Urgent
Chamber Application
MUREMBA
J: On 2 January 2015 the applicant made an urgent chamber application
for a provisional spoliation order against the respondents which I
granted on 5 January 2015. I have been asked for the full reasons for
my judgment and these are they.
It
is common cause that there has been a legal wrangle over the
ownership of subdivision 1 of Lot J, of Borrowdale Farm measuring
416,25 hectares (Crowhill farm) which has been on-going for years
between the applicant and the first respondent. Each party claims
ownership thereof.
The
brief history of this property which culminated in the present
application for a spoliation order is as follows. Before 2003 it was
the applicant which was in occupation of this property. The said
property was gazetted in 2003 for agricultural purposes during the
land reform and resettlement programme. On 10 November 2003 the
first respondent was given an offer letter over the said property.
She took occupation thereof. On 2 May 2014 following the Presidential
Proclamation 1 of 2012 which turned the property in question from an
agricultural land to an urban land meant for urban development, the
Ministry of Lands, Agriculture and Rural Resettlement withdrew the
offer letter it had granted to the applicant in 2003.
Meanwhile
on 17 March 2004 the applicant had obtained an eviction order against
the first respondent from this court. Apparently the parties had
continued to fight after the first respondent had been given the
offer letter in 2003. So following the withdrawal of the first
respondent's offer letter on 2 May 2014, the applicant had a writ
of ejection issued by the Registrar of this court on 7 May 2014.
This writ was based on the eviction order of 17 March 2004 by this
court. Following the writ, the applicant successfully evicted the
first respondent from the property on 13 May 2014.
Having
been disgruntled by the eviction, the first respondent came to this
court on 2 July 2014 and obtained an order by default, which order
set aside the eviction order of 17 March 2004 and the writ of
ejection of 7 May 2014. Having obtained this order, the first
respondent tried without success to have a writ of ejection issued by
the registrar of this court in order to evict the applicant who had
taken occupation on 13 May 2014. Apparently the default judgment of 2
July 2014 was inadequate in that it did not direct the Sheriff of the
High Court to enforce that judgment. The first respondent tried to
have the order amended by Justice CHIGUMBA who had granted it, but
she indicated that the first respondent ought to make a court
application to effect the amendment, suffice to say the first
respondent never made that application.
In
its papers, the applicant averred that on 28 December 2014 the first
respondent enlisted the services of the second respondent and both
respondents came to the property armed with knobkerries, iron bars,
assaulted the occupants and forcibly evicted them. The applicant
stated that following the proclamation by the President, it had been
given title to develop the land and it had developed the said land
into residential stands. Apparently it had sold some of the stands to
individuals. When the respondents came on 28 December 2014 they
ordered everyone out including employees of the applicant and
individual title holders who had bought stands.
The
foregoing resulted in the applicant rushing to this court with the
present application. In response to the application, the respondents'
counsel Advocate Hashiti
raised
some points in
limine.
Points
in
limine
1)
Non-compliance
with r 241(1)
Advocate
Hashiti
argued
that the application was not accompanied by form 29B as is required
by r 241 (1) of the High Court Rules, 1971. I dismissed this point in
limine.
Urgent
chamber applications should be accompanied by form 29B which form
requires that the applicant sets out the grounds upon which the
application is based in summary form.
In
casu
the applicant as correctly submitted by its counsel complied with the
rule. The applicant stated the nature of relief sought, that is, the
restoration of the status
quo ante
of its unlawfully deprived possession of subdivision 1 of Lot J of
Borrowdale by the respondents on the grounds that:
a)
the applicant was in peaceful and undisturbed possession of the
property and
b)
the respondents deprived the applicant forcibly and wrongfully
against its will.
The
applicant laid sufficient basis for its application.
2)
Conflict
of interest by applicant's lawyer
It
was submitted that Mr Dzvetero
who
was representing the applicant was conflicted because in matters
preceding this matter that involved the same parties Mr Dzvetero
represented
the first respondent and as such he was privy to personal information
about the first respondent. In Mutanga
v
Mutanga
2004 (1) ZLR 475 (H) it was held that the conduct of a legal
practitioner acting first for one party, then the other, in
litigation should be discouraged.
In
casu
Mr Dzvetero
argued that while it was true that he once worked in the law firm
which used to represent the first respondent it was not him, but Mr
Mlotshwa who used to receive instructions and act on behalf of the
first respondent. He said personally he never received instructions
from the first respondent nor did he ever represent her or assist Mr
Mlotshwa in matters involving the first respondent.
Mr
Dzvetero's
explanation left me convinced. Furthermore, Annexure A3 which is
attached to the respondents' opposing papers which is a letter of
complaint written to the Law Society by the first Respondent makes it
clear that the person who was representing her in her cases was Mr
Mlotswa. In that letter the first respondent was categorical that she
had taken offence against Mr Dzvetero
because
he was working with Mr Mlotshwa. I am sure that if it was Mr Dzvetero
who had personally represented her she would have stated so. At the
time this application was made Mr Dzvetero
and Mr Mlotshwa were no longer working together as Mr Dzvetero
is now with a different law firm. Obviously the scenario in the
Mutanga
case
is distinguishable from the scenario in the present case. Again, I
dismissed this point in
limine.
3)
Locus
standi
It
was argued that the applicant had no locus
standi to
bring this application as it had indicated in its papers that it had
sold part of the land to private individuals, so this land no longer
belonged to it but to those individuals. It was argued that the
applicant had not laid the basis or authority for representing these
individuals who should have represented themselves. Further it was
argued that the applicant did not state what portion of the land it
was occupying.
The
counter-argument by the applicant's counsel which I found
satisfactory was that although the applicant had sold ¾ of the land
it still had ¼ which had not yet been sold. He added that the
applicant was still servicing the whole piece of land including the
stands that had been sold. He added that some of those stands that
had been sold were still unoccupied by their owners and it remained
the applicant's duty to hand over the stands to the buyers.
I
pointed out that we were not dealing with the issue of ownership
here, but the issue of possession. So the question was not whether or
not the applicant owned the whole piece of land or had sold part of
the land, but whether or not the applicant had possession of the land
in question at the time it alleged to have been despoiled. The
applicant stated that it was still servicing the whole piece of land.
The whole piece of land was still under its control. To me that
established locus
standi.
Again I dismissed the point in
limine.
4)
Urgency
It
was argued that the matter was not urgent because the cause of action
arose in July 2014 when Justice CHIGUMBA gave an order setting aside
the writ of ejection which had authorised the applicant to take
occupation of the property. Advocate Hashiti
argued
that it is at the time that the order was granted that the applicant
ought to have taken some action to have that order rescinded.
As
correctly argued by the applicant's counsel I found no merit in
this point in
limine.
This is because after the order by Justice CHIGUMBA on 2 July 2014,
the first respondent did not go on to repossess the property from the
applicant. It is not in dispute that at the time Justice CHIGUMBA set
aside the writ of ejectment the applicant had already taken
possession and occupation of the property on 13 May 2014 pursuant to
that same writ which was later set aside. The life-span of that writ
had already expired. So after obtaining the order of 2 July 2014 the
first respondent should have had a writ of ejectment issued in her
favour to enable her to evict the applicant.
As
already stated above, the first respondent tried without success to
have a writ of ejectment issued. This was simply because the order by
CHIGUMBA J did not direct the sheriff to enforce it. The first
respondent tried in vain to have Justice CHIGUMBA amend her order in
chambers to include a directive to the sheriff to enforce the order.
Justice CHIGUMBA indicated that for such an amendment to be effected
the first respondent needed to make a court application which
application the first respondent never made. Advocate Hashiti
in
his own words made submissions that in a bid to enforce the order the
first respondent approached various political offices and the second
respondent. He said that she did this because the wheels of justice
were proving to be unhelpful and were taking too long to turn. To
confirm his submissions there is a letter dated 19 December 2014
which the advocate produced which letter was written by the second
respondent to its national chairman. In that letter the second
respondent said that the first applicant who is its member was
unceremoniously ejected from her farm and that she had successfully
appealed to the High Court and the previous order to remove her had
been set aside. The second respondent went on to say, “it is
against this background that War Veterans are now assisting the
veteran to repossess her farm. Anytime the veterans will descend on
the farm to repossess it.” This letter was date stamped 23 December
2014 by the second respondent and was copied to the Minister of Home
Affairs, the Propol and the Officer in charge of Borrowdale Police
Station. Advocate Hashiti
went
on to submit that following that letter, on 28 December 2014 the
second respondent went on to stage a peaceful demonstration at the
property in question. He also submitted that on that same day the
second respondent had also learnt that the applicant was demolishing
the farm house.
All
these submissions by Advocate Hashiti
showed
that the applicant had always been in occupation of the property
since the time it took occupation on 13 May 2014 before Justice
CHIGUMBA's order up to the 28th
of December 2014 when it allegedly demolished the farm house. It was
the applicant's averment that its possession and occupation of the
property was interfered with on 28 December 2014 and not any time
before that date. My own analysis of the sequence of events led me to
the conclusion that the applicant started having problems with the
respondent on 28 December 2014 and not any time before that. That is
when the second respondent descended on the farm as it had threatened
in its letter of 19 December 2014. It was my conclusion that the
cause of action arose on 28 December 2014. By 30 December 2014 the
applicant had filed this application. The applicant acted when the
need to act arose. I thus made a finding that the matter was urgent.
I dismissed this point in
limine.
5)
Material
dispute of facts
It
was submitted that there were material dispute of facts which did not
enable this matter to be decided on paper, but through action
procedure. Advocate Hashiti
said
that there was need to lead oral evidence to resolve issues that are
were in dispute, for example, the dispute on who had title to this
property since the Reserve Bank of Zimbabwe was also claiming
ownership. He submitted that while Cephas Msipa alleged assault
there was no medical confirmation to it and he did not identify the
individuals who assaulted him.
As
correctly argued by Mr Dzvetero,
the material dispute related to ownership, but this application was
not meant to decide who had title to this property. It was simply to
deal with the issue of possession and spoliation. It was an issue
that could be decided on affidavit evidence. This point in
limine
was also dismissed.
Having
dismissed all the points in
limine
I went on to deal with the merits of the matter.
THE
MERITS
Advocate
Hashiti
argued that Justice CHIGUMBA's order of 2 July 2014 restored the
first respondent's ownership rights to the property and as such the
applicant's application ought to be dismissed. I did not attempt to
make a pronouncement on this issue of ownership at all as it was not
decisive of the matter. As correctly submitted by the applicant's
counsel the purpose of a mandament
van
spolie
is to preserve law and order and to discourage people from taking the
law into their own hands. In short it is meant to prevent anarchy or
lawlessness. To give effect to this the status
quo
ante
has to be restored irrespective of who has title to the property in
question.
In
a similar application in Fredericks
and Another v
Stellenbosch Divisional
council
1977 (3) SA 113 (c) at H 117C it was stated the court is not
concerned with the nature of the applicant's occupation but with
the issue that the respondent should not take the law into its own
hands. It was further stated that such conduct cannot be condoned.
See also Karori
(Pvt) Ltd & Another
v Mujaji
2007 (1) ZLR 80 (H) at 109 D-E.
In
Botha
and Another
v
Barrett
1996 (2) ZLR 73 (S) at 79-80 GUBBAY CJ as he then was said that in
an application for a spoliation order the applicant only has to
satisfy the following two requirements.
-
That
the applicant was in peaceful and undisturbed possession of the
property, and,
-
That
the respondent deprived him of the possession forcibly or wrongfully
against his consent.
See
also Krammer
v
Trustees Christian Coloured Vigilance
Council
Park
1948 (1) SA 748 (C) at 753.
The
respondent may raise the following defences.
-
That
the applicant was not in peaceful and undisturbed possession of the
property at the time of deprivation,
-
That
the respondent has not committed spoliation.
In
casu
as already stated above, when CHIGUMBA J gave her order the applicant
was already in occupation of the property and the first respondent
had been evicted following the writ of ejectment which was
subsequently set aside by that order. So what it means is that first
respondent having obtained an order in her favour she had the right
to enforce it. She was supposed to enforce it by following due
process of the law. In Dodhill
(pvt ) Ltd & Another v
Ministry of Lands & Another 2009
(1) 182 (H) it was held that a person claiming right to land is not
entitled to evict the occupier without following legal process.
From
the narration that was given by advocate Hashiti
on
the issue of urgency it is clear that the second respondent did not
follow due process of the law in evicting the applicant on 28
December 2014. She enlisted the services of the second respondent
because according to her the wheels of justice were turning very
slowly. The second respondent's letter is clear and unequivocal. It
put it in black and white that it intended to and was going to
descend on the farm to repossess it.
The
second respondent as a War Veterans Association has no locus
standi
to enforce the orders of this court or any other court. The sheriff
is the one who has that duty. On 28 December 2014 the second
respondent in solidarity with their member, the first respondent
proceeded to the farm. It is not in dispute that following the
respondents' presence on the farm on this day the applicant left
the farm. While the applicant's counsel made submissions that it
was the second respondent's members who were now on the farm,
Advocate Hashiti
submitted
that the farm was now being manned by the police. Whichever way one
looked at these submissions what they showed or proved was that the
applicant who had been in possession and occupation of the property
was despoiled of it on 28 December 2014. The applicant did not
dispute that when the respondent came to the farm on 28 December 2014
it was in the process of demolishing the farm house. It was submitted
that the demolition of the house had been ongoing as part of the
renovation process that the applicant had been carrying out as it was
also claiming ownership of the same land. However, as I have already
stated, it was not my mandate to decide on the question of ownership.
The fact that the applicant was found demolishing the farm house
showed that it was the applicant who had been in possession of the
property prior to 28 December 2014.
The
respondents raised the defence that prior to 28 December 2014 the
applicant was not in peaceful and undisturbed possession of the
property. It was submitted that from the time Justice CHIGUMBA gave
her order, the first respondent had always had access to the farm.
She still had her property there in the form of the farm house,
business equipment and livestock. It was submitted that 4 of her
workers and a niece had been staying on the farm. The first
respondent herself would visit the farm time and again although she
would not put up for the night there. It was also submitted that the
first respondent was constantly communicating with the applicant
vis-a
vis
her access to her property. Let me point out that during the hearing
Mr Dzvetero did not comment on this issue probably because the
hearing was protracted. This could be the reason why he made an
oversight. I also made an oversight, otherwise I would have asked him
to comment on the issue.
Be
that as it may, assuming that Advocate Hashiti
was
correct, I am of the view that the manner in which the first
respondent used to access the land was without violence and was with
the consent of the applicant. It was done peacefully and without the
involvement of the second respondent. The violence only started at
the time the second respondent descended on the farm on 28 December
2014 upon being enlisted by the first respondent. This is what
resulted in the forceful eviction of the applicant. The fact that the
first respondent had to seek the assistance of the second respondent
was clear testimony that the first respondent had not managed to
eject the applicant. Having failed to obtain a writ of ejectment she
turned to the second respondent and they resorted to violence.
Even
if the first respondent had obtained a judgment in her favour, she
still had to employ lawful means to evict the applicant from the said
property. I need not emphasise that court orders are supposed to be
enforced lawfully by following due process of the law. I thus dismiss
the defence by the respondents.
The
order by Justice CHIGUMBA is the latest one in the legal wrangle that
has been on-going between the applicant and the first respondent and
it has not been challenged by the applicant. The first respondent is
allowed to take lawful action for the ejectment of the applicant if
she so wishes. What she is not allowed to do is to resort to
self-help. The applicant managed to satisfy the two requirements that
ought to be satisfied in an application of this nature. It is only
fair under the circumstances to restore the status
quo ante.
In
the result, I granted the interim relief of a mandament
van spolie
which was sought by the applicant. The order was as follows:
That
pending the determination of this matter, the applicant is granted
the following relief:
-
The
1st
and 2nd
respondent and all other persons claiming occupation or possession
through them, jointly and severally., or any other person occupying
Subdivision 1 of Lot J of Borrowdale Estates without the knowledge
and consent of the applicant shall forthwith vacate the said
property and that such persons shall forthwith remove all property
introduced by them thereon so that the status
quo ante
of the property by the applicant as at 26th
December 2014 be and is hereby restored.
-
(b)
To the extent that it becomes necessary, the Deputy Sheriff is
hereby authorized and empowered to attend to the eviction and
removal of any person and their property so occupying the said
Subdivision 1 of Lot J of Borrowdale Estates without the knowledge
and consent of applicant. Pursuant thereto, the Deputy Sheriff be
and is hereby authorized to enlist the assistance of any member of
the Zimbabwe Republic Police who are hereby directed to provide such
assistance to the Deputy Sheriff so as to ensure that the provisions
of this order are executed and implemented in full.
Messrs
Antonio & Dzvetero,
applicant's legal practitioners
Messrs
Chinawa Law Chambers,
respondents' legal practitioners
