BHUNU
J: The two cases before me, that is to
say cases number HC 05/09 and HC 08 /09 were consolidated by consent of the
parties as they are closely linked and involve the same parties.
The
applicant in case N0: HC 08/09 John Landa Nkomo and the respondent Langton T
Masunda are both beneficiaries of the Land Reform and Resettlement Scheme Model
A2 Programme.
Because
of the numerous applications and counter applications relevant to this case it
is convenient to refer to the parties by their surnames to avoid confusion.
Mr
Nkomo was allocated Lugo Ranch whereas Mr Masunda was allocated Volunteer
Farms.47, 48 and 49 being contiguous pieces of land located in the Gwayi
Conservancy in Matabeleland
North Province.
Both pieces of land used to be owned by one farmer prior to
the agrarian reform programme. Because of the historical ownership of the land
in question by one former owner, the boundaries of the two farms were not
clearly defined at the time of allocation of the land to the two beneficiaries
thereby giving birth to the current land dispute.
Situate on Lugo Ranch is Jijima Lodge over
which the two protagonists are involved in vicious mortal legal battles for
ownership and control of the lodge. Despite the initial uncertainties I was
made to understand that it is now common cause that Jijima Lodge is in fact
located on Lugo Ranch. Thus Mr Nkomo claims ownership and occupation of the
Lodge on the basis that it is located on land which has been lawfully allocated
to him.
On
the other hand Mr Masunda claims ownership and occupation of the Lodge on the
basis that the Lodge and its environs was pointed out to him by Ministry of
Lands officials as part of the land which was allocated to him in terms of his
offer letter. He thus claims occupation
of the Lodge on the basis of a claim of
right arising from the pointing out of the lodge as belonging to him by
ministry officials. He thus took occupation and allegedly carried out extensive
renovations on the Lodge at the behest of ministry officials.
It
appears to me that the basis of Mr Masunda's claim to occupy Jijima lodge based
on a claim of right is grossly misplaced in so far as the concept of claim of
right is only recognised as a defence at criminal law and not as a mode of
acquiring rights or perpetuating one's illegal occupation of property. The
defence is applicable where one commits a crime relying on defective advice
given by a government official administering
a particular statute as to the true legal position, as happened in the case of Zemura 1973 (2) ZLR 357. The defence
does not seek to confer any rights on anyone but to excuse an accused person
from criminal liability on account of having made a genuine mistake of the law.
The defence is an exception to the well known adage that "ignorance of the law
is no defence."
Thus
the mere fact that ministry officials erroneously pointed out Jijima Lodge as
being part of the land allocated to him did not confer any legal right on Mr
Masunda to occupy the land to the exclusion of the true owner lawfully
allocated the land by the acquiring authority.
In
a bid to assert his rights Mr Nkomo instituted action proceedings against Mr
Masunda under case number 818/07 seeking to eject Mr Masunda from the disputed
lodge. The matter was then set down for hearing before MAKARAU JP at 9:30 am. but Mr Masunda and his
lawyer despite being notified only turned up for the hearing at 10 am. By then Mr
Nkomo had already obtained a default order requiring Mr Masunda to vacate
Jijima Lodge within 30 days of the Court order.
Mr
Masunda and his lawyer became aware of the default order on the same day and
they hastily made an application for rescission of default judgment the
following day saying that he had made an error in time. He mistakenly thought
that the matter had been set down for 10 am instead of 9:30 am. In making the
application for rescission of judgment he deliberately omitted to apply for
stay of execution assuming that the application for rescission of judgment
would automatically suspend execution of the default order.
When
the 30 day period stipulated in the default order expired without Mr Masunda vacating
the lodge and in the absence of an order staying execution Mr Nkomo issued out
a writ of execution on 15 December 2008. Acting upon the writ of execution
which was apparently valid on the face of it and whose validity has not been
challenged the second respondent, that is to say, the messenger of Court dully
ejected Mr Masunda from Jijima lodge on 19 December 2008 in compliance with MAKARAU JP's
order of 13 November 2008.
Despite
having been served with notice of eviction on 19 December and having been
ejected from the premises on the same date the applicant only filed the
application for stay of execution and restoration to the lodge
on 5 of January 2009. Mr Masunda's conduct in this regard does not exhibit any
urgency. A delay of almost a month in the circumstances of this case is wholly
inconsistent with urgency, particularly taking into account that Mr Masunda had
always known of the likelihood of his ejectment from the premises right from
the date of the default order on 13 November 2008.
His
complaint is that he was not given due notice by the Messenger of Court before
eviction. I take the robust view that this is a matter between him and the
Messenger of Court which cannot invalidate Mr Masunda's ejectment from Jijima
Lodge. This is so because, the order which forms the basis of his ejection from
the premises remains valid and binding on the parties. The Messenger of Court's
alleged misdemeanors cannot be visited on Mr. Nkomo who had no control over the
way he executed his duties.
Due
to Mr Masunda's deleteriousness Mr Nkomo has since taken occupation of the
disputed Jijima Lodge and is already operating the lodge. His occupation of the
lodge is apparently lawful in that he is occupying immovable property on land
lawfully allocated to him by the acquiring authority pursuant to a lawful Court
order issued by a competent Court of competent jurisdiction.
Mr
Masunda's intended reoccupation and use of the lodge does not seem to be lawful
on the face of it. I say so because s 3 (1) of the Gazetted Land Consequential Provisions)
Act 20:28 prohibits any one from occupying gazetted land without lawful
authority. It provides that:
"Occupation
of Gazetted land without lawful authority
(1)
Subject to this
section, no person may hold, use or occupy Gazetted land without lawful
authority."
Lawful authority is defined
in section 2 as,
"l .
(a) an offer
letter; or
(b) a permit;
or
(c) a land
settlement lease;
and "lawfully
authorised" shall be construed accordingly;"
It
is common cause that Mr Masunda has no lawful authority in the form of an offer
letter, a permit or lease issued in terms of the Act authorizing him to occupy
and use Jijima Lodge. That being the case he is prohibited by operation of law
to occupy and use the lodge. That being the case, it is highly unlikely and not
in the least probable that any reasonable Court would reverse a lawful Court
order to enable him to perpetrate an illegality.
The purpose of the Courts is to do justice
according to law and not to facilitate its abrogation. The words of MALABA DCJ in the well known
case of Airfield
v The Minister of Lands, Agriculture And
Rural Resettlement and 4 others SC 36/04 are germane to this case. In
that case the Learned Deputy Chief Justice observed that:
"An interim interdict as a remedy for the
prohibition of unlawful conduct could not be granted for the protection of the
illegal activities of the appellant. In
other words, the appellant wanted the court to grant an order stopping the
acquiring authority from acting lawfully so that it could continue to commit an
offence in carrying on farming
operations illegally."
The mere fact that officials
from the ministry of lands may have mistakenly pointed out the lodge as being
party of the land allocated to him does not convert itself into an authority
for him to occupy the lodge in contravention of the law. The Courts are averse
to aiding and abetting Mr Masunda in his bid to occupy Jijima Lodge unlawfully.
Rescission of
Judgment Case Number HC 05/09
Mr Masunda's application for rescission
of judgment under case number HC 05/09 has to be determined in the light of the
above facts and exposition of the law as I understand it. The basic requirements
for the application to succeed were laid down way back 60 years ago in the case
of Grant v Plumbers (Pty) Ltd 1949.
In that case BRINK J had occasion to remark that:
"I am of the opinion that an applicant who claims
relief under Rule 43 should comply with the following:
(a)
He must give a reasonable explanation of his default.
If it appears that his default was willful or that it was due to gross
negligence the court should not come to his assistance.
(b)
His explanation must be bona fide and not made with the intention of merely delaying plaintiff's claim.
(c)
He must show that he has a bona fide defence to plaintiff's claim. It is sufficient if he
makes a prima facie defence in the sense of setting out averments which if
established at a trial, would entitle him to the relief asked for. He need not
deal fully with the merits of the case and produce. evidence that the
probabilities are actually in his favour. (Brown
v Chapman 1938 TPD 320 at page
325.
I have no difficult in
concluding that Mr Masunda has proffered a reasonable explanation for his
default in that his lawyer made a genuine error as to the time the application
before MAKARAU JP was to be heard.
As regards Mr Masunda's
prospects of success I consider these to be virtually nil. As I have
demonstrated above he is in effect seeking the court's indulgence to perpetuate
his illegal occupation of Jijima lodge. It is my considered view that no
reasonable Court is likely to give him such an order without being seen to be
in complicit with his illegal machinations.
Application for
dismissal for want of prosecution. Case Number 08/ 09.
The facts in this case
establish that Mr. Masunda filed an application in case number 2271/08 on 14
November 2008 seeking the rescission of the default judgment entered by MAKARAU
J P. Mr Nkomo filed notice of opposition on 28 November 2008 and served a copy
on Mr Masunda's legal practitioners. By the 5th January 2009 more
than a month later Mr Masunda had neither filed an answering affidavit nor set
the mater down for hearing.
Order 32 Rule 236 provides that:
Where the respondent has filed a notice of opposition
and an opposing affidavit and, within one month thereafter, the applicant has
neither filed an answering affidavit nor set down the matter for a hearing, the
respondent on notice to the applicant, may either-
(a) set
down for hearing in terms of rule 223;
or
(b) make
a chamber application to dismiss the matter for want of prosecution, and the judge may
order the matter to be dismissed with costs or make such other order on such
terms as he thinks fit".
In light of the fact that the
applicant has no reasonable prospects of success on the main case number
2271/08, I can perceive no other appropriate order other than the dismissal of
this application with costs as provided by Rule 236 (b). In the result it is accordingly ordered:-
(1)
That in Case
Number 05/09 the applicant, Mr Masunda's application for the rescission of
default judgment entered against him by MAKARAU J P in case number HC 2271/08
be and is hereby dismissed with costs.
(2)
That the
respondent having failed to file neither a answering affidavit nor heads of
argument in the matter pending under cover of case number HC227/08, the said
Case Number HC 2271/08 be and is hereby dismissed with costs for want of
prosecution
Dube - Banda,
Nzarayapenga & Partners, applicant's legal practitioners.
Majoko and Majoko, respondent's legal practitioners.
