The
applicant was allocated subdivision 1B of subdivision 1 of
subdivision B of Umguzaan Block Umguza District in Matabeleland North
Province by the acquiring authority under the Government's land
reform programme by offer letter dated 29 June 2006. The benefit of a
farm of his own was not so sweet because, although he says when he
received the farm it was already blessed with some chalets, some
neighbours of his have coveted his farm if for no other reason but to
derive benefit from the chalets in question.
One
such neighbour is the sixth respondent who was encouraged by the
first to the fifth respondents to move onto his farm and occupy one
of the chalets even though he was allocated an adjoining farm being
subdivision 2 of subdivision 1 of subdivision B Umguzaan Block
Umguza. The respondents are said to be veterans of the war of
liberation who are led by the first respondent and cherish domicile
in Umguza District Matabeleland North.
On
11 December 2008, the applicant filed an urgent application in this
court complaining about an act of spoliation which had allegedly been
committed by the respondents at the farm. He said that they had
arrived on 29 November 2008 in the company of a police officer called
Mhlanga. They advised him that he was not welcome in that area and
threatened him with death if he did not leave and re-trace his steps
to Mashonaland where he hails from. They told him to accept the sixth
respondent at his farm and that the latter was to occupy one of the
chalets, which the sixth respondent promptly did by moving in with
his personal effects. This was done without the applicant's consent
or authority.
Having
resorted to self-help and displaying “some sort of regional
xenophobia,” the respondents had to be stopped and the status
quo ante
restored. On 18 December 2008, this court, per KAMOCHA J, granted a
provisional order in the applicant's favour in the following:
“TERMS
OF FINAL ORDER SOUGHT
(a)
The 1st
to 6th
respondents be and are hereby restrained and interdicted from
interfering with applicant's possession, use and enjoyment of the
farm known as subdivision 1B of subdivision B of Umguzan Block.
(b)
Except upon the invitation of the applicant, or upon carrying out any
lawful activity, the 1st
to 6th
respondents be and are hereby interdicted from setting foot or
visiting the said farm.
(c)
Respondents pay the costs of this application.
INTERIM
ORDER SOUGHT (SIC)
Pending
the confirmation or discharge of this order, that this order shall
operate as a temporary order;
(a)
Directing the 6th
respondent, within 24 hours of being served with this application in
terms of this order, to remove himself and all his property of
whatever kind from the chalet he is occupying at the farm known as
subdivision 1B of subdivision B of Umguzaan Block.”
Only
the sixth respondent filed opposition to confirmation of the
provisional order stating, in his opposing affidavit, that he was
offered a farm known as subdivision 2 of subdivision 1 of subdivision
B Umguzaan by offer letter dated 16 October 2002. The farm adjoins
that of the applicant and ARDA which is subdivision 3 of subdivision
B of Umguzaan Block. According to him, the chalets are located on the
ARDA farm and not on the applicant's farm. He has an agreement with
ARDA authorizing him to occupy some of the chalets. There is not a
single chalet on the applicant's farm.
The
sixth respondent insisted that he occupied the chalet in 2003 long
before the applicant came to the area and with the consent and
authority of ARDA which owns the farm on which the chalets are built.
What
is of immediate concern is that the applicant obtained a provisional
order on 18 December 2008 - 8 years ago. He has been sitting on that
order up to now and has not bothered to set the matter down for
either confirmation or discharge of that provisional order.
Litigants
are in the unacceptable habit of rushing to court on an urgent basis,
and, when they obtain interim relief, they bask under the comfort of
such relief and do not bother to have the provisional order so
granted to them confirmed or to have the matter finalized. It is an
undesirable habit and legal practitioners representing litigants
should be reminded of the need to finalize
such matters instead of continuing to parade on borrowed robes for
years. As it is now, the legal practitioner who obtained interim
relief on behalf of the applicant has vacated the scene and leaving
the provisional order hanging. It also turns out that the provisional
order which has endured for so long was obtained under false
pretences.
The
applicant, who appeared in person, admitted that when he moved onto
his farm in 2006 the sixth respondent was already occupying the
chalet in question. He stated that they lived together on what he
preferred to call “a homestead” from then until 2008 when they
quarreled because the sixth respondent refused to contribute towards
the electricity bill and the cost of pumping water. It is then that
he started complaining attracting the attention of other war veterans
who came to support the sixth respondent's continued stay there.
The
applicant also admitted that the chalets are not located on his farm
but on what he called no-man's land. For that reason he submitted
an application to the Minister of Lands for authority to occupy the
chalets. That authority was only granted sometime in 2013 - 5 years
after his approach to this court on an urgent basis and on facts
completely at variance with what he is now saying.
In
fact, counsel for the sixth respondent produced a letter written by
the Acting Chief Lands Officer on 30 November 2012 which confirms
that the applicant approached the court with wrong facts. It reads:
“RE:
Item 2 of your letter dated 26 July 2008 which reads the land
containing the chalets compound be consolidated with Mr Sweet Sweet's
plot
Firstly,
Umguza District Land Committee has no mandate to preside over A2
plots which have been issued with offer letters. The area in question
is in subdivision 3 of subdivision B of Umguzaan Block which was
issued to Arda. The understanding was that since there was no
homestead in subdivision 1 of subdivision B of Umguzaan Block all
beneficiaries were allowed to use the chalets and compound in
subdivision 3 of subdivision B of Umguzaan Block. Ministry of Lands
is totally against the consolidation of viable pieces of land and if
Arda has no use for that piece of land the Ministry will gladly
accept it and offer it to the numerous landless people on our waiting
list. So the would (sic) be consolidation is not valid.”
So
what was the applicant doing in 2008 telling the court that the
chalets were in his farm?
As
if that was not enough, he sought what was in fact spoliatory relief
of the basis that the respondents had come onto his farm on 29
November 2008 while he was peacefully enjoying the comfort of his
newly found farm and despoiled him amid threats to his life.
Un-mitigated falsehood and now he has been forced to eat humble pie.
This
court has repeatedly stated that the utmost good faith must be
observed by all those who approach it either ex
parte
or on an urgent basis.
They
are required to disclose to the court all the facts that are relevant
and would be useful in the resolution of the dispute. Urgent
applications punctuated by material non-disclosures or by outright
falsehood must be discouraged at all costs and as a seal of
disapproval the court will reward those who attempt to obtain court
orders ex
parte
or on an urgent basis through material non-disclosures or falsehood
with an award of admonitory costs against them.
See
Graspeak
Investments (Pvt) Ltd v Delta Corporation (Pvt) Ltd and Another
2001 (2) ZLR 551 (H)…,; N
& R Agencies (Pvt) Ltd & Another v Ndlovu & Another
HB198-11; Moyo
& Another v Hassbro Properties (Pvt) Ltd & Another
2010 (2) ZLR 194 (H).
This
application was predicated on falsehood.
The
applicant did not own the chalets. He found the sixth respondent in
occupation when he moved in, and, as such, there was no act of
spoliation whatsoever. The chalets are located elsewhere and not on
his farm. All that he relied upon in seeking an order banishing the
sixth respondent from the chalets was not true. He therefore obtained
an order by misleading the court. For that, he must be rewarded with
an order of punitive costs.
In
the result, it is ordered that:
1.
The provisional order issued on 18 December 2008 is hereby
discharged.
