NDEWERE J: The first respondent was
offered land at Devon Farm on 24 November, 2009 and he says he took occupation
on 27 November, 2009. When he got to the
farm, he found the applicant there with a caretaker's letter signed by the
Acting Chief Lands Officer. The first respondent and the applicant co-existed
at the farm while waiting for the Ministry of Lands to confirm the lawful
occupier of the land. The two had some disputes caused by this co-existence.
On
2 November, 2011 the applicant was issued with an offer letter in respect of
subdivision 3 of Devon farm by the second respondent. The second respondent
then withdrew its offer letter to the first respondent for the same farm.
Aggrieved
by the second respondent's decision to withdraw his offer letter, the first
respondent approached the High Court under case No. 5896/12. The first
respondent obtained judgment in its favour on 23 July, 2013. It was a default
judgment against the then first respondent who failed to appear in court.
The
applicant (as first respondent in case no. 5896/12), did not apply for
rescission of judgment. Instead, on 28 January, 2014, the applicant consented
to the judgment in an affidavit. After consenting to the judgment, the
applicant then made a written request on the same affidavit to be allowed to
reside at the farm while he harvested and graded his tobacco. The affidavit is
attached to the first respondent's papers as Annexure B.
At
that stage, in January, 2014, the first respondent had already issued a writ of
ejectment. The applicant requested the first respondent not to enforce the writ
of ejection until 15 April, 2014 so that he, the applicant, did not suffer
great losses. The applicant went further in the affidavit,
“I am requesting
to stay on the farm until 15 April, 2014, with no extent. My default on this
agreement shall compel the applicant to enforce the writ of ejection without
any further notice and costs as a result of my breach of agreement shall be met
by myself”.
The
applicant did not vacate the farm in terms of the above affidavit signed by
him.
Instead, on 15 April, 2014, the deadline
for the applicant “without extent”, the first respondent received a letter from
the second respondent advising of his intention to withdraw its offer to him.
The first respondent made representations to second respondent, outlining why
the second respondent should not take away his land.
The
second respondent still proceeded to write a “withdrawal of Land offer” on 21
May, 2014. On 17 June, 2014, the Minister then wrote an offer letter to the
applicant offering him the land in dispute.
The
first respondent then proceeded to instruct the third respondent to proceed to
evict the applicant. The applicant was served with a notice of ejectment on 26
June, 2014, with 7 July 2014 being the date of ejectment.
On
30 June, 2014 the applicant filed this application on an urgent basis asking
the court to interdict the first respondent from evicting him and secondly to
set aside the High Court Order granted in case number 5896/12.
The
first respondent opposed the application. He said the application was fatally
defective and in addition the application was not urgent. He also said the
application lacked utmost good faith. Both parties made submissions to the
court with the applicant saying the matter was urgent while the first
respondent said it was not urgent and should be dismissed.
Rule
241 requires a chamber application to be accompanied by Form 29B “duly
completed”. Form 29 B provides as follows:-
“Application is
hereby made for an order in terms of the order/draft order annexed to this
application on the grounds that:
(Set out in
summary the basis of the application)
The accompanying
affidavit/s and documents are tendered in support of the application”.
The
applicant did not use Form 29B. He left out “… on the grounds that”: and did
not proceed to give a “summary of the basis of the application”.
The
applicant's application is therefore defective. It did not comply with r 241.
Yet r
241 is very instructive. The form includes
the words “…. on the grounds that …” to remind a litigant to put the
grounds. The form then says “summarise the basis for the application” again to
remind the litigant to inform the court and the other party the basis of the
application. The rule itself says the application “shall be accompanied by Form
29B duly completed” The use of the word “shall” shows that it is mandatory for
a litigant to use Form 29B, but the rule does not stop there, it proceeds
further and says “duly completed”. Again a reminder that after adopting the
Form, it must be completed e.g where it says summarise the basis for the
application.
It
actually makes sense for a litigant to summarise the basis of the application,
especially if the litigant wants the court to deal with the matter urgently.
How can a judge deal with the matter urgently if he/she has to plough through
the Founding Affidavit and supporting documents to find out the basis of the
application? Precious time will be spent before the judge knows the grounds of the
urgent application if litigants do not give a summary of the basis on the face
of the application as provided by r 241
and Form 29B.
The
case of New Vision Promotions v Ganya and Ors HB 54/07 referred to by
the first respondent's counsel is relevant to this case. In that case, the
court said:-
“An urgent chamber
application accompanied by a certificate of urgency should be accompanied by
Form 29B as stipulated by r 241”.
The
case of Mandlenkosi Nhliziyo vs Greys Service and Ors HH 194-10 is also
a case
in point. In that case, the applicant who
had not used Form 29B argued that he had complied with the rules because the
applicant had set out the grounds upon which the application was based in the
founding and supporting affidavits. The judge stated on p 4 of the cyclostyled
judgment:
“Rule 241(1)
clearly provides for two requirements, which are that the application shall be
supported by one or more affidavits and secondly, be accompanied by Form 29B.
The grounds upon which the application is based should be stated both in the
supporting affidavits and in Form 29B”.
The
applicant, despite the repeated requirement for “grounds” and “basis” and a
“duly completed” form ignored the provisions of r 241. He did so at his own
peril. His application is therefore defective.
The
second point in limine by the first
respondent is whether the application is urgent.
After
having regard to the Kuvarega v Registrar General and Anor 1998 (1) ZLR
188 H, I am of the view that this case falls into the category of self-created
urgency. The dispute between the parties has been on-going since 2009 because
of a double allocation of a farm. There is nothing new which warrants urgent
treatment by this court. The writ of ejectment has been there all along it is
just that applicant temporarily stopped ejectment by signing an affidavit promising
to vacate by 15 April, 2014, without extension, and empowering the first
respondent to evict him without further notice. The order in case number HC
5896/12 has been there since July 2013 and the applicant has not done anything
to have it rescinded.
The
fact that applicant in its draft order is asking this court to set that
judgment aside is confirmation that he has always been aware of the existence
of that judgment and that it is valid because it has not been set aside or
rescinded by a competent court. The applicant made the situation worse by
signing an affidavit accepting that judgment way back in January, 2014. In fact the applicant betrayed the first
respondent's trust when, instead of moving out by 15 April, 2014 he went and
obtained an offer letter and then sought to evict the first respondent.
The
applicant has been relying on the withdrawal letter sent by the second
respondent to the first respondent. Suffice it to say that the validity of that
withdrawal is a moot point given the sentiments expressed in the Sigudu v Minister of Lands and Rural Resettlement N.O and Phineas Chihota HH
11-13 referred to by the first respondent.
Even
if the withdrawal is said to be valid, the mere fact of a withdrawal does not
automatically set aside or suspend a valid court order. The court order
continues to stand until rescinded or set aside by a competent court.
The
first respondent has applied for costs on a higher scale. The court has noted
that when the applicant signed the affidavit of 28 January, 2014, he undertook
to vacate the farm by 15 April, 2014 failing which the first respondent could
evict him at his own (applicant's) costs. Given such an undertaking, the court
is of the view that the applicant should not have resisted the eviction to the
extent that he did knowing that there is a valid court order, which he accepted
and agreed to abide by its decision by 15 April, 2014. I am therefore of the
view that costs on a higher scale are warranted in this case.
Accordingly,
the court's ruling is as follows:-
(1) that
the urgent application be and is hereby dismissed for the following reasons:
(a) the
application is defective for failure to comply with r 241, and Form 29B.
(b) the
application is not urgent.
(2) that
applicant shall pay the first respondent's costs on a higher scale.
Musoni Law Chambers, applicant's
Legal Practitioners
Moyo and Partners, 1st respondent's
legal practitioners
Civil Division of the Attorney-General's Office, 2nd respondent's legal practitioners
