This
is an application for confirmation of a provisional order that was
granted on 17 June 2014. The terms of the provisional order were to
the following effect:-
“INTERIM
RELIEF GRANTED
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 1,304,5441
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.”
The
order that is being sought to be confirmed, after amendment, reads as
follows -
“1.
The provisional order issued by this court on the 17th
June 2014 be and is hereby confirmed in the following terms:
1.1
The 1st
respondent, and all persons claiming occupation through him, be and
are hereby interdicted from taking occupation of, or bringing cattle
onto the piece of land, namely, a farm known as Subdivision A of
Centenary, measuring 1,304,5441 hectares situate in the Bulilima
District until such time as the applicant and all claiming occupation
through it have been removed by order of a court of competent
jurisdiction.
1.2
The 1st
respondent, and all persons claiming occupation through him, be and
hereby directed to remove any and all cattle and belongings that may
have been brought onto, or remain on, the said farm forthwith.
1.3
The 1st
respondent, and all persons claiming occupation through him, be and
are hereby interdicted from interfering with the applicant's
business operations on the said farm.
1.4
The 1st
respondent shall pay the costs of this application.”
The
applicant used to own Subdivision A of Centenary in Bulilima
District. The land was compulsorily acquired in 2000. It now vests in
the second respondent. The first respondent was issued with an offer
letter in respect of the piece of land. It is contended, by the
applicant, that it has invested heavily on the land. The urgent
chamber application giving rise to the provisional order was premised
on doubts regarding the authenticity of the offer letter issued to
the first respondent. Thus, the applicant had initially sought the
nullification of the offer letter on the return day.
It
is now conceded that the offer letter was properly issued to the
first respondent, hence the amendment to the draft order. In
making the concession, counsel for the applicant submitted that the
applicant initially had an imperfect knowledge of the compulsory
acquisition of the farm….,.
Counsel
for the applicant submitted that since the compulsory acquisition of
the farm in 2000 the applicant has been in peaceful and undisturbed
possession. During that period, the applicant has been utilising the
land. State officials have visited the land and encouraged the
applicant to continue with its operations. As a result, the applicant
has made substantial investments including a finance scheme with
Dairiboard Zimbabwe (Limited). Counsel for the applicant further
submitted that the order being sought is for the first respondent to
follow due process in settling on the farm. In this context, due
process entails the eviction of the applicant following a court order
in which it was found that the first respondent is in unlawful
occupation of the farm. Thus, he cannot summarily evict the
applicant. A legal finding that the applicant is in unlawful
occupation of the farm has not been made.
In
placing reliance on the cases of Harland Brothers and Another v The
Minister of Lands and Rural Resettlement HH06-10 and Commercial
Farmers Union and Others v Minister of Lands and Others 2010 (2) ZLR
576 (S), counsel for the applicant further submitted that these
authorities highlight that beneficiaries of offer letters must not
resort to self-help if they want to occupy land offered to them.
On
the issue of visits by State officials, counsel for the applicant
submitted that such visits were made by the Deputy Minister of
Agriculture. Thus, this overt encouragement dilutes the element of
unlawfulness. There is the element of legitimate expectation.
Counsel
for the first respondent took issue with the applicant's counsel's
reference to spoliation. He thus submitted that what is before the
court is an application for confirmation of a provisional order for
an interdict. He made reference to the amended draft order. Thus, he
submitted that the applicant has to overcome the hurdle of
establishing a clear right to the land. Reference was made to the
first respondent's heads of argument dealing with the requirements
for an interdict.
Counsel
for the first respondent further submitted that the applicant's
case is not distinguishable from similar cases where litigants sought
similar relief. This is particularly so where the applicant has
conceded the lawfulness of the acquisition and the validity of the
offer letter issued to the first respondent.
The
requirements for a final interdict are:
(i)
A clear right;
(ii)
An injury actually committed or reasonably apprehended; and
(iii)
The absence of similar protection by any other remedy.
In
this respect, see Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe
Independent and Another 2000 (1) ZLR 234 (HC) and Setlogelo v
Setlogelo 1914 AD 221.
Commenting
on the element of clear right, BARTLETT J, in Universal Merchant Bank
Zimbabwe Ltd v The Zimbabwe Independent and Another 2000 (1) ZLR 234
(HC) had this to say….,;
“The
reference to a clear right in respect of a final interdict, as
opposed to a prima facie right in regard to a temporary interdict,
means no more than a clear right must be established on a balance of
probabilities. See Aussenkehr Farms (Pty) Ltd v Walvis Bay
Municipality 1996 (1) SA 180 (C) at 188F-G; Silberberg &
Schoeman, The Law of Property 3ed at 146.”
Although
the applicant was granted spoliatory relief in the interim order,
what is being sought now is an interdict. The issue is what right the
applicant is seeking to safeguard. In other words, does the applicant
have a clear right of occupation of the farm in question?
The
starting point is that the applicant is already in breach of section
3(1) of the Gazetted Lands (Consequential Provisions) Act [Chapter
20:28] which provides that -
“Subject
to this section, no person may hold, use or occupy Gazetted land
without lawful authority.”
Lawful
authority is defined as –
“'lawful
authority' means -
(a)
An offer letter; or
(b)
A permit; or
(c)
A
land settlement lease; and
'lawfully
authorised' shall be construed accordingly;”
Apart
from the above provisions, section 3(3) of the Gazetted Lands
(Consequential Provisions) Act [Chapter 20:28] criminalises the
unlawful occupation of gazetted land.
I
am mindful that there has been no mention of whether the applicant
has been charged for unlawful occupation of the disputed farm.
Regardless of whether criminal charges have been preferred, it is not
in dispute that the applicant is in breach of the law as it remains
in occupation of the farm without lawful authority.
In
Commercial Farmers Union and Others v Minister of Lands and Others
2010 (2) ZLR 576 (S) it was held that the Constitution vests all
rights of former occupiers of gazetted land in the State. Although it
is clear that the final order sought is not one of spoliation that
aspect was again canvassed in Commercial Farmers Union and Others v
Minister of Lands and Others 2010 (2) ZLR 576 (S), in which, at 594,
CHIDYAUSIKU CJ had this to say -
“It
was submitted that the orders were issued in spoliation proceedings.
Spoliation proceedings cannot confer jurisdiction where none exists.
A court of law has no jurisdiction to authorise the commission of a
criminal offence. In any event, spoliation is a common law remedy
which cannot override the will of Parliament. A common law remedy
cannot render nugatory an Act of Parliament.
Apart
from this, there is the principle that a litigant who is acting in
open defiance of the law cannot approach a court for assistance. See
Associated Newspapers of Zimbabwe (Private) Limited v Minister of
State for Information and Publicity and Others 2005 (1) ZLR 222 (S).
Indeed, if this point had been raised as a preliminary point, the
probabilities are that this application would have been dismissed on
that point alone. A former owner who is in occupation of acquired
land in open defiance of the law cannot approach the courts for
assistance.”
Similar
sentiments were expressed in Airfield Investments (Pvt) Ltd v
Minister of Lands and Others 2004 (1) ZLR 511 (S) which is referred
to in the first respondent's heads of argument.
The
applicant has no legal right to the land in question. That means the
element of a clear right, as a requirement for the interdict, has not
been met. It matters not that the applicant has received covert
encouragement from Government officials. It was duplicitous of those
Government officials to have given the applicant such false hope
without ensuring it is issued with a legal permit to remain on the
land.
In
the final analysis, the provisional order is hereby discharged with
costs.
