CHIWESHE JP:
In this urgent chamber application the applicants sought a provisional
order in the following terms:
"TERMS
OF THE FINAL ORDER SOUGHT
(a) The
purported exercise of eviction to be finalised by the 28th of
February 2011 and all evictions already carried out by the first respondent and
all those acting through him be and are hereby declared unlawful.
(b) Applicants
shall continue to reside at Zuvarabuda Village on Zuvarabuda Farm P.O. Box 147,
Bindura unless a court of law rules otherwise.
(c) That
respondents shall pay the costs of this application.
TERMS
OF THE INTERIM RELIEF GRANTED
1.
1st
respondent be and is hereby ordered to
return vacant possession of premises at Zuvarabuda Village on Zuvarabuda Farm
P.O. Box 147, Bindura to applicants, that is to say, all locks, key and other
effects of the said premises must have been returned to applicants within 24
hours of the delivery of this judgment.
2.
Respondents are hereby interdicted from:
a) Verbally abusing the applicants in any manner.
b) Threatening,
assaulting or applying force on the person any of the applicants.
c) Tampering
with or destroying applicants' property.
d) Engaging
in any conduct that is likely to threaten the applicant's peace and security.
3.
Pending the return of this matter, the 3rd
respondent and his lawful Officers or any other members of the Zimbabwe
Republic Police (ZRP) are hereby authorised to arrest first and second
respondents and any other person acting through them and bring them before this
Honourable Court for contempt of court should he breach any terms of this
order.
4.
3rd respondent is ordered to
investigate the malicious damage to property, arson and assault reported by
applicants and to report his finding to this Honourable Court on the return
date."
In their
founding affidavit deposed to on their behalf by their legal practitioner, Mr David
Tinashe Hofisi, the applicants state that they are farm workers who have been
resident at Magamba Zuvarabuda Village,
Bindura. They have been so resident for various periods of up to thirty years. They
work at Zuvarabuda Farm on which the village is situated. According to the applicants first respondent
took occupation of Zuvarabuda Farm in 2005.
They are unaware of the lawful authority upon which first respondent
took over the farm. They have
nonetheless worked for him since then and have been in peaceful co-existence
with him till 8 February 2O11. On that
day the first respondent summoned all the applicants to a meeting at the farm
which was also attended by seven police officers from Bindura. At that meeting first respondent told the
applicants that they were to vacate the farm failing which they would be
evicted by the police officers from Bindura and, in addition, their homes would
be destroyed. Despite the applicants'
pleas with regards the fate of their school going children, their crops and
other resultant hardships, the applicant was adamant that they move out of the farm.
Various
acts of spoliation are then attributed to the first respondent on behalf of the
second, third, fourth, fifth, and sixth applicants. These include, but are not limited to, the
bull-dozing of their homes by means of first respondent's tractor, the removal
of various movables from the applicants' homes into the open, the destruction by fire of some of their personal property,
the locking up of their dwellings in order to prevent applicants' entry
thereto, assaults and other ills.
According to the applicants, all these acts were committed by the first
respondent and his son (2nd respondent) in the presence of police
officers from Bindura. Needless to say
reports made by the applicants to the police station at Bindura proved futile
as no arrests were made nor was there
any feed-back as to the progress of investigations, if any.
As
a result of all these acts of hostility, the applicants have fled their homes
and are being sheltered elsewhere on humanitarian grounds.
In
their opposing affidavits the first and third respondents have denied acting as
alleged. The second respondent is a
minor according to the first respondent, his father. He therefore represents him - any acts
alleged against him are also denied. The
third respondent says the police were only involved in mediating a dispute
between the first respondent and the applicants. They were referred to the civil courts. The
mediation was conducted at the police station in Bindura and not at the
farm. The third respondent denies being
present at the farm during the alleged mayhem, and denies any knowledge of it,
let alone his involvement or that of his officers.
In
his opposing affidavit the first respondent states that he was allocated Plot 3
of the farm by the Government in 2003 and occupied it in 2005. He produced what appears to be a valid offer
letter issued by the responsible Minister as well as a signed letter of
acceptance of that offer. He says he has
since then been requesting the applicants to look for alternative places - some
of them have since done so. He has also
encouraged them to apply for resettlement.
Some of them opted to work for him but others declined.
The
first respondent has denied that he has evicted or threatened to evict the
applicants. He states that the
applicants are still at the farm and he doubts whether some of them are aware
of the present application. He further
states that his plot 3 is situated on Claverhill Hill North Farm and not
Zuvarabuda Farm as alleged. He has no
knowledge of some of the families listed in the applicants' papers and denies
that they are farm workers at Claverhill.
He says he had on numerous occasions advised those applicants not
engaged as his employees to leave the farm but to no avail. According to him their continued occupation
of Claverhill Farm without his consent constituted a criminal offence. He had therefore convened a meeting with the
applicants at which he had invited the police so that the consequences of the
applicants' actions would be explained to them by members of the police. He never evicted or threatened any one with
eviction. Nor did his son or the police
engage themselves in the manner alleged.
He however lamented various misdeeds by the applicants including thefts
of his property and tendencies of violence against his person. The first respondent denies being in breach
of any law as alleged, be it domestic or international law.
It
is evident from the foregoing that serious disputes of fact arise in this
application. These are disputes which cannot
be resolved without hearing "viva voce"
evidence. The applicants should have
foreseen these factual disputes and should accordingly have proceeded by way of
action rather than application.
It
was for these reasons that I dismissed the urgent application with costs.
Zimbabwe
Lawyers for Human Rights, applicants' legal practitioners
Debwe
& Partners, first respondent's legal practitioners
Civil Division of the Attorney General's Office, third respondent's
legal practitioners
