BHUNU
J: Most issues relevant for the determination of this case are by and large
common cause. The undisputed facts are that the first applicant Nyasha
Chikwinya was allocated 84,027 hectares of State land at Pilgrims Rest Farm in
the township of Hatcliffe situate in the district of Salisbury by the Government
of Zimbabwe under the lawful authority of the third respondent being the
Ministry of Local Government Rural and Urban Development. The applicant was
given the land as compensation of land she had lost at the behest of the
Ministry as duly confirmed by its permanent secretary Mr Shawatu.
She was
subsequently issued with a sub-divisional permit in terms of the Regional, Town
and Country Planning Act [Cap 29:12]
The
first respondent Justine Zvandasara is the chairman of the second respondent
Harare North Housing Co-operatives a federation of housing co-operatives
operating in the area. Despite the first respondent's protestations to the
contrary, I am satisfied that this matter is urgent so as to restore peace and
tranquility on an ugly volatile situation that can easily turn violent if
allowed to fester and go out of control.
The
applicant's complaint is that on 6 August 2011 she discovered that the first respondent
acting in consort and common purpose with others had invaded the piece of land
and allocated stands to members of his co-operatives.
It
is common cause that the first respondent and his compatriots invaded and
unlawfully occupied the land lawfully allocated to the first applicant. The
Ministry being the owner of the land in dispute it has the final say regarding
its alienation and disposal. To this end, the permanent secretary in the Ministry
Mr Shawatu had this to say at this hearing in front of all the concerned litigants:
"The position is
that, going through our files we have not seen anything relating to the
allocation of this land to Harare North Housing Co-operative. I actually signed
the MOU agreement between the Ministry and Ms Chikwinya. I think that is all.
I don't know who
authorised their occupation of the land. We allocate land when someone has
applied for it. In our files we have seen no application and its not automatic
that when someone applies for land he gets the land.
The land was
legally allocated to Ms Chikwinya and my suggestion is that Harare North
Housing Co-operative should submit an application which the chairman has
already done and we are considering it. The permanent secretary has no final
say".
The
first respondent was unable to contradict the Ministry's position as
articulated by its permanent secretary. That being the case, I accept Mr
Kamusasa's submissions to the effect that save for the Ministry the respondents
were not given the land by anyone. Being foreigners to the contractual arrangement
between the Ministry and Ms Chikwinya they have no legal right whatsoever to
question the allocation of the land by its owner. They therefore lack the locus standi in judicio in this
respect.
The
mere fact that the respondents have since unlawfully erected structures on
someone's land without her consent cannot sanitize or legalize their unlawful
conduct in allocating to themselves land belonging to another without lawful authority.
The respondent clearly erected those structures at their own risk knowing fully
well that their conduct was unlawful.
Having
found that the respondents have no locus
standi in judicio I come to the conclusion that it is not open to them to
challenge the format of the applicants' draft order.
The
courts generally detest issuing a final order through an urgent application, a
final order in this case is however, warranted in that the respondents have no
arguable case at all as their opposition virtually amounts to an admission of
liability The applicant previously during the course of the hearing consented
to the issuing of an order substantially on the same terms and format
previously agreed to by the parties.
That
being the case I can perceive no prejudice if the same order is repeated. It is
accordingly ordered:
1.
That the first and second respondents and all those
claiming through them, be and are hereby interdicted and or restrained from
interfering with the applicant's peaceful occupation and development of a
certain piece of land of land measuring 84,027 hectares of Hatcliffe North State
land of Hatcliffe Township situate in the District of Salisbury depicted on
Plan number HOE27
2.
That the first and second respondents be and are hereby
interdicted from selling, allocating, developing interfering with developmental
work or otherwise disposing of residential situated at Hatcliffe Township
depicted on Plan HOE27 measuring 84,027 hectares, without the applicant's
consent.
3.
That the first and second respondents and all those
persons claiming occupation through them be and are hereby ordered to vacate
occupation of any stand situated within the 84,027 hectares of land allocated
to the applicant and situated at Hatcliffe North State Land of Hatcliffe
Township, depicted on Plan No. HOE27 within 48 hours of service of this order
upon them failing of which the Deputy Sheriff, Harare being assisted by members
of the Zimbabwe Republic Police be and are hereby authorised to evict them; and
4.
That the first and second respondents be and are hereby
ordered to pay costs of suit.
Kamusasa & Musendo, applicant's legal practitioners
Muza & Nyapadi, 4th respondent's legal practitioners
