MAKONESE J: The applicants
reside at Matankeni, Zwehamba and Mahetshe Villages, under Chief
Nyangazonke communal hands. The applicants own homesteads in an area
adjacent to land belonging to 1st
respondent. Their farming and grazing area naturally borders the land
owned by 1st
respondent. Applicants complain that 1st
respondent is encroaching on their farming and grazing land.
This is denied by 1st
respondent who avers that none of the applicants' homesteads have
been destroyed or affected by the 1st
respondent.
The respondents contend that the
matter that has been brought under a certificate of urgency is not
urgent at all and there are material disputes of facts which can only
be resolved in a trial.
The applicants seek an interim
order in the following terms:
“1. That pending confirmation
or discharge of this provisional order applicant be and is hereby
ordered to immediately cease evicting, demolishing and/or interfering
with the applicants' homesteads, farming and grazing land, and to
immediately restore applicants to their occupation and possession of
their homesteads, farming and grazing land.
2. In the event of the
respondents failing to restore applicants to their occupation and
possession of their homesteads, farming and grazing land, the Sheriff
of Zimbabwe or his lawful deputy be and is hereby authorized to
restore applicants to occupation and possession of their homesteads,
farming and grazing land.
The respondents raised the
following points in
limine:
1. The application is not
urgent
The respondents contend that the
certificate of urgency does not mention one word on how and when the
urgency arose. It argued that a document certifying urgency must
itself disclose urgency, that is to say, the date when the cause of
complainant arose and the time difference between such date and the
date when action was eventually taken. These averments are evidently
absent from the certificate of urgency and for that reason the
certificate of urgency is fatally defective.
The applicant alleges, in the
founding affidavit of Robert Mafu, that the alleged cause of
complaint arose on 5th
September 2016. The applicants allege that a bulldozer and various
earthmoving equipment had been demolishing their dwelling structures
since the 5th
of September 2016.
No explanation has been advanced
as to why no action has been taken to seek this court's
intervention if those allegations are true. It seems to me that the
applicants' inaction seems to suggest that the demolitions never
occurred at all. The photographs annexed to the applicants' papers
do not show any demolished buildings or structures. They do not show
any movable properties strewn all over the place.
Mr K.
Ngwenya appearing for
the applicants seems to have disclosed the real nature of the dispute
when he commenced his submissions by stating that the respondents
have encroached on to the applicants' grazing lands.
I hold the view that the
applicants have not established urgency at all.
If the need to act had arisen on
5th
September 2016, one who have expected the applicants to spring into
action at that stage. The applicants chose to wait and file the
application at their pleasure and at the time of their choosing. This
is not the urgency contemplated by the Rules. See the case of
Kuvarega v
Registrar General &
Anor 1988 (1) ZLR 188.
2. Material disputes of fact
The second preliminary point
taken by the respondents is that the courts will not grant an order
on application where there are material disputes of facts.
The applicants allege that their
houses and property have been destroyed and that they have been
evicted or have been threatened with such eviction. The court has
been given the benefit of pictoral evidence of the situation
obtaining on the ground by the applicants. An examination of the
pictures attached to the application does not depict any destruction
of any dwelling structure as alleged by the applicants. It is my
view, that if any house, home or property had been destroyed there
would be evidence of debris, furniture, scattered or strewn all over
the place. The respondents contend that the allegations of
demolitions of property are a fabrication designed to create urgency.
1st
respondent avers out that it owns a certain piece of land adjacent to
the communal land where the applicants reside. The piece of land
measures 1,000 hectares in extent.
1st
respondent contends that none of the applicants reside in the area
owned by the 1st
respondent. There is only one single homestead which is situated
close to the boundary of the estate owned by 1st
respondent. This property has not been damaged or destroyed.
The dispute of fact lies on two
grounds.
The first is that respondents
deny destruction of any property or eviction of any form. The second
is that there are no homesteads within the estate boundaries of land
owned by 1st
respondent.
The nature of these disputes is
exacerbated by what appears to be very scant information in the
founding papers. The applicants all seem to allege that they were
evicted or have their property destroyed. None of the applicants
alleges with any degree of specificity the exact nature of property
damaged as claimed or stated. There is clearly a material dispute of
fact which cannot be resolved on the papers.
See the case of Mashingaidze
v Mashingaidze
1995 (1) ZLR 219 (HC) where the court stated at page 221 as follows:-
“It is necessary to discharge
the too–oft recurring practice whereby applicants who know or
should know, as was the case with the applicant in this matter, that
real and substantial disputes of fact will or likely to arise on the
papers, nevertheless resort to application proceeding on the basis
that, at the worst, they can count on the court to stand over the
matter for trial.”
On these two preliminary points
the court is satisfied that application does not pass, firstly the
test of urgency and secondly there are material disputes of fact
which the applicants reasonably foresaw and which cannot be settled
without leading oral evidence.
On the merits
Assuming that the applicants were
to establish that the matter is urgent and that there are no material
disputes of fact, the applicants have not in my view, established
that they are entitled to the relief they seek.
Applicants have not proved the
requirements for an interdict.
The applicants should, at the
very least, show a prima
facie right. They
have not done so.
Their allegation of occupation is
not supported on the papers placed before the court. The applicants
have not established that 1st
respondent has encroached on to the land they occupy. The applicants
must allege and prove the nature of their title or right therein.
Bold and unsubstantiated allegations of evictions and demolitions of
property have only been made. The applicants have not shown injury
actually committed or reasonably apprehended. Their photographs show
no injury committed at all.
The requirements for the granting
of an interdict are well established in our law. See the cases of
Setlego
v Setlego
1914 AD, and Flame Lily
Investment Company
v Zimbabwe Salvage
(Pvt) Ltd & Anor
1980 ZLR 378.
In the result, I am satisfied
that this application is ill-conceived and is not well grounded.
I accordingly dismiss the
application with costs.
Messrs T. J. Mabhikwa & Partners, applicants' legal
practitioners
G.N. Mlotshwa & Company, 1st respondent's
legal practitioners
Mushoriwa Pasi Corporate Attorneys, 2nd
respondent's legal practitioners
