Urgent
Chamber Application
TAKUVA
J: This
is an urgent chamber application wherein the applicant seeks the
following interim relief:
“Pending
the determination of this matter, the applicant is granted the
following interim relief:
1.
The respondents be and are hereby interdicted from removing the
applicant's matter from the property known as certain piece of land
being Lot 1 of Copthal Block 2 situate in the District of Gwanda in
extent 4551,524 hectares.”
The
facts are that, the first respondent is a registered farming
co-operative in terms of the law. It was duly registered in 1994. The
applicant is a founding member of the first respondent. In pursuit of
their objectives, first respondent's members became cattlemen.
Sometime in 1997 a problem of overgrazing arose within the
organization. The applicant was the culprit in that he had 350 cattle
on the farm as compared to 80 owned by the first respondent.
The
carrying capacity of the farm is 333 cattle.
A
resolution was then passed outlawing the keeping of personal beasts
on the farm. Applicant refused to remove his cattle from the farm
prompting the first respondent to approach this court under cover of
case number HC1554/00 seeking an order evicting the applicant from
the farm. The order was granted per CHIWESHE
J
on 5 July 2002. The first respondent passed a resolution expelling
applicant. Aggrieved applicant approached the Registrar of
Co-operatives who subsequently reinstated applicant's membership to
the first respondent.
There
is a dispute of fact as regards applicant's compliance with the
court order cited above. Applicant states that he indeed complied
and moved his herd to Roys Farm in Marula Figtree. When applicant's
reinstatement as a member was effected in May 2004, he subsequently
learnt that the first respondent set aside its earlier resolution
barring members from keeping their personal cattle on the farm. He
then brought back his cattle in 2006 and left them there up to this
day. The first respondent has not sought to enforce the judgment
under case number HC1554/2000 until 20 July 2016 when he was informed
that second respondent had left a notice for the ejectment of his
cattle from the farm. The notice was left around 1700 hours and the
next day he consulted his practitioners who filed this application on
the 22 July 2016.
On
the other hand the respondent contended that applicant never complied
with the court order since 2000, while denying that the resolution by
first respondent barring members from keeping personal cattle on the
farm was set aside, first respondent conceded that all the members
brought back their personal cattle to the farm after the judgment had
been granted. This is the current position.
Applicant's
basis for the relief he seeks is that, first respondent is not
entitled to proceed in terms of the judgment under case number
HC1554/2000 as it was overtaken by events in that;
(a)
he complied with the judgment and moved his cattle out of the farm.
(b)
his cattle were brought to the farm under a new dispensation in which
the resolution which had caused his eviction had been rescinded and
members were allowed to bring their cattle to the farm.
(c)
alternatively, he averred that his cattle have been on the farm with
the express knowledge and acquiescence of the first respondent.
(d)
currently, other members of the first respondent have their cattle on
the farm including non-members.
(e)
if the first respondent now holds the view that applicant should not
keep his cattle at the farm, then it ought to institute fresh
proceedings showing the basis upon which his cattle ought to be
removed from the farm, instead of relying on a writ of execution
which was fully complied with. The moving of the cattle back onto
the farm in 2006 constitutes a fresh act not the subject of the
earlier judgment which was complied with.
As
regards urgency applicant submitted that the application is urgent in
that he has 368 cattle on the farm and if he is evicted, he does not
have another place to put them. He will therefore suffer irreparable
prejudice as there is a real risk that the cattle might be lost or
stolen. Further applicant contended that he does not have a
satisfactory alternative remedy other than the interdict, in that a
claim for damages is not efficacious as suing first respondent is
equivalent to applicant suing himself as a member of first
respondent. Damages are also not a satisfactory remedy as it would
punish innocent members of the first respondent.
Applicant
further contended that the balance of convenience is in his favour
than the first respondent in that he has been in occupation of the
farm for more than ten years without incident and the harm he stands
to suffer is immeasurable and incurable. On the other hand, so the
argument went, first respondent is unlikely to suffer any prejudice
if the ejectment is stayed. There is no discernible urgency in the
eviction since it has waited since 2006 after the order was already
in its hands.
Mr
Chamunorwa
for the applicant relied on
CFI
v Manyika
SC8/2016 and Mukonoweshuro's
case HH 711/15. He further argued that first respondent was not
properly before the court in that its representative lacked authority
to represent it.
On
the other hand Mr
Collier
for the first respondent in opposing the application argued two
points in
limine.
Firstly he submitted that the applicant has approached the court with
dirty hands in that he has not complied with the court order.
Secondly, it was argued that the relief sought is improper in that
applicant prays for an interdict instead of a stay of execution.
On
the merits, first respondent argued that since the judgment in case
number HC1554/2000 is still extant, it could be enforced, hence the
first respondent's decision to evict the applicant from the land.
It was conceded that the basis of this court's judgment in case
number HC1554/00 was the resolution that had been passed by first
respondent's members. It was also admitted that applicant will
suffer prejudice if his cattle are removed from the farm. Further, it
was contended that what is at the heart of this case is that “the
applicant insists on keeping 400 of his personal cattle on the land
in question.” This is hugely disproportionate to the number of
cattle that the other members of the co-operative have. The applicant
has not justified why he is entitled to special treatment.
The
applicant's point in
limine
on locus
standi
is not well taken in my view. I say so for the following reasons:
(a)
It is the applicant that cited the first respondent, an association
which was represented by its treasurer one Canaan Sibanda. It appears
in my view incompetent to challenge his capacity to appear – see
Mudzengi
and Others
v Hungwe
and Another
2001 (2) ZLR 179 (H).
(b)
Canaan Sibanda as a member and treasurer of the first respondent has
a substantial legal interest in the administration and welfare of the
first respondent – see Steveson
v Minister
of Local Government and Others
2002 (1) ZLR 498 (S).
Turning
to the respondent's points in
limine
I find as follows:
(a)
The dirty hands doctrine does not apply in casu
because the procedure and relief applicant has adopted and sought are
provided for by the law. The proper meaning of the doctrine was
stated by CHIDYAUSIKU
CJ in
Associated
Newspapers of Zimbabwe (Pvt) Ltd
v Minister
of State for Information and Publicity and Others
2004 (1) ZLR 538 (S) in the following terms:
“---It
was not for litigants to decide which laws are unconstitutional. The
principle that a citizen who disputes the validity of a law must obey
it first and argue afterwards is founded on sound authority and
practical common sense.”
(b)
While I agree that in principle, there is no difference between a
litigant who is in defiance of a court order and a litigant who is in
defiance of the law, there is a distinct difference between a
litigant who, like in casu,
strenuously disputes defiance, and one like in the ANZ case who
admits its open defiance of the law. I take the view that a court
should exercise its discretion to exempt the former from the
application of the dirty hands principle.
Respondent's
second point in
limine
relates to the competency of the order sought. The argument is that
since an interdict has different requirements from those of an
application for stay of execution, the applicant should have applied
for a stay of execution instead of an interdict. This argument has no
merit in that respondent is simply splitting hairs. There is nothing
final about the interim relief prayed for in casu.
For
these reasons, the points in
limine
are dismissed.
On
the merits, the requirements of an interdict are well known. They
are;
(a)
a prima
facie
right, even if it be open to some doubt,
(b)
a well grounded apprehension of irreparable harm if the relief is not
granted;
(c)
that the balance of convenience favours the granting of an interim
interdict; and
(d)
that there is no other satisfactory remedy.
See
Shabtai
v Bar
and Others
2014 (2) ZLR 862 (H) and Tribac
(Pvt) Ltd
v Tobacco
Marketing Board
1996 (1) ZLR 289 (S).
In
the present case, there is no doubt that applicant, as a member of
the first respondent, has a right to enjoy the benefit of his
membership. There is in my view, good grounds for an apprehension of
irreparable harm if the relief is not granted in that applicant's
cattle may be stolen, die or be exposed to diseases. Quite clearly,
the balance of convenience favours the granting of the interdict in
that if it is not granted, applicant will suffer huge and incurable
financial harm.
On
the other hand, if it is granted, first respondent is unlikely to
suffer any prejudice at all.
I
must state that I agree with Mr
Collier
when he submitted that the central issue is that applicant has a
hugely disproportionate number of cattle on the farm. This, it
appears, is the major grievance by the first respondent's members.
However, this situation has been allowed to exist for years and I am
of the view that first respondent will not suffer any appreciable
prejudice pending the confirmation or discharge of the interim
relief. It does not look like there is any other satisfactory remedy
that can protect applicant in an effective manner. Clearly damages
are not a satisfactory remedy in that it appears the rest of first
respondent's members are poorer than the applicant. Therefore, they
are not likely to compensate applicant by way of damages in the event
that he is eventually successful.
In
the circumstances, I find that the applicant has satisfied the
requisites of an interdict. Accordingly, it is ordered that;
Pending
the determination of this matter, the applicant is granted the
following interim relief:
1.
The respondents be and are hereby interdicted from removing the
applicant's cattle from the property known as certain piece land
being Lot 1 of Copthal Block 2 situate in the District of Gwanda in
extent 4551,5214 hectares.
Calderwood,
Bryce Hendrie and Partners,
applicant's legal practitioners
Messrs
Webb, Low and Barry,
1st
respondent's legal practitioners
