On
17 June 2014, the applicant obtained a provisional order against the
first respondent and the Minister of Lands and Rural Settlement. The
order is in the following terms:
“Pending
the return day, the following relief is granted:
1.
The 1st
respondent be and is hereby interdicted and barred from taking
occupation of, or bringing cattle onto the piece of land, namely, a
farm known as Subdivision A of Centenary, measuring 1304,5441
hectares situate in the Bulilima District.
2.
The 2nd
respondent is interdicted from taking any steps to evict the
applicant from the farm described above.
3.
It is hereby declared that until this application is determined on
the return day, the applicant and all claiming occupation through it
are entitled to remain in peaceful occupation of the farm and to
continue operations on the farm undisturbed.
4.
In the event that the 1st
respondent, or any party claiming occupation through him, has, by the
time of service of this order, taken occupation of the farm, it is
ordered that the 1st
respondent or any such person shall vacate the farm immediately and
restore occupation and possession to the applicant.
5.
In the event of a party referred to in paragraph 4 above failing to
vacate the farm in accordance with this order, the Deputy Sheriff is
authorized and directed to evict such party from the farm.
6.
Service
of this application and provisional order
That
the service of this provisional order and application shall be served
on the parties as follows:
(a)
On the 1st
respondent, at 92C Napier Avenue, Hillside, Bulawayo.
(b)
On the 2nd
respondent, at Gwanda Ministry of Lands Offices.
(c)
Applicant's legal practitioners, correspondent legal practitioners
or a messenger in their employ are authorized to serve the
provisional order and process as stated above.”
The
facts of this matter are as follows:
The
applicant is the owner of a piece of land situate in the district of
Bulilima in the Figtree area known as Subdivision A of Centenary. The
first respondent claims to be the holder of an offer letter issued by
the Minister of Lands and Rural Resettlement. On 1st
May 2014, the first respondent arrived at the farm brandishing an
offer letter authored by the second respondent and informed the
applicant's workers that he would be taking occupation of the farm
on the 1st
of August 2014. Subsequently, on 25th
May 2014, a person who identified herself as the first respondent's
wife arrived at the farm and announced that she would be taking
occupation on the 1st
of
June 2014.
The
applicant then brought an urgent application for an order
interdicting the first respondent from taking occupation of the farm.
Despite
being served with the application, the first respondent did not
appear in court leading to the granting of the provisional order
referred to above in the form in which it was sought. The provisional
order was served on the first respondent on 27 June 2014 and the
first respondent opposed the application through his legal
practitioners of record.
Despite
knowledge of the provisional order, under case number 1204/14, the
first respondent did not comply with its terms resulting in the
applicant filing this urgent chamber application against the first
respondent on the grounds that he is in contempt of the order of
court issued in HC1204/14 and for an order declaring him to be in
contempt and other relief.
The
basis of the application is set out in the applicant's founding
affidavit, deposed to by David John Connolly, a Director of the
applicant. In summary, the grounds are as follows:
1.
Between the 1st
of
August 2014 and the 6th
of
August 2014, the first respondent began to systematically take
occupation of the farm and to evict the applicant's employees and
its livestock - the provisional order notwithstanding.
2.
On 4 August 2014, a letter was done and addressed to the first
respondent's legal practitioners in the hope that they would advise
him to desist from taking occupation of the farm but that did not
stop the first respondent.
3.
Earlier, on 1st
of
August 2014, the first respondent, his wife, employees and other
persons, acting at his behest, moved tractors, trailers, ploughs and
other implements onto the property.
4.
Also, the first respondent brought various household goods, including
beds, wardrobes, satellite dishes etc which have been dumped on the
verandah of a house occupied by David John Connolly.
5.
Further, the employees of the first respondent rounded up the
applicant's cattle and drove them, without the consent of the
applicant, off the property onto a neighbouring property owned by the
applicant causing, in the process, overcrowding, extremely
detrimental to the applicant's pedigree breeding programme.
6.
Between the 1st
and the 6th
of
August 2014, the first respondent ordered the applicant's employees
to vacate their accommodation and some left for neighbouring farms
resulting in a reduction of the labour force.
The
first respondent opposed the application. In his opposing affidavit
he states:
1.
No eviction has taken place on the land in question and he has not
interfered with the applicant's operations.
2.
On 1st
of
May 2014, he personally approached Mr Connolly and advised him that
that portion of the land had been gazetted and offered to him and he
therefore wanted to take occupation in terms of the law on the 1st
of August 2014. He returned on the 1st
of
August 2014 to assess the progress as regards “winding up
operations”.
3.
Further, the first respondent denied that he had systematically taken
occupation of the farm but admitted that he “stationed only 7” of
his workers to “monitor applicant's progress in winding up
operations”. Also, the first respondent admitted to have moved farm
implements onto the land in question but denied carrying out any
farming activity pending the outcome in case number HC1204/14.
4.
The first respondent admitted that the “monitoring team” brought
household goods to the farm. According to the first respondent, there
is nothing amiss with that, since applicant is in unlawful occupation
of gazetted State land long after the expiry of the statutory 90-day
period.
5.
It was denied that the monitoring team was interfering with the
applicant's operations by evicting the applicant's workers from
their accommodation.
6.
Further, the first respondent stated that the application should have
been brought by way of court application on notice rather than by way
of Chamber Book. For that reason, it was said the relief sought is
incompetent at law. It was also stated that the application is not
urgent in that the alleged interference started between the 1st
and 6th
of
August 2014 yet this application was filed on the 13th
of August 2014, some 7 days after. Finally, the first respondent
contended that there is no financial prejudice that is being suffered
by the applicant in that it has been allowed an “extended time to
harvest its ripe crop and is delivering same to the market.”
The
applicant filed an answering affidavit wherein it attached, as
annexure RA1, a list of the employees who had been put out of their
homes by the first respondent. Also attached, as annexure RA2, is a
bundle of photographs which show, amongst other things, the
following:
1.
The wife of one of the first respondent's workers living in the
applicant's Irrigation Foreman's house;
2.
Bags of cement brought by the first respondent and stored between
milk tanks in the applicant's dairy;
3.
A Massey Ferguson 240 tractor and various other agricultural
implements belonging to the first respondent;
4.
A building under construction by the first respondent; and
5.
Locks placed by the first respondent's workers on the doors of
staff houses after the eviction of the applicant's workers.
The
essentials of contempt of court are the following:
(i)
That the person charged with contempt had knowledge of the court
order;
(ii)
That such person was aware of the constraints placed upon him by the
court order;
(iii)
That the person disobeyed the court order; and
(iv)
That the disobedience was willful.
See
Wilson
v Minister
of Defence & Ors
1999 (1) ZLR 144 (HC); Scheelite
King Mining Co (Pvt) Ltd
v Mahachi
1998
(1) ZLR 173; and Mudzimu
v Municipality
of Chinhoyi & Samuriwo
1986 (1) ZLR 12 (HC).
Further,
it is trite that where defiance has been proved, the onus rests on
the respondent to show that such defiance was not willful or mala
fide
– see Lindsay
v
Lindsay
1995 (1) ZLR 296 (S); Macheka
v Moyo
2003 (2) ZLR 49; and John
Strong (Pvt) Ltd
v Wachenuka
[2010] ZWHHC 44.
In
casu,
the first two requirements are common cause in that the first
respondent admitted that he was aware of the court order and the
constraints placed upon him by it. In fact, it is not surprising that
he readily admitted knowledge of the provisional order. This is so
because the first respondent was served with the provisional order
through his legal practitioner of record on the 27th
of
June 2014.
Secondly,
the applicant's legal practitioners wrote a letter to the first
respondent's legal practitioners on 4 August 2014 highlighting the
existence of the order and requesting the first respondent to act in
accordance with it. Thirdly, the first respondent has opposed the
confirmation of the provisional order by filing an opposing affidavit
and heads of argument in case number HC1204/14. This provisional
order places the first respondent under various constrains contained
in paragraphs 1 to 4. Finally, this order restrained the first
respondent from taking occupation of the farm, bringing cattle onto
the farm, or evicting the applicant from the farm.
What
is in issue is whether or not there was defiance of the court order
by the first respondent.
Again,
it is difficult to understand why the first respondent contends that
there was no defiance in view of the evidence - the bulk of which is
common cause. The following conduct has been admitted by the first
respondent during the hearing;
1.
That he moved his workers onto the farm who padlocked the residences
against re-entry by the applicant's workers – see annexure RA 2.
2.
That he moved his farm implements and equipment onto the farm.
3.
That he brought household furniture onto the verandah of a residence
on the farm (paragraph 8 of the opposing affidavit).
4.
That he brought building materials onto and had started building on
the farm (annexure RA 2).
In
my view, there can be no doubt that these actions, carried out after
the first respondent became aware of the court order, show that he
has indeed acted in defiance of that court order.
Having
found that the first respondent acted in defiance of the constraints
placed upon him by an order of court, the next question becomes
whether such defiance has been willful. See Ex
parte Mushambi
1989 (2) ZLR 191 (HC).
The
onus rests on the first respondent to show that his disobedience of
the court order was not mala
fide.
At
this point, it is necessary to closely examine the first respondent's
papers to see whether the onus is discharged. In his opposing
affidavit, the first respondent appears more focused on asserting a
right on his part and lack of a right on the part of the applicant.
Put differently, the first respondent feels justified for taking
occupation of the farm through his workers and property. These
justifications were stated as follows:
(a)
The employees who are on the property are there for the purposes of
“monitoring” the applicant. Surprisingly, the first respondent
does not state how this sits in accord with an order which debars him
from interfering with the applicant's operations and from moving
onto the farm.
(b)
The household property is for use by the monitoring team. However, it
is not stated how this monitoring is in accord, and not in discord,
with the provisional order. More interestingly, however, having
denied that he has evicted any employees of the applicant from their
accommodation the first respondent omits to state where this team is
presently residing or sleeping.
(c)
Implements and equipment have been brought onto the property, but no
activities are going on. This, however, is in blatant contrast with
photographic evidence that show that the first respondent had started
building on the farm.
(d)
The first respondent not only met the applicants' representatives
and the police, who attempted to explain to him the exigencies of the
order, but declared to them that he would not be removed by any
Messenger of the Court.
These
factors, in my view, prove that the first respondent willfully
disobeyed the court order. Quite clearly, by putting his employees in
the staff quarters and his farm equipment on the farm, the first
respondent has effectively taken occupation of the farm - which
conduct is specifically prohibited by the provisional order.
It
appears from the first respondent's papers that he is be-labouring
under a misconception that possession of an offer letter, per
se,
grants him the right to resort to self-help in evicting the previous
owner or occupier of gazetted land. Self help is frowned upon by the
law because it is inimical to the rule of law. Holders of valid offer
letters should follow the specific procedure outlined in the Gazetted
Land (Consequential Provisions) Act [Chapter 20:28] when seeking to
evict previous owners or occupiers of gazetted land. The spirit of
this Act is the provision of a legal framework that enables due
process to ensue where eviction is sought. A key component of this
process is that an Eviction Notice is issued, in writing, by the
acquiring authority (that is the Minister of Lands) and not by the
beneficiary or holder of an offer letter.
As
regards the relief sought, it should be noted that contempt of court
is a serious infraction in that it strikes at the heart of the rule
of law. Consequently, those found liable must be sufficiently
punished.
Accordingly,
there shall be an order in the following terms:
1.
It is declared that the first respondent is in contempt of court.
2.
The first respondent, together with his employees and all persons
occupying through him, are ordered to fully comply with the
provisional order issued in case number HC1204/14 and shall do so by
fully vacating the farm known as Subdivision A of Centenary,
measuring 1304,5441 hectares, situate in the Bulilima District, and
removing all livestock and movable assets within 48 hours of service
upon the first respondent of this order.
3.
Any person and/or property remaining upon the property in defiance of
paragraph 2 shall be evicted by the Sheriff of this Court.
4.
The second respondent shall provide an escort and any physical
assistance necessary to the Sheriff during service and execution of
this order.
5.
The first respondent be and is hereby sentenced to 90 days
imprisonment suspended on condition that he complies fully with this
order and the provisional order in case number HC1204/14 within 14
days of the date of this order.
6.
The first respondent shall pay the costs of this application on
attorney and client scale.
