Urgent
Chamber Application (Interdict Pendente lite)
MWAYERA
J:
The
applicant approached the court through the urgent chamber book
seeking for an interdict pendente lite.
The
order sought seeks to restrain the respondents in particular fourth
respondent from evicting and or disrupting the applicant's farming
activities at subdivision 11 of Chipinge West Annex pending the
finalisation of proceedings under case number HC52/18.
The
order sought by the applicant as discerned from the papers is as
follows:
“TERMS
OF THE FINAL RELIEF:
(a)
That the respondents or anyone acting through them be and are hereby
interdicted from implementing the changes made to the applicant's
farm and location by the letter dated 7 June 2018 from the 1st
respondent pending the determination filed by the applicant under
case number HC52/18.
(b)
The respondents pay costs of suit on attorney client scale.
INTERIM
RELIEF:
1.
The 4th
respondents or anyone acting through him or under his instructions be
and are hereby ordered to stop immediately all evictions of the
Applicant and removal of his property or farm workers.
2.
The 4th
respondent or anyone acting through him or under his instructions in
particular members of the Zimbabwe National Army be and are hereby
interdicted from entering any part of the Applicant's farm where he
is presently occupying and staying.”
I
must mention that the matter which was received on 22 June 2018 was
set down for hearing on 25 June 2018 to allow for service to be
effected on the parties.
On
25 June 2018 Mr Mukoyi who indicated he is a Provincial Lands Officer
and thus second respondent indicated that he came in as a
representative of the first, and third respondents with instructions
to postpone the matter so as to secure legal representation. The
applicant's counsel consented and the court acceded to the
indulgence for legal representation to be secured.
On
28 June 2018 at the hearing the fourth respondent appeared in person.
There was no appearance for the first and third respondents even
though Mr Mukoyi the purported he had the mandate to represent the
first respondent and third respondent.
I
must mention I was somewhat taken aback by the non availability of
the lawyers as that was the reason for postponement in the first
place. I even inquired if the first respondent was not represented by
the Civil Division and Mr Mukoyi insisted he had the mandate. Even
after it was intimated to him since he was not a lawyer, as he
revealed upon being questioned, he could not represent the first and
third respondents, he insisted the Ministry had made a decision it
was not necessary to engage lawyers. Mr Mukoyi then appeared in
person for the office of the Provincial Lands Officer.
It
is not for this court to force parties to secure legal
representation. The court can only conscietise the parties of the
constitutionally enshrined right but it cannot represent parties or
force them to secure legal representation. Without diverging from
presiding over a matter impartially the court can assist self-actors
by explaining procedures so that the parties are able to follow.
The
explanations were given for the benefit of the second and fourth
respondents.
I
must however, mention that the court took judicial notice of the fact
that Government Ministries are ordinarily represented by the Attorney
General's Civil Division. The unusual stance by Mr Mukoyi that the
Ministry had made a decision that he appears on their behalf
intrigued the court and this has been brought to the attention of the
Attorney General's Office.
For
the sake of completeness I shall set out the brief background to the
application.
Both
the applicant and fourth respondents are beneficiaries of the land
reform programme. They both were issued with offer letters by the
first respondent, the relevant issuing authority. The applicant was
issued with an offer letter for subdivision 11 of Chipinge West Annex
on 9 May 2011. The applicant has been in situ since then and as at
the time of the hearing had been in possession of the land in
question for about 7 years. The fourth respondent was issued with an
offer letter on 18 June 2018 and the offer letter allocated him
subdivision 8 of Chipinge West Annex.
Following
the issuance of the fourth respondent's offer letter the fourth
respondent sought to take occupation and in so doing conflict arose
with the applicant who was already on the ground.
The
applicant was aggrieved by the relevant ministry's reallocation of
the land on which he was settled and thus approached this court in
terms of section 4(1) of the Administrative Justice Act [Chapter
10:28]
under HC52/18.
The
applicant further sought on an urgent basis an interdict to bar the
fourth respondent from moving in and disturbing the applicant and his
workers' activities at the farm pending determination of HC52/18.
Both
second and fourth respondent had no submissions on urgency.
Urgency
as contemplated by the rules of this court is fairly settled and well
defined in plethora of case law. One can safely summarise
circumstances in which a matter can be viewed as urgent as follows:
1.
That when the need to act arose, the party concerned sprang into
action.
2.
That the matter cannot wait, for waiting would render hollow any
other remedy to be availed by the court in future.
3.
That the party concerned will suffer irreparable harm and that there
is no other remedy available.
4.
The balance of convenience favours the granting of the application.
The
requirements of urgency are ably and succinctly laid out in Kuvarega
v Registrar General and Anor
1998 (1) ZLR 188; Document
Support Centre v Mapuvire
and
Another
2006 (2) ZLR 240.
See
also the case of Madzivanzira
and 2 Ors v Dexprint Investments (Pvt) Ltd
HH245-02 which quoted with approval sentiments of Paradza
J (as he then was) in Dexprint
Investments (Pvt) Ltd v Ace Property and Investments (Pvt) Ltd
HH120/02
wherein the learned Judge stated that:
“For
a court to deal with a matter on urgent basis, it must be satisfied
of a number of important aspects. The court has laid down guidelines
to be followed. If by its nature the circumstances are such that the
matter cannot wait in the sense that if not dealt with immediately
irreparable prejudice will result, the court can be inclined to deal
with that matter on urgent basis.”
Further
in Dexprint
Investments (supra)
the court stated as follows:
“….it
must be clear that the applicant
did on his own part treat the matter as urgent.”
(my emphasis)
This
same reasoning has been rehashed by the courts with emphasis on the
importance of the party seeking redress on urgent basis and not
waiting for doomsday or the day of reckoning to arrive.
If
the applicant in this case swiftly acted in the face of impending
irreparable harm in circumstances where the matter cannot wait then
there is justification in allowing the matter to jump the ordinary
que and be heard on urgent basis.
Given
the common cause aspects emanating from submissions by Colonel
Makuyana that he was advised by Mr Mukoyi, that he should not move in
too soon but give the applicant who was already in situ time to
harvest his crop and also given the undisputed evidence by the fourth
respondent that he moved in and that he intended to help the
applicant with a sheller to shell his maize it became apparent that
the applicant on realizing the disruption at his farm had to urgently
seek redress by way of an interim interdict.
The
applicant received notification to vacate and that at more or less
the same time the fourth respondent and other people moved and
started settling in, in a manner tantamount to evicting the applicant
and/or his workers.
In
reaction to this disruption the applicant who had lodged an
application with this court under HC52/18 also sought a provisional
relief on an urgent basis.
Mr
Mukoyi did not make any submissions as whether or not the application
was urgent. This was despite the explanation by the court of the
requirements of urgency as contemplated by the rules of the court. He
had no submissions to make on urgency and so did Mr Makuyana the
fourth respondent.
From
the circumstances of this matter going by the manner the applicant
sought redress from the time of hearing about the intended evictions
and disruptions on 18 June 2018, the requirements of urgency appear
to have been met.
The
applicant approached the High Court on 22 June 2018. The applicant
treated the matter as urgent and indeed the application is one which
qualifies to be heard on urgent basis.
Turning
to the merits of the case, the applicant is seeking an interdict
pendente lite.
The
requirements of an interim interdict have been clearly spelt out in
several cases; Setlogelo
v Setlogelo
1914 A 22(a) which was quoted with approval by Malaba JA (as he then
was) in Airfield
Investments (Pvt) Ltd v Minister of Lands and Ors SC36/04.
See also Boadi
v Boadi and Anor 1992
(2) ZLR 22 and Flame
Lily Investments (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd and Another
1980
(1) ZLR 378.
The
following can be summarised as the requirements of an interim and/or
temporal interdict;
1.
That the applicant has a clear right even though subject to doubt.
2.
That there is reasonable harm actually occasioned or reasonably
apprehended.
3.
That there is no alternative remedy readily available.
4.
That the balance of convenience favours the granting of the relief.
In
this case the applicant who has been in possession of an offer letter
for 7 years and has crop maize, as confirmed by the fourth respondent
is likely to suffer prejudice if the fourth respondent moves in to
evict and disrupt his farming activities. On the other hand the
respondent will not be prejudiced by the interim interdict as it
simply seeks to bar him from evicting and disrupting the applicant's
activities pending the litigation.
The
applicant has a clear right emanating from his offer letter. The
issue of co-existing given the subdivisions in the same farm would
only be an administrative issue to be attended to by the relevant
authority. It could suggest boundary or area coverage but that is
simply raising doubt not taking away the clear right given by the 7
years old offer letter.
The
applicant approached the court upon getting notice to vacate and also
upon the respondent moving into the farm which would occasion harm.
Further the reasonable apprehension of harm given the fourth
respondent's evidence of how he moved in with trucks and settled in
with some of applicant's workers is not speculative.
The
applicant has no other remedy other than seek the provisional relief
pending final determination of the matter.
In
the circumstances of this matter both the requirements of urgency and
requirements of an interim interdict have been met.
Strictly
speaking the second and fourth respondents, other than mentioning
that they opposed the application, had no meaningful submissions to
make on why the interim relief sought should not be granted.
Mr
Mukoyi's argument was simply that the Ministry wanted the applicant
and respondent to co-exist. The process of moving in and disrupting
was attributed to the fourth respondent who confirmed he and his team
moved in despite having been warned by Mr Mukoyi to give time for the
applicant to harvest. The fourth respondent's offer letter is dated
18 June and by the very day he had moved in with trucks to settle.
This fortifies the applicant's claim of him and his workers being
evicted or disrupted. The circumstances of the matter and the nature
of relief sought require a provisional order on urgent basis to be
granted.
Accordingly
it is ordered that:
1.
The 4th
respondent or anyone acting through him or under his instruction be
and are hereby ordered to stop immediately all evictions of the
applicant and removal of his property or farm workers.
2.
The 4th
respondent and/or anyone acting through him or under his instructions
in particular members of the Zimbabwe National Army be and are hereby
interdicted from entering any part of the applicant's farm where he
is presently occupying and staying.
3.
There will be no order as to costs.
Mvere
Chikamhi Mareanadzo Legal Practitioners,
applicant's legal practitioners
Civil
Division of the Attorney General's Office,
for your information
