Urgent
Chamber Application
CHATUKUTA
J:
The
applicant seeks an interdict restraining the respondent from
interfering with his farming operations at Subdivision 3 of Farm 45,
Glendale (the farm).
This
is not the first time that the parties are before this court. The
parties are fighting over who has the right to occupy the farm which
belongs to the State. On 6 December 2016, the respondent successfully
approached this court in case number HC12380/16 on an urgent basis
seeking spoliatory relief. On 9 December 2016, Matanda-Moyo
J
ruled in favour of the respondent in case number HC12380/16 and
issued the following order:
“TERMS
OF FINAL ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not
be made on the following terms:
1.
The interim order be confirmed.
2.
It be and is hereby declared that applicant, his representatives,
employees and invitees are entitled to remain in peaceful and
undisturbed possession, occupation and use of subdivision 3 of Farm
45 of Glendale in Mazowe District of Mashonaland Central measuring
36.21 hectares.
3.
The respondent pays the costs of this (application) on the higher
scale of legal practitioner and client.
TERMS
OF THE INTERIM ORDER GRANTED
Pending
the finalisation of this matter, the applicant is granted the
following interim relief –
1.
That the respondent restore to the applicant possession of
subdivision 3 of Farm 45 Glendale in Mazowe District of Mashonaland
Central measuring 36.21 hectares.
2.
The Deputy Sheriff be and is hereby authorised and empowered to
ensure that such restoration is done and that the applicant remain in
peaceful and (undisturbed) occupation of the above property.
3.
The respondent and all those claiming through him vacate the said
property forthwith of which the Deputy Sheriff is authorised to evict
same from the property.
4.
That the respondent pays costs of suit.”
On
13 December 2016 the applicant noted an appeal against the judgment
of Matanda-Moyo
J.
On 22 December 2016, the respondent destroyed part of the applicant's
crop resulting in the present application.
The
background to this application was articulated in case number
HC12380/16 in which the court found that the respondent is a holder
of an offer letter for a portion of the farm measuring 36.21
hectares. The offer letter was issued on 6 November 2015. The
applicant produced documents proving that he was in occupation of the
Remaining Extent of Farm 45 (Truro) Glendale and Plots 1, 4, & 5
of Dunmaglas Farm in Mazoe. The court found that the portions
allocated to the two parties are different. The applicant contended
in HC12380/16 and still contends in the present application that the
portions are one and the same and he has a 99 year lease over the
entire farm. He has been in occupation of the entire portions since
2002 well before the respondent was issued with the offer letter on 6
November 2015. Believing that the court in case number HC12380/16
erred in holding that the portions are different and that he was not
in possession of the farm, the applicant filed an appeal against that
decision in SC771/16.
The
applicant avers in the present case that at the beginning of 3
October 2016, he entered into an agreement to grow 100 hectares of
maize with the Government under the Special Programme on Maize
Production for Import Substitution (popularly known as “the Command
Programme”). He was given inputs under the Programme and during the
first half of November 2016 and before the respondent had filed her
application in case number HC12380/16, he planted his maize. On 13
December, 2016 he filed the appeal against the decision. On 21
December 2016, the respondent returned to the farm and destroyed 7
hectares of the maize crop. Fearing that the respondent could proceed
to destroy further hectarage, the applicant has approached this court
on a certificate of urgency for an interdict.
At
the commencement of the hearing, the respondent contended that the
application was not urgent. The issue was abandoned during argument.
Thereafter
she raised four other preliminary points.
(i)
The first issue was that there was no valid appeal before the Supreme
Court because the order in case number HC12380/16 was provisional and
the applicant had not obtained leave of the High Court to launch the
appeal.
In
support of her argument, she relied on the decision in Nyikadzino
v
Ashers & Ors
2009 (1) ZLR 175; Chikafu
v Dodhill
(Pvt) Ltd & Ors
2009 (1) ZLR 293;
and Blue
Rangers Estates (Pvt) Ltd v
Muduviri & Anor
2009 (1) ZLR 376 (SC).
(ii)
The second issue was that the applicant commenced planting the maize
crop in issue on 10 December 2016 well aware of the judgment in case
number HC12380/16. He was lawfully evicted by the Deputy Sheriff on
21 December 2016. He returned to the farm in spite of the order to
vacate the farm and the eviction by the Deputy Sheriff. It was
further alleged that he was therefore approaching the court with
dirty hands. On this basis, it was argued that the court should
refuse to entertain the court application until such time as the
applicant had submitted himself to the law.
(iii)
Thirdly, it was argued that the applicant ought to have joined the
Minister of Lands who is the acquiring authority. Failure by the
applicants to join the acquiring authority in these proceedings was
fatal to the application.
(iv)
Lastly, it was submitted that the applicant had an alternative remedy
precluding the matter to be heard on an urgent basis. It was
contended that he can seek the discharge of the order in case number
HC12380/16 and in the alternative claim damages for any loss
incurred.
The
applicant submitted that the provisional order in case number
HC12380/16 was final in effect. It was therefore not necessary to
seek the leave of this court to appeal.
He
further submitted that following his noting of the appeal in the
Supreme Court, the provisional order was suspended. He was entitled
to continue his farming operations and was therefore not approaching
the court with dirty hands.
Further,
it was not fatal not to join the acquiring authority as the court
could determine the issues in terms of Rule 187 without sighting the
Minister.
Regarding
the existence of an alternative remedy, it was submitted that the
discharge of the order was not adequate to stop the respondent from
interfering with his operations on the farm.
I
turn to the first preliminary point. I perceive the issue to be
whether or not I can determine whether or not the appeal before the
Supreme Court is defective.
It
appears to me that it is not the function of the High Court to
determine the issue. The
right of appeal lies to the Supreme Court. It is therefore the
Supreme
Court itself which is
endowed with the power to hear and determine any alleged defect in an
appeal.
In
Blue
Rangers Estate (Pvt) Ltd
v Muduviri
& Anor
(supra)
(which was cited by both parties as authority on whether or not the
order in case number HC12380/16 is interlocutory and which case also
discussed the decisions in Nyikadzino
v Asher
& Others
(supra)
and Chikafu
v Dodhill
(Pvt) Ltd
ZLR (supra)),
Malaba
DCJ observed at 375 F -376 A that -
“In
Pretoria
Racing Club v
Van Pietersen
1907 TS 687 the respondent's legal practitioners took the point
that no appeal lay to the Transvaal Provincial Division in the case
because the spoliation order made by the Judge was, in terms of
section 22 of Proclamation 14 of 1902 an interlocutory order not
appealable without the leave of the Judge who made it. The full court
consisting of INNES CJ, SMITH and CURLEWIS JJ accepted that it was
for the court in which the appeal was noted to decide on the facts of
each case what the nature of a particular order is in order to
determine whether it fell within the category of final or
interlocutory orders. At p493 SMITH J writing for the full court
said:
'The
point, in my opinion would have been more properly raised as
preliminary to the hearing of this appeal when a decision upon it
would have been necessary.'
It
is clear that as the question would have turned on the construction
of the terms of the enactment creating the right of appeal which in
this case is section 43(1) read with section 43(2)(d) of the High
Court Act, it would have been a matter within the competence of the
Supreme Court to decide in terms of section 21 of the Act. The
order striking the appeal off the roll could only be made following a
finding on the nature of the order from which relief was being sought
on appeal.” (Own emphasis).
It
would therefore be presumptuous of me to venture to determine the
defectiveness of the appeal ahead of the superior court in light of
the above pronouncement.
The
principle that a litigant who fails to comply with a court order and
therefore has dirty hands should be denied audience in the halls of
justice is trite. (See Deputy
Sheriff, Harare v
Mahleza & Anor
1997 (2) ZLR 425 (H) and ANZ
v
Minister
of State for Information & Publicity & Ors
2004 (1) ZLR 538 (S)).
However,
the applicant cannot be said to have approached this court with dirty
hands by reason of failure to comply with a court order. He did not
ignore the judgment in HC12380/16. He filed an appeal. The noting of
an appeal automatically suspends the operation of an order appealed
against. (See
Econet
(Pvt) Ltd v
Minister of Information, Posts and Telecommunications
1998 (1) ZLR 149 (H) at p156C). The
order having been suspended, it was within the applicant's right to
return to tend to his crop.
The
converse is in fact true regarding the respondent's conduct. It is
the respondent, who despite being aware that there is an appeal now
pending before the Supreme Court, insists on remaining on the farm
arguing that the appeal is a nullity. As
stated in Mydale
International Marketing (Pvt) Ltd
v Dr
Rob Kelly and Hammer and Tongues (Pvt) Ltd HH
4-2010, it is not for the respondent to disregard the appeal on the
basis that she is of the view that it is a nullity. She cannot be the
judge in her own cause.
Turning
to the no-joinder of the Minister of Lands, I do not agree that the
non-joinder of the Minister was fatal to the application. The issue
before me is not who has the right to occupy the farm. The issue is
how to protect the maize crop on the farm, which had been partly
destroyed by the respondent, pending the determination of the appeal.
Assuming
that it was necessary to cite the acquiring authority, Rule 87 of the
High Court Rules, permits the court to determine the issues as
between the parties before it even where such joinder is required.
Rule
87 provides:
“No
cause or matter shall be defeated by reason of the misjoinder or
non-joinder of any party and the court may in any cause or matter
determine the issues or questions in dispute so far as they affect
the rights and interests of the persons who are parties to the cause
or the matter.”
(See
Rollex
(Pvt) Ltd
v Delta
Beverages (Pvt) Ltd
HH 66-15.)
Misjoinder
is not fatal to the current proceedings given my earlier observation
that the dispute before me is about the respondent's conduct and is
therefore resolvable without joining the acquiring authority.
The
last preliminary point is whether or not the applicant has an
alternative remedy.
As
rightly submitted by the applicant, the confirmation of the order in
case number HC12380/16 and a future award of damages will
not prevent the respondent from continuing to interfere with the
applicant's operations.
I
now turn to the merits of the application, the requirements of an
interdict are trite, that:-
(a)
there is a prima
facie
right even though open to doubt;
(b)
an injury has actually occurred or is reasonably apprehended;
(c)
the applicant does not have an alternative remedy; and
(d)
the balance of convenience favours the granting of the interim
relief.
(see
Setlogelo
v Setlogelo
1914 AD 221; Airfield
Investments (Pvt) Ltd
v Minister
of Lands & Ors 2004
(1) ZLR 511)
It
is not in issue that the applicant had a prima
facie
right, albeit one which is open to doubt. The applicant produced a
letter dated 27 October 2015 from the Ministry of Lands confirming
that his application for a 99 year lease over Reveille Farm &
Farm 45 had been approved. The respondent conceded that whilst the
applicant had not established a clear right to be on the farm, he had
established a prima
facie
right. She conceded that in November 2015 the applicant had planted
only 3ha of maize crop on the farm. This confirms that the applicant
was already in occupation of part of the farm as her offer letter is
dated 6 November 2015 and she only moved onto the farm in December of
the same year.
Even
assuming that it were to be found that the applicant does not have
any right to occupy the farm, he would be entitled to tend to and
harvest
his maize crop as such crop does not attach to the land as a
permanent fixture. (See Bangure
v Gweru
City Council 1998
(2) ZLR 396 (H) at 399 C – 400 D).
It
is equally not in issue that an injury has already occurred.
The
applicant produced pictures showing areas with a thriving maize crop
which had been ploughed under. The respondent conceded to have
ploughed the crop under on instruction of the Deputy Sheriff. Both
the applicant and the respondent produced documents from Agritex as
to the extent of the damage. The applicant produced an assessment
report dated 9 December 2017 of the total area planted as at 22
December 2016, (38.7ha), area ploughed under (4.6ha) growth stage of
the maize crop (3 to 5 leaf stage). Although the report is dated 9
December 2016 (before the destruction of the crop) it tallies with
the contents of the minutes produced by the applicant dated 11
January 2017. The minutes are of a meeting purportedly held on 23
December 2016 at the behest of the Command Programme Bindura
committee following the destruction of the crop by the respondent.
The minutes confirm the apprehension of all concerned of the harm
that was to be caused if the respondent was to continue to destroy
the crop.
This
apprehension, in my view, confirms that the applicant does not have
an alternative remedy other than to approach the court.
The
requirement on the existence of an alternative remedy is well
explained in Neptune
(Pvt) Ltd v
Venture Enterprises (Pvt) Ltd
HH127/89. At page 8 Adams
J
quotes Lewis
J
in Reserve
Bank of Rhodesia v
Rhodesia Railways
1966 RLR 451 that -
“…..NATHAN,
in his well known works on INTERDICTS, states the position as
follows, at p 32 -
'Lastly
as Van der Linden says, there must be no other ordinary remedy by
which the applicant can be protected with the same result… The most
familiar example, however, which comes to a lawyer's mind is that
of damages. It is clear that, if the applicant will have adequate
compensation by the award of damages, he will have another ordinary
remedy.…….Generally speaking, however, the fact that the
applicant has a remedy open to him by way of action for damages is
sufficient to bar an interdict where the interference or breach of a
right is capable of measurement in money.'
The
operative part of the quotation-in fact, the essence of it, really-is
that there is an existing remedy for the protection of the applicant
“with the same result”…..if
that is the situation, then, so it seems to me, the interdict should
be refused.” (own emphasis).
As
alluded to earlier, there is no other remedy that would compel the
respondent from interfering with the applicant's farming operations
other than an order from this court.
The
applicant has therefore satisfied the first three requirements.
Both
the applicant and the respondent have invested time and other
resources into the maize crop. The applicant is the one who expended
time, effort and resources to obtain the inputs. He is the one who
worked on the land, planted the crop and managed the crop until the
respondent took over. The respondent has been managing the crop and
has equally invested time and other resources since then.
The
issue is therefore where the balance of convenience lies.
The
applicant submitted that he is the one who entered into an agreement
under the Command Programme and is obliged to manage the maize crop
and make deliveries in terms of the agreement. In the event that he
fails to do so, he is likely to face a claim for damages as in Rollex
(Pvt) Ltd v
Delta
Beverages (Pvt) Ltd HH66-15.
The
respondent relies on the resolution of the meeting on 23 December
2016 which resolution transferred the applicant's rights and
obligations under the Command Programme agreement to her.
The
applicant is beneficiary of the inputs under the Command Programme
that are presently in the ground. He is the one who legally has
rights and obligations under that programme. The agreement is still
binding. The
applicant, pursuant to the agreement under the Command Programme is
and must be responsible for the maize crop. He
has already lost part of the crop as a result of the respondent's
conduct and may consequently fail to fully meet his obligations under
the agreement and expose himself to a legal suit and requires
protection by this court. Under the circumstances the balance of
convenience weighs in his favour.
Despite
the intervention of the Command Programme committee, the respondent
is not privy to the agreement between the parties. The transfer of
the crop to the respondent has no force of law as the resolution of
the committee does not amend the agreement between the applicant and
the State and cannot replace the agreement.
Although
the parties went to great lengths to argue who has the right to
occupy the farm, I have found it not necessary to dwell on the issue.
As rightly noted by the applicant, that issue is, following the
appeal, for determination by the Supreme Court.
Other
numerous submissions were thrown into the fray.
I
am of the view that the submissions only cloud the issue at hand and
it serves no purpose to allude to them.
What
is now common cause is the fact that the applicant has a crop in the
ground, part of which was destroyed by the respondent. He has noted
an appeal against the decision in HH12380/16 which appeal is to be
determined. The
respondent cannot therefore proceed with the execution of the
judgment in HC12380/16 in the face of the appeal in SC771/16.
The
parties were agreed that in the event of an order being granted in
favour of the applicant, it served no purpose for me to grant a
provisional order. It was consequently agreed that I grant a final
order.
The
applicant did not seek any costs and accordingly none are awarded.
In
the result, it is ordered that:
1.
Pending the determination of the appeal in case number SC771/16, the
respondent be and is hereby interdicted from interfering with the
applicant's farming operations at subdivision 3 of Farm 45,
Glendale, Mashonaland Central.
2.
There is no order as to costs.
J
Mambara & Partners,
applicant's legal practitioners
Machiridza
Commercial Law Chambers,
respondent's legal practitioners
