URGENT APPLICATION
TAKUVA J: This matter was
brought before me on an urgent basis.
The facts of the matter are that applicant owns a piece of land known as the
Remainder of Helenvale Block L, measuring 567 – 2717 ha, held under Deed of
Transfer number 2264/85 situate in the District of Bulawayo. First and
second respondents who are land developers are sub-dividing and selling that
land notwithstanding the fact that the land belongs to the applicant.
On 13th day of October 2006, applicant made an application to the
sixth respondent for a permit for the further subdivision of subdivision L of
Helenvale Block. Pursuant to that application, on 29th day of
July, 2008 a permit for the subdivision of the property was granted. In
terms of the permit the township was to be known as “Denver Township”.
In 2011 the applicant engaged a team of engineers to design roads, sewer and
water reticulations and in 2013 the applicant's designs were lodged with the
Umguza Rural District Council. Since the day of its purchase, applicant
has enjoyed peaceful possession of subdivision L of Helenvale Block and intends
to develop the property as a township. This peace was disturbed by 1st
and 2nd respondents' activities that commenced in April 2014 when
applicant found a group of people with surveying equipment carrying out
surveying work. Applicant was alarmed and approached 4th
respondent for assistance. Although he was initially promised that the
surveying would be confined to “state land”, this turned out not to be the
case. Thereafter, applicant approached the Zimbabwe Republic Police but
nothing came of that endeavour.
On 22nd May 2014 applicant saw certain persons carrying out
surveying work on Subdivision L of Helenvale Block. These people insisted
that they were working on “state land”. These persons were purportedly
acting under the 4th respondent's authority. The 1st
and 2nd respondents are selling off such subdivided pieces of land
to the civil service. Applicant then filed this application.
The application was opposed by the 1st, 2nd and 3rd
respondents. Counsel for the 1st and 2nd
respondents raised a number of points in limine some of which he
abandoned. The first point taken was that the certificate of urgency was
invalid for the reason that the legal practitioner who prepared the certificate
simply copied almost all the paragraphs relating to urgency from the founding
affidavit.
In my view this point in limine is without merit in that a legal
practitioner has confirmed that she has read the application together with the
grounds and is satisfied that the matter is urgent. Therefore Rule 242
(2) (b) of this Court's Rules has been complied with and the point in
limine is hereby dismissed.
The second point was that the application was not urgent in
that applicant should have acted on or about the 13th March
2014. Instead it waited until 23 May 2014. This submission is
without merit in my view for the simple reason that the certificate of urgency
gives an explanation for that delay. The law does not say wherever there
is a delay the matter should be viewed as not urgent, rather it says the delay
must be explained in the certificate of urgency or in the founding
affidavit. See Kuvarega v Registrar General and Anor
1998 (1) ZLR 188 and Trust Co Mobile (Pty) Ltd & Anor v Econet
Wireless (Pvt) Ltd & Anor (1) 2011 (2) ZLR 14 (H). For that
reason, this point in limine is dismissed.
The third point in limine was that the “applicant deliberately omitted
other interested parties and cited other parties recklessly and
maliciously”. It was submitted that this gives rise to “fatal mis-joinder
and non-joinder which has the effect of destroying the whole application.”
I must hasten to point out that no authority was cited in support of this
submission. Be that as it may, Rule 87 (1) of this Court's Rules makes it
abundantly clear that no cause or matter shall be defeated by reason of the
mis-joinder or non-joinder of any party. Again, I do not find any merit
in this point and it is accordingly dismissed.
The fourth and final point taken in limine was that the provisional
order is invalid in that the interim relief is “substantially similar” to the
final order sought. Particular reference was made to paragraph 4 which
appears in both orders. In my view the two orders are essentially
different in that in the interim relief the protection sought relates to the
possession of, access into and sale of portions of the land to unsuspecting
third parties. On the other hand in the final order, applicant seeks inter
alia a declaratur that the land in dispute is owned by applicant and is
not state land. In order to obtain a final order an applicant must show a
clear right as opposed to a prima facie right. For these reasons
the final point in limine is dismissed.
On the merits, respondents argued that applicant does not have any prima
facie right in that respondents were working on “state land” acquired on
14 November 2000. It was further submitted that on 2 August 2006, the
Minister of Local Government, Public Works and National Housing issued an offer
letter to Okuhle Housing Consortium authorizing it to service and develop
residential stands on the land. Respondent produced an Acquisition Order
in terms of the Land Acquisition Act [Chapter 20:10] dated 14th
November 2000. This order authorized the City of Bulawayo to acquire the
“Western Potion of subdivision L of the Helenvale Block measuring approximately
670 hectares as depicted on drawing number TPA 5869 being part of a farm
commonly known as Denver Farm held under Deed of Transfer 2264/85 in extent
1237 2717 hectares”.
The effect of this order is that applicant was left with 567.271 hectares being
the Remaining Extent. The respondents insisted that they were not
surveying and selling stands from this portion of the farm. Rather they
were restricting their operations to the 670 hectares acquired by the City of
Bulawayo. They however did not produce any authority to demarcate and
sell that land to third parties.
Applicant's Counsel then sought a postponement in order to consider the
acquisition order and its effects on its application. The request was
granted and the matter was postponed to the 2nd of June 2014.
On this date Mr Tshuma submitted that applicant has title to the
property held under Deed of Transfer number 2264/85 in the name Gamange (Pvt)
Ltd. However its rights are subject to an order granted by consent
confirming the acquisition by the City of Bulawayo of 670 hectares after
payment of compensation. The remaining extent measuring 567.2717 hectares
belongs to Gamange (Pvt) Ltd and is known as the Remaining Extent of
Subdivision L of Helensvale Farm. Applicant contended that respondents
are working on this remaining extent which has not yet been acquired by the
state in that the letter dated 9 August 2006 simply exhibits an intention to
acquire this land but it is not in itself an acquisition order.
Mr Mashizha persisted with his submission that respondents were
working on 670 hectares belonging to the City of Bulawayo and not surveying
applicant's land. It became clear to the court that this dispute could
only be effectively resolved through an inspection of the area in
dispute. Both legal practitioners agreed with the court and the following
order was issued by consent:
“Accordingly, in terms of Rule
246 (1) (a) (b) of the High Court Rules 1971, I consider it necessary that the
following steps be taken by the parties and their legal practitioners assisted
by officers from the Surveyor General's Office and Department of Town Planning
from the City of Bulawayo.
1)
Carry out an inspection of the area in dispute in order to ascertain the extent
and precise boundaries of the land acquired by the Bulawayo City Council under
Acquisition Order dated 20 November 2000.
2)
Carry out an inspection of the Remaining Extent and establish its dimensions
and boundaries.
3)
Establish through physical inspection the precise location of stands that have
been or are being demarcated by the respondents in relation to the two pieces
of land mentioned in (a) and (b) above.
4)
Officers from the Surveyor General's Office and Town Planning Department of the
Bulawayo City Council must submit their findings on oath.
5)
Both legal practitioners shall present such further argument as is necessary.
6)
This exercise must be carried out within 7 days from the date of this order.
7)
Matter be and is hereby postponed to the 13th June 2014.”
The Town Planning Department and the Surveyor General's
Office submitted their reports in affidavit form. The two reports
confirmed that the 1st and 2nd respondents were carrying
out activities on the remaining extent belonging to the applicant. Mr
Tshuma submitted that since the findings of the officers are to the effect
that 1st and 2nd respondents are not working on land
acquired by the City of Bulawayo, the acquisition order by the Bulawayo City Council
becomes irrelevant in these proceedings. He further submitted that the
applicant is entitled to the relief sought in the draft order.
Mr Mashizha did a
somersault and admitted that 1st and 2nd respondents were
working on applicant's land. He however rather surprisingly insisted that
they had authority to work on the land by virtue of the offer letter issued by
the Minister of Local Government. Mr C. Karinga who was now
representing 3rd, 4th and 5th respondents
filed an opposing affidavit by 4th respondent. The
affidavit in paragraphs 3 and 4 reads as follows:
“Upon discussing this matter
with the Minister of Lands and Rural Resettlement, Honourable Douglas
Mombeshora, his deputy Honourable Tendai Savanhu and the Permanent Secretary
Mrs Tsvakwi, I was advised that the government has since decided to
compulsorily acquire the land in question. I was made to understand
that the Ministry of Lands, acting upon instructions from the Ministry of Local
Government, Public Works and National Housing, has since commenced the
compulsory acquisition process of the whole of subdivision L of Helenvale Block
measuring 1237.2717 hectares. In that meeting Mrs Tsvakwi was then
instructed by the Minister of Lands to write a letter to the Registrar of this
Honourable Court advising the court of this development. I attach hereto
marked “A” a copy of the letter from Mrs Tsvakwi for ease of reference.
4.
In view of the above development, I verily believe that the present
application has been overtaken by events and the relief sought by applicant is
no longer capable of being granted. I am of the opinion that if
applicant is disgruntled by the latest development in the matter, it
should direct its concerns or objections to the Ministry of Lands and Rural
Resettlement and not the respondents currently before the court.” (my emphasis)
Both, Mr Mashizha and Mr Karinga
indicated that the process of compulsorily acquiring applicant's remaining
extent has commenced in that a notice to that effect has appeared in the Chronicle
of Friday the 13th June 2014 – the day the matter was being heard.
The requirements for an interdict are well
established. They are –
(i)
A clear right;
(ii)
Injury actually committed or reasonably apprehended; and
(iii)
The absence of similar protection by any other ordinary remedy – see Bluebell
Inc v Lennard Clothing Manufacturers (Pvt) Ltd 1984 (1) ZLR
In casu, it is beyond
question that the applicant has established a clear right to the land in
issue. The applicant is the registered owner of the land. The state
has expressed a mere intention to acquire or at the very least has commenced
the process of acquiring the land in question. The process of acquiring
land in terms of the Land Acquisition Act is well known. It is tedious
and where the state is successful, the end result is an acquisition
order. It is only after such an order is issued that land is lawfully
acquired. The Permanent Secretary confirmed that currently the land has not
yet been acquired. Therefore this land does not belong to the state but
to the applicant. In that respect, the 4th respondent's view
that the relief sought by the applicant is no longer capable of being granted
is erroneous and legally untenable in that it renders the provisions of the
L:and Acquisition Act and the Constitution of Zimbabwe nugatory.
It is an undeniable fact that the applicant's right is
under threat. The evidence has shown beyond a shadow of doubt that 1st
and 2nd respondents are currently working on applicant's land
without its consent. They are busy subdividing that land into smaller
pieces and selling those pieces to 3rd parties. This, they are
doing in broad daylight disregarding applicant's rights. First and second
respondents have and continue to cause actual harm to the applicant.
As regards irreparable harm, it is crystal clear that the 1st
and 2nd respondents are altering applicant's land without its
consent. They are selling it to other people. Applicant's right to
use its land in the manner it chooses has been seriously prejudiced by
respondents' conduct. There is obviously going to be huge financial loss
to the applicant. Also applicant has been exposed to imminent litigation
against those third parties who are buying land from 1st and 2nd
respondents.
That there is no alternative remedy available to the
applicant has been clearly demonstrated by the evidence. Applicant tried
to dialogue with 4th respondent to no avail. It then
unsuccessfully sought assistance from the police.
For these reasons, I am impelled to conclude that applicant
has fulfilled all the requirements for an interdict.
Accordingly, there shall be a provisional order in the
following terms:
Pending the return date of this matter, the applicant be
granted the following relief:-
1.
The 1st, 2nd and 3rd respondents be and are
hereby indicted from advertising for the sale of Subdivision L of Helenvale
Block or any portion thereof, from entering into any further agreement of sale
in respect of the land or any portion thereof, from entering the land without
applicant's permission or from otherwise disturbing applicant's peaceful
possession of the land.
2.
This order shall not preclude the applicant or any other present legal occupier
of the farm from holding, occupying or using the land including all
improvements thereon and from continuing all operations until the finalization
of this matter.
Webb, Low & Barry incorporating Ben
Baron & Partners, applicant's legal practitioners
Messrs Sachikonye-Ushe c/o Lazarus & Sarif, 1st & 2nd respondents' legal
practitioners
Civil
Division, Attorney General's Office, 3rd,
4th & 5th respondents' legal practitioners
