BHUNU J: The facts leading to this
urgent chamber application are as follows:
Certain property in question, cited as Inyanga Block (Folio
No. 6151, Title No. 1813/61) at one time belonged to William Antony Igoe, who
sold this property to the Government of Zimbabwe in 1986 resulting in the
cancelling of the Deed in terms of the Rural Land Act Chapter 20:18. He however
retained certain rights over the transferred land, which were specified in a
written agreement that was to expire at the end of a period of 25 years after
the transfer. These rights included among others, the right to extract pine
from the plantations originally planted by the seller and to mill it. The
Applicant later acquired these rights to extract and mill the timber in May
2003. His cutting rights having since been terminated in 2012, the Applicant
brought a matter on 28 August 2013 which is yet to be determined regarding the
termination of these cutting rights. However, what has spurred this urgent
chamber application is that the 1st Respondent has since allocated the cutting
rights to 1st and 2nd Respondents who have commenced
milling and the Applicant argues that this has unlawfully interfered with his
entitlements.
The Applicant seeks a provisional order in the following
terms:
FINAL RELIEF SOUGHT
1.
The 3rd Respondent is restrained from tendering, offering or
otherwise distributing rights to set up a saw mill, harvest, cut or otherwise
diminish the timber in the plantation situate at Kairezi known as the remainder
of Inyanga Block (folio number 6151) held under title deed number 1863/61
pending final determination of matter number 6975/13.
2.
The Applicant is allowed to do everything necessary to nurture the trees in the
plantation pending finalisation of matter 6975/13.
3.
The Applicant is permitted to remove all timber already felled and sawn by it
as at the date of this application.
4. Respondents to pay the
costs of this application.
INTERIM RELIEF SOUGHT
Pending determination of this matter, Applicant is
granted the following relief:
1.
That the 1st and 2nd Respondents seize forthwith from carrying on
the activities of cutting, sawing, or removing timber from a plantation situate
at Kairezi known as the remainder of Inyanga Block (folio 6151) held under
title deed number 1863/61 pending the determination of the matter number
6975/13.
MsN Masunda for the Applicant submitted that the
Applicant has applied for a declarator to which the 3rd Respondent
has filed an opposition. She further submitted that the 4th and 5th
Respondents have not responded and are therefore barred from so doing. Pending
the decision of the court, the 1st and 2nd Respondents
have begun business which is the subject matter of the dispute. They begun
business on the 3rd of September 2013 and she stated that Applicant
only became aware of this on the 7th of September and as such is
seeking a prohibitory interdict pending the case for the declarator which the
Applicant has lodged in case 6975/13. She further submitted that the Applicant's
equipment and employees are still on the land.
Mr Zhangazhafor the 3rd
Respondent raised the following issues in limine.
He submitted that the certificate of urgency was not proper
as it was signed by the same legal practitioner as that representing the
client. He further submitted that as the problem was declared as a dispute in
April 2012, if there was indeed any urgency it should have surfaced then. He
argued that given that the 1st Respondent had terminated the cutting
rights as way back as April last year, the urgency could not be said to have
arisen now. In support of his contention he cited the case of Kuwarega v
Registrar General and Anor 1998 (1) ZLR 188 at p 193. He also cited s
5 the Rural Land Act to the effect that every encumbrance, servitude shall be
extinguished when state land is acquired. He argued that both Applicant and
Respondents have submitted documents which clearly indicate that the matter had
been the subject of written correspondence between the parties. These documents
he opined reveal that the urgency is self-created.
Ms Saruwakafor 4th
and 5th Respondents was in agreement with Mr Zhangazha's
submissions regarding the lack of urgency. She submitted that indeed no notice
of opposition had been filed on behalf of her clients.
Mr Charambafor 1st
and 2nd Respondents submitted that the Applicant ought to have been
aware of the developments on the said property given that as way back as June
28, the 3rd Respondent had flighted a tender process and
subsequently advertised in the Manica Post as to who had been awarded the
tender. He further argued that the Applicant had not established a clear right
in relation to the estate.
In explaining the delay in bringing the matter as an urgent
one before the court, counsel for Applicant argued that prior to the 7th of
September, no one was cutting trees and therefore there was no urgency in the
matter. She further submitted that this urgent application is not premised on a
clear right but rather on a prima facie right as detailed in Applicant's assertions
in Case 6975/13 which is yet to be determined by the court.
Points in Limine
On the issue raised by Mr Zhangazha for the 3rd
Respondent that the certificate of urgency is not proper as it has been signed
by the same legal practitioner as that representing the applicants, this is not
detrimental. He did not labour the issue and admitted to there being different
interpretations of the relevant rule. Rule 242 (2) states that where an
Applicant is legally represented in an urgent chamber application, the
application must be accompanied by a certificate from a legal practitioner
supporting the urgency of the application. It does not state that the legal
practitioner must be from a different firm. In favour of such an interpretation
of Rule 242 (2) see for example the remarks by Chatukuta J in Route Toute
& Ors vs Sunspun Bananas (Pvt) Ltd HH27/2010 at p 3.
It appears to me that whether the matter is in fact urgent,
is best determined by addressing the issue of whether the Applicant has prima
facie rights to the property which need immediate vindication. The Applicant
does not dispute the various correspondences with the 1st Respondent, tendered
as annexures to the application. Also submitted is Agreement of Sale for
“cession of cutting rights” of may 2003 under which he purchased the cutting
rights which states as follows in clause 2.
The buyer (at its sole
discretion) will be responsible for applying for the renewal of the Lease of
Cutting Rights prior to its expiration in 2011.
In October 2011 Applicant wrote to the 3rd
Respondent requesting the 3rd Respondent to renew the cutting rights
for a period of thirty years, which seems to indicate he was aware that he had
no unfettered rights. He received a response in December 2011 to the effect
that the 3rd Respondent was not in position to renew the cutting
rights. He wrote again in December 2011, essentially pleading his case, to
which he received a response that he had been granted permission to collect
only his sawn timber and that he would be granted a meeting. Various
correspondences largely at the instance of the Applicant to try and get a
renewal were made. The 3rd Respondent persistently turned these down
with a final letter written on the 28th of August by the 3rd
Respondent indicating that as far as they were concerned, they had closed the
matter.
The Applicant in his affidavit says the various
correspondences took place because he was labouring under a misapprehension
that the cutting rights had expired when in fact no transfer of the land had
taken place in 1986. It is the substance of these misapprehensions that is yet
to be determined under case 6975/13. Suffice it to say from the time that he
received the final correspondence dated 28 August 2012 from 3rd
Respondent to the effect that the matter was closed, to August 28, 2013, the
Applicant had not seen it fit to take action to protect his perceived rights.
His argument that the urgency has arisen now because the
timber is being cut cannot be supported since what has given rise to the
activities needs to be looked at from a holistic and contextual point of view.
It must have been reasonably foreseeable, judging from the correspondence that
the logical outcome of failure to renew the cutting rights by the 3rd
Respondent would be that someone else would be given the rights. Mr Zhangazha
for the 3rd Respondent cited the case of Kuvarega where the
late CHATIKOBO J succinctly stated as follows:
What constitutes urgency is not only the imminent arrival
of the day of reckoning. A matter is urgent if at the time the need to act
arises, the matter cannot wait. Urgency which stems from a deliberate or
careless abstention from action until the dead line draws near, is not the
urgency contemplated by the rules. (p.193)
Once it was made clear to the Applicant that the cutting
rights would not be renewed, that is the point at which he should have sought
to institute his urgent application. Accordingly I find that the matter is not
urgent.
In opposing the claim the 3rd Respondent asked
for punitive costs on a 'legal practitioner and client' scale. Such costs are
generally not awarded lightly and when they are, the circumstances of each case
are carefully taken into account. Their purpose when awarded is to show
displeasure at an unwarranted course of action. Regarding the urgency of the
matter, in this case the documents submitted by both sides in this application
clearly reveal that the assertion of 'urgency' should at the very least, have
been made over a year ago. The Respondents are justified in asking for costs on
a higher scale for the costs of this urgent application.
The result is that the matter is not urgent.
The applicant is to pay costs on a legal practitioner and
client scale.
Messrs Scanlen and Holderness: Applicant's Legal Practitioners
Charamba & Partners:1st
and 2nd Respondents' Legal Practitioners
Chinogwenya and Zhangazha: 3rd Respondent's legal practitioners
Civil
Division of Attorney General's Office: for
4th and 5th Respondents.
