Urgent
Application
MOYO
J: This
is an urgent application premised on the principle of mandamus
van spolie.
The
applicant's case is that he has been in peaceful and undisturbed
possession of Maleme Farm in the Matobo District of Matebeleland
South Province.
In
paragraph 29 of the applicant's founding affidavit he states thus:
“That
coercion has become so disruptive that the applicant is unable to
continue its activities on the farm and the applicant's employees
are concerned about their personal welfare. Since 5 February 2015,
the third respondent and certain individuals acting under him have
performed the following acts:
(a)
they entered the farm without applicant's knowledge or consent on
numerous occasions.
(b)
they have locked pumps with their own padlocks and have stolen the
pump's crankshaft. The applicant has over US$200,000 worth of
chickens which require water.
Without
a method of watering the said chickens the birds will die.
The
applicant and the students at the training institute have vast market
gardening projects which require water.
As
the area is arid, without an adequate supply of water all of those
projects will be destroyed.
Already
three hectares of cabbage seedlings have been lost which would have
returned USD$15,000 and one hectare of tomatoes has been lost with
the value is USD$20,000.
(c)
Additionally, the said persons also locked up the gates to my farm
with their own locks in an attempt to prevent anyone from entering or
exiting the premises.
(d)
The third respondent and those acting under or through him have
instructed my workers to stop working and vacate the property. They
have threatened applicant's workers with physical harm. If they do
not stop.
(e)
On the 6 of February 2015 the said persons occupied my homestead and
also took occupation of the applicant's office located on the
property. The same people have started harvesting and selling the
produce that the Trust and the communities were cultivating.”
Applicant
approached this court for a spoliation order on an urgent basis for
the aforestated reasons.
The
background of the matter is that the land in dispute is owned by a
trust and although it was gazetted in 2003, the applicant has been
allowed to remain in occupation of the remaining extent of the farm
after new farmers were given other lots that were taken off the farm.
There
has been numerous agreements and co-operation agreements between the
Government of Zimbabwe and applicant which does community work and
assists the community in many different farming projects as well as
the running of an agricultural training institute within the same
farm.
The
fourth respondent, Chief Masuku advised the court that indeed he was
part of a District Lands meeting way back after the farm had been
gazetted, which saw it fit to leave the applicant on the farm as the
community was benefitting immensely from the Trust.
The
third respondent's case is that he was allocated this farm which
was gazetted in 2003 and he has attached an offer letter dated 3
December 2014.
In
his opposing affidavit third respondent states thus:
“Paragraph
5:
I
deny this paragraph in its entirety as applicant has chosen to ignore
the truth and seek to mislead the court. The whole of Maleme farm was
gazetted in 2003 as shown by a copy of the Government Gazette annexed
hereto as Annexure F. It was then divided into 5 subdivisions as
shown on the map by a copy of the map obtained from the lands office
annexed hereto as Annexure G. The training institute which applicant
alleges I have been disrupting is in subdivision 4 which I occupy for
the record I wish to point out clearly that since 5 February 2015 I
have
been in peaceful
occupation of subdivision 4 of Maleme Farm, and have not in any way
disrupted or interfered with the activities of Ebenezer training
institute. The
subdivision I occupy has fields which have tomatoes and butternuts,
I have allowed the applicant's workers to continue harvesting
same.” (underlining is mine for emphasis).
It
is important to note at this juncture that third respondent does not
tell this court that he moved onto the piece of Land with applicant's
consent, No.
He
also tells us that the land he moved into has applicant's tomatoes
and butternuts.
By
his own admission third respondent has disturbed applicant's
peaceful possession of the land in question.
He
goes on at paragraph 15 and states thus:
“Applicant
is being economic with the truth, I peacefully occupied my allocated
portion with the
assistance of the police.
As alluded above I have also allowed applicant time to harvest his
produce. I have also assured him that as long as him and his workers
co-operate he will harvest all his produce.” (emphasis is mine.)
Third
respondent moved in with the assistance of the police, this in a way
confirms that applicant was ordered to accept third respondent's
occupation of the farm.
The
police whilst they are law enforcement agents, they do not define
rights nor constitute due process, they enforce rights that have been
defined by a court of law and in my view they cannot, where there is
a dispute with regard to occupation of a piece of land start defining
the rights of the parties pertaining thereto, that is for the courts.
The
third respondent as a new farmer allocated land by the Ministry of
Lands, could be held to derive rights from the offer letter.
But
deriving rights and enforcing rights are two different things.
What
third respondent should have done in a bid to enforce the rights he
believes he has by virtue of the offer letter, would be to enforce
them through due process.
Due
process entails approaching the courts to enforce one's rights of
occupation.
Forcible
occupation of a piece of land possessed by another person is unlawful
and is not due process. It does not matter where one derives their
right from.
Due
process must be followed in the enforcement of same otherwise there
would be anarchy and chaos if every person who believes that they
have a right or entitlement decides to take the law into their own
hands.
Self-help
would lead to anarchy and this is where the unlawfulness of third
respondent's conduct is.
In
spoliation proceedings all an applicant has to prove is that he was
in peaceful and undisturbed possession of the property, he need not
prove anything beyond that.
Third
respondent has admitted in his own opposing affidavit that he did
move onto the land occupied by applicant with the assistance of the
police.
He
also does not allege that applicant surrendered by consent Lot 4 of
Maleme Farm to him.
His
own affidavit confirms that he in fact went in and seized the farm
from applicant on the basis of the offer letter and on the basis that
applicant had no right to remain on gazetted land.
What
is important at this juncture is that applicant has proved that it
was in peaceful and undisturbed possession prior to third
respondent's arrival.
Spoliation
proceedings are a remedy against unlawful dispossession of property.
In
the case of Yeko
v
Qana
1973 (4) SA 735 (A) at 739 E–F the learned judge stated thus:
“In
order to obtain a spoliation order the onus is on the applicant to
prove the required possession, and that he was unlawfully deprived of
such possession.
As
the appellant admits that he locked the building it was only the
possession that respondent was required to establish.
If
the respondent was in possession the appellant's conduct amounted
to self-help.
He
was admittedly in occupation of the building with the intention of
selling the stock for his own benefit.
Whether
the occupation was acquired secretly, as appellant alleged, or even
fraudulently is not the enquiry. For as Voet,
41.2.16, says, the injustice of the possession of the person
despoiled is irrelevant as he is entitled to a spoliation order even
if he is a thief or a robber.
The
fundamental principle of the remedy is that no one is allowed to take
the law into his own hands.
All
that the spoliatus
has to prove, is possession of a kind which warrants the protection
accorded by the remedy, and that he was unlawfully ousted.”
In
Willes, Principles of South African Law
by Hutchison et al, 8th
edition at page 267 the following is stated;
“If
a person has been deprived of possession by violence, fraud, stealth
or some other illicit method, he may obtain from the court a
mandamant
van spolie,
or spoliation order, commanding the dispossessor to restore the
possession to himself, the applicant. It is a fundamental principle
that no man is allowed to take the law into his own hands.
Consequently,
if
a person without being authorised by a judicial decree,
dispossesses another person the court, without enquiring into the
merits of the dispute, will summarily grant an order for restoration
of possession to the applicant, as soon as he has proved two facts,
namely; that he was in possession and that he was despoiled of
possession by the respondent.
The
policy of the law is neatly summed up in the maxim, spoliatus
ante omnia restuendus est.”
(emphasis mine)
This
maxim means that before the question of title can be resolved, the
person deprived of possession must be restored to his previous
position.
The
aforestated authorities have summed it up.
The
act of spoliation is unlawful in all cases, land matters included.
The
third respondent has to restore possession to the applicant in
accordance with the law and then wait for the law to take its course,
so that if his rights of occupation are founded through a judicial
decree, and he eventually occupies the farm, he does so lawfully.
I
accordingly grant the provisional order in terms of the draft, for
the reasons herein stated.
Webb,
Low and Barry,
applicant's legal practitioners
R.
Ndlovu and Company,
3rd
respondent's legal practitioners
