URGENT CHAMBER APPLICATION
MAKARAU JP: The applicant
and the first respondent were before this court on 18 February 2009.
Then their roles were reversed. The first respondent was applicant in
a matter in which on 26 February 2009, this court issued a
provisional order in his favour, restoring occupation of certain
farming land to him, occupation of which had been forcefully taken by
the applicant.
The facts giving rise to the dispute between the parties are common
cause. I set them out as follows.
The first respondent carries on
farming on 8 Welston Farm in Mashonaland East. The farm was gazetted
by the Government under the land acquisition programme. In due
course, occupation of the farm was granted to the applicant under an
offer letter. Despite the gazetting of the farm, the first respondent
did not vacate the farm after the expiry of the periods set out in
the law.
On 5 February 2009, the applicant approached the farm in the company
of others and took occupation of the farm during the absence of the
first respondent.
It was on this basis that the first respondent approached this court,
claiming that he was in peaceful possession of the farm prior to the
applicant's occupation and had thus been despoiled.
This court, having heard argument in the matter, issued an order as
follows:
“Pending the determination of
this matter, the applicant is granted the following relief, that:
1. The applicant's possession,
use and occupation of 8 Welston Farm in the District of Mashonaland
East Province be and is hereby restored, so that that status quo ante
is achieved.
2. The 2nd
respondent and all persons claiming occupation and possession through
him be and are hereby ejected from 8 Welston Farm in the District of
Mashonaland East Province.”
Unhappy with the order of the court, the applicant filed an appeal
with the Supreme Court challenging the correctness of the provisional
order issued on certain grounds that are not material to this
decision.
In noting the appeal, the applicant formed the very firm view that
the provisional order issued by this court was in the nature of a
final order and thus the provisions of the law requiring leave before
an appeal can be noted against an interlocutory order did not apply.
Notwithstanding the noting of the appeal, the first respondent
instructed the deputy sheriff to enforce the provisional order
restoring possession of the farm to him.
He was advised that the appeal noted in the Supreme Court was a
nullity as no leave of this court had been obtained prior and in view
of the fact that the provisional order issued is indeed a simple
interlocutory order.
Again unhappy with the turn of events, the applicant approached this
court on a certificate of urgency, seeking an order staying execution
of the provisional order pending determination of the appeal.
The application was opposed by the first to third respondents, with
the fourth respondent maintaining a watching brief in the matter.
It is not in dispute between the parties that the order issued by
this court was provisional. While the written order does not specify
that the relief granted is in the interim pending confirmation or
discharge of the provisional order, the parties understand it in this
light.
The difficulty that the applicant has in the matter is two fold.
(i) Firstly, he is of the view
that the order although granted as a provisional order is final in
effect.
(ii) Secondly, he is also of the
view that the granting of the order has the effect of assisting the
first respondent to remain in occupation of the farm in violation of
a specific provision of the law regulating land acquisition and
reform.
It is also quite clear and not in dispute that the interim order
issued by this court on 26 February 2009 was a spoliation order,
simply restoring possession of the farm to the first respondent
without going into the merits regarding lawfulness or otherwise of
such possession.
In my view, Mr
Mlotshwa correctly
identified the issue that falls for my determination in this
application. It is not whether or not there is an extant appeal
before the Supreme Court but whether or not the order granted by this
court was a final order thereby obviating the need on the applicant's
part to apply for leave before noting an appeal in the matter.
In support of his argument, Mr.
Mlotshwa makes one
broad submission. He argues that a spoliation order, by its very
nature is a final order. In reliance, he cites the cases of Mankowitz
v Lowenthal 1982 (3)
SA 758 (A) and Van
Rooyen v Burger 1961
(1) SA 154 (O), authorities that are cited in Silberberg &
Schoeman's Law of Property 4th
Ed at page 270.
I am in full agreement with this view.
It is however worth noting that
in Mankowitz v
Loventhal (supra), the
court was dealing with the question of costs that had been reserved
for decision in an action resolving ownership of certain paintings
that were the subject of the dispute between the parties, whose
possession had been restored to the applicant in the spoliation
proceedings. It was in that context that the court pronounced that
spoliation is a final order and the question of costs in the
spoliation proceedings should have been determined by the trial court
as there was nothing interlocutory about the order that it had
issued.
Again it is to be noted that the
spoliation order that was appealed against in the Van
Rooyen v Burger
(supra) was clearly a final order granted after a full hearing in the
matter.
The issue that has exercised my mind in this matter is whether a
spoliation order granted as interim relief in a provisional order
under the rules of this court is a final order for the purposes of
section 43(2)(d) of the High Court Act [Chapter 7:06].
It is trite that a provisional
order granted under Rule 246(2) of the High Court Rules 1971, is
granted upon the judge sitting in chambers being satisfied that the
papers filed disclose a prima facie case.
It is also trite that the burden
of proof in all civil matters is proof on a balance of probabilities.
A provisional order granted under the rules is always subject to
confirmation or discharge before it becomes final. Confirmation or
discharge is in open court and is on a balance of probabilities.
In a provisional order, the power of the court to vary discharge or
confirm its earlier decision is reaffirmed in that it calls upon the
respondent to show cause why the provisional order may not be
confirmed.
It is because of the above attributes of a provisional order that I
am of the view that orders granted by this court in the form of a
provisional order, can hardly be final in their effect.
In my further view, a provisional
order cannot be the basis of a plea of res
judicata during the
proceedings to confirm or discharge the order.
In casu,
Mr Mlothwa has sought
to argue that the wording of the order granted in this matter makes
it final in effect in that it has already pronounced on the right to
possession and the unlawfulness of the applicant's actions.
Indeed it has but only on a prima facie basis.
The applicant is not precluded to
mount a challenge to these findings upon the matter being set down
for the confirmation and discharge of the order. He may argue that
the first respondent has not proved his entitlement to a spoliation
order on a balance of probabilities or that the applicant has a
defence to the application for a spoliation order. No issues are res
judicata as yet in the
matter and the High Court in my view is still seized with the matter
and may correct, vary, set aside or confirm its earlier decision.
On the basis of the foregoing, I am satisfied that the order issued
by this court on 26 February 2009 is an interlocutory matter and that
the High Court is still seized with the matter.
In the result, I make the following order:
1. The application is dismissed.
2. The applicant is to bear the
respondents' costs.
Antonio, Mlotshwa & Co, applicant's legal practitioners
Musunga & Associates, 1st,
2nd, and 3rd
respondents' legal practitioners
Attorney- General's Office, 4th
respondent's legal practitioners
