Urgent
Chamber Application
CHITAPI
J:
In
this application, the applicant seeks the following relief as set out
in the provisional order:
“TERMS
OF FINAL ORDER SOUGHT
1.
That it be and is hereby declared that second respondent's
dispossession of certain land and buildings in respect of applicant's
offer letter for a certain piece of land described as Subdivision 2
of Ivordale in the Goromonzi district of Mashonaland East Province
measuring approximately 449.792 ha in extent dated 16 July, 2014
(hereinafter called “the property”) which physical dispossession
took place on or about the 5th December, 2016 and on subsequent days
thereafter is and was unlawful on account that this was done without
the consent of the applicant and without following due process and
therefore in circumstances amounting to spoliation.
2.
That it be and is hereby declared that the applicant, his agents,
representatives, employees and invitees are entitled to peaceful and
undisturbed possession of the property until such time as the
respondents or one or other of them applies for and obtains an order
of ejectment against applicant having final effect from a competent
court.
3.
That Respondents jointly and severally pay the costs of this
application.
INTERIM
RELIEF
Pending
the determination of this matter applicant is granted the following
relief:
(a)
That applicant's possession of the property referred to in his
offer letter dated 16 July 2014 called Subdivision 2 of Ivordale in
the Goromonzi District of Mashonaland East Province measuring
approximately 449.792 ha in extent (“the property”) be and is
hereby restored in its entirety; and
(b)
That second respondent and all other persons acting through or in
common purpose with him remove all and any impediments on the
property so as to permit free and unimpeded access by the applicant,
his agents, employees and invitees in and to the property and of all
improvements on it; and
(c)
That the second respondent and all persons acting through or in
common purpose with him shall forthwith upon the grant of this order
vacate the property, including any buildings and that all movable
assets and property including livestock that may have been introduced
by them onto the property also be removed. Failing vacation and
removal, that the Sheriff or his Deputy be and is hereby authorised
and empowered to attend to the ejectment of the second respondent and
of all other persons claiming occupation and use of the property
through him.
SERVICE
OF THE PROVINCIAL ORDER
That
leave be and is hereby granted to applicant's legal practitioners
or the Sheriff or his Deputy to attend to the service of this order
forthwith upon the Respondents in accordance with Rules of the High
Court.”
On
16 December, 2016 which was the set down date, the respondents sought
a postponement of the hearing. The respondents had not had enough
opportunity to peruse the application and to prepare and file their
responses.
I
postponed the hearing and following submissions by the applicant who
was concerned that he could not access his planted crop. I asked the
second respondent whether he had any problems with allowing the
applicant to attend on his planted crop. The second respondent did
not have a problem with this. I then granted an interim order pending
the final disposal of the matter by myself. I consequently granted an
interim order in the following terms:
“IT
IS ORDERED THAT:
1.
The hearing of the application be postponed to 19 December 2016 at
2:30pm and ruling on wasted costs is reserved.
2.
In the intervening period the 2nd respondent, his agents or any other
person so inclined is hereby ordered not to interfere with or impede
in any manner the applicant or his workers access to and tending his
crop of maize, groundnuts and soya beans and already planned on the
disputed land subdivision 2 of Ivordale in Goromonzi as described in
the applicant's founding affidavit.
3.
The applicant shall not plant any new crops and the 2nd respondent
shall not do or suffer to be done anything either by himself of
through his agents on the disputed land as may affect the status quo
which should remain so until the application is determined.
4.
The respondents to file any opposing papers if they oppose the relief
sought by no later than 12noon on 19 December 2016 and to serve the
applicant's legal practitioner by no later than 1:00pm on the same
date.”
The
first and second respondents filed their responses.
The
first respondent responded on the merits through an affidavit deposed
to by the Permanent Secretary of the relevant Ministry. The first
respondent's position was set out in the relevant paragraphs of her
affidavit as follows:
“3.
I have read the applicant's founding affidavit and wish to respond
as follows;
4.
All due processes leading to the downsize of the applicant's farm
size were observed and adhered to and the applicant was left with
enough land to conduct his dairy farming activities and other
operations.
5.
The Ministry policy permits the applicant to wind up any operations
and harvest any crops that he might have planted without any
interference from the incoming beneficiary.
6.
In essence, the 2nd respondent is to allow the applicant to wind up
operations with no interference from himself and or any others that
claim occupation through him.
7.
In the premise, we abide with the court's ruling.”
The
first respondent's position was therefore that the Minister did not
oppose the interim relief sought. This much appears clearly from an
analysis of paragraphs 5 and 6 of the first respondent's affidavit.
The
Ministry does not allow an incoming beneficiary to interfere with
operations of the incumbent operative who is given an opportunity to
wind up his or her operations without interference.
The
second respondent on the other hand was opposed to the application on
3 grounds;
(i)
firstly that the application was defective and therefore a nullity;
(ii)
secondly that the matter was not urgent; and
(iii)
thirdly on the merits.
I
deal with the issues raised in turn.
Defective
Application
Mr
Samkange submitted that there was no proper application before me
because the applicant's legal practitioner is the one who prepared
the application and proceeded to certify it as urgent by preparing
and signing the certificate of urgency. He submitted that it was
improper for the applicant's legal practitioner to prepare and sign
the certificate of urgency.
Mr
Samkange acknowledged that there were two views expressed by this
court through the judgments of CHEDA J and BERE J respectively in
Chifanza v Edgars Stores & Anor HB27/05 and Dodhill (Pvt) Ltd v
Minister of Lands & Rural Resettlement & Anor 2009 (1) ZLR
182.
The
approaches are well known in this jurisdiction.
CHEDA
J reasoned that it was improper for the same legal practitioner who
has prepared an application for a litigant to certify the same as
urgent. In the learned judge's view, another legal practitioner
different from the applicant's legal practitioners should certify
the matter urgent. Such different legal practitioner would exercise
more objectivity as he or she had no interest in the case.
BERE
J's reasoning was that upon a consideration of the rules on the
certification of an application as urgent, there was no requirement
that a different legal practitioner should prepare the certificate.
Mr
Samkange submitted that CHEDA J's approach made better reading. He
sought to persuade me to therefore adopt the said approach and
dismiss the application on this technicality.
I
asked Mr Samkange whether by not pronouncing a definitive position on
the issue, the problem as to which approach to adopt did not lie with
the courts as opposed to the litigants.
Mr
Samkange could not advance his objection further and quite
understandably so because the field was open as to which of the two
approaches to follow.
The
decision of CHEDA J had the concurrence of another judge, NDOU J.
I
will not deal with the issue of whether to the extent that another
judge concurred with CHEDA J, the judgment should bind other judges.
My
own view is that one must find the answer in the relevant rules being
Rules 242(2) and 244.
There
is no reference in those rules to a different legal practitioner
having to certify an application as urgent. It does not appear to me
that the applicant's legal practitioner is disqualified from
certifying as urgent an application which he or she has prepared. I
will venture to hold that it makes eminent sense and logic for the
legal practitioner who has prepared an application to certify it and
for reasons he gives as being urgent. I am not persuaded that the
rationale of the rules on the making of a certificate of urgency was
to require an applicant to remove his or her brief or instructions
for scrutiny by another legal practitioner other than his chosen one.
There is just no logical reason to require that an application
prepared by one legal practitioner is scrutinized by another legal
practitioner or for such other legal practitioner let alone from a
different firm to also formulate his or her views on whether the
matter is urgent. What if a legal practitioner who is approached
deems the application not urgent and another one is approached and
agrees that it is urgent. This leaves the applicant's legal
practitioner still unsure as to which one of his colleagues is
correct. Will the applicant's legal practitioner seek a third
opinion? If so, then what?
It
appears to me that what is important about a certificate of urgency
lies more in case management than in the merits of the urgency of the
matter.
In
terms of Rule 244, the presence of a certificate of urgency as part
of a chamber application determines how the registrar of this court
will deal with the matter. If a certificate of urgency forms part of
the papers, registrar “…shall immediately submit it (the
application) to a judge, who shall consider the papers forthwith…”.
If
the certificate of urgency is there to aid with case management then
surely there would be no reason or rationale to require that an
applicant should engage two different legal practitioners, the first
one to prepare the application and the second one to peruse the
application and certify it as urgent.
A
legal practitioner who is seized with urgent instructions and decides
to petition the court for urgent relief should surely be able to
assess the urgency of a particular matter. Such legal practitioner
qualifies as “a legal practitioner” (see Rule 244) for purposes
of certifying the application as urgent thereby aiding the registrar
in determining on which roll of cases the applicant's case will be
managed.
As
already observed the Registrar will refer the matter to urgent
applications roll.
A
judge before whom an urgent application is placed is not bound by the
certificate of urgency. The urgency of the matter must be
demonstrated by the applicant not in the certificate of urgency
prepared by a legal practitioner but in the founding papers.
A
judge will consider whether the matter is urgent by reference to the
applicant's complaint and the relief sought.
A
certificate of urgency performs the role of directing the registrar
to place the application before a judge for consideration upon its
filing. The fact that the certificate of urgency is relevant to case
management is borne by the fact that a non-represented or self acting
litigant is not required to file one. The certificate of urgency is
therefore in my view a tool for case management and a court's or
judge's judgment should not be based on such certificate but on the
founding affidavit and supporting documents if any.
In
General Transport & Engineering (Pvt) Ltd & Ors v Zimbank
Corporation (Pvt) Ltd 1998 (1) ZLR 301 and Tripple C Pigs & Anor
v Commissioner General Zimbabwe Revenue Authority 2007 (1) ZLR 27,
the point is made that a legal practitioner who prepares and signs a
certificate of urgency must set out reasons which will have led to
his belief that the application is urgent.
In
the General Transport & Engineering (Pvt) Ltd v Zimbank
Corporation (Pvt) Ltd case (supra), GILLESPIE J made the remark at p
303 that:
“…
where
a legal practitioner could not reasonably entertain the belief that
he professes (i.e that the matter is urgent) he runs the risk of a
judge concluding that he acted wrongfully, if not dishonestly, in
giving his certificate of urgency”.
I
am inclined to believe that these remarks could only properly apply
to applicant's legal practitioner. If this were not so, it would
mean that another legal practitioner who has simply been given an
application prepared by another to read and formulate an opinion as
to urgency would run the risk of being charged for unprofessional
conduct by granting his or her certificate where the court considers
that such certifying legal practitioner could not have reasonably
believed on the facts of a matter that it was urgent.
There
is also another aspect which was not considered by CHEDA J when he
held that it was improper for the applicant's legal practitioner or
a legal practitioner in the same firm to attest to a certificate of
urgency.
The
learned judge was of the view that the objectivity of the applicant's
legal practitioner and members of his firm would likely be
compromised by the pecuniary interest which the firm would have in
wanting to earn fees. Further the learned judge reasoned that the
same firm would seek to advance its goodwill by seeking to bring a
clients matter to a successful (I would say speedy) conclusion.
The
aspect which rings in my mind is one of privilege between a legal
practitioner and his client.
In
short, communications and files of one legal firm should not be for
the consumption of another firm or its legal practitioners to express
an opinion on save where such privilege is waived expressly by a
client or because a matter has been filed at court and a record which
becomes a public record has been opened.
I
am not prepared to accept that the intention of the rules on urgency
were intended that where an applicant files an urgent application, at
least two firms or two legal practitioners not from the same firm
should become involved in the matter.
Suppose
an urgent matter arises and a legal practitioner is instructed to
petition the judge and it is late at night, can it be seriously
argued that the rules would require that the applicant's legal
practitioner engages in a manhunt for another legal practitioner in
the wee hours of the night so that such other legal practitioner
reads through the application and prepares and signs a certificate of
urgency.
A
situation can also arise where an urgent application has taken a
whole day to prepare and is voluminous, requiring several hours on
the part of another legal practitioner to go through the application.
It would be absurd to require the certifying legal practitioner to
leave his own work and to devote hours to reading through an
application simply for purposes of preparing a certificate of
urgency. Would such legal practitioner charge for such work and using
what rate?
I
am not leastwise persuaded that the purport of the rule on preparing
a certificate of urgency was intended that another legal
practitioner, equally qualified and trained should submit a prepared
application to another qualified legal practitioner in a different
law firm to scrutinize his application and express an opinion as to
the urgency of the matter.
The
rule must be read as directed at the applicant who is represented to
have his or her legal representative certify an application as being
urgent the rationale of process of preparing and filing such
certificate, being to request the registrar to place such application
forthwith before a judge for consideration.
In
so far as I am aware the practice in other jurisdictions likes South
Africa with respect to urgent applications is to require that it is
the applicant who must explicitly set out in his or her affidavit or
petition, the circumstances which he avers render the matter urgent.
In addition such applicant is required to set forth reasons to show
that he or she cannot get adequate redress if the matter is heard
following the queue. See Rule 6(12) of the South African Uniforms
Rules of Court.
The
practice in Botswana is the same as in South Africa in that there is
no requirement for a certificate of urgency to be filed with an
urgent application. See Order 12 Rule 13(1) and (2) of the Rules of
the High Court of Botswana. In Botswana the applicant as in South
Africa is required to justify urgency and why he or she believes that
it will not be possible to get redress in the normal course.
It
does not however appear to me that the requirement for a certificate
of urgency to accompany an urgent application is without reasonable
justification.
In
my reading of the rules, the certificate as I have indicated, acts as
a request to the registrar that the application be case managed as an
urgent application. The debate as to whether or not a different legal
practitioner or the applicant's legal practitioner should do the
certification appears to me to be a matter of the interpretation to
be placed on the relevant rule and as such a matter of detail because
whichever approach is adopted, it is the judge to whom the
application is referred who determines whether or not to enrol the
matter and hear it as an urgent one.
It
is also the applicant who must show on his or her papers that the
matter is urgent.
The
urgency is demonstrated or justified in the founding affidavit.
Following
on my interrogation of Mr Samkange's first point in limine as set
out above I must rule that the same must fail.
Litigants
must not after all be prejudiced by conflicting approaches by a court
or judges.
Mr
Dury on the authority of pronouncements of this court on who may
prepare a certificate of urgency and sign it was justified to prepare
and sign it as the applicants legal practitioner and I daresay, that
in my view, the applicants legal practitioner who has full knowledge
of the case following instructions given to him would be best
positioned to express an informed opinion on urgency of the matter
and should therefore prepare the certificate.
Where
a judge queries the urgency of a matter which has been certified by
the applicant's legal practitioner as urgent, such practitioner can
then justify his opinion.
Any
other approach would mean that the applicant would have to argue in
justification of why the other legal practitioner certified the
matter as urgent.
The
other certifying legal practitioner may end being called to justify
his issuance of the certificate to avoid an adverse order being made
against him or her if the remarks of GILLESPIE J were to be
considered that it constitutes an act of dishonesty for a legal
practitioner to certify a matter as urgent when it is not in such
practitioner's belief urgent.
Mr
Samkanges's next point in limine as I have indicated was that the
application was not urgent.
The
second respondent contended in para 10.1 to 10.3 of his opposing
affidavit the applicant had created the urgent situation by ploughing
on the second respondents farm without the second respondents
consent.
The
second respondent averred that he accepted an offer letter for the
disputed piece of land and took possession of the piece of land on 16
November, 2016. He argued that it was the applicant who had now
invaded his piece of land by ploughing on it.
I
noted however that the second respondent did not file a counter
application to assert his rights.
The
first respondent in his affidavit appeared to support the applicants
right to wrap up his operations without hindrance from the second
respondent or the new beneficiary.
Mr
Mutomba for the first respondent indicated that he had no submissions
to make on the issue.
I
took it that he was relying on the point in limine.
I
should in passing indicate that it does not really assist a court or
a judge for a legal practitioner to stand up and say he or she has no
submissions. It assists the court if a legal practitioner takes a
position because the party whom such legal practitioner represents
cannot be said or held not to have a position on a point which arises
in a matter in which such party has an interest.
By
not taking up the issue of urgency, it can only mean that the first
respondent accepted that the application was urgent. Had he been
disposed otherwise, he would have argued the point.
Miss
Mahere for the applicant submitted that there was no self-created
urgency. She argued that the applicant's case was not based on when
the applicant purported to have taken possession of the piece of land
allocated to him. She submitted that the application was for a
spoliation order arising from acts of spoliation as detailed in
para(s) 17 and 18 of the founding affidavit.
The
allegations made by the applicant in these paragraphs were that the
second respondent and some youths had on 8 December 2016 come in a
combi vehicle around 9:20am to the applicants field area where a
tractor was spraying chemicals on a soya land. The first respondent
is said to have ordered that all activities being carried out by the
applicant or on his behalf be stopped. The respondent proceeded to
the applicants occupied homestead and offloaded his belongings which
included a bed, mattress, 5 chairs and other household effects. The
goods were then put in the applicants security managers occupied
house. The security manager was ordered to vacate the house, remove
his belongings and the respondent fitted his own padlock to the main
entrance.
On
9 December, 2016, the first respondent reportedly threatened to bring
five herd of cattle, some goats as well as dogs to a cattle kraal
within the applicants occupied piece of land. He also reportedly
threatened to bring some of his farm workers to take up residence
near the cattle kraal.
The
first respondent reportedly ordered that the applicants mother should
vacate her occupied residence within the disputed piece of land so
that the first respondent takes over possession and occupation of the
same.
The
applicant filed the spoliation application before me on 9 December,
2016.
It
is clear therefore that the applicant did not wait a day longer after
the acts complained of had taken place to petition the court for
appropriate relief.
Whether
or not a matter is urgent is a value judgment which a judge reaches
upon a consideration of all the objective facts and circumstances
surrounding the matter to be determined.
The
celebrated judgment of CHATIKOBO J of Kuvarega v Registrar General &
Anor 1998 (1) ZLR 189, has become the bible or leading case followed
in this jurisdiction in so far as it sets out the factors which
determine whether or not a matter qualifies for urgent hearing.
The
learned judge stated as follows on p193 of his judgment:
“What
constitutes urgency is not only the imminent day of reckoning. A
matter is urgent if at the time the need to act arises, the matter
cannot wait. Urgency which stems from a deliberate or careless
abstention from acting until the deadline draws near is not the type
of urgency contemplated by the rules”.
The
upshot of the remarks of CHATIKOBO J as above quoted boil down to the
need for an applicant whose rights have been infringed or are about
to be infringed to assert such rights immediately and not wait for
harm to draw near or eventuate before acting.
The
remarks of GOWORA J (as she then was) in Triple C – Pigs & Anor
v Commissioner General ZRA (supra) at p30 G–31 D put the icing on
the cake by further ventilating CHATIKOBO J's remarks in Kuvarega's
case. The learned judge stated:
“Naturally
every litigant appearing before these courts wishes to have their
matter heard on an urgent basis, because the longer it takes to
obtain relief, the more it seems that justice is being delayed and
thus denied. Equally the courts in order to ensure delivery of
justice, would endeavour to hear a matter as soon as is reasonably
practicable. This is not always possible, however, and in order to
give effect to the intention of the courts to dispense justice
fairly, a distinction is necessarily made between those matters that
ought to be heard urgently and those to which some delay would not
cause harm which would not be compensated by the relief eventually
granted to such litigant.
As
courts, we therefore have to consider in the exercise of our
discretion, whether or not a litigant wishing the matter to be
treated as urgent has shown the infringement or violation of some
legitimate interest, and whether or not the infringement of such
interest, if not redressed immediately, would not be the cause of
harm to the litigant which any relief in the future would render
brutum fulmen.”
The
remarks of GOWORA J sums up the second consideration in determining
urgency.
A
party should act immediately when the need to act arises and in
addition must demonstrate irreparable harm actual or potential
arising from the infringement of the party's legitimate rights or
interests. The infringement must be such that failing immediate
redress, there would be nothing left to redress and/or any other
future redress would not provide adequate remedy to correct the
wrong.
In
casu, the applicant acted immediately upon the wrong as perceived by
him having been committed.
He
alleged acts of spoliation. A spoliation is an act that the court
will not countenance. It smacks of anarchy whereby persons take the
law into their hands. To allow spoliation a place in society or
condone it will lead society back to pre-civilization days where the
maxim each man for himself and an eye for an eye were the order of
the day. A court will therefore as a matter of practice and routine
treat spoliation application to be dealt with as urgent matters
provided of course that the other procedural requirements have been
met.
On
the merits, the applicant simply has to establish a prima facie case
to obtain a provisional order.
A
consideration of the papers filed in this matter and the parties
submissions have left me satisfied that the applicant managed to
establish a prima facie case.
The
second respondent did not really deny the acts of spoliation
complained of by the applicant. His attitude appeared to me to be
that of one claiming a right to the disputed piece of land and hence
by such right, an entitlement to act in whatever manner he chooses.
For example in para 26 of his opposing affidavit, he admitted that he
brought his property onto his allocated farm and did not need
anyone's authority or permission to do so.
He
misses the point.
The
claim of right defence does not apply to spoliation proceedings.
In
para 27 of the same opposing affidavit, the second respondent averred
that he “politely” asked the applicant to vacate the property. He
does not however allege that the applicant when politely asked to
vacate as averred agreed to do so.
The
applicant without doubt did not agree to vacate the farm nor cease
his did he allow the second respondent to chuck him out of the farm
or disturb the applicant's farming activities.
The
applicant petitioned the court for protection because he did not
consent to the second respondent's acts of spoliation or takeover.
The
second respondent should look to the law to enforce his rights and
the more so taking into account that as a Chief he must lead by
example and obey and uphold the country's laws.
A
close reading of the second respondent's affidavit shows that he
has no defence to the allegations of spoliation. He describes the
applicant as being defiant of his authority as Chief and being
disrespectful. The second respondent averred in para 31 of his
opposing affidavit as follows:
“…
It
is clear that what the applicant is trying to do is to prevent me
from enjoying peaceful possession of my farm which was allocated to
me by the first respondent.”
The
second respondent averred in his opposing affidavit that he cannot
live with the applicant whom he referred to as his 'subject' in
his area where such subject is hostile to him. He avers that the
applicant must leave the area.
After
hearing submissions from Mr Samkange I formed the view that the
second respondent felt challenged in his authority as Chief of the
area by the applicant who challenged his takeover of the farm after
allocation by the first respondent.
The
law is blind. Every person is equal before it.
It
would be a sad day for the gains which civilization and democracy
have made if people in authority were to consider themselves as being
a law into themselves.
The
facts of this matter are straightforward.
The
first respondent has downsized the applicant's farm. A portion
thereof has been allocated to the second respondent. The applicant
has property and a crop on the farm. Until such time that the
applicant vacates the portion allocated to the second respondent
either on his own violation or by eviction sanctioned by law, no one
including the second respondent is allowed to forcibly occupy the
farm including the portion allocated to the second respondent.
Even
the allocating authority being the first respondent has deposed to
the fact that it does not support a policy of hostile takeover.
I
therefore rule that the applicant has on a balance of probabilities
made out a case for spoliation and is entitled to the relief which he
seeks.
When
I initially postponed this application on 16 December, 2016 at the
instance of the respondents, I reserved my ruling on wasted costs. I
have considered the parties submissions in regard thereto.
The
respondents had bona fide reasons for not filing opposing papers
timeously. The first and second respondents were said to have been
already at or enroute to their political party's annual convention
in Masvingo. The applicant was also not prejudiced by the
postponement because I granted an interim order in his favour as
already adverted to.
I
therefore order that there be no order of wasted costs of the
postponement of 16 December, 2016.
For
the avoidance of doubt, I accordingly determine the application as
follows:
1.
The application succeeds and the interim relief as set out in the
provisional order is hereby granted.
2.
The interim order issued on 16 December, 2016 is discharged and the
interim relief as aforesaid shall substitute it.
Honey
& Blackenberg, applicant's legal practitioners
Venturas
& Samkange, respondents legal practitioners
