated 3 May 2011, it is not possible that the
third respondent could have had the right at law to interfere with this
property without the consent and or authorization of the applicant. Any purported
authorization of the first respondent to conduct any activities on the
applicant's property was therefore a nullity and could not have conferred to
the first respondent any greater right than the legitimate holder of title.
There is no doubt that initially the
first respondent may have believed that his “borehole” was sitting on an
unoccupied council land or council reserve area as evidenced by his letter to
council on 20 September 2010.
The first respondent's initial
position was understandable but the court is extremely concerned with his
intransigence even after the irrefutable truth about the status of the property
dawned on him and the fact that his borehole and its accessories were sitting
on the applicant's property. He continued to conduct his activities with
reckless abandon.
Quite clearly, aware of the correct
position, the first respondent through his counsel has sought to justify his
continued interference with the applicant's property. It is such conduct which
this court finds to be extremely reprehensible.
It would amount to promoting dark
justice if a man were to “invade” one's private property and when one is shown
title to that property by a legitimate holder of that title; the invader is
then allowed to raise all sorts of spurious arguments like in this case.
Civilised people, the world over,
must not be allowed to embark on such levels of lawlessness.
Proprietary rights of individuals
particularly where such rights are confirmed by the title deeds must not be
tempered with lest the whole fabric of private property regime is eroded.
As a court, I am frightened by the
first respondent's counsel that sought to oust the jurisdiction of this court
by making ill-advised reference to s 3 of the Water Act. Clearly, those were
hysterical submissions and I have not allowed such to detain or obstruct me in
my endeavour to do justice to the applicant's unassailable case. The Water Act
is not authority for an individual to occupy other person's property without
the owner's authority and do as they wish.
What the applicant has sought to
achieve in this case is merely to assert its rights over the property in
question and the first respondent was ill-advised in resisting that action.
To show its displeasure in the
conduct of the first respondent, an appropriate order of costs shall be
granted. This will also help in discouraging frivolous and vexatious litigation
as in this case.
I am satisfied that the applicant's
case is more than compelling and it ought not to have been opposed by the first
respondent.
From the time a letter of demand was
dispatched to the first respondent, the first respondent had ample opportunity
to reflect on the case and take the necessary steps to mitigate legal costs.
The first respondent surprisingly chose to be combative and for this he cannot
avoid being laden with a punitive order of costs.
Consequently I order as follows:
1. The
first respondent be and is hereby restrained and interdicted from drawing water
from the borehole situated by the respondent on the applicant's property being
stand 18879 Harare Township of Salisbury Township lands.
2. The
first respondent be and is hereby ordered to remove the borehole and its
pumping equipment and the steel structure from the applicant's property within
ten working days of the grant of this order failing which the Deputy Sheriff is
hereby ordered and directed to do so with the first respondent meeting the
Deputy Sheriff's costs.
3. The
first respondent be and is hereby ordered to restore to its original condition
the applicant's property and to fill in the borehole within ten working days of
the grant of this order failing which the Deputy Sheriff is hereby ordered and
directed to do so with the first respondent meeting the Deputy Sheriff's costs.
4. The
first respondent be and is hereby ordered to pay costs on the legal
practitioner and client scale.
Honey & Blanckenberg, applicant's legal practitioners
Moyo and Maguranyanga, 1st respondent's legal practitioners
[1]The first
respondent's opposing affidavit, para 14.10 at p 37 of consolidated index
[2]The
law od Property, Harry sieberberg, published by Butterworths, Durban, 1975,
page 30. 