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HB46-15 - ZENZO NTULIKI vs TIMOTHY SEAN WHITE and OFFICER COMMANDING MATEBELELAND SOUTH PROVINCE and THE SHERIFF OF ZIMBABWE N.O.

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Procedural Law-viz citation re party acting in an official capacity iro nominus officiae.
Procedural Law-viz citation re party acting in an official capacity iro nominee officii.
Procedural Law-viz citation re party acting in and official capacity iro non-officio.
Procedural Law-viz urgent chamber application re spoliation order.
Procedural Law-viz interim interdict re the seeking of final relief through an urgent chamber application.
Procedural Law-viz provisional order re the seeking of a final interdict through an urgent chamber application.
Land Acquisition-viz lawful authority to occupy gazetted land re offer letter.
Law of Property-viz mandament van spolie.
Law of Property-viz spoliation order.
Procedural Law-viz urgent application re urgency iro spoliation proceedings.
Procedural Law-viz urgent chamber application re urgency iro mandament van spolie proceedings.
Procedural Law-viz interim interdict re drafting of provisional order in similar terms to the final order sought.
Procedural Law-viz provisional order re expressing of the interim interdict in similar terms to the final relief sought.
Procedural Law-viz cause of action re the doctrine against benefiting from one's own wrongs.
Procedural Law-viz urgent application re urgency iro self-created urgency.
Procedural Law-viz rules of evidence re documentary evidence.
Land Acquisition-viz eviction proceedings re section 3 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28].
Administrative Law-viz the presumption of validity of official documents issued in the course of duty.
Administrative Law-viz the exercise of administrative prerogative re observance of the rules of natural justice.
Procedural Law-viz rules of evidence re competent witness iro joinder.
Procedural Law-viz rules of evidence re compellable witness iro joinder.
Procedural Law-viz onus re burden of proof iro issues of fact in doubt.
Procedural Law-viz onus re burden of proof iro factual issues in doubt.

Interim Interdict or Final Order re: Mandamus or Mandatory Interdict and the Seeking or Granting of Final Interdicts


This is an application wherein the applicant seeks a provisional order whose interim relief is couched as follows:

“(1) That the applicant shall be allowed unhindered access to the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon Farm, Esigodini and to carry out thereupon all normal farming activities.

(2) That the respondents, its agents, assignees, associates, or employees be and are hereby interdicted and stopped from interfering with the applicant's operation of the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon farm.”

The facts of the matter are that the applicant was allocated Lot 2 of Lot 36 of Essexvale (Avalon) in Umzingwane Matebeleland South Province by the Ministry of Lands in an offer letter dated 4 December 2014.

He then went to the farm and sought to occupy same.

He alleges that an agreement had been reached with the first respondent who had agreed to vacate the farm in January 2015, but, that, on 10 January 2015, the first respondent reneged on his word and stopped the applicant's workers from moving into the farm.

The applicant alleges, that, the first respondent then went on to evict the rest of his workers who were at the farm. He alleges that the first respondent has disturbed his peaceful possession of the farm.

The first respondent has raised points in limine in opposition to the urgent application:

(i) He avers, that, there is no urgency in this matter as evidenced by the fact that the applicant has never been in occupation of the farm in the first place.

He avers that he has always been in lawful occupation of the farm and that he never suggested that he would vacate the farm by 10 January 2015.

He alleges that the applicant sent his workers to the farm without the first respondent's consent thereto.

He avers, that, his legal practitioners then wrote to the applicant advising him that due process had to be followed in taking over the farm and that he could not forcibly dispossess him of the farm.

(ii) The first respondent also raises another point in limine which is to the effect that the relief sought in the provisional order is incompetent as the provisional order seeks interim relief that is the same as the terms of the final order sought and has in fact the import of a final order as opposed to interim relief.

Firstly, I will therefore move on to deal with the issue of the relief sought.

It is clear that the terms of the final order sought are similar to the interim relief and they are:

“(1) That the Provisional order set out herein be and is hereby confirmed.

(2) That the respondent shall pay the costs of suit at an attorney client scale.”

The interim relief itself, which I have alluded to earlier herein, has the import of a final order as it is to the effect that the applicant be given unhindered access to the farm and that he carries therein normal farming activities as well as that the respondent be interdicted and stopped from interfering with the applicant's operations on the farm.

This clearly is a final order couched as interim relief.

It is indeed undesirable to have such a state of affairs because the applicant virtually seeks to obtain final relief without having proved its case. This is because interim relief is obtained merely on establishing a prima facie case as opposed to a proven case: refer to the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (H).

This is an irregularity; the applicant, in my view, wants to be granted final relief on a platform that requires that only a prima facie case be established.

This is not proper and the application cannot succeed by reason of this irregularity.

Interim Interdict or Final Order re: Interim Relief Expressed in Similar Terms to the Final Order Sought


This is an application wherein the applicant seeks a provisional order whose interim relief is couched as follows:

“(1) That the applicant shall be allowed unhindered access to the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon Farm, Esigodini and to carry out thereupon all normal farming activities.

(2) That the respondents, its agents, assignees, associates, or employees be and are hereby interdicted and stopped from interfering with the applicant's operation of the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon farm.”

The facts of the matter are that the applicant was allocated Lot 2 of Lot 36 of Essexvale (Avalon) in Umzingwane Matebeleland South Province by the Ministry of Lands in an offer letter dated 4 December 2014.

He then went to the farm and sought to occupy same.

He alleges that an agreement had been reached with the first respondent who had agreed to vacate the farm in January 2015, but, that, on 10 January 2015, the first respondent reneged on his word and stopped the applicant's workers from moving into the farm.

The applicant alleges, that, the first respondent then went on to evict the rest of his workers who were at the farm. He alleges that the first respondent has disturbed his peaceful possession of the farm.

The first respondent has raised points in limine in opposition to the urgent application:

(i) He avers, that, there is no urgency in this matter as evidenced by the fact that the applicant has never been in occupation of the farm in the first place.

He avers that he has always been in lawful occupation of the farm and that he never suggested that he would vacate the farm by 10 January 2015.

He alleges that the applicant sent his workers to the farm without the first respondent's consent thereto.

He avers, that, his legal practitioners then wrote to the applicant advising him that due process had to be followed in taking over the farm and that he could not forcibly dispossess him of the farm.

(ii) The first respondent also raises another point in limine which is to the effect that the relief sought in the provisional order is incompetent as the provisional order seeks interim relief that is the same as the terms of the final order sought and has in fact the import of a final order as opposed to interim relief.

Firstly, I will therefore move on to deal with the issue of the relief sought.

It is clear that the terms of the final order sought are similar to the interim relief and they are:

“(1) That the Provisional order set out herein be and is hereby confirmed.

(2) That the respondent shall pay the costs of suit at an attorney client scale.”

The interim relief itself, which I have alluded to earlier herein, has the import of a final order as it is to the effect that the applicant be given unhindered access to the farm and that he carries therein normal farming activities as well as that the respondent be interdicted and stopped from interfering with the applicant's operations on the farm.

This clearly is a final order couched as interim relief.

It is indeed undesirable to have such a state of affairs because the applicant virtually seeks to obtain final relief without having proved its case. This is because interim relief is obtained merely on establishing a prima facie case as opposed to a proven case: refer to the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (H).

This is an irregularity; the applicant, in my view, wants to be granted final relief on a platform that requires that only a prima facie case be established.

This is not proper and the application cannot succeed by reason of this irregularity.

Urgency re: Land Reform, Spoliation or Mandament van Spolie Proceedings and Property Disputes


This is an application wherein the applicant seeks a provisional order whose interim relief is couched as follows:

“(1) That the applicant shall be allowed unhindered access to the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon Farm, Esigodini and to carry out thereupon all normal farming activities.

(2) That the respondents, its agents, assignees, associates, or employees be and are hereby interdicted and stopped from interfering with the applicant's operation of the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon farm.”

The facts of the matter are that the applicant was allocated Lot 2 of Lot 36 of Essexvale (Avalon) in Umzingwane Matebeleland South Province by the Ministry of Lands in an offer letter dated 4 December 2014.

He then went to the farm and sought to occupy same.

He alleges that an agreement had been reached with the first respondent who had agreed to vacate the farm in January 2015, but, that, on 10 January 2015, the first respondent reneged on his word and stopped the applicant's workers from moving into the farm.

The applicant alleges, that, the first respondent then went on to evict the rest of his workers who were at the farm. He alleges that the first respondent has disturbed his peaceful possession of the farm.

The first respondent has raised points in limine in opposition to the urgent application:

(i) He avers, that, there is no urgency in this matter as evidenced by the fact that the applicant has never been in occupation of the farm in the first place.

He avers that he has always been in lawful occupation of the farm and that he never suggested that he would vacate the farm by 10 January 2015.

He alleges that the applicant sent his workers to the farm without the first respondent's consent thereto.

He avers, that, his legal practitioners then wrote to the applicant advising him that due process had to be followed in taking over the farm and that he could not forcibly dispossess him of the farm....,.

On the issue of urgency, the problem is that the applicant seems to have sought to occupy the farm without following due process.

The applicant must wait for the law to take its course before creating an urgency for himself.

It would seem the applicant failed in his bid to despoil the first respondent, rather than that he was in peaceful and undisturbed possession as he clearly failed to obtain the possession in the first place....,.

By due process, I mean, that, rather than confronting the first respondent and advising his imminent take over of the farm, he should have left it to the land authorities to notify the first respondent to vacate the land and give him a reasonable period within which to leave;...,.

Administrative Law re: Administrative Directives or Declarations and the Doctrine of Legality


In my view, administrative decisions should be taken within the ambit of the law.

Administrative Law re: Approach, Discretionary Powers, Judicial Interference and the Doctrine of Legitimate Expectation


In my view, administrative decisions should be taken within the ambit of the law.

Citation and Joinder re: Approach, the Joinder of Necessity and Third Party Notices


This is an application wherein the applicant seeks a provisional order whose interim relief is couched as follows:

“(1) That the applicant shall be allowed unhindered access to the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon Farm, Esigodini and to carry out thereupon all normal farming activities.

(2) That the respondents, its agents, assignees, associates, or employees be and are hereby interdicted and stopped from interfering with the applicant's operation of the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon farm.”

The facts of the matter are that the applicant was allocated Lot 2 of Lot 36 of Essexvale (Avalon) in Umzingwane Matebeleland South Province by the Ministry of Lands in an offer letter dated 4 December 2014.

He then went to the farm and sought to occupy same.

He alleges that an agreement had been reached with the first respondent who had agreed to vacate the farm in January 2015, but, that, on 10 January 2015, the first respondent reneged on his word and stopped the applicant's workers from moving into the farm.

The applicant alleges, that, the first respondent then went on to evict the rest of his workers who were at the farm. He alleges that the first respondent has disturbed his peaceful possession of the farm.

The first respondent has raised points in limine in opposition to the urgent application:

(i) He avers, that, there is no urgency in this matter as evidenced by the fact that the applicant has never been in occupation of the farm in the first place.

He avers that he has always been in lawful occupation of the farm and that he never suggested that he would vacate the farm by 10 January 2015.

He alleges that the applicant sent his workers to the farm without the first respondent's consent thereto.

He avers, that, his legal practitioners then wrote to the applicant advising him that due process had to be followed in taking over the farm and that he could not forcibly dispossess him of the farm.

(ii) The first respondent also raises another point in limine which is to the effect that the relief sought in the provisional order is incompetent as the provisional order seeks interim relief that is the same as the terms of the final order sought and has in fact the import of a final order as opposed to interim relief.

Firstly, I will therefore move on to deal with the issue of the relief sought.

It is clear that the terms of the final order sought are similar to the interim relief and they are:

“(1) That the Provisional order set out herein be and is hereby confirmed.

(2) That the respondent shall pay the costs of suit at an attorney client scale.”

The interim relief itself, which I have alluded to earlier herein, has the import of a final order as it is to the effect that the applicant be given unhindered access to the farm and that he carries therein normal farming activities as well as that the respondent be interdicted and stopped from interfering with the applicant's operations on the farm.

This clearly is a final order couched as interim relief.

It is indeed undesirable to have such a state of affairs because the applicant virtually seeks to obtain final relief without having proved its case. This is because interim relief is obtained merely on establishing a prima facie case as opposed to a proven case: refer to the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (H).

This is an irregularity; the applicant, in my view, wants to be granted final relief on a platform that requires that only a prima facie case be established.

This is not proper and the application cannot succeed by reason of this irregularity.

Again, on the issue of urgency, the problem is that the applicant seems to have sought to occupy the farm without following due process.

The applicant must wait for the law to take its course before creating an urgency for himself.

It would seem the applicant failed in his bid to despoil the first respondent, rather than that he was in peaceful and undisturbed possession as he clearly failed to obtain the possession in the first place.

Again, even if I were to overlook that irregularity; on the merits of the application, the applicant would still need to satisfy the three requirements for an interdict, these being;

“(1) A right which, though prima facie, is open to some doubt;

(2) A well grounded apprehension of irreparable injury;

(3) The absence of any other remedy.”

This is enunciated in the case of Zesa Staff Pension Fund v Mushambadzi SC57-02.

The applicant in this case has produced an offer letter, so, one could hold that the first requirement has been met; a prima facie right has been established, although it is open to some doubt when one looks at the first respondent's papers. The requirement is nonetheless satisfied.

The second remedy, of a well-grounded apprehension of irreparable injury…, is the second in line to be satisfied. I have underlined the words well grounded to emphasize the aspect of the foundation of the fear, it need not be just a fear but a well grounded fear.

In my view, the applicant, upon receipt of the offer letter, as annexed to his papers, should have followed due process in seeking to occupy the farm.

By due process, I mean, that, rather than confronting the first respondent and advising his imminent take over of the farm, he should have left it to the land authorities to notify the first respondent to vacate the land and give him a reasonable period within which to leave; this, moreso in light of the letter from the Ministry of Lands, dated 17 May 2007, acknowledging that the first respondent is at the farm, which is the subject matter of this dispute, and he has made an application to the Ministry of Lands for an offer letter.

Section 3(2)(a) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] provides thus:

“Every former owner or occupation of Gazetted Land (a) referred to in paragraph (a) of the definition of 'Gazetted Land' in section 2(1), shall cease to occupy, hold or use that land forty-five days after the fixed date, unless the owner or occupier is lawfully authorized to occupy, hold or use that land.”

This then takes us to the next question of; what is lawful authority?

Lawful authority, in my view, is authority given by the land acquiring authority.

The letter that the first respondent understands to authorize him to remain in occupation of the farm is by the Chief Lands officer from the Ministry of Lands. The offer letter given to the applicant is by the Ministry of Lands.

It is my considered view, that, the Ministry of Lands cannot allow a party to occupy land, then offer the land to another without following the requirements of the rules of natural justice that demand that the one who understands has a right to remain in occupation, should be duly notified of the intention to take that right away, make representations, if any, and a decision be taken subsequently after all concerned have been heard.

It is not disputed, that, the first respondent has remained in occupation of the farm for years by virtue of the written assurance given to him by the same Ministry, which has now given the applicant an offer letter, without first duly notifying the first respondent of the current position.

In my view, administrative decisions should be taken within the ambit of the law.

Whilst the Lands Ministry, as the acquiring authority, is vested with all rights in relation to State land, such authority should be exercised with due consideration of the rules of natural justice.

They wrote to the first respondent and made him believe that he could remain in occupation of the land; they should have, at the time they took the decision to offer the land to someone else, advised the first respondent as such.

The first respondent also challenges the purported offer letter to the applicant as being fake, for the simple reason that it now offers the applicant what the first respondent believes he is rightfully occupying by virtue of authority from the Lands Ministry.

Unfortunately, the Ministry of Lands, as well as the Chief Lands officer who purportedly authored the letter dated 17 May 2007, were not cited as parties to these proceedings.

When I pointed this out to the applicant's counsel, he submitted, that, he chose to have the application proceed without the citation of and service of the application on the Ministry.

This creates difficulty in that we are now faced with two conflicting scenarios created by the same Ministry but they are not here to enlighten the court on which is which.

The court finds itself hamstrung in this situation as only the lands office could vouch for the authenticity of the offer letter that is being challenged.

Subpoena Ad Testificandum or Witness Summons re: Competent or Compellable Witness, Claim of Privilege & Rule of Relevance


This is an application wherein the applicant seeks a provisional order whose interim relief is couched as follows:

“(1) That the applicant shall be allowed unhindered access to the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon Farm, Esigodini and to carry out thereupon all normal farming activities.

(2) That the respondents, its agents, assignees, associates, or employees be and are hereby interdicted and stopped from interfering with the applicant's operation of the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon farm.”

The facts of the matter are that the applicant was allocated Lot 2 of Lot 36 of Essexvale (Avalon) in Umzingwane Matebeleland South Province by the Ministry of Lands in an offer letter dated 4 December 2014.

He then went to the farm and sought to occupy same.

He alleges that an agreement had been reached with the first respondent who had agreed to vacate the farm in January 2015, but, that, on 10 January 2015, the first respondent reneged on his word and stopped the applicant's workers from moving into the farm.

The applicant alleges, that, the first respondent then went on to evict the rest of his workers who were at the farm. He alleges that the first respondent has disturbed his peaceful possession of the farm.

The first respondent has raised points in limine in opposition to the urgent application:

(i) He avers, that, there is no urgency in this matter as evidenced by the fact that the applicant has never been in occupation of the farm in the first place.

He avers that he has always been in lawful occupation of the farm and that he never suggested that he would vacate the farm by 10 January 2015.

He alleges that the applicant sent his workers to the farm without the first respondent's consent thereto.

He avers, that, his legal practitioners then wrote to the applicant advising him that due process had to be followed in taking over the farm and that he could not forcibly dispossess him of the farm.

(ii) The first respondent also raises another point in limine which is to the effect that the relief sought in the provisional order is incompetent as the provisional order seeks interim relief that is the same as the terms of the final order sought and has in fact the import of a final order as opposed to interim relief.

Firstly, I will therefore move on to deal with the issue of the relief sought.

It is clear that the terms of the final order sought are similar to the interim relief and they are:

“(1) That the Provisional order set out herein be and is hereby confirmed.

(2) That the respondent shall pay the costs of suit at an attorney client scale.”

The interim relief itself, which I have alluded to earlier herein, has the import of a final order as it is to the effect that the applicant be given unhindered access to the farm and that he carries therein normal farming activities as well as that the respondent be interdicted and stopped from interfering with the applicant's operations on the farm.

This clearly is a final order couched as interim relief.

It is indeed undesirable to have such a state of affairs because the applicant virtually seeks to obtain final relief without having proved its case. This is because interim relief is obtained merely on establishing a prima facie case as opposed to a proven case: refer to the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (H).

This is an irregularity; the applicant, in my view, wants to be granted final relief on a platform that requires that only a prima facie case be established.

This is not proper and the application cannot succeed by reason of this irregularity.

Again, on the issue of urgency, the problem is that the applicant seems to have sought to occupy the farm without following due process.

The applicant must wait for the law to take its course before creating an urgency for himself.

It would seem the applicant failed in his bid to despoil the first respondent, rather than that he was in peaceful and undisturbed possession as he clearly failed to obtain the possession in the first place.

Again, even if I were to overlook that irregularity; on the merits of the application, the applicant would still need to satisfy the three requirements for an interdict, these being;

“(1) A right which, though prima facie, is open to some doubt;

(2) A well grounded apprehension of irreparable injury;

(3) The absence of any other remedy.”

This is enunciated in the case of Zesa Staff Pension Fund v Mushambadzi SC57-02.

The applicant in this case has produced an offer letter, so, one could hold that the first requirement has been met; a prima facie right has been established, although it is open to some doubt when one looks at the first respondent's papers. The requirement is nonetheless satisfied.

The second remedy, of a well-grounded apprehension of irreparable injury…, is the second in line to be satisfied. I have underlined the words well grounded to emphasize the aspect of the foundation of the fear, it need not be just a fear but a well grounded fear.

In my view, the applicant, upon receipt of the offer letter, as annexed to his papers, should have followed due process in seeking to occupy the farm.

By due process, I mean, that, rather than confronting the first respondent and advising his imminent take over of the farm, he should have left it to the land authorities to notify the first respondent to vacate the land and give him a reasonable period within which to leave; this, moreso in light of the letter from the Ministry of Lands, dated 17 May 2007, acknowledging that the first respondent is at the farm, which is the subject matter of this dispute, and he has made an application to the Ministry of Lands for an offer letter.

Section 3(2)(a) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] provides thus:

“Every former owner or occupation of Gazetted Land (a) referred to in paragraph (a) of the definition of 'Gazetted Land' in section 2(1), shall cease to occupy, hold or use that land forty-five days after the fixed date, unless the owner or occupier is lawfully authorized to occupy, hold or use that land.”

This then takes us to the next question of; what is lawful authority?

Lawful authority, in my view, is authority given by the land acquiring authority.

The letter that the first respondent understands to authorize him to remain in occupation of the farm is by the Chief Lands officer from the Ministry of Lands. The offer letter given to the applicant is by the Ministry of Lands.

It is my considered view, that, the Ministry of Lands cannot allow a party to occupy land, then offer the land to another without following the requirements of the rules of natural justice that demand that the one who understands has a right to remain in occupation, should be duly notified of the intention to take that right away, make representations, if any, and a decision be taken subsequently after all concerned have been heard.

It is not disputed, that, the first respondent has remained in occupation of the farm for years by virtue of the written assurance given to him by the same Ministry, which has now given the applicant an offer letter, without first duly notifying the first respondent of the current position.

In my view, administrative decisions should be taken within the ambit of the law.

Whilst the Lands Ministry, as the acquiring authority, is vested with all rights in relation to State land, such authority should be exercised with due consideration of the rules of natural justice.

They wrote to the first respondent and made him believe that he could remain in occupation of the land; they should have, at the time they took the decision to offer the land to someone else, advised the first respondent as such.

The first respondent also challenges the purported offer letter to the applicant as being fake, for the simple reason that it now offers the applicant what the first respondent believes he is rightfully occupying by virtue of authority from the Lands Ministry.

Unfortunately, the Ministry of Lands, as well as the Chief Lands officer who purportedly authored the letter dated 17 May 2007, were not cited as parties to these proceedings.

When I pointed this out to the applicant's counsel, he submitted, that, he chose to have the application proceed without the citation of and service of the application on the Ministry.

This creates difficulty in that we are now faced with two conflicting scenarios created by the same Ministry but they are not here to enlighten the court on which is which.

The court finds itself hamstrung in this situation as only the lands office could vouch for the authenticity of the offer letter that is being challenged.

Onus, Burden and Standard of Proof re: Evidential Standard and Burden of Proof iro Factual Issues in Doubt


This is an application wherein the applicant seeks a provisional order whose interim relief is couched as follows:

“(1) That the applicant shall be allowed unhindered access to the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon Farm, Esigodini and to carry out thereupon all normal farming activities.

(2) That the respondents, its agents, assignees, associates, or employees be and are hereby interdicted and stopped from interfering with the applicant's operation of the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon farm.”

The facts of the matter are that the applicant was allocated Lot 2 of Lot 36 of Essexvale (Avalon) in Umzingwane Matebeleland South Province by the Ministry of Lands in an offer letter dated 4 December 2014.

He then went to the farm and sought to occupy same.

He alleges that an agreement had been reached with the first respondent who had agreed to vacate the farm in January 2015, but, that, on 10 January 2015, the first respondent reneged on his word and stopped the applicant's workers from moving into the farm.

The applicant alleges, that, the first respondent then went on to evict the rest of his workers who were at the farm. He alleges that the first respondent has disturbed his peaceful possession of the farm.

The first respondent has raised points in limine in opposition to the urgent application:

(i) He avers, that, there is no urgency in this matter as evidenced by the fact that the applicant has never been in occupation of the farm in the first place.

He avers that he has always been in lawful occupation of the farm and that he never suggested that he would vacate the farm by 10 January 2015.

He alleges that the applicant sent his workers to the farm without the first respondent's consent thereto.

He avers, that, his legal practitioners then wrote to the applicant advising him that due process had to be followed in taking over the farm and that he could not forcibly dispossess him of the farm.

(ii) The first respondent also raises another point in limine which is to the effect that the relief sought in the provisional order is incompetent as the provisional order seeks interim relief that is the same as the terms of the final order sought and has in fact the import of a final order as opposed to interim relief.

Firstly, I will therefore move on to deal with the issue of the relief sought.

It is clear that the terms of the final order sought are similar to the interim relief and they are:

“(1) That the Provisional order set out herein be and is hereby confirmed.

(2) That the respondent shall pay the costs of suit at an attorney client scale.”

The interim relief itself, which I have alluded to earlier herein, has the import of a final order as it is to the effect that the applicant be given unhindered access to the farm and that he carries therein normal farming activities as well as that the respondent be interdicted and stopped from interfering with the applicant's operations on the farm.

This clearly is a final order couched as interim relief.

It is indeed undesirable to have such a state of affairs because the applicant virtually seeks to obtain final relief without having proved its case. This is because interim relief is obtained merely on establishing a prima facie case as opposed to a proven case: refer to the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (H).

This is an irregularity; the applicant, in my view, wants to be granted final relief on a platform that requires that only a prima facie case be established.

This is not proper and the application cannot succeed by reason of this irregularity.

Again, on the issue of urgency, the problem is that the applicant seems to have sought to occupy the farm without following due process.

The applicant must wait for the law to take its course before creating an urgency for himself.

It would seem the applicant failed in his bid to despoil the first respondent, rather than that he was in peaceful and undisturbed possession as he clearly failed to obtain the possession in the first place.

Again, even if I were to overlook that irregularity; on the merits of the application, the applicant would still need to satisfy the three requirements for an interdict, these being;

“(1) A right which, though prima facie, is open to some doubt;

(2) A well grounded apprehension of irreparable injury;

(3) The absence of any other remedy.”

This is enunciated in the case of Zesa Staff Pension Fund v Mushambadzi SC57-02.

The applicant in this case has produced an offer letter, so, one could hold that the first requirement has been met; a prima facie right has been established, although it is open to some doubt when one looks at the first respondent's papers. The requirement is nonetheless satisfied.

The second remedy, of a well-grounded apprehension of irreparable injury…, is the second in line to be satisfied. I have underlined the words well grounded to emphasize the aspect of the foundation of the fear, it need not be just a fear but a well grounded fear.

In my view, the applicant, upon receipt of the offer letter, as annexed to his papers, should have followed due process in seeking to occupy the farm.

By due process, I mean, that, rather than confronting the first respondent and advising his imminent take over of the farm, he should have left it to the land authorities to notify the first respondent to vacate the land and give him a reasonable period within which to leave; this, moreso in light of the letter from the Ministry of Lands, dated 17 May 2007, acknowledging that the first respondent is at the farm, which is the subject matter of this dispute, and he has made an application to the Ministry of Lands for an offer letter.

Section 3(2)(a) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] provides thus:

“Every former owner or occupation of Gazetted Land (a) referred to in paragraph (a) of the definition of 'Gazetted Land' in section 2(1), shall cease to occupy, hold or use that land forty-five days after the fixed date, unless the owner or occupier is lawfully authorized to occupy, hold or use that land.”

This then takes us to the next question of; what is lawful authority?

Lawful authority, in my view, is authority given by the land acquiring authority.

The letter that the first respondent understands to authorize him to remain in occupation of the farm is by the Chief Lands officer from the Ministry of Lands. The offer letter given to the applicant is by the Ministry of Lands.

It is my considered view, that, the Ministry of Lands cannot allow a party to occupy land, then offer the land to another without following the requirements of the rules of natural justice that demand that the one who understands has a right to remain in occupation, should be duly notified of the intention to take that right away, make representations, if any, and a decision be taken subsequently after all concerned have been heard.

It is not disputed, that, the first respondent has remained in occupation of the farm for years by virtue of the written assurance given to him by the same Ministry, which has now given the applicant an offer letter, without first duly notifying the first respondent of the current position.

In my view, administrative decisions should be taken within the ambit of the law.

Whilst the Lands Ministry, as the acquiring authority, is vested with all rights in relation to State land, such authority should be exercised with due consideration of the rules of natural justice.

They wrote to the first respondent and made him believe that he could remain in occupation of the land; they should have, at the time they took the decision to offer the land to someone else, advised the first respondent as such.

The first respondent also challenges the purported offer letter to the applicant as being fake, for the simple reason that it now offers the applicant what the first respondent believes he is rightfully occupying by virtue of authority from the Lands Ministry.

Unfortunately, the Ministry of Lands, as well as the Chief Lands officer who purportedly authored the letter dated 17 May 2007, were not cited as parties to these proceedings.

When I pointed this out to the applicant's counsel, he submitted, that, he chose to have the application proceed without the citation of and service of the application on the Ministry.

This creates difficulty in that we are now faced with two conflicting scenarios created by the same Ministry but they are not here to enlighten the court on which is which.

The court finds itself hamstrung in this situation as only the lands office could vouch for the authenticity of the offer letter that is being challenged.

Interim Interdict Pendente Confirmation or Discharge Proceedings re: Approach, Return Date and the Prima Facie Concept


This is an application wherein the applicant seeks a provisional order whose interim relief is couched as follows:

“(1) That the applicant shall be allowed unhindered access to the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon Farm, Esigodini and to carry out thereupon all normal farming activities.

(2) That the respondents, its agents, assignees, associates, or employees be and are hereby interdicted and stopped from interfering with the applicant's operation of the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon farm.”

The facts of the matter are that the applicant was allocated Lot 2 of Lot 36 of Essexvale (Avalon) in Umzingwane Matebeleland South Province by the Ministry of Lands in an offer letter dated 4 December 2014.

He then went to the farm and sought to occupy same.

He alleges that an agreement had been reached with the first respondent who had agreed to vacate the farm in January 2015, but, that, on 10 January 2015, the first respondent reneged on his word and stopped the applicant's workers from moving into the farm.

The applicant alleges, that, the first respondent then went on to evict the rest of his workers who were at the farm. He alleges that the first respondent has disturbed his peaceful possession of the farm.

The first respondent has raised points in limine in opposition to the urgent application:

(i) He avers, that, there is no urgency in this matter as evidenced by the fact that the applicant has never been in occupation of the farm in the first place.

He avers that he has always been in lawful occupation of the farm and that he never suggested that he would vacate the farm by 10 January 2015.

He alleges that the applicant sent his workers to the farm without the first respondent's consent thereto.

He avers, that, his legal practitioners then wrote to the applicant advising him that due process had to be followed in taking over the farm and that he could not forcibly dispossess him of the farm.

(ii) The first respondent also raises another point in limine which is to the effect that the relief sought in the provisional order is incompetent as the provisional order seeks interim relief that is the same as the terms of the final order sought and has in fact the import of a final order as opposed to interim relief.

Firstly, I will therefore move on to deal with the issue of the relief sought.

It is clear that the terms of the final order sought are similar to the interim relief and they are:

“(1) That the Provisional order set out herein be and is hereby confirmed.

(2) That the respondent shall pay the costs of suit at an attorney client scale.”

The interim relief itself, which I have alluded to earlier herein, has the import of a final order as it is to the effect that the applicant be given unhindered access to the farm and that he carries therein normal farming activities as well as that the respondent be interdicted and stopped from interfering with the applicant's operations on the farm.

This clearly is a final order couched as interim relief.

It is indeed undesirable to have such a state of affairs because the applicant virtually seeks to obtain final relief without having proved its case. This is because interim relief is obtained merely on establishing a prima facie case as opposed to a proven case: refer to the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (H).

This is an irregularity; the applicant, in my view, wants to be granted final relief on a platform that requires that only a prima facie case be established.

This is not proper and the application cannot succeed by reason of this irregularity.

Again, on the issue of urgency, the problem is that the applicant seems to have sought to occupy the farm without following due process.

The applicant must wait for the law to take its course before creating an urgency for himself.

It would seem the applicant failed in his bid to despoil the first respondent, rather than that he was in peaceful and undisturbed possession as he clearly failed to obtain the possession in the first place.

Again, even if I were to overlook that irregularity; on the merits of the application, the applicant would still need to satisfy the three requirements for an interdict, these being;

“(1) A right which, though prima facie, is open to some doubt;

(2) A well grounded apprehension of irreparable injury;

(3) The absence of any other remedy.”

This is enunciated in the case of Zesa Staff Pension Fund v Mushambadzi SC57-02.

The applicant in this case has produced an offer letter, so, one could hold that the first requirement has been met; a prima facie right has been established, although it is open to some doubt when one looks at the first respondent's papers. The requirement is nonetheless satisfied.

The second remedy, of a well-grounded apprehension of irreparable injury…, is the second in line to be satisfied. I have underlined the words well grounded to emphasize the aspect of the foundation of the fear, it need not be just a fear but a well grounded fear.

In my view, the applicant, upon receipt of the offer letter, as annexed to his papers, should have followed due process in seeking to occupy the farm.

By due process, I mean, that, rather than confronting the first respondent and advising his imminent take over of the farm, he should have left it to the land authorities to notify the first respondent to vacate the land and give him a reasonable period within which to leave; this, moreso in light of the letter from the Ministry of Lands, dated 17 May 2007, acknowledging that the first respondent is at the farm, which is the subject matter of this dispute, and he has made an application to the Ministry of Lands for an offer letter.

Section 3(2)(a) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] provides thus:

“Every former owner or occupation of Gazetted Land (a) referred to in paragraph (a) of the definition of 'Gazetted Land' in section 2(1), shall cease to occupy, hold or use that land forty-five days after the fixed date, unless the owner or occupier is lawfully authorized to occupy, hold or use that land.”

This then takes us to the next question of; what is lawful authority?

Lawful authority, in my view, is authority given by the land acquiring authority.

The letter that the first respondent understands to authorize him to remain in occupation of the farm is by the Chief Lands officer from the Ministry of Lands. The offer letter given to the applicant is by the Ministry of Lands.

It is my considered view, that, the Ministry of Lands cannot allow a party to occupy land, then offer the land to another without following the requirements of the rules of natural justice that demand that the one who understands has a right to remain in occupation, should be duly notified of the intention to take that right away, make representations, if any, and a decision be taken subsequently after all concerned have been heard.

It is not disputed, that, the first respondent has remained in occupation of the farm for years by virtue of the written assurance given to him by the same Ministry, which has now given the applicant an offer letter, without first duly notifying the first respondent of the current position.

In my view, administrative decisions should be taken within the ambit of the law.

Whilst the Lands Ministry, as the acquiring authority, is vested with all rights in relation to State land, such authority should be exercised with due consideration of the rules of natural justice.

They wrote to the first respondent and made him believe that he could remain in occupation of the land; they should have, at the time they took the decision to offer the land to someone else, advised the first respondent as such.

The first respondent also challenges the purported offer letter to the applicant as being fake, for the simple reason that it now offers the applicant what the first respondent believes he is rightfully occupying by virtue of authority from the Lands Ministry.

Unfortunately, the Ministry of Lands, as well as the Chief Lands officer who purportedly authored the letter dated 17 May 2007, were not cited as parties to these proceedings.

When I pointed this out to the applicant's counsel, he submitted, that, he chose to have the application proceed without the citation of and service of the application on the Ministry.

This creates difficulty in that we are now faced with two conflicting scenarios created by the same Ministry but they are not here to enlighten the court on which is which.

The court finds itself hamstrung in this situation as only the lands office could vouch for the authenticity of the offer letter that is being challenged.

The applicant should follow due process in the eviction of the first respondent; the applicant cannot, on this platform, seek to evict the first respondent by means of a provisional order.

The requirement for a well grounded fear is not satisfied, in my view, for the afore-stated reasons; for, the applicant had not taken effective control of the farm, neither had the Ministry of Lands taken effective steps to give him possession and control of the farm in light of the conflicting correspondence by the same office.

For the applicant to have a well-grounded fear, that the first respondent wants to dispossess him of the farm or to disturb his effective control, the applicant must have occupied the farm after following due process.

This is not the situation in this case.

There is also the requirement of the lack of an alternative remedy that the applicant had to satisfy in addition to the other two.

This requirement has not been fulfilled for the simple reason, that, in paragraph 5.7 of the founding affidavit, the applicant states thus:

“I have lodged the (sic) complaint with the Zimbabwe Republic Police who are still handling the matter…,.”

This, in essence, shows that the applicant has initiated proceedings in terms of section 3 of the Gazetted Land (Consequential Provisions) Act.

In terms of that section, at section 3(5) of the Gazetted Land (Consequential Provisions) Act, a provision is made for the eviction of a former owner who has been convicted in terms of that section. This therefore clearly means, that, the applicant has initiated criminal proceedings which will, if the first respondent is convicted, lead to the eviction of the first respondent from the farm.

This, in my view, amounts to an alternative remedy as the relief sought would be achieved through the prosecution of the first respondent in terms of the Gazetted Land (Consequential Provisions) Act.

It is for the aforestated reasons that I find that this application should fail.

I accordingly dismiss the application with costs.

Administrative Law re: Presumptions of Regularity and Validity of Official Documents or Advice & Doctrine of Estoppel


This is an application wherein the applicant seeks a provisional order whose interim relief is couched as follows:

“(1) That the applicant shall be allowed unhindered access to the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon Farm, Esigodini and to carry out thereupon all normal farming activities.

(2) That the respondents, its agents, assignees, associates, or employees be and are hereby interdicted and stopped from interfering with the applicant's operation of the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon farm.”

The facts of the matter are that the applicant was allocated Lot 2 of Lot 36 of Essexvale (Avalon) in Umzingwane Matebeleland South Province by the Ministry of Lands in an offer letter dated 4 December 2014.

He then went to the farm and sought to occupy same.

He alleges that an agreement had been reached with the first respondent who had agreed to vacate the farm in January 2015, but, that, on 10 January 2015, the first respondent reneged on his word and stopped the applicant's workers from moving into the farm.

The applicant alleges, that, the first respondent then went on to evict the rest of his workers who were at the farm. He alleges that the first respondent has disturbed his peaceful possession of the farm.

The first respondent has raised points in limine in opposition to the urgent application:

(i) He avers, that, there is no urgency in this matter as evidenced by the fact that the applicant has never been in occupation of the farm in the first place.

He avers that he has always been in lawful occupation of the farm and that he never suggested that he would vacate the farm by 10 January 2015.

He alleges that the applicant sent his workers to the farm without the first respondent's consent thereto.

He avers, that, his legal practitioners then wrote to the applicant advising him that due process had to be followed in taking over the farm and that he could not forcibly dispossess him of the farm.

(ii) The first respondent also raises another point in limine which is to the effect that the relief sought in the provisional order is incompetent as the provisional order seeks interim relief that is the same as the terms of the final order sought and has in fact the import of a final order as opposed to interim relief.

Firstly, I will therefore move on to deal with the issue of the relief sought.

It is clear that the terms of the final order sought are similar to the interim relief and they are:

“(1) That the Provisional order set out herein be and is hereby confirmed.

(2) That the respondent shall pay the costs of suit at an attorney client scale.”

The interim relief itself, which I have alluded to earlier herein, has the import of a final order as it is to the effect that the applicant be given unhindered access to the farm and that he carries therein normal farming activities as well as that the respondent be interdicted and stopped from interfering with the applicant's operations on the farm.

This clearly is a final order couched as interim relief.

It is indeed undesirable to have such a state of affairs because the applicant virtually seeks to obtain final relief without having proved its case. This is because interim relief is obtained merely on establishing a prima facie case as opposed to a proven case: refer to the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (H).

This is an irregularity; the applicant, in my view, wants to be granted final relief on a platform that requires that only a prima facie case be established.

This is not proper and the application cannot succeed by reason of this irregularity.

Again, on the issue of urgency, the problem is that the applicant seems to have sought to occupy the farm without following due process.

The applicant must wait for the law to take its course before creating an urgency for himself.

It would seem the applicant failed in his bid to despoil the first respondent, rather than that he was in peaceful and undisturbed possession as he clearly failed to obtain the possession in the first place.

Again, even if I were to overlook that irregularity; on the merits of the application, the applicant would still need to satisfy the three requirements for an interdict, these being;

“(1) A right which, though prima facie, is open to some doubt;

(2) A well grounded apprehension of irreparable injury;

(3) The absence of any other remedy.”

This is enunciated in the case of Zesa Staff Pension Fund v Mushambadzi SC57-02.

The applicant in this case has produced an offer letter, so, one could hold that the first requirement has been met; a prima facie right has been established, although it is open to some doubt when one looks at the first respondent's papers. The requirement is nonetheless satisfied.

The second remedy, of a well-grounded apprehension of irreparable injury…, is the second in line to be satisfied. I have underlined the words well grounded to emphasize the aspect of the foundation of the fear, it need not be just a fear but a well grounded fear.

In my view, the applicant, upon receipt of the offer letter, as annexed to his papers, should have followed due process in seeking to occupy the farm.

By due process, I mean, that, rather than confronting the first respondent and advising his imminent take over of the farm, he should have left it to the land authorities to notify the first respondent to vacate the land and give him a reasonable period within which to leave; this, moreso in light of the letter from the Ministry of Lands, dated 17 May 2007, acknowledging that the first respondent is at the farm, which is the subject matter of this dispute, and he has made an application to the Ministry of Lands for an offer letter.

Section 3(2)(a) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] provides thus:

“Every former owner or occupation of Gazetted Land (a) referred to in paragraph (a) of the definition of 'Gazetted Land' in section 2(1), shall cease to occupy, hold or use that land forty-five days after the fixed date, unless the owner or occupier is lawfully authorized to occupy, hold or use that land.”

This then takes us to the next question of; what is lawful authority?

Lawful authority, in my view, is authority given by the land acquiring authority.

The letter that the first respondent understands to authorize him to remain in occupation of the farm is by the Chief Lands officer from the Ministry of Lands. The offer letter given to the applicant is by the Ministry of Lands.

It is my considered view, that, the Ministry of Lands cannot allow a party to occupy land, then offer the land to another without following the requirements of the rules of natural justice that demand that the one who understands has a right to remain in occupation, should be duly notified of the intention to take that right away, make representations, if any, and a decision be taken subsequently after all concerned have been heard.

It is not disputed, that, the first respondent has remained in occupation of the farm for years by virtue of the written assurance given to him by the same Ministry, which has now given the applicant an offer letter, without first duly notifying the first respondent of the current position.

In my view, administrative decisions should be taken within the ambit of the law.

Whilst the Lands Ministry, as the acquiring authority, is vested with all rights in relation to State land, such authority should be exercised with due consideration of the rules of natural justice.

They wrote to the first respondent and made him believe that he could remain in occupation of the land; they should have, at the time they took the decision to offer the land to someone else, advised the first respondent as such.

The first respondent also challenges the purported offer letter to the applicant as being fake, for the simple reason that it now offers the applicant what the first respondent believes he is rightfully occupying by virtue of authority from the Lands Ministry.

Unfortunately, the Ministry of Lands, as well as the Chief Lands officer who purportedly authored the letter dated 17 May 2007, were not cited as parties to these proceedings.

When I pointed this out to the applicant's counsel, he submitted, that, he chose to have the application proceed without the citation of and service of the application on the Ministry.

This creates difficulty in that we are now faced with two conflicting scenarios created by the same Ministry but they are not here to enlighten the court on which is which.

The court finds itself hamstrung in this situation as only the lands office could vouch for the authenticity of the offer letter that is being challenged.

The applicant should follow due process in the eviction of the first respondent; the applicant cannot, on this platform, seek to evict the first respondent by means of a provisional order.

The requirement for a well grounded fear is not satisfied, in my view, for the afore-stated reasons; for, the applicant had not taken effective control of the farm, neither had the Ministry of Lands taken effective steps to give him possession and control of the farm in light of the conflicting correspondence by the same office.

For the applicant to have a well-grounded fear, that the first respondent wants to dispossess him of the farm or to disturb his effective control, the applicant must have occupied the farm after following due process.

This is not the situation in this case.

There is also the requirement of the lack of an alternative remedy that the applicant had to satisfy in addition to the other two.

This requirement has not been fulfilled for the simple reason, that, in paragraph 5.7 of the founding affidavit, the applicant states thus:

“I have lodged the (sic) complaint with the Zimbabwe Republic Police who are still handling the matter…,.”

This, in essence, shows that the applicant has initiated proceedings in terms of section 3 of the Gazetted Land (Consequential Provisions) Act.

In terms of that section, at section 3(5) of the Gazetted Land (Consequential Provisions) Act, a provision is made for the eviction of a former owner who has been convicted in terms of that section. This therefore clearly means, that, the applicant has initiated criminal proceedings which will, if the first respondent is convicted, lead to the eviction of the first respondent from the farm.

This, in my view, amounts to an alternative remedy as the relief sought would be achieved through the prosecution of the first respondent in terms of the Gazetted Land (Consequential Provisions) Act.

It is for the aforestated reasons that I find that this application should fail.

I accordingly dismiss the application with costs.

Land Acquisition re: Eviction, Offer Letters and the Lawful Authority to Occupy Gazetted Land


This is an application wherein the applicant seeks a provisional order whose interim relief is couched as follows:

“(1) That the applicant shall be allowed unhindered access to the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon Farm, Esigodini and to carry out thereupon all normal farming activities.

(2) That the respondents, its agents, assignees, associates, or employees be and are hereby interdicted and stopped from interfering with the applicant's operation of the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon farm.”

The facts of the matter are that the applicant was allocated Lot 2 of Lot 36 of Essexvale (Avalon) in Umzingwane Matebeleland South Province by the Ministry of Lands in an offer letter dated 4 December 2014.

He then went to the farm and sought to occupy same.

He alleges that an agreement had been reached with the first respondent who had agreed to vacate the farm in January 2015, but, that, on 10 January 2015, the first respondent reneged on his word and stopped the applicant's workers from moving into the farm.

The applicant alleges, that, the first respondent then went on to evict the rest of his workers who were at the farm. He alleges that the first respondent has disturbed his peaceful possession of the farm.

The first respondent has raised points in limine in opposition to the urgent application:

(i) He avers, that, there is no urgency in this matter as evidenced by the fact that the applicant has never been in occupation of the farm in the first place.

He avers that he has always been in lawful occupation of the farm and that he never suggested that he would vacate the farm by 10 January 2015.

He alleges that the applicant sent his workers to the farm without the first respondent's consent thereto.

He avers, that, his legal practitioners then wrote to the applicant advising him that due process had to be followed in taking over the farm and that he could not forcibly dispossess him of the farm.

(ii) The first respondent also raises another point in limine which is to the effect that the relief sought in the provisional order is incompetent as the provisional order seeks interim relief that is the same as the terms of the final order sought and has in fact the import of a final order as opposed to interim relief.

Firstly, I will therefore move on to deal with the issue of the relief sought.

It is clear that the terms of the final order sought are similar to the interim relief and they are:

“(1) That the Provisional order set out herein be and is hereby confirmed.

(2) That the respondent shall pay the costs of suit at an attorney client scale.”

The interim relief itself, which I have alluded to earlier herein, has the import of a final order as it is to the effect that the applicant be given unhindered access to the farm and that he carries therein normal farming activities as well as that the respondent be interdicted and stopped from interfering with the applicant's operations on the farm.

This clearly is a final order couched as interim relief.

It is indeed undesirable to have such a state of affairs because the applicant virtually seeks to obtain final relief without having proved its case. This is because interim relief is obtained merely on establishing a prima facie case as opposed to a proven case: refer to the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (H).

This is an irregularity; the applicant, in my view, wants to be granted final relief on a platform that requires that only a prima facie case be established.

This is not proper and the application cannot succeed by reason of this irregularity.

Again, on the issue of urgency, the problem is that the applicant seems to have sought to occupy the farm without following due process.

The applicant must wait for the law to take its course before creating an urgency for himself.

It would seem the applicant failed in his bid to despoil the first respondent, rather than that he was in peaceful and undisturbed possession as he clearly failed to obtain the possession in the first place.

Again, even if I were to overlook that irregularity; on the merits of the application, the applicant would still need to satisfy the three requirements for an interdict, these being;

“(1) A right which, though prima facie, is open to some doubt;

(2) A well grounded apprehension of irreparable injury;

(3) The absence of any other remedy.”

This is enunciated in the case of Zesa Staff Pension Fund v Mushambadzi SC57-02.

The applicant in this case has produced an offer letter, so, one could hold that the first requirement has been met; a prima facie right has been established, although it is open to some doubt when one looks at the first respondent's papers. The requirement is nonetheless satisfied.

The second remedy, of a well-grounded apprehension of irreparable injury…, is the second in line to be satisfied. I have underlined the words well grounded to emphasize the aspect of the foundation of the fear, it need not be just a fear but a well grounded fear.

In my view, the applicant, upon receipt of the offer letter, as annexed to his papers, should have followed due process in seeking to occupy the farm.

By due process, I mean, that, rather than confronting the first respondent and advising his imminent take over of the farm, he should have left it to the land authorities to notify the first respondent to vacate the land and give him a reasonable period within which to leave; this, moreso in light of the letter from the Ministry of Lands, dated 17 May 2007, acknowledging that the first respondent is at the farm, which is the subject matter of this dispute, and he has made an application to the Ministry of Lands for an offer letter.

Section 3(2)(a) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] provides thus:

“Every former owner or occupation of Gazetted Land (a) referred to in paragraph (a) of the definition of 'Gazetted Land' in section 2(1), shall cease to occupy, hold or use that land forty-five days after the fixed date, unless the owner or occupier is lawfully authorized to occupy, hold or use that land.”

This then takes us to the next question of; what is lawful authority?

Lawful authority, in my view, is authority given by the land acquiring authority.

The letter that the first respondent understands to authorize him to remain in occupation of the farm is by the Chief Lands officer from the Ministry of Lands. The offer letter given to the applicant is by the Ministry of Lands.

It is my considered view, that, the Ministry of Lands cannot allow a party to occupy land, then offer the land to another without following the requirements of the rules of natural justice that demand that the one who understands has a right to remain in occupation, should be duly notified of the intention to take that right away, make representations, if any, and a decision be taken subsequently after all concerned have been heard.

It is not disputed, that, the first respondent has remained in occupation of the farm for years by virtue of the written assurance given to him by the same Ministry, which has now given the applicant an offer letter, without first duly notifying the first respondent of the current position.

In my view, administrative decisions should be taken within the ambit of the law.

Whilst the Lands Ministry, as the acquiring authority, is vested with all rights in relation to State land, such authority should be exercised with due consideration of the rules of natural justice.

They wrote to the first respondent and made him believe that he could remain in occupation of the land; they should have, at the time they took the decision to offer the land to someone else, advised the first respondent as such.

The first respondent also challenges the purported offer letter to the applicant as being fake, for the simple reason that it now offers the applicant what the first respondent believes he is rightfully occupying by virtue of authority from the Lands Ministry.

Unfortunately, the Ministry of Lands, as well as the Chief Lands officer who purportedly authored the letter dated 17 May 2007, were not cited as parties to these proceedings.

When I pointed this out to the applicant's counsel, he submitted, that, he chose to have the application proceed without the citation of and service of the application on the Ministry.

This creates difficulty in that we are now faced with two conflicting scenarios created by the same Ministry but they are not here to enlighten the court on which is which.

The court finds itself hamstrung in this situation as only the lands office could vouch for the authenticity of the offer letter that is being challenged.

The applicant should follow due process in the eviction of the first respondent; the applicant cannot, on this platform, seek to evict the first respondent by means of a provisional order.

The requirement for a well grounded fear is not satisfied, in my view, for the afore-stated reasons; for, the applicant had not taken effective control of the farm, neither had the Ministry of Lands taken effective steps to give him possession and control of the farm in light of the conflicting correspondence by the same office.

For the applicant to have a well-grounded fear, that the first respondent wants to dispossess him of the farm or to disturb his effective control, the applicant must have occupied the farm after following due process.

This is not the situation in this case.

There is also the requirement of the lack of an alternative remedy that the applicant had to satisfy in addition to the other two.

This requirement has not been fulfilled for the simple reason, that, in paragraph 5.7 of the founding affidavit, the applicant states thus:

“I have lodged the (sic) complaint with the Zimbabwe Republic Police who are still handling the matter…,.”

This, in essence, shows that the applicant has initiated proceedings in terms of section 3 of the Gazetted Land (Consequential Provisions) Act.

In terms of that section, at section 3(5) of the Gazetted Land (Consequential Provisions) Act, a provision is made for the eviction of a former owner who has been convicted in terms of that section. This therefore clearly means, that, the applicant has initiated criminal proceedings which will, if the first respondent is convicted, lead to the eviction of the first respondent from the farm.

This, in my view, amounts to an alternative remedy as the relief sought would be achieved through the prosecution of the first respondent in terms of the Gazetted Land (Consequential Provisions) Act.

It is for the aforestated reasons that I find that this application should fail.

I accordingly dismiss the application with costs.

Urgent Chamber Application

MOYO J: This is an application wherein the applicant seeks a provisional order whose interim relief is couched as follows:

“(1) That the applicant shall be allowed unhindered access to the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon Farm, Esigodini and to carry out thereupon all normal farming activities.

(2) That the respondents, its agents, assignees, associates, or employees be and are hereby interdicted and stopped from interfering with the applicant's operation of the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon farm.”

The facts of the matter are that the applicant was allocated Lot 2 of Lot 36 of Essexvale (Avalon) in Umzingwane Matebeleland South Province by the Ministry of Lands in an offer letter dated 4 December 2014.

He then went to the farm and sought to occupy same.

He alleges that an agreement had been reached with first respondent who had agreed to vacate the farm in January 2015 but that on 10 January 2015, first respondent reneged on his word and stopped applicant's workers from moving into the farm.

Applicant alleges that first respondent then went on to evict the rest of his workers who were at the farm. He alleges that first respondent has disturbed his peaceful possession of the farm.

The first respondent has raised points in limine in opposition to the urgent application:

(i) He avers that there is no urgency in this matter as evidenced by the fact that applicant has never been in occupation of the farm in the first place.

He avers that he has always been in lawful occupation of the farm and that he never suggested that he would vacate the farm by 10 January 2015.

He alleges that the applicant sent his workers to the farm without first respondent's consent thereto.

He avers that his legal practitioners then wrote to applicant advising him that due process had to be followed in taking over the farm and that he could not forcibly dispossess him of the farm.

(ii) First respondent also raises another point in limine which is to the effect that the relief sought in the provisional order is incompetent as the provisional order seeks interim relief that is the same as the terms of the final order sought and has in fact the import of a final order as opposed to interim relief.

Firstly, I will therefore move on to deal with the issue of the relief sought.

It is clear that the terms of the final order sought are similar to the interim relief and they are:

“(1) That the Provisional order set out herein be and is hereby confirmed.

(2) That the respondent shall pay the costs of suit at an attorney client scale.”

The interim relief itself which I have alluded to earlier herein has the import of a final order as it is to the effect that applicant be given unhindered access to the farm and that he carries therein normal faming activities as well as that the respondent be interdicted and stopped from interfering with the applicant's operations on the farm.

This clearly is a final order couched as interim relief.

It is indeed undesirable to have such a state of affairs because the applicant virtually seeks to obtain final relief without having proved its case. This is because interim relief is obtained merely on establishing a prima facie case as opposed to a proven case. Refer to the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (H).

This is an irregularity, applicant, in my view wants to be granted final relief on a platform that requires that only a prima facie case be established.

This is not proper and the application cannot succeed by reason of this irregularity.

Again on the issue of urgency the problem is that applicant seems to have sought to occupy the farm without following due process.

Applicant must wait for the law to take its course before creating an urgency for himself.

It would seem applicant failed in his bid to despoil first respondent, rather than that he was in peaceful and undisturbed possession as he clearly failed to obtain the possession in the first place.

Again even if I were to overlook that irregularity, on the merits of the application the applicant would still need to satisfy the three requirements for an interdict, these being;

“(1) a right which, though prima facie, is open to some doubt;

(2) a well grounded apprehension of irreparable injury;

(3) the absence of any other remedy.”

This is enunciated in the case of Zesa Staff Pension Fund vs Mushambadzi SC57/02.

The applicant in this case has produced an offer letter, so one could hold that the first requirement has been met, a prima facie right has been established, although it is open to some doubt when one looks at the first respondent's papers. The requirement is nonetheless satisfied.

The second remedy of a well grounded apprehension of irreparable injury (emphasis mine) is the second in line to be satisfied. I have underlined the words well grounded to emphasise the aspect of the foundation of the fear, it need not be just a fear but a well grounded fear.

In my view, the applicant upon receipt of the offer letter as annexed to his papers should have followed due process in seeking to occupy the farm.

By due process I mean that, rather than confronting the first respondent and advising his imminent take over of the farm, he should have left it to the land authorities to notify the first respondent to vacate the land and give him a reasonable period within which to leave, this more so in light of the letter from the Ministry of Lands dated 17 May 2007 acknowledging that the first respondent is at farm which is the subject matter of this dispute and he has made an application to the Ministry of Lands for an offer letter.

Section 3(2)(a) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] provides thus:

“Every former owner or occupation of Gazetted Land (a) referred to in paragraph (a) of the definition of 'Gazetted Land' in Section 2(1), shall cease to occupy, hold or use that land forty-five days after the fixed date, unless the owner or occupier is lawfully authorized to occupy, hold or use that land.”

This then takes us to the next question of what is lawful authority?

Lawful authority in my view is authority given by the land acquiring authority.

The letter that first respondent understands to authorize him to remain in occupation of the farm is by the Chief Lands officer from the Ministry of Lands. The offer letter given to the applicant is by the Ministry of Lands.

It is my considered view that the Ministry of Lands cannot allow a party to occupy land, then offer the land to another without following the requirements of the rules of natural justice that demand that the one who understands has a right to remain in occupation, should be duly notified of the intention to take that right away, make representations if any, and a decision be taken subsequently after all concerned have been heard.

It is not disputed that the first respondent has remained in occupation of the farm for years by virtue of the written assurance given to him by the same Ministry which has now, given applicant on offer letter, without first duly notifying the first respondent of the current position.

In my view, administrative decisions should be taken within the ambit of the law.

Whilst the Lands Ministry as the acquiring authority is vested with all rights in relation to state land, such authority should be exercised with due consideration of the rules of natural justice.

They wrote to the first respondent and made him believe that he could remain in occupation of the Land, they should have, at the time they took the decision to offer the land to someone else advised the first respondent as such.

The first respondent also challenges the purported offer letter to the applicant as being fake, for the simple reason that it now offers applicant what first respondent believes he is rightfully occupying by virtue of authority from the Lands Ministry.

Unfortunately the Ministry of Lands as well as the Chief Lands officer who purportedly authored the letter dated 17 May 2007, were not cited as parties to these proceedings.

When I pointed this out to applicant's counsel he submitted that he chose to have the application proceed without the citation of and service of the application on the Ministry.

This creates difficulty in that we are now faced with two conflicting scenarios created by the same Ministry but they are not here to enlighten the court on which is which.

The court finds itself hamstrung in this situation as only the lands office could vouch for the authenticity of the offer letter that is being challenged.

The applicant should follow due process in the eviction of first respondent, applicant cannot on this platform seek to evict the first respondent by means of a provisional order.

The requirement for a well grounded fear is not satisfied in my view for the aforestated reasons for, the applicant had not taken effective control of the farm, neither had the Ministry of Lands taken effective steps to give him possession and control of the farm in light of the conflicting correspondence by the same office.

For applicant to have a well grounded fear, that first respondent, wants to dispossess him of the farm or to disturb his effective control, applicant must have occupied the farm after following due process.

This is not the situation in this case.

There is also the requirement of the lack of an alternative remedy that the applicant had to satisfy in addition to the other two.

This requirement has not been fulfilled for the simple reason that in paragraph 5.7 of the founding affidavit applicant states thus:

“I have lodged the (sic) complaint with the Zimbabwe Republic Police who are still handling the matter---.”

This in essence shows that applicant has initiated proceedings in terms of section 3 of the Gazetted Land (Consequential Provisions) Act (supra).

In terms of that section at section 3(5) a provision is made for the eviction of a former owner who has been convicted in terms of that section. This therefore clearly means that the applicant has initiated criminal proceedings which will if, the first respondent is convicted, lead to the eviction of the first respondent from the farm.

This in my view amounts to an alternative remedy as the relief sought would be achieved through the prosecution of the first respondent in terms of that Act.

It is for the aforestated reasons that I find that this application should fail.

I accordingly dismiss the application with costs.



Cheda and Partners, applicant's legal practitioners

Webb, Low and Barry, 1st respondent's legal practitioners

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