GARWE
JA
[1]
This
is an appeal against the order of the High Court discharging with
costs a provisional order granted in favour of the appellant on 17
June 2014.
FACTUAL
BACKGROUND
[2] The
appellant was the registered owner of four pieces of land held under
a consolidated Deed of Transfer in Bulilima District, Figtree. The
dispute in the court a
quo
and before this Court concerns one of the pieces of land known as
subdivision A of Centenary measuring 1 304,5 hectares.
[3] On
17 September 2003, the Government of Zimbabwe, in a Government
Gazette Extraordinary, listed for compulsory acquisition the property
in question together with many others. In terms of s 16B of the
former Constitution (as read with Schedule 7 of the same) the
property became vested in the State with full title therein. With
the coming into force of s 72(4) of the current Constitution, the
title to the property remained vested in the State.
[4] The
land in question was offered to the first respondent in 2014 by the
second respondent. The first respondent duly accepted the offer.
[5] On
1 May 2014, the first respondent arrived at the farm in the company
of the District Administrator and local police officers. He left a
copy of the offer letter issued to him and indicated that he would be
taking occupation on 1 August 2014. On 25 May 2014, a person who
identified herself as the first respondent's wife also came to the
farm and indicated that she would be taking occupation on 1 June
2014.
PROCEEDINGS
IN THE HIGH COURT
[6] Following
the visit by the first respondent's wife, the appellant formed the
view that the matter had become unavoidably litigious and
consequently filed an urgent application for interdictory relief, in
particular prohibiting the first respondent, and other persons
claiming through him, from taking occupation of or moving cattle onto
the farm until the legitimacy of his offer letter had been
established. The appellant averred that, in the event that no
interdict was granted, it stood to suffer serious financial prejudice
as there would be intermixing of herds which would result in cross
breeding and, potentially, communication of diseases.
[7] The
application was heard by the High Court at Bulawayo on 17 June 2014.
Although the application was served at the first respondent's
residence, the first respondent did not attend the hearing. The
court then granted interim interdictory relief which, inter
alia,
called upon the first respondent to show cause why the order sought
should not be confirmed on the return day.
[8] The
first respondent opposed the confirmation of the provisional order.
He averred that the land in question had been offered to him by the
Minister of Lands and Rural Resettlement. He admitted visiting the
farm to notify the appellant of the need to wind up operations within
a period of three months. He further stated that the land in
question had been gazetted by the State and attached a copy of the
Gazette of 17 September 2003. In the circumstances, he submitted
that there was no lawful basis for the confirmation of the
provisional order previously granted as that would be tantamount to
perpetuating criminality on the part of the appellant. He therefore
sought an order discharging the provisional order.
[9] In
its answering affidavit, the appellant averred that, by the time the
provisional order was granted, the first respondent's wife had
moved three of her workers into staff quarters at the farm. Between
1 and 2 August 2014, persons acting on behalf of the first respondent
also moved onto the farm, rounded up appellant's pedigree herd and
removed same from the farm, evicted appellant's labour force from
the farm compound and directed that the gates leading to the
irrigated vegetables be left unlocked. The appellant stated further
that it had not at any stage been ordered by the Government to vacate
the farm nor had any eviction order been granted by a court of
competent jurisdiction. In the circumstances the appellant sought an
order preventing self-help by the first respondent and confirming the
provisional order.
[10] In
its heads of argument a
quo
the appellant conceded that the farm had indeed been listed for
acquisition and gazetted in 2003. The appellant consequently sought
alternative relief in terms of a draft order it filed with the court.
Further the appellant submitted that the first respondent was in
contempt of the order issued by the court and that consequently an
application seeking an order declaring him to be in contempt had been
filed. It contended that as the first respondent continued to be in
contempt of court he should therefore not be heard before purging
such contempt. The appellant also submitted that it had the right to
remain in peaceful occupation of the property until such time as an
order was made by a competent court for its eviction. In short it
submitted that by resorting to self-help, the first respondent had
committed an act of spoliation.
[11] In
his heads of argument a
quo
the first respondent submitted that the appellant, having lost title
to the property, had no locus
standi
to show the existence of a prima
facie
right and that a court of law cannot grant an order the effect of
which is to authorise the appellant to remain on gazetted land.
[12] In
its judgment, the court a
quo
came to the conclusion, firstly, that it could not refuse the first
respondent audience because the order of contempt granted against him
had been appealed against and that such appeal was pending.
Secondly, it found that the appellant, being in clear breach of the
law as it remains in occupation of gazetted land without lawful
authority, was not able to establish the existence of a clear right
necessary in proceedings where a final interdict is sought.
Accordingly it discharged the provisional order. Hence the present
appeal.
GROUNDS
OF APPEAL
[13] The
appellant filed a total of nine grounds of appeal. Some of them are
repetitive. The grounds are cited verbatim hereunder:
1.
The honourable court a
quo
declined to determine the appellant's point in limine
on the right of audience of the respondent prior to hearing argument
on the merits. The respondent was, in fact, in contempt of the
provisional order, and the learned court a
quo
erred at law in hearing the respondent despite this contempt, and
misdirected itself in the position that it took.
2.
The appellant's argument on the respondent's contempt of court
was not dependent on the contempt of court order which had been
appealed against, but on the actual events, and the position at the
time of the court hearing argument on the return day. The learned
court a
quo
erred at law in not paying regard to those facts.
3. The
Honourable Court a
quo
did not determine the question of whether or not the respondent's
actions did constitute self-help, which is against the law and
accordingly, in not determining whether or not the respondent himself
was in contempt of the law and could not be heard. This was a
fundamental error at law and a misdirection.
4. The
Honourable Court a
quo
erred at law in not applying the requirements of spoliation
proceedings in this matter. The relief sought on the Return Day was
spoliatory relief, owing to the respondent having taken occupation of
the property at issue without due process.
5. The
learned court a
quo
erred at law in determining that the appellant was in unlawful
occupation of the property by reason that the land at issue had been
gazetted. In making this determination, the Honourable Court a
quo
paid short shrift to the representations and overt encouragements
given to the appellant by responsible government officials. The
learned court a
quo,
accordingly, erred in not finding that these representations, which
were not disputed, and were relied upon by the appellant to its
detriment, were material to the matter.
6. There
was, in this matter, clearly an element of estoppel following upon
reliance on representations and advices of government officials on
government policy, which element affected the question of
unlawfulness, which question was the main determining factor upon
which the court found that the appellant was in contempt of the law.
The court a
quo, therefore,
erred in the finding that the appellant was in unlawful occupation of
the property against the facts placed on record.
7. Further,
the learned court a
quo
erred at law in dismissing the appellant's argument on a legitimate
expectation on its part to be heard before it was evicted from the
land in the full circumstances of this case.
8. The
learned court a
quo,
while acknowledging that government officials might have made
representations, and given encouragements to the appellant found that
it was duplicitous of the government officials to have given the
appellant false hope without ensuring that the appellant was issued
with an offer letter. The duplicitousness of government officials,
just like bureaucratic inefficiency and bungling, does
not
accrue to the detriment of a citizen. The learned court a
quo
erred at law in, effectively, allowing the appellant to be penalised
and adversely affected, in this matter.
9. The
learned court a
quo
erred at law in omitting to determine the question of whether due
process was followed in the allocation of the land at issue to the
respondent.
APPELLANT'S
SUBMISSIONS BEFORE THIS COURT
[14] In
heads of argument filed with this Court, the appellant submitted that
the court a
quo
had misdirected itself in opining that the appellant had failed to
demonstrate a clear right – a requirement one needs to establish
where a final interdict is sought - when the appellant's case was
predicated on the mandament
van spolie.
The court a
quo
should not therefore have concerned itself with the rights of the
parties as the live issue at the stage of confirmation of the
provisional order was whether or not spoliation had been established.
Since it had been established that the appellant had been in
peaceful and undisturbed possession and that the first respondent had
despoiled it of such possession, the court a
quo
should therefore have confirmed the order of spoliation and ordered
the restoration of the status
quo
ante.
Before restoration of that status, the court a
quo
had no jurisdictional ability to evaluate the appellant's rights
viz-a-viz the acquired land since the cause for possession is
irrelevant and it is for that reason that even possession by a thief
is protected. In short it was submitted that the relief sought a
quo
was for the confirmation of spoliatory relief that had already been
granted. Further, in terms of s 74 of the Constitution of Zimbabwe,
the court a
quo
cannot sanction the arbitrary eviction of the appellant in the
absence of a court order.
[15] In
oral submissions Mr Zhuwarara,
for the appellant, conceded that, going by the founding affidavit, no
spoliation had taken place at the time of the grant of the
provisional order. However, it was his submission that after the
interim order had been granted, interference had taken place and the
issue both at the confirmation stage and before this Court is whether
spoliation had taken place.
FIRST
RESPONDENTS' SUBMISSIONS ON APPEAL
[16] Mr
Mpofu,
for the first respondent, submitted that the appellant's founding
papers confirm that what was sought was an interdict and not
spoliation. Since the appellant had lost all rights to the land in
question and, in short, is an outlaw, interdictory relief could not
have been available to it as the law cannot interdict what is lawful.
The appellant had sought an interdict pending the determination of
the validity of the acquisition of the land and the offer letter.
Once the appellant conceded that its land had been acquired and that
an offer letter had been issued, it could not, in those
circumstances, have been entitled to final interdictory relief.
[17] In
further oral submissions, Mr Mpofu
argued that once it was accepted that no spoliation had taken place
at the time of the grant of the provisional order, then that really
was the end of the matter. If spoliation took place after the grant
of the provisional order, such spoliation should have been the
subject of a separate order of spoliation. On the question whether
the first respondent was in contempt, he submitted that the matter is
the subject of separate proceedings which are pending before this
Court. It would therefore not have been proper to refuse audience to
the first respondent in respect of events that are subject to
determination separately by this Court. In the circumstances he
prayed for the dismissal of the appeal.
ISSUES
FOR DETERMINATION
[18] Although
the appellant filed a total of nine grounds of appeal, it is my
considered view that, from the heads of argument filed and the oral
submissions made, only four issues arise for determination before
this Court. The four issues are the following:-
(a)
whether the court a
quo
erred in giving audience to the first respondent despite the
allegation of contempt of court having been made against him.
(b)
whether the court a
quo
erred in dealing with the matter as a final interdict as opposed to
spoliation.
(c)
whether the conduct of certain Ministry of Agriculture officials who
encouraged the appellant to continue farming constituted an estoppel.
(d)
the effect, if any, of s 74 of the current Constitution.
I
relate to each of these issues in turn.
WHETHER
THE COURT A QUO SHOULD HAVE REFUSED AUDIENCE TO THE FIRST
RESPONDENT
[19] It
is common cause that, following the issue of the provisional order,
the first respondent opposed the confirmation of that order. He
denied having taken occupation of the farm. He also denied having
interfered with any farming activities or having moved his cattle
onto the land.
[20] In
its answering affidavit the appellant averred that by the time the
provisional order had been granted, the first respondent's wife had
moved three people into one of the rooms at the staff quarters.
Between 1 August and 8 August 2014, notwithstanding the existence of
the provisional order, the first respondent or his wife or other
persons claiming through him had moved onto the farm, rounded up
appellants' pedigree Hereford herd and removed the same from the
farm; had evicted the appellant's labour from the farm compound and
occupied the compound; had removed the Senepol pedigree herd and
instructed the appellant's labour force not to lock the gate
leading to the vegetable garden.
[21] Following
what the appellant considered was the unlawful taking over of the
farm by the first respondent, the appellant filed an application
seeking an order, in HC 1856/14, that the first respondent be found
to be in contempt of the order of the court a
quo.
Although the first respondent opposed that application, the High
Court granted the order declaring the first respondent to be in
contempt of court and further ordered that he complies with the
provisional order. The first respondent appealed to this Court
against that order. A further application seeking execution pending
determination of the appeal was also filed by the appellant. Both
matters had not been determined at the time of the disposition made
by the court a
quo
which forms the basis of the present appeal.
[22] Whether
the first respondent had a right of audience was an issue that was
considered by the court a
quo.
At page 3 of the cyclostyled judgment, the trial judge remarked:-
“Ms
Dube sought as a preliminary point the barring of the first
respondent from being heard on the basis that he has not complied
with the contempt order. It is common cause that the first
respondent noted an appeal against the contempt order. Whilst
acknowledging the appeal that was noted, Ms Dube persisted with the
preliminary point on the basis that despite the noting of the
appeal, the first respondent had still not complied with the
provisional order. …
[23] At
page 5 of the judgment, the court a
quo
further remarked:-
“In
light of the above case authorities, and relevant legislation, I
found applicant counsel's preliminary point of seeking that the
first respondent be denied audience to be untenable. The applicant
has no legal right to the land in question …”
[24] The
above remark that the first respondent could not be denied audience
because the appellant had no right to the land was clearly erroneous.
Whether the first respondent had a right of audience before that
court had nothing to do with the question whether the appellant had
any legal rights to the land. The appellant had submitted in its
heads of argument that, despite the clear interdictory relief
granted, the first respondent had nevertheless taken occupation of
the farm and had disrupted farming activities thereon. On that
basis, appellant had urged the court not to hear the first respondent
until such time as he purged his contempt.
[25] Notwithstanding
the above error on the part of the court a
quo,
it is clear that, for the reason that follows, the decision by the
court giving audience to the first respondent was, at the end of the
day, the correct one. The appellant had instituted separate
proceedings in HC 1856/14 for an order declaring the first respondent
to be in contempt of court. The High Court did, in fact, find the
first respondent guilty of contempt of court but this order was
immediately appealed against and, at the time of the confirmation
proceedings in that Court, the matter was pending before this Court.
Also pending before the High Court was an application to execute the
order that the first respondent was in contempt pending determination
of the appeal.
[25] The
position is now settled in our law that the noting of an appeal
suspends the execution of the judgment appealed against unless the
court otherwise directs. See Longman
Zimbabwe (Pvt) Ltd v Midzi & Ors
2008 (1) ZLR 198 (S), 204 E-F. The general effect of the noting of
an appeal is that no results can flow from the judgment appealed
against which would place the parties in a position different from
that which they enjoyed immediately before judgment was given. I
therefore accept Mr Mpofu's
submission
that the issue of contempt cannot properly arise on the papers.
Whether or not the first respondent had conducted himself contrary to
the order of the High Court was not common cause. That issue is the
subject of an appeal that is pending before this Court. The
suggestion that this Court should decline audience to the first
respondent on the basis of a disputed contempt that is still to be
determined by this Court cannot have been honestly made. On the
facts before it, the court a
quo
had no basis for refusing to hear the first respondent and therefore
correctly dismissed that preliminary point.
WHETHER
ESTOPPEL APPLIES
[26] Both
in its founding and answering affidavits in the court a
quo,
the appellant averred that between January and February 2014, two
deputy Ministers of Agriculture had visited the farm to see
first-hand the operations of the appellant and how its officials were
working with the local community and resettled farmers. They
expressed encouragement and support for the appellant's operations
in the dairy industry and pedigree breeding project. This gave the
appellant confidence that it was indeed permitted to continue its
farming enterprise on the land. As government is composed of various
Ministries, the appellant was led to believe that it had the tacit
consent and permission of the government to continue with its farming
activities. The appellant therefore believed it had a valid reason
in terms of the law for its continued occupation of the farm.
[27] I
do not believe that this submission need detain this Court. The
visit by the two Deputy Ministers of Agriculture was intended to
ascertain the operations of the appellant. There is no suggestion
that they knew the legal status of the land that the appellant was
occupying. Indeed it is common cause that title to the land now
vested in the Government and, as senior government officials in
charge of the Agriculture Ministry, the two Deputy Ministers would
have been aware that they had no jurisdiction to take over the
functions of the Ministry responsible for land allocation and clothe
the appellant with the necessary authority to continue farming.
[28] This
Court has made it clear that in terms of the law, only persons with
lawful authority can continue to possess or work agricultural land.
What constitutes lawful authority, is now settled in this
jurisdiction – Commercial
Farmers' Union and Others v The Minister of Lands and Rural
Resettlement and Others
2010 (2) ZLR 576 (S), 591C, 596C.
[29] In
the circumstances, there can be no question of the State being
estopped from denying that the appellant had the lawful authority to
occupy the land. The visits by the Deputy Ministers of Agriculture
had nothing to do with the legal status of the appellant's
operations. They would not, in any event, have had the jurisdiction
in terms of the law, to authorise the appellant to continue
operations in the face of the fact that title now vested in the
State.
RELIEF
SOUGHT A QUO – SPOLIATORY OR INTERDICTORY?
[30] The
real dispute between the appellant and the first respondent is
whether the relief that the appellant sought in the court a
quo
was interdictory or spoliatory. The appellant says it sought an
order of spoliation. The first respondent disagrees and submits that
the relief the appellant sought was an interdict. In order to
determine what relief exactly the appellant sought, one must go to
the founding papers.
THE
CERTIFICATE OF URGENCY
[31] The
certificate of urgency was filed by one Jacobus Petrus Obelholzer, a
legal practitioner. In that certificate he stated that the matter
involved an offer letter which, as far as appellant was aware, had
been issued in respect of land that had not been acquired by the
State. He further stated:-
“The
applicant stands to suffer serious prejudice of a financial nature
should no interdict be granted urgently. In the event that the first
respondent and/or his wife and /or persons claiming through him move
onto the farm with their cattle, there will be intermixing of herds,
which can barely be avoided on a farm of the size of Centenary.
Intermixing leads to uncontrolled cross breeding and potentially to
communication of diseases, which are both fatal to a business of
pedigree rearing …”
APPELLANT'S
FOUNDING AFFIDAVIT
[32] In
its founding affidavit, the appellant stated:
“27. I
now bring this urgent application for an order interdicting the 1st
respondent from taking occupation of the farm and/or moving cattle
onto the farm until the legitimacy of the offer letter is established
by this Honourable Court.
28. In
other words, because of the potentiality for grave prejudice to the
applicant, and to the 1st
respondent himself, as well as third parties who have financed the
applicant which prejudice will follow if the 1st
respondent is allowed to occupy on the basis of an offer letter which
turns out to be improperly issued, there is need for this Honourable
Court to issue a temporary interdict until the legitimacy of the
offer letter is ascertained.
29. …
30. …
31. Therefore,
from all appearances that farm has not been gazetted and the offer
letter cannot, therefore, be valid.
32. The
applicant, therefore, prays for an interdict to be issued pending
disclosure of the full circumstances of the authority of the offer
letter …”
ORDER
OF THE COURT A QUO
[33] The
High Court issued the following provisional order:-
“TERMS
OF FINAL ORDER SOUGHT
-
The
offer letter issued by the 2nd
respondent herein on the 13th
February 2014 be and is hereby declared invalid and set aside.
-
The
1st
respondent and all persons claiming occupation through him be and
are hereby permanently 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 a time as the applicant
and all claiming occupation through it have been removed by order of
a court of competent jurisdiction,
-
The
1st
respondent and all persons claiming occupation through him be and
are hereby directed to remove all cattle and belongings that may
have been brought onto, or may remain on, the said farm forthwith.
-
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.
-
The
respondents shall pay the costs.
INTERIM
RELIEF GRANTED
Pending
the return day, the following relief is granted:
-
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, 5 441 hectares
situate in the Bulilima District.
-
The
2nd
respondent is interdicted from taking any steps to evict the
applicant from the farm described above.
-
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.
-
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.
-
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
authorised and directed to evict such party from the farm.”
[34] As
already noted, following the issuance of the provisional order, the
first respondent filed an opposing affidavit. In that affidavit, he
denied interfering with the appellant's farming operations. He
stated that the land in question had in fact been acquired by the
State and attached a copy of the Government Gazette of 17 September
2003. He therefore opposed the confirmation of the provisional
order.
[35] In
its answering affidavit the appellant then averred that by the time
the provisional order was granted, the first respondent's wife had
taken occupation of the farm and evicted appellant's labour force
from the farm compound. It further alleged that in the absence of an
order for the eviction of the appellant, the act of moving onto the
farm was unlawful and in contempt of court. The appellant then
prayed for confirmation of the provisional order and specifically
stated that “an order of this Honourable Court is necessary in
order to prevent self-help.”
[36] In
its heads of argument, the appellant conceded that the farm had
indeed been acquired by the Government. It then sought alternative
relief. It also argued that it had established the clear right to
remain in peaceful occupation of the property until such time as an
order of court was issued for its eviction. The appellant then
proceeded to cite a number of authorities in which it sought to argue
that it had the right to remain in occupation and that the first
respondent had in fact despoiled it of its possession of the farm.
REQUIREMENTS
OF AN INTERDICT NOT ESTABLISHED
[37] Once
it had been accepted that the farm had been lawfully acquired by the
State and that full title in the property now vested in the
Government, interdictory relief could not have been granted.
[38] In
Airfield
Investments (Pvt) Ltd v The Minister of Lands, Agriculture and Rural
Resettlement & Others 2004
(1) ZLR 511 (S) 518 A-B, MALABA JA, as he then was, stated:
“The
appellant was not in a position to show the existence of a prima
facie
right of ownership in the land … because at the time it applied
for interim relief all the rights of ownership it had in the land
had been taken by means of an order of acquisition and vested in the
acquiring authority. When the appellant lodged the application for
the interim relief before the court a
quo
the acquisition of the land by the State was a fait
accompli,
all rights of ownership having been extinguished on its part …”
[39] A
party who has possession of agricultural land must show that he/she
has lawful authority for such possession. In CFU and Ors vs the
Minister of Lands and Rural Resettlement & Ors, supra,
this Court made it clear that for one to have lawful authority, one
must be in a possession of an offer letter, permit or land settlement
lease.
[40] The
law is now established that an interim interdict will not be granted
to a person whose rights in a thing have already been taken by
operation of law at the time he or she makes an application for
interim relief - Airfield
Investments (Pvt) Ltd vs Min of Lands, Agriculture and Rural
Resettlement & Others
2004 (supra).
Indeed once a farm has been acquired, the rights over such farm vest
in the State. That being the position the former owner and title
holder has no locus
standi
to approach the court for an interdict because he or she cannot
establish a clear right – Cedor
Park Farm (Pvt) Ltd v Minister of State for National Security and Ors
2010
(2) ZLR 158 (H), 164 B-C.
[41] Having
regard to the above authorities, the appellant was therefore not in a
position to establish a clear right. In the circumstances
interdictory relief – even on an interim basis – could not and
should not have been granted.
SPOLIATION
PLEADED FOR THE FIRST TIME IN ANSWERING PAPERS
[42] It
is clear that the issue of spoliation only surfaced for the first
time in the answering affidavit and heads of argument filed on behalf
of the appellant. In that affidavit the appellant conceded that the
farm had been lawfully acquired by the State.
[43] In
its heads of argument before this Court, the appellant exerted much
energy on the issue of spoliation. It argued that its petition “was
merely for confirmation of an order of spoliation that the very same
court had already determined to be deserving and granted.” It
further argued that the proceedings, having been spoliatory,
“consideration of the factors relevant in an application for an
interdict were irrelevant.” The illegality or otherwise of the
possession was not an issue as the aim of spoliation is to prevent
the kind of self-help that the first respondent resorted to in this
case.
AN
APPLICANT STANDS OR FALLS ON ITS FOUNDING PAPERS
[44] The
position is now settled in this jurisdiction that an applicant stands
or falls by his founding affidavit and the facts alleged in it.
Although it is sometimes permissible to supplement the allegations
contained in the founding affidavit, the main basis of the
application is the allegation of facts stated therein. A number of
decisions of the courts in this country have stressed this position –
see Moven
Kufa & Anor v The President of The Republic of Zimbabwe &
Nine Ors, CCZ
22/17 and the authorities cited on pages 14-15 of the cyclostyled
judgment.
[45] More
to the point are the remarks of MCNALLY JA in Keavney
& Anor v Msabaeka Bus Services (Pvt) Ltd
1996 (1) ZLR 605 (S). At page 608 C, the learned judge cited with
approval the remarks by MULLINS J in Nieuwoudt
v Joubert
1988 (3) SA 84c that:-
“The
purpose of pleadings is to define the issues, and to enable the other
party to know what case he has to meet.”
The
learned judge further cited with approval the remarks of MILNE J in
Kali
v Incorporated General Insurance Ltd
1976 (2) SA 179(D) at 182A that:
“A
pleader cannot be allowed to direct the attention of the other party
to one issue; and then at the trial attempt to canvass another.”
(at 608 B).
Indeed
the learned judge went further to suggest that the failure to plead
the real defence or cause of action may suggest shear idleness or
incompetence on the part of the legal practitioner, or a deliberate
and unconscionable attempt to avoid attracting an onus or burden of
adducing evidence or, lastly, that the defence was an afterthought.
[46] The
above sentiments apply with equal force to this matter. The
appellant approached the court applying for interdictory relief.
Indeed at that stage there was a mere threat of occupation by the
first respondent. No spoliation had taken place. This is common
cause. The provisional order was granted on that basis. What
therefore fell for determination on the return day was whether the
provisional order should be confirmed. As already noted, it could
not have been confirmed, once the appellant had accepted that the
land had indeed been lawfully acquired. It was not permissible, on
the part of the appellant and on the same papers, to introduce the
issue of spoliation later in the proceedings and seek to obtain that
relief in place of the interdictory relief initially prayed for.
IN
ANY EVENT SPOLIATORY RELIEF IS FINAL
[47] The
law is settled that an order of spoliation is final in nature and
that it determines the immediate right of possession of a particular
res.
It is frequently followed by further proceedings between the parties
concerning their rights to the property in question – Nienaber
v Stuckey
1946 AD 1049, 1053; Malan
& Another v Green Valley Farm Portion 7 Holt Hill 434 CC and
Others
2007 (5) SA 114 (ECD), 124 A-B; Moreover a spoliation order cannot be
granted on the evidence of a prima
facie
right - Blue
Range Estates P/L v Muduvisi
2009 (1) ZLR 368, 377D.
[48] The
appellant's argument is that the issue that fell for determination
on the return day was whether or not spoliation had occurred. The
inevitable corollary of that argument is that an interim order of
spoliation was granted in terms of the provisional order issued by
TAKUVA J and that before MUSAKWA J the issue that fell for
determination was its confirmation. Clearly this does not accord
with the law. In any event Mr Zhuwarara
did concede, before this Court, that at the time the founding papers
were drawn and commissioned, the act of spoliation had not taken
place.
ALLEGATION
OF SPOLIATION AROSE AFTER GRANT OF PROVISIONAL ORDER
[48] The
allegation that spoliation had taken place only arose after the grant
of the provisional order. It is common cause that the first
respondent in his opposing papers disputed having taken occupation
and that the alleged act of spoliation formed the subject of separate
proceedings for contempt of court which remain pending before this
Court. I agree with Mr Mpofu
that the course open to the appellant after the alleged spoliation
had taken place was to launch a new application for spoliation and
not seek to substitute spoliation in place of the interim interdict
that had been granted on the faulty basis that the offer letter
issued to the first respondent was not a legally binding document.
SECTION
74 OF THE CONSTITUTION
[49] The
appellant argued, for the first time in heads of argument, that in
terms of s 74 of the current Constitution, it had the right not to be
arbitrarily evicted in the absence of a court order. It is unclear
where this submission comes from. The issue is not part of the
appellant's grounds of appeal. It was not argued before the court
a
quo
and indeed that court made no finding on it. The provision cited
deals with arbitrary evictions. That was not an issue before the
court a
quo
which was seized with the question whether or not to confirm the
provisional order. Equally it is not an issue before this Court.
This submission must therefore fail.
DISPOSITION
[50] There
being no merit to this appeal, it is dismissed with costs.
HLATSHWAYO
JA I
Agree
GUVAVA
JA I
Agree
Webb,
Lowe & Barry, appellant's
legal practitioners
G.N.
Mlotshwa & Company, respondents'
legal practitioners
