MAFUSIRE J: This was an
urgent chamber application to stop an eviction on the grounds that the second
respondent, the messenger of court, allegedly on the back and call of an
official from the Ministry of Lands, was straying outside the four corners of
the court order that defined the premises the applicant, and all those claiming
occupation through him, had to be evicted from.
The applicant said the
messenger of court, in executing the warrant of ejectment, was to strictly confine
himself to such premises as were mentioned in the judgment of the court a quo, namely the homestead on Lot 21A
of N.R.A., measuring +/- 224m2
[emphasis by applicant]. Instead of
doing that, the messenger of court, at the back and call of the Ministry of
Lands official, was bent on evicting the applicant, and those claiming
occupation through him, particularly his workers and manager, not only from the
homestead, but also from the adjacent, stand-alone buildings or developments or
structures that comprised a cold room, a butchery, a workshop, five servants'
quarters, a manager's house, some twelve feed rooms and an abattoir.
The first respondent
opposed the application. The messenger of court appeared at the hearing to
explain what he was doing on the ground.
The first respondent
raised three points in limine. The
first was that the matter was not urgent. The second was that the interim
relief was exactly the same as the final order sought. The third and last was that
the applicant was non-suited by reason of the non-joinder of the Ministry of
Lands, the acquiring authority, and therefore the true owner of the land in
question.
The urgent chamber
application was filed on 2 February 2017. The first respondent said the order
of eviction had been given on 25 November 2016, thus almost three months ago,
and that after the applicant had appealed, the first respondent had obtained
leave to execute on 27 January 2017. The first respondent's point was that the
applicant had slept on his rights since November 2016.
I dismissed the first
point in limine. It was
ill-conceived. Legal practitioners should not waste precious time by raising dud
points in limine as if they are a
mandatory ritual in every case.
Plainly, the applicant never
slept on his rights. He acted immediately when the need to do so had arisen.
When he lost the eviction proceedings, he appealed. When the first respondent
applied for leave to execute pending appeal, he opposed it. When the second
respondent came to execute the warrant of ejectment, he reacted by filing the
urgent chamber application a mere two days later.
The first respondent's second
point in limine, namely that the
interim relief was exactly the same as the final one, had merit. But I held
over decision on it and opted to hear the merits. A draft order can always be
amended on good cause shown and with an appropriate order of costs.
I
dismissed the third point in limine,
the one about the non-joinder of the Ministry of Lands. The urgent chamber
application was not about anything done, or to be done, by the Ministry of
Lands, even though there was some gratuitous reference to the messenger of
court taking instructions from some lands officer, which the messenger of court
denied. The urgent chamber application was about the allegedly wrong conduct of
the messenger of court, at the instance of the first respondent. I could
effectively determine that dispute. It was between the parties before me. I
could determine it even in the absence of any other party whose presence would merely
have been for peripheral purposes.
Rule
87[1] of the Rules of this Court is clear. It says no cause or matter shall be
defeated by reason of the joinder or non-joinder of any party, and that the
court may, in any cause or matter, determine the issues or questions in dispute
so far as they affect the rights and interests of persons who are parties to
the cause or matter.
Both the first and second
respondents denied that the second respondent had strayed outside the four
corners of the court order. They admitted that the ejectment was meant to cover
the structures mentioned by the applicant, save for the manager's house. This
was some appreciable distance from the rest of the buildings. The applicant
concurred the manager's house was a considerable distance away from the rest of
the structures.
The respondents argued
that the homestead, as identified by the court order, comprised the main
dwelling or farmhouse and its adjacent buildings such as the workers' quarters,
the butchery, abattoir, workshops, and all the rest of them in the applicant's
papers. The first respondent argued that the “homestead” from which eviction was
sought, had been canvased and resolved in the court a quo. He said this “homestead” was not to be identified merely by
reference to the area, i.e. +/- 224m2, but also by reference to a
map that depicted the actual homestead and the extent of the land covered. That
map had been produced during the eviction proceedings.
After submissions I
dismissed the application and said written reasons would follow. These are
they.
The background to the
application was this. The first respondent was one of a number of persons
allocated pieces of land by government, as the acquiring authority, under its
land re-distribution programme. The allocation was on the farm or ranch previously
owned and occupied by the applicant. In addition to the subdivision allocated
to him, the government also leased to the first respondent, under a written
agreement of lease for five years, the homestead on that farm. The lease
agreement described the leased property as “…
a homestead on Lot 21A N.R.A in on land [sic] measuring +/- 224m2 approximately situated in the district
of Mwenezi as depicted on the map attached hereto. The site with the said
buildings and improvements in hereinafter referred to as [“the leased premises”]” [sic].
The first respondent
complained that the applicant was refusing to move out. He instituted ejectment
proceedings in the magistrate's court. After a full trial, the order of
eviction was granted. In the course of his judgment the magistrate said:
“There is therefore evidence to
conclude that the homestead which is the subject matter is the one on the map
and that it is occupied by the first defendant.”
The applicant appealed. He
attacked the magistrate's findings and the order of eviction. The one ground of
appeal nearest in relevance to the proceedings before me said that the
magistrate had erred at law by ordering the applicant's eviction from “a homestead” without a proper
description as to whether the homestead referred to one residential dwelling,
or several residential dwellings, and that this rendered the eviction order a brutum fulmen and therefore not
executable. The applicant sought that the appeal be upheld with costs; the
judgment of the court a quo set aside
and substituted with an order dismissing the claim for ejectment.
The first respondent
countered by applying for execution pending appeal. The application was
granted. Following that, the first respondent issued a warrant of ejectment. It
was that warrant that the second respondent was executing when the applicant
brought the present proceedings.
At the hearing, the
second respondent denied that he was taking orders from the lands officer in
executing the warrant. He explained, both by affidavit and through oral
submissions, that when he got to the farm to execute the warrant, it was the applicant's
manager, one Lilian van Beek [“Lilian”], who showed him the
homestead the subject of the eviction. It comprised the main dwelling, which he
said was a mere shell that had been razed to the ground by fire; and the
adjacent buildings referred to in the applicant's founding affidavit. He said
Lilian also showed him a compressor and some two big generators which she
wanted to know whether the applicant could carry them away with him. The second
respondent said on those “removables”
he referred her to the lands officer who was there present with him.
The second respondent
also said he did not intend to evict anyone from the manager's house which was
some considerable distance away from the homestead. He wondered why this
structure had ever been referred to in the application. He said Lilian's major
concern on the day had been whether she and her staff would be given the
mandatory forty-eight hours' notice to vacate, as had been advised by their
lawyer. He had said yes.
The second respondent
also said that Lilian had agreed to do some money transfer into his bank
account to cover the costs of eviction, but that she appeared to have reneged
on that promise. He would then have to attach so much of the movables at the
homestead as would satisfy his costs.
On the basis that the
messenger of court was straying outside the confines of the court order, the
applicant sought two sets of orders, one couched as interim relief, and the
other as final. But they were exactly the same, word for word. They read:
“[a] The ejectment of the Judgment [sic] under Case No. Ev 04/15 be and is
hereby confined to a homestead on LOT 21A NUANETSI RANCH A in Mwenezi measuring
+/- 224m2 as per the Court Order dated 25 November, 2016.
[b] That if ejectment had already been
effected in respect of any property or building not stated on the Court Order,
that it be reversed and vacant possession be restored forthwith to the Applicant.”
The
application failed on two major, but inter-related grounds.
The first was that the
relief sought was incompetent. It was effectively a final relief. You do not
seek a final order through an urgent chamber application.
It has been stated time
and again that the object of an urgent chamber application is to get interim
protection. Because of the urgency that may be manifest on the papers, the
application is allowed to jump the queue of cases awaiting determination at the
courts. But the issues are not interrogated to any great depth. As long as an
applicant shows a prima facie right,
even if this be open to some doubt; a well-grounded apprehension of an
irreparable harm; that the balance of convenience favours the granting of an
interim interdict; that there is no other satisfactory remedy; and that there
are reasonable prospects of success in the merits of the main case, the
applicant should be entitled to relief: see Setlogelo
v Setlogelo; Tribac [Pvt] Ltd v Tobacco
Marketing Board;
Hix Networking Technologies v System
Publishers [Pty] Ltd & Anor; Flame Lily Investment Company [Pvt] Ltd v Zimbabwe Salvage [Pvt] Ltd and Anor and Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent &
Anor.
I
can do no better than quote the seminal statement by CHATIKOBO J in Kuvarega v Registrar – General & Ors:
“The practice of seeking interim
relief which is exactly the same as the substantive relief sued for, and which
has the same effect, defeats the whole object of interim protection. In effect
a litigant who seeks relief in this manner obtains final relief without proving
his case. That is so because interim relief is normally granted on the mere
showing of a prima facie case. If the
interim relief is identical to the main relief and has the same substantive
effect, it means that the applicant is granted the main relief on proof merely
of a prima facie case. This, to my
mind, is undesirable where, as here, the applicant will have no interest in the
outcome of the case on the return day.”
See also Women & Law in Southern Africa & Ors
v Mandaza & Ors
Justice
delivery requires that in every case the real or main dispute between the
parties be determined finally. It is like surgery. The main dispute is the cyst
or boil or ulcer that is threatening the social harmony that must exist between
people. That ulcer must be opened up and treated. The patient has to be booked
for surgery. It may take time. The patient has to wait in the queue, just like
in ordinary application or action proceedings. Until the ulcer is removed, the
pain may remain. The ulcer may actually lead to other complications.
It often happens that
pending the determination of the main dispute, i.e. the treatment of the ulcer
by surgery, other side issues or disputes may develop. But these are mere
symptoms of the main problem. They may not require elaborate surgery. A simple
prescription may be all that is necessary to provide interim relief. That
simple pain killer is the provisional order that may be granted in an urgent
chamber application. But it is granted on the understanding that the main
surgery to deal with the real problem is awaiting determination.
In this case, for both
interim and final relief, the applicant sought that the eviction be confined to
a homestead measuring +/- 224m2 and that if the ejectment had
already taken place, that it be reversed.
Although imprecisely
stated, the nature of the relief sought by the applicant belied an underlying
problem. That problem was simple. It was this: what precisely was meant by
homestead? The term, in this case, might or might not have borne the same
dictionary meaning.
Ahead of the hearing both
parties had Googled “homestead”. They
had come up with definitions that suited their stand-points. The applicant said
a homestead was a single dwelling that, in the context of their case, was +/-
224m2 on the farm in question. Anything outside +/- 22m2 was
straying outside the four corners of the court order.
On the other hand, the
first respondent said in ordinary parlance, and by definition, a homestead is a
farm house and its adjacent buildings. It is a cluster of houses. In the
context of their case, it comprised not only the main farm house, that had been
razed to the ground by fire and in which nobody was still living, but also the
rest of the outbuildings mentioned in the applicant's papers, save for the
manager's house which was, in effect, a separate homestead on its own, some
appreciable distance away from the main homestead.
So evidently, the main
dispute between the parties, the ulcer, on that narrow issue, was what was the
nature and extent of that homestead? Was it a single building +/- 224m2
in extent? Or was it a cluster of buildings at the same location?
This main dispute had to
be determined someday, if that had not been done already. Since the parties
could not agree on what comprised a homestead it meant a court or tribunal
somewhere would have to arbitrate on it and pronounce judgment. After that
there should be no dispute as to the reach of the warrant of ejectment.
The one major weakness
with the applicant's application was that the determination of that main
dispute was pending nowhere. It is true that there was an appeal against the
magistrate's order of eviction. But in that appeal the court was not being
called upon to determine what “homestead” meant. It was being called upon to
reverse the eviction order on grounds completely unconnected to the meaning of
homestead. In a nutshell, the applicant was challenging the loss of his farm.
In the one ground of
appeal in which he said the magistrate had erred by ordering eviction from a
homestead without a proper description of what homestead meant, the applicant
was not calling upon the appeal court to define that term for them. Instead, he
was calling upon the appeal court to brand the magistrate's order as an
unenforceable brutum fulmen. So,
nowhere was surgery pending to remove the ulcer. That means the urgent chamber
application hung on nothing
Determining what was
meant by homestead was not the task before me. The task before me was, or ought
to have been, if a prima facie case
had been proved, to give interim relief to the applicant by stopping the
eviction, pending the resolution of the main dispute, namely determining what
homestead meant. That was the point lost to the applicant.
The other point lost to
the applicant – and this was the second reason for the dismissal of the
application – was that, in effect, what homestead meant had already been
determined by the court a quo. It was
disingenuous for the applicant to try and push through the argument that
homestead was a single dwelling merely +/- 224m2 in extent. The
lease agreement did not just say “… homestead
… measuring +/- 224m2 …” and stop there. It also said “… approximately situated in the district of
Mwenezi as depicted on the map
attached hereto …” [my emphasis]. That was not all. It also said “… the site with the said buildings [not just
building] and improvements …” would
be “… the leased premises …”
So the lease agreement
itself, the bedrock of the eviction proceedings, recognised that the homestead
was more than just one dwelling.
Then the magistrate
concluded that there was evidence that the homestead was the one on the map.
That map was also produced in the proceedings before me. It referred to a
rectangle with a cluster of buildings. It was not in dispute that those were
the structures mentioned in the applicant's founding affidavit.
Above all, and at any
rate, the dictionary meaning of “homestead” is a farmhouse and the adjacent
buildings. Wikipedia, the free encyclopaedia, says:
“A homestead is a dwelling,
especially a farmhouse, and adjacent outbuildings, typically on a large
agricultural holding such as a ranch or station.”
Having won an order of eviction
in the main proceedings, and having been granted leave to execute pending
appeal, the first respondent was entitled to enjoy the fruits of his success.
The second respondent was not straying outside the boundaries of the court
order. The manager's house would not be included in the ejectment. The object
of the urgent chamber application was manifestly to frustrate a legitimate
process. It was designed to throw the parties back to the position that they
had been in before litigation had started. That was wrong.
It was for the above
reasons that I dismissed the application with costs.
6 March 2017
Saratoga Makausi
Law Chambers,
legal practitioners for the applicant
Kwirira & Magwaliba, legal practitioners
for the first respondent
