The
starting point in this appeal is to restate what I said in Mathuthu
v Chegutu Municipality & Others
HH502-14 that:
“The
authority, dignity and respect of courts of law should never be
demeaned, prejudiced or undermined. It behoves the subject to bow to
the decision of the court and, where there exists a remedy, to then
pursue that remedy elsewhere. This is extremely important for the
proper administration of justice.”
The
appellant and the respondent are unfriendly neighbours occupying
Plots number 12 and 13 Helenvale, Umguza, respectively, but have been
fighting tooth and nail since year 2012 over a boundary dispute even
though there are clear pegs marking each of the plots. The dispute
over the demarcation of the plots forced the appellant to sue out a
summons in the Magistrates Court of Bulawayo in case number 6187/12
complaining about the respondent's actions of erecting a homestead
on his own plot. He sought an order evicting the respondent from that
part of the land falling within the precincts of Plot 12 Helenvale,
Umguza.
The
respondent initially contested the action averring in his plea that
there had been no boundary dispute between the parties until DDF and
the Ministry of Lands officials came and re-pegged the plots
resulting in the disputed 30 metre strip of land falling within Plot
12 belonging to the appellant. He further averred that the parties
had agreed that he would compensate the appellant for the strip by
ceding an equivalent portion to the south of his plot to the
appellant given that he had built structures on the strip belonging
to the appellant.
Believing
that the respondent had not a bona
fide
defence, the appellant filed a summary judgment application. The
respondent still contested the application, surprisingly stating
that:
“Never
at any given time did I refuse or imply to refuse to leave the
plaintiff's plot, for when I did the construction it was bona
fide
and a fact that can be confirmed by lands officers or the responsible
authority.”
The
parties then filed a consent order signed by both of them which was
then granted by the court on 10 January 2013. It reads:
“IT
IS HEREBY ORDERED THAT:
1.
Respondent be and is hereby ordered to relocate a portion of his
homestead and cease carrying any agricultural activity on any fields
that fall within applicant's plot by the 31st
August 2013 without fail.
2.
The parties are hereby ordered and directed to complete the
construction of their plot's boundary fence by the 31st
August 2013 without fail.
3.
The parties be and are hereby ordered to keep peace towards each
other.
4.
In the event that any of the parties herein fail, refuse or neglect
to comply with paragraph 1 and 2 of this order, the Messenger of
Court, Bulawayo be and is hereby empowered to enforce this order
including but not limited to the eviction of respondent and enforcing
the construction of the boundary fence as alluded to in paragraph 1
and 2 herein above.
5.
No order as to costs.”
It
is common cause that after the consent order was granted the
respondent did not relocate his homestead and that the appellant had
to issue a writ of ejectment against him. It is common cause that the
Messenger of Court executed the writ by evicting the respondent
between 15 and 19 September 2014. He stated in his return of service:
“Full
eviction carried out, defendant present, premises handed over to Mr P
Moyo.”
The
eviction process involved the demolition of the respondent's
homestead and he confirmed at the hearing of this appeal that indeed
the Messenger of Court demolished the homestead constructed on Plot
12 belonging to the appellant.
It
is also common cause that prior to the eviction, the pegs demarcating
the plots had been affirmed by the Ministry of Lands. In a letter to
the officer in charge of Saurstown Police Station on 2 September 2014
the District Lands Officer had stated:
“REF:
ILLEGAL OCCUPATION OF PLOT NO. 12 HELENVALE M
Sir,
please be informed that our office received a complaint from Mr
Petros Moyo I.D No 08-244845 B 39 over the illegal occupation of his
plot, Plot 12 Helenvale M. Plot No.12 Helenvale M was offered to Mr
Petros Moyo by the Ministry of Lands and Rural Resettlement in the
year 2002. Pegging of Plot 12 was done successfully by the Ministry
on the 13th
and 14th
of August 2014. The pegging confirmed that the two plot holders, Mrs
Thalitha Mhlanga and Mr Robert Ncube, who are Mr Moyo's neighbours,
are within the boundaries of Plot 12. Mr Moyo is also in possession
of a court order issued sometime in 2013 of which the two illegal
settlers were supposed to vacate his plot by the 31st
of August 2013. May you please assist him in whatever way possible.
Thank
you.
P
Ndlovu
District
Lands Officer”
It
is common cause that after eviction carried out in September 2014,
the appellant erected a boundary fence marking the distinction
between Plots 12 and 13 and that in December 2014 the respondent
re-occupied the same land from which he had been evicted through a
court order. He rebuilt a homestead there and resumed tiling the land
falling within Plot 12 belonging to the appellant.
He
says he did that because he did not agree with the boundary marked by
the Ministry of Lands. He confirms that he did not go back to court
to overturn the court order for eviction granted by consent. He
merely resorted to self-help.
These
are the facts that confronted the court a
quo
when an application for contempt of court arising out of the
respondent's defiance of an eviction process was made. In its
judgment, the court a
quo
misdirected itself on the facts. It stated, at page 7 of the record;
“The
applicant stated that after the court order was granted by consent
the respondent was served by the Messenger of Court and full eviction
was effected. On the 17th
of September 2014, the applicant employed officials from the Ministry
of Lands and Rural Resettlement who pegged the plots and clearly
demarcated each respective plot and created boundaries. The
respondent fearfully returned sometime in December 2014 and has
resumed building domestic habitation and has resumed agricultural
activities. The respondent, on the other hand, argued that the reason
why he did not comply with the court order is that applicant invited
officials from the Ministry of Lands they pegged the place afresh and
set new boundaries and they removed the pegs from their proper spot
and placed the plot (sic)
at their preferred plots.”
The
court then went on to find a dispute of fact which it said could not
be resolved on the papers, and, without referring the dispute to
trial, it outrightly dismissed the application with costs. It
concluded at page 8 of the record:
“I
am of the considered view that the conflicting positions of the
parties are irreconcilable on the papers in several aspects; the
applicant's affidavit does not clearly establish whether the
boundaries demarcated by the Ministry of Lands and Rural Resettlement
were the same boundaries from the initial order or they erected new
boundaries; respondent also avers that they were new boundaries
different from the ones that were agreed upon. I therefore conclude
that there are material and significant disputes of fact that can
only be resolved by calling of court evidence in trial proceedings.
It is my view that the applicant should proceed by way of action. For
the above reasons I therefore dismiss the application with costs.”
The
appellant was unhappy with that outcome and launched this appeal
against the whole judgment of the court a
quo
on
the grounds, inter
alia,
that the court a
quo
failed to appreciate that the respondent had taken the law into his
own hands by re-occupying the land after lawful eviction. It also
failed to appreciate that no fresh demarcations were made by the
Ministry of Lands after the eviction of the respondent, and, as such,
there were no genuine disputes of fact.
I
have said that the court a
quo
misdirected itself on the facts of the matter.
It
was in possession of the letter written by the District Lands Officer
on 2 September 2014 to the effect that pegging had been done on 13
and 14 August 2014 which confirmed the boundaries and that the
respondent encroached onto the appellant's land…,. That pegging
was undertaken before the eviction took place.
Indeed,
the court a
quo
was in possession of a return of service by the Messenger of Court
showing that eviction had been carried out on 15, 17 and 19 September
2014…,.
When
the eviction was carried out the boundaries had already been
determined by the pegging. The respondent was then evicted in terms
of a court order following boundaries confirmed by a pegging process
conducted on 13 and 14 August 2014.
Clearly,
therefore, the pegging referred to by the court a
quo
could not be an excuse for re-entering the land 3 months later in
December 2014. Much less could such pegging found a dispute of fact
as could not be resolved on the papers in an application for contempt
of court anchored on a defiance of an eviction carried out in terms
of a court order more than a month after that pegging occurred.
The
so-called dispute of fact was illusory.
While
it is true that the resolution of the dispute without doing an
injustice to the other party is one of the prime considerations in
allowing or disallowing the use of application procedure, the
respondent must at least disclose that there are material issues in
which there is bona
fide
dispute of fact capable of being decided only after viva
voce
evidence has been heard. See Ex-Combatants
Security Co v Midlands State University
2006 (1) ZLR 531 (H)…,.; Da
Matta v Otto N.O
1972 (3) SA 858 (A) 882 I; Railings
Enterprises (Pvt) Ltd t/a Paroan Trucking v Dowood Services (Pvt) Ltd
t/a Bradfield Motors and Others
HB53-16.
In
any event, even where there exists a material dispute of fact, the
court should take a robust and common sense approach to the dispute
and endeavour to resolve it. If it succeeds then the matter ends
there. If it does not, then it still has an election to either
dismiss the application or refer the matter to trial for a resolution
of that dispute.
The
court should only dismiss the application where the dispute must have
been apparent when the applicant embarked on application procedure.
See Zimbabwe
Bonded Fibre Glass (Pvt) Ltd v Peech
1987 (2) ZLR 338 (S)…,.
In
my view, there was no dispute of fact at all which the court could
not resolve.
The
respondent was evicted long after the pegging which he threw into the
fray to cause confusion. When he moved back onto the land from where
he was evicted he was not being propelled by any pegging but by a
contemptuous attitude towards the court that ordered his eviction.
Every
citizen of this country is obliged to obey the orders of the courts.
That is the essence of the rule of law: see Mapfumo
v Director of Housing and Community Service and Others
HH274-14.
As
stated by ROMER LJ in Hadkinson
v Hadkinson
(1952) 2 ALL ER 567 (CA)…,.;
“It
is the plain and unqualified obligation of every person against, or
in respect of whom, an order is made by a court of competent
jurisdiction to obey it unless and until that order is discharged.
The uncompromising nature of this obligation is shown by the fact
that it even extends to cases where the person affected believes it
to be irregular or even void.”
See
also
Mpofu v Mlilo
2002 (1) ZLR 160 (H)…,.
A
person who disobeys a court order is in contempt of court.
Where
a court order is carried into execution by the eviction of the
respondent and the respondent returns to the property from where he
was evicted there can be no ambiguity. He is simply in contempt and
no amount of argument over imagined boundary disputes can change his
disdain of a court order.
In
the result it is ordered that:
1.
The appeal is hereby upheld.
2.
The respondent is hereby found to be in contempt of court for having
refused to comply with the court order directing him to vacate a
portion of the appellant's property, namely, Plot Number 12
Helenvale, Umguza, that the respondent is currently inhabiting.
3.
The respondent is hereby fined US$500= which is wholly suspended on
condition the respondent vacates the applicant's Plot Number 12
Helenvale, Umguza by the 30th
October 2016.
4.
This order shall operate as a permanent warrant authorizing the
Messenger of Court, the police and other law enforcement agents to
arrest and detain the respondent or anyone claiming through him on
any future instance should they violate the court order granted by
the Magistrates Court on 10 January 2013 under case number
M.C6187/12.
5.
The respondent shall bear the costs of suit in the court a
quo
and of this appeal.
