The
applicant is a former farm owner which has been evicted from a farm
known as the Glebe in the District of Goromonzi which it held by Deed
of Transfer number 224/96. The farm in question was acquired by the
Government under the land reform programme in terms of the Land
Acquisition Act [Chapter
20:10].
When
that happened, the applicant must have engaged the acquiring
authority succeeding in securing a compromise in terms of which the
farm was divided into two (2) and a consent order being granted by
the Administrative Court on 8 August 2003 in the following:
“IT
IS ORDERED BY CONSENT THAT:
1.
The acquisition of the under-mentioned property, in terms of section
7 of the Land Acquisition Act [Chapter
20:10],
be and is hereby confirmed:
(a)
Portion of GLEBE measuring 526,81 hectares situated in the District
of Goromonzi held under Deed of Transfer number 224/96.
2.
The acquisition proceedings in respect of the remaining portion of
GLEBE measuring 142,38 hectares situated in the District of Goromonzi
held under Deed of Transfer No.224/96 be and is hereby withdrawn.
3.
The applicant shall subdivide GLEBE and pay the subdivision costs
thereof.
4.
There shall be no order as to costs.”
Subsequent
to that, the acquiring authority allocated portions of the farm, left
for the applicant under the consent order, to the third, fourth and
fifth respondents who gladly accepted the offer and moved to claim
possession. By letter dated 27 January 2015, signed by the Provincial
Administrator, the Chief Lands Officer and the Minister of State for
Provincial Affairs, the applicant was given notice to vacate the farm
coupled with authority to remain at the farm, winding up its affairs,
up to 26 April 2015.
On
12 March 2015, the applicant instituted summons action in HC2273/15
against the Chief Lands Officer, the Minister of Lands and Land
Resettlement and the third, fourth and fifth respondents herein
seeking to evict the third, fourth and fifth respondents from the
farm and to enforce the consent order issued by the Administrative
Court 12 years ago. It says that the summons action is still pending.
The
applicant has now made this application, on a certificate of urgency,
seeking the following relief:
“TERMS
OF THE FINAL ORDER SOUGHT
1.
The respondents are interdicted from interfering with the applicant's
property rights pending the finalisation of HC2273/15.
2.
The respondents' eviction of the applicant is wrongful and
unlawful.
3.
The respondents are barred from accessing 'The Glebe' Farm
without the consent of the applicant.
PROVISIONAL
ORDER GRANTED
Pending
the confirmation of the provisional order;
IT
IS ORDERED THAT:
1.
The respondents are ordered to allow the applicant access to 'The
Glebe' Farm forthwith.
2.
The respondents are barred from going to 'The Glebe' farm and are
prohibited from harassing the applicant's workers in anyway
whatsoever pending the return date.
3.
The respondents are ordered to forthwith restore Mathew Hopegood's
occupation at 'The Glebe' farm and to his house and not to
further interfere with his stay thereat.”
In
the founding affidavit of Mathew Hopegood, the applicant states that
the respondents have resorted to self help. Mathew Hopegood expressed
surprise at receiving the notice to vacate the farm when he had been
nursing a consent order issued by the Administrative Court 12 years
ago in terms of which the applicant is entitled to conduct business
at the farm while he, in turn, is entitled to stay there. He says he
was “shocked” at being evicted on 8 June 2015, especially as he
had filed summons action on 12 March 2015 challenging the eviction of
the applicant from the farm and the respondents had not a court order
for the eviction and they are not officers of the court charged with
execution of court orders.
The
five (5) respondents cited in the application all opposed it.
The
police denied being involved at all in the eviction of the applicant
and denied posting a sentinel at the gate of the farm. In fact,
counsel who appeared for them, together with Mr. Mbara,
of Police Headquarters, was emphatic that not only did the police not
deploy at the farm, they are well aware that they have no power to
perform any farm evictions with or without a court order.
The
third, fourth and fifth respondents were also adamant that they had
nothing to do to do with the activities of 8 June 2015. They all have
offer letters in respect of the portions of the farm; being
subdivisions 1, 2 and 3 which they occupy while the applicant remains
on the more developed portion, namely, subdivision 4.
If
I had any doubt about that then the agreement signed by the applicant
and the fifth respondent, in terms of which the latter gave up
subdivision 4, which had initially been allocated to him, in
preference of the undeveloped subdivision 3, removed all the doubt.
If
the fifth respondent was so magnanimous as to surrender a farm
allocation to the applicant, what would motivate him to return and
assist in the eviction of the applicant?
I
agree that the citation of these respondents was based on suspicion
rather than fact. Counsel for the applicant could not advance any
argument to support the allegations against the five (5) respondents
following the evidence placed before me in opposition.
As
it turns out, it was Timothy Tendai Muyambo, the holder of an offer
letter dated 28 May 2015, in respect of subdivision 4 of The Glebe,
who is the culprit. He was served with this application and appeared
in person to make a confession.
Counsel
for the applicant applied to join Timothy Tendai Muyambo as sixth
respondent as not only does he have an interest in the matter, he, in
fact, is the one who has moved onto the farm and is elbowing the
applicant out of the farm. Timothy Tendai Muyambo submitted that
after he received an offer letter in respect of subdivision 4 he
moved to take occupation. Initially, he met the applicant's
representative and advised him he would be moving onto the farm on 8
June 2015 at which he expected the applicant to have vacated.
When
the applicant did not, he hired people from neighbouring farms and
brought them to the farm on 8 June 2015. He addressed the workers of
the applicant and advised them that he was taking over the farm and
that from then on they were working for him as he wanted to continue
running the flower business the same way the applicant had. As the
warehouse was full of stock, he instructed the workers to call Mathew
Hopegood to come and remove it, sell it, and pay the workers their
dues up to the takeover.
Timothy
Tendai Muyambo exonerated
all the other respondents, stating that the guards at the farm at the
moment are his own. He did what he did with neither the police nor
the other respondents. He admitted that he does not have a court
order and did not elicit the assistance of the Sheriff or the police
to take over the farm.
Clearly,
therefore, Timothy
Tendai Muyambo has
resorted to self-help.
In
moving for the grant of interim relief, counsel for the applicant
cited section 74 of the Constitution of Zimbabwe which provides:
“No
person may be evicted from their home, or have their home demolished,
without an order of court made after considering all the relevant
circumstances.”
That
provision is located right under Chapter 4 of the Constitution - the
declaration of rights. It contains justiciable rights and binds the
State and every person including juristic persons. In terms of
section 46 thereof, when interpreting Chapter 4, a court is required
to give full effect to the rights and freedoms enshrined in that
chapter.
The
right against arbitrary eviction is therefore a fundamental one and
may not be derogated from.
Timothy
Tendai Muyambo exhibited his offer letter dated 28 May 2015; meaning
that he may have been in a hurry to enjoy the benefits of it given
that he proceeded with haste only ten (10) days after he got it to
move onto the farm regardless of the farm being occupied by the
applicant, who is conducting a thriving flower business.
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 no matter how much of a right they have
in the property possessed by another; Chisveto
v Minister of Local Government and Town Planning
1984
(1) ZLR 240 (H)…,.
It
is critical that the status
quo ante
is restored until such time that a court of competent jurisdiction
has determined the relative merits of the claims of the parties - the
very principle sought to be protected by section 74 of the new
Constitution.
When
inquiring on whether spoliatory relief should be granted or not, the
lawfulness or otherwise of the applicant's possession does not come
into it; it being enough that dispossession was done forcibly or that
there was wrongful interference with possession of a thing.
I
am satisfied that the applicant has made out a good case for the
relief that it seeks; it being common cause that, without a court
order or due process, Timothy
Tendai Muyambo
arrogated to himself the power to evict the applicant and take over
the farm.
In
the result, it is ordered that:
1.
Timothy Tendai Muyambo is hereby joined as the sixth respondent in
this matter.
2.
The application against the first, second, third, fourth and fifth
respondents is hereby dismissed with costs.
3.
The provisional order is hereby granted against the sixth respondent,
Timothy Tendai Muyambo, in terms of the draft order as amended.
