MAVANGIRA J: Certain preliminary matters
were raised in this matter on 13 November 2008. The court's ruling was
delivered in chambers on 24 November 2008. The parties were then directed to
file heads of argument in respect of the merits of the matter. Although time
limits were agreed upon for the filing of the heads of argument, it was also
understood for reasons explained by Mr Drury, that there was a
possibility of failure to file the applicants' heads of argument strictly
within the stated time limits. In that eventuality there would also be a
resultant delay in the filing of the respondents' heads of argument. The
applicants' heads of argument were then filed on 19 December 2008. However,
those of the respondents were only filed on 4 February 2009. This has resulted
in the delay in the delivery of this judgment.
THIS
APPLICATION
Under case number HC 7256/07 and on 7
January 2008 the applicants in this matter approached this court for a mandament
van spolie and obtained a provisional order against these same
respondents. They now approach this court seeking another provisional order
against the same parties and in respect of the same piece of land on the basis
that the instant application is based on new or fresh acts of spoliation that
have occurred subsequent to the issuance of the provisional order in HC 7256/07.
The
terms of the order sought by the applicants are as follows:
"TERMS
OF FINAL ORDER SOUGHT
That
you show cause to this honourable court of why a final order should not be made
in the following terms -
1. That
it be and is hereby declared that applicants are entitled to remain in peaceful
undisturbed occupation and use of the property called Remainder of Lot 7 of
Chingford Farm measuring 121,49 hectares situated in the district of Hartley
(Chegutu) (Chingford) until such time as applicants . should it become
necessary or expedient .are lawfully removed from the property through an
eviction order from a competent court which has final effect.
2. That
it be and is hereby declared that the second respondent and all other persons
claiming occupation, possession and use of Chingford did so unlawfully and
without following due process to achieve vacant possession in circumstances
amounting to spoliation.
3. That
respondents be and are hereby interdicted from interfering in any way with
applicants' normal business and farming operations and use of land and
improvements or of threatening applicants, their representatives, employees or
invitees on Chingford.
4. That
the second respondent pay the costs of this application;
Alternatively:
That the costs of this application be paid jointly and severally the one paying
the other to be absolved.
INTERIM
RELIEF
Pending
determination of this matter, the applicants are granted the following relief:
1. That
applicants possession, use and occupation of Chingford be and is hereby
restored, so that the status quo ante prior to the second
respondent's summary assertion to the use of land on Chingford is achieved and
maintained.
2. That
the second respondent and all other persons claiming occupation and possession
through him of Chingford and/or all other persons not being representatives,
employees or invitees of applicants' are directed to forthwith vacate Chingford
and that all movable property introduced by them onto the property also be
removed.
In
the event that it becomes necessary or expedient, the Deputy Sheriff is hereby
authorised and empowered to attend to the removal of all such persons and their
property from Chingford. Pursuant thereto, the Deputy Sheriff is authorised and
empowered to enlist the assistance of any member of the Zimbabwe Republic
Police - who are directed to provide assistance to the Deputy Sheriff - so that
the provisions of this order are executed and implemented in full."
The applicants' papers show that after
they had obtained the provisional order in HC 7256/07, the Deputy Sheriffs in
Chegutu and Kadoma evicted the second respondent and his workers but it was
only for a short while the second respondent ceased planting crops on Chingford
Farm, the piece of land in question. The second respondent then started
planting again. The applicants then decided for reasons stated in the founding
affidavit and which may generally be described as reasons of convenience, to
permit the second respondent to harvest his crop. Thereafter the second
respondent concentrated his efforts on the adjacent property on which he put a
winter wheat crop. The second respondent did not thereafter carry out any
further farming activities on Chingford and did not interfere or disrupt the
applicants' activities on Chingford.
The fresh acts of spoliation that form
the basis of the instant application allegedly began on 13 October 2008 at a
time when the applicants had assumed that the second respondent had refrained
from conducting any farming activities on Chingford. The second respondent sent
a tractor driver who, without warning, commenced to disc a certain portion of
land on Chingford. The applicant had earmarked this particular portion for a
tobacco plant. On 19 October 2008 the second respondent used armed guards to
stop the applicants' workers from preparing land. The issue was temporarily
resolved after the applicants reported the matter to the police. By the
afternoon of the same day the tractor driver had been sent back and he resumed
disking. The Police and the Deputy Sheriff were not of assistance to the
applicants when this further activity was reported to them. The Deputy Sheriff
finally attended and evicted the second respondent's workers the following day.
Within a few hours after their removal from the farm and after the Deputy
Sheriff had returned to Chegutu, the second respondent and his workers
immediately moved back onto Chingford. The applicants' founding affidavit lists
and gives details of further actions and activities that the second and his
workers continued to engage in on Chingford thereafter.
The applicants contend that they are
entitled to the protection of the law and that the spoliatory relief that they
seek is justified in the circumstances. The second respondent on the other
hand, contends that the offer letter that was issued to him by the first
respondent in respect of the piece of land in question, being Chingford, is a
valid defence to the applicants' spoliation proceedings. He contends that the
applicants' ought not to be granted an order for spoliation because in taking
occupation and making use of the farm land he was acting in terms of an offer
letter which, in terms of the Gazetted Land Act, is lawful authority to hold,
use and occupy gazetted land. Reliance was also placed on Silberberg &
Schoeman in "The Law of Property" (3rd
edition) at p 281 where the following is stated:
".
a deprivation of possession will be lawful if carried out with the consent of
the applicant, or in terms of a statutory enactment"
In
van t' Hoff v van t' Hoff & Ors (1) 1988 (1) ZLR 294
(HC) at 296 B-C the position at law is stated thus:
"It
is well established that in spoliation proceedings, all that the applicant
needs to prove is that -
i.
he was in peaceful and undisturbed
possession of the property; and
ii.
that he had been unlawfully deprived of
such possession.
Once
the applicant has proved these two elements, the applicant is entitled to have
the status quo ante restored. See Burnham v Neumeyer 1917 TPD 630;
Nienaber v Stuckey 1946 AD 1049."
As
to this being a correct statement of the law, there does not appear to be any
dispute. The second respondent however has sought to persuade this court that
by reason of the offer letter that he holds he did not commit spoliation.
In making reference to the learned
authors Silberberg and Schoeman, the second respondent omitted to highlight the
very pertinent statement made by the authors in a footnote to the portion
stressed as being supportive of the second respondent's case. The learned
authors' state:
"In
Minister of Finance v Ramos 1998 (4) SA 1096
(C) CLEAVER J confirmed that where a dispossession is based on a statutory
provision 'such statutory (provision) must be restrictively interpreted. A
person who invokes the protection of such a statutory provision will need to
establish that he acted strictly within its terms' (1101H). See eg Sillo v
Naude 1929 AD 21
26; ."
I am not persuaded that the gazetted
Land Act has ousted or erased from our common law, the remedy of the mandament van
spolie in matters of land acquisition. On the other hand the Act in
question actually requires that the eviction of an owner or occupier of
gazetted land must be by due process as prescribed in the Act. This is in fact
in accord with the common law. It is trite that in spoliation matters "the
court is not concerned with the nature of the applicant's occupation. What it
is concerned with is that the respondent should not take the law into its own
hands". See Fredericks & Anor v Stellenbosch Divisional Council
1977 (3) SA 113
(C). In Chisveto v Minister of Local Government 1984 (1) ZLR 248
(H) the following was stated:
"Lawfulness
of possession does not enter into it. The purpose of the mandament van
spolie is it 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 . 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 a thief is entitled to be restored possession of the stolen
property."
The
arguments made in casu by the second respondent pertaining to his
possession of an offer letter were also made and considered in Karori (Pvt)
Ltd & Anor v Brigadier Mujaji HH 23-07. As aptly stated at p 3
of judgment in that matter, the State is after all enjoined by the gazetted
Land (Consequential Provisions) Act [Cap 20:28] to institute eviction
processes if it desires to remove "applicants" from an acquired property. In
Amler's Precedents of Pleadings (4th edition) at p 291 the following
is stated:
"The
possession is not possession in the juridical sense since it would suffice if
the holding by the plaintiff was with the intention of securing some benefit
for him. The causa for the plaintiff's possession is irrelevant and it
is also irrelevant whether the defendant has a stronger right of possession.
Actual possession and not the right to possession is protected. Yeko v
Qana 1973 (4) SA 735
(A)".
For
the above reasons it appears to me that the mandament van spolie is a
live remedy that is in the circumstances of this matter available for the
protection of the applicants. However, the terms of the final order sought in
the provisional order sought by the applicants raise concerns with this court.
It appears to me that in view of the pronouncements by the Supreme Court in Airfield
Investments (Pvt) Ltd v The Minister of Lands, Agriculture
and Rural Resettlement & Ors SC 36/04 the first and third
paragraphs of the final order sought by the applicants cannot be allowed to
stand as part of the final order to be sought by the applicants at the stage
when confirmation of the provisional order will be sought. The substantive
relief that the applicants seek therein is not competent in view of their
position at law as stated in the Airfield case (supra). Since
February 2009, communication has been made with the parties through the
Registrar for the parties to appear in chambers. It was the court's intention
to seek the parties' further submissions on the effect of the Airfield
case on the terms of the Provisional Order sought by the applicants. Such
appearance in chambers has not materialised to date. The court has had no
option but to determine this aspect of the matter without the benefit of such
further submissions from the parties. In the result, although the applicants'
application must succeed, the indicated paragraphs will not form part of the
terms of the provisional order granted. Costs will follow the event. A
provisional order will therefore be issued in the following terms:
"TERMS
OF FINAL ORDER SOUGHT
That
you show cause to the Honourable Court of why a final order should not be made
in the following terms:
1. That
it be and is hereby declared that the second respondent and all other persons
claiming occupation, possession and use of Chingford did not unlawfully without
following due process to achieve vacant possession in circumstances amounting
to spoliation.
2. That
the second respondent pay the costs of this application.
Alternatively:
That the costs of this application be paid jointly and severally the one paying
the other to be absolved.
INTERIM
RELIEF
Pending
determination of this matter, the applicants are granted the following relief:
1. That
applicants possession, use and occupation of Chingford be and is hereby
restored, so that the status quo ante prior to the second
respondents summary assertion to the use of land on Chingford is achieved and
maintained.
2. The
second respondent and all other persons claiming occupation and possession
through him of Chingford and/or all other persons not being representatives,
employees or invitees of applicants' are directed to forthwith vacate Chingford
and that all movable property introduced by them onto the property also be
removed.
In
the event that it becomes necessary or expedient, the Deputy Sheriff is hereby
authorised and empowered to attend to the removal of all such persons and their
property from Chingford. Pursuant thereto, the Deputy Sheriff is authorised and
empowered to enlist the assistance of any member of the Zimbabwe Republic
Police - who are directed to provide assistance to the Deputy Sheriff - so that
the provisions of the order are executed and implemented in full.
SERVICE
OF PROVISIONAL ORDER
That
leave be and is hereby granted to applicants' legal practitioners or the Deputy
Sheriff to attend to the service of this order forthwith upon the respondent in
accordance with the Rules of the High Court.
Gallop
& Blank, applicant's legal practitioners
Antonio, Mlotshwa & Company, second respondent's legal practitioners 