Honourable ZHOU J must have been confronted by a problem
similar to the one presented by this case when he decried the penchant by
individuals in this country to want to reap where they did not sow. He stated
in Southmark Trading (Pvt) Ltd and Others v Karoi Properties (Pvt) Ltd and
Others HH52-13:
“The biblical aphorism: 'whatever a man sows, that he will
reap' has lost its meaning in our society. This matter presents a sordid
picture of a culture of wanting to reap where persons did not sow.”
He proceeded later in that cyclostyled judgment:
“The fourth respondent was aware that he could not just
wake up to find himself as the holder of all the shares in a company for free.
He would know too that the indigenous legislation does not operate in the
manner that he sought to portray to justify his claim to a 100% shareholding in
the first respondent.”
The applicant in this matter, especially with the benefit
of legal counsel, should know that it is standing on sinking sand; it having no
legal right that it can possibly enforce at law. It invaded land belonging to
the fourth respondent in Msasa Park, Harare, parcelled it out to land seekers
and then approached the owner seeking to legitimise an illegal occupation of
that land.
It has now been favoured with a taste of its own medicine
by the first, second and third respondents whom the applicant claims invaded
its offices, changed the locks, and barred the applicant from there with the
help of party youths.
The applicant claims that on 13 May 2015, those respondents
began parcelling out Stands to their sympathisers and selling others to the
public even though the Stands had already been allocated by the applicant to
its own members.
There can be no better way of demonstrating that the
applicant has no right to protect in a court of law than to cite the very
documents it relies upon in making this application; the letters from F.G.
Gijima and Associates, legal practitioners representing the fourth respondent
dated 3 December 2014 and 23 April 2015. In the former letter they were
inquiring from the applicant, in response to a proposal it had made, how much hectrage
it had occupied, how many Stands it had marked, how much it was proposing to
pay among other pertinent issues. It would appear that the negotiations came to
nothing because on 23 April 2015 those legal practitioners wrote again in the
following:
“RE: MUKUVISI TASHINGA HOUSING CO-OPERATIVE
We write to you in the above matter and in reference to
previous correspondence and conferences. Our client instructs us to advise
you that it would seem that an amicable agreement cannot be reached in the
matter as the parties remain polarised on the price per square metre. By
way of final compromise, our client insists on $25= per square meter. The other
material terms remain unchanged and that is:
(a) That the extend of the vacant land in issue to be
measured and pegged by a professional surveyor.
(b) An agreed deposit to be paid within seven (7) days of
the parties entering into the agreement.
(c) The balance to be paid as monthly instalments over an
agreed period but not more than one year.
(d) An approved plan to be procured within thirty (30) days
of the parties entering into the agreement.
(e) Transfer of individual title only to commence upon
payment of the full purchase price.
Any other terms and conditions to be agreed shall be
negotiated once the parties agree on the above material terms and conditions.
We are instructed to advise you that unless an agreement is
reached by 30 April 2015, our client shall not be amenable to any further
negotiations and shall proceed to act upon the court order to evict your clients
and demolish any structures that would have been built.
We advise you accordingly
Yours faithfully
F.G Gijima
F.G. GIJIMA AND ASSOCIATES”…,.
What is clear, therefore, is that there has been no
agreement between the owner of the land and the applicant. The purchase price
has not been agreed. The land being parcelled out has not been surveyed. No
deposit has been paid. No approved plan exists. Terms and conditions of any
intended sale have not been negotiated. The deadline of 30 April 2015 has come and
gone with no agreement in sight.
Notwithstanding that, the applicant has come to court
seeking to enforce “a settlement whose contents are indicated in the letters” I
have referred to above. The applicant seeks the following relief:
“TERMS OF THE
FINAL ORDER SOUGHT
That you show cause to this Honourable Court why a final
order should not be made in the following terms;
1. The 1st to 3rd (respondents) and
all those acting through them be and are hereby barred from interfering in any
way with the applicant's operations in Msasa Park.
2. The 1st to 3rd respondents to pay
costs of suit.
INTERIM
RELIEF (GRANTED)
Pending determination of this matter, the applicant is
granted the following relief:
(i) That the 1st to 3rd respondents
are hereby ordered to vacate the offices of the applicant in Msasa Park and all
those acting through them.
(ii) The 1st to 3rd respondents are hereby
ordered not to interfere in any way with the operations and activities of the
applicant.
(iii) That the Zimbabwe Republic Police be and are hereby
directed to arrest the respondents and all those acting through them and bring
them before the court for contempt of court in the event that they do not
comply with this court order.”
Section 39(1) of the Regional Town and Country Planning Act
[Chapter 29:12] provides:
“Subject to subsection (2), no person shall -
(a) Subdivide any property; or
(b) Enter into any agreement –
(i) For the change of ownership of any portion of a
property; or
(ii) For the lease of any portion of a property for a period
of ten years or more or for the lifetime of the lessee; or
(iii) Conferring on any person a right to occupy any
portion of a property for a period of ten years or more or for his lifetime; or
(iv) For the renewal of the lease of, or right to occupy,
any portion of a property where the aggregate period of such lease or right to
occupy, including the period of the renewal, is ten years or more, or
(c) Consolidate two or more properties into one property,
except in accordance with a permit granted in terms of section forty.”
In X-trend-a home (Pvt) Ltd v Hose Law Investments (Pvt)
Ltd 2000 (2) ZLR 348 (S)…, McNALLY JA said:
“The agreement with which we are concerned is clearly 'an
agreement for the change of ownership of the undivided portion of a Stand. What
else could it be for? Whether the change of ownership is to take place on the
signing, or later, on an agreed date, or when a suspensive condition is
fulfilled, is unimportant.
It is the agreement itself which is prohibited.
The evil which the statute is designed to prevent is clear.
Development planning is the function and duty of planning authorities, and it
is undesirable that such authorities should have their hands forced by
developers who say 'but I have already entered into conditional agreement,
major developments have taken place, large sums of money have been spent. You
cannot possibly now refuse to confirm my unofficial subdivision or development.'”
It is therefore settled law that you cannot sell or
subdivide land without a permit.
I have said that the applicant did not purchase the land
from the fourth respondent and therefore has acquired no rights which it can
protect in a court of law. What is shown by the papers before me is an attempt
at legalising what the applicant did illegally. It has engaged the fourth
respondent with a view to reach an agreement over land it has not only occupied
already but has also gone ahead to parcel out to individuals. No agreement has
been reached and the owner of the property is in fact threatening eviction against
the applicant.
Even if an agreement had been reached with the fourth
respondent, such would be unlawful for want of a survey which has not been
commissioned and a subdivision permit. The applicants' only saving grace is
that I have not been requested to determine the right of ownership. What I am
required to do is to determine whether an act of spoliation has been committed
and, if it has, to restore the status quo ante until such time that the
respective rights of the parties shall have been determined.
In a spoliation application, all the applicant is required
to do is to prove possession and that he was unlawfully dispossessed. The
lawfulness or otherwise of such possession does not come into it.
I associate myself fully with the remarks of REYNOLDS J in
Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 240 (H)…,
that:
“It is a well-recognised principle that in spoliation
proceedings it need only be proved that the applicant was in possession of
something and that there was a forcible or wrongful interference with his
possession of that thing – that spoliatus ante omnia restituendus est (Beukes v Crous & Another 1975 (4)
SA 215 (NC)). Lawfulness of possession does not enter into it. The purpose of
the mandament van spolie is to preserve law and order and to discourage persons
from taking the law into their own hands. To give effect to these objectives,
it is necessary for the status quo ante to be restored until such time that a
competent court of law assesses the relative merits of the claims of each
party.
Thus, it is my view that the lawfulness or otherwise of the
applicant's possession of the property in question does not fall for
consideration at all.”
See also Moyo v Chinhamo HB111-11.
Ordinarily, I would have been inclined to restore the
status quo as lawfulness and ownership are not required - but for two factors
raised by counsel for the first, the second, the third and the fifth
respondents.
He submitted that in HC10561/13, this court, per MATANDA
MOYO J, granted an order on 25 June 2013 in favour of the fourth respondent for
the eviction of the applicant from the property. Although the order had not
been executed, the applicant's continued stay at that property was in violation
of the court order requiring it to vacate.
In addition, the same applicant approached this court, in
HC4050/15, in which it cited the first, the second and the third respondents
and sought the same relief, as in the present application. The matter was
placed before HUNGWEJ on 6 May 2015 who refused to deal with it as urgent and
removed it from the roll of urgent matters.
The applicant can therefore not come back, having only
added the fourth and the fifth respondents as parties but seeking no relief
against them and expect to be heard on an urgent basis.
Counsel for the fourth respondent confirmed that the
property indeed belongs to the fourth respondent which does not have a
development permit or approved survey diagram for the parcelling out of Stands.
He confirmed that the fourth respondent indeed has an order directing the
applicant to vacate.
Although lawfulness of possession and ownership are not pre-requisites
for the grant of spoliation relief, in my view, it would be taking the point
too far to assist a party who has long been ordered to vacate a piece of land,
to return to that land in violation of a court order. While I cannot condone
self-help by the respondents, I cannot grant relief which is in conflict with
an order of this court….,.
In the result, the application is hereby
dismissed with costs.
