Urgent
Chamber Application
FOROMA
J:
This
is an urgent chamber application in terms of which the applicant
seeks the following relief as set out in the provisional order:
“TERMS
OF FINAL ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not
be made in the following terms:
1.
That it be and is hereby declared that the letter of Mr A Tsimba in
his capacity as Acting Provincial Resettlement Officer –
Mashonaland East Province drawn on the 10 May, 2017 for the Ministry
of Lands and Resettlement providing an eviction/vacate date and
cessation of possession, occupation, use and all farming activities
on Plots 3 and 5 of Ivordale Farm by 30 June, 2017 is null and void
and of no force or effect on account that – in its effect and
implementation – it violates sections 68 and 69 of the Constitution
of Zimbabwe and section 3 of the Administrative Justice Act Chapter
10:28.
2.
That it be and is hereby declared that applicant, his agents,
representatives, invitees and employees are entitled to the continued
possession, occupation and use of the whole of subdivision 2 of
Ivordale in the Goromonzi District of Mashonaland East Province
measuring approximately 449.792 ha (“the property”) until such
time as a final determination has been rendered with regard to
applicant's review proceedings and relief in HC12727/16.
3.
That respondents jointly and severally– the one paying the other to
be absolved – pay the costs of this suit.
INTERIM
RELIEF
Pending
the determination of this matter applicant is granted the following
relief:
(a)
That first and second respondents and all other persons acting
through them be and are hereby interdicted from interfering with
applicant's farming operations, possession and control of movable
and immovable property including livestock on Subdivision 2 of
Ivordale in the Goromonzi District of Mashonaland East Province
measuring approximately 449.792 ha – as reflected in applicant's
offer letter dated 16 July 2014 – incorporating as it does newly
depicted Plots “3” and “5” as set out in a subdivision plan
drawn by officers in the 1st respondent Ministry and fresh offer
letters in favour of 2nd respondent and an unknown person.
(b)
That it be and is hereby declared that the interim relief granted by
his Lorship Mr Justice Chitapi in favour of the applicant on 11
January 2017 in HC12511/16 shall continue to apply until such time as
a final determination is made by the High Court in regard to the
validity of the withdrawal of applicant's offer letter and
downsizing of applicant's property.”
The
application was opposed and was heard before me on 5 June 2017.
At
the commencement of the hearing Ms Mahere who appeared for applicant
applied for an amendment of the official heading by deletion of the
word Ministry wherever it appeared in reference to first respondent
and substituting the word Minister in place thereof in order to
correctly bring the first respondent before the court in line with
paragraph 3 of the founding affidavit.
The
reference to Ministry as opposed to Minister was on account of a
typing error.
Mr
Mutomba who appeared for the first and third respondents opposed the
application to amend on the basis that the application was a nullity
as against the first respondent and thus no amendment as sought could
be achieved in order to bring the Minister before the court.
I
considered the opposition as purely technical in view of the contents
of paragraph 3 of the founding affidavit. In any case no actual or
potential prejudice was proven or demonstrated as likely to be
occasioned by first respondent by reason of the amendment.
I
accordingly granted the amendment and directed the matter to proceed.
Mr
Mutomba then raised a point in limine in regard to urgency arguing
that the matter was not urgent considering that applicant was served
the letter complained about on 12 May 2017 and had not done anything
until 1 June 2017. He therefore urged that the application be
dismissed.
Ms
Mahere opposed the respondents application for dismissal (on the
basis that the matter was not urgent) pointing to the fact that what
triggered the urgency was the position conveyed to applicant by the
first respondent's representatives at the meeting of 29 May 2017 at
the Provincial Minister for Mashonaland East at Marondera, which as
recounted in paragraph 29 of applicant's affidavit says
“29
They also emphasized that in their view the notice to cease
operations constituted an eviction order/notice and that should l
fail to cease operations by 30 June 2017, I would be arrested and
evicted without further ado and charged under the Gazetted Land
(Consequential Provisions) Act [Chapter 20:28]. I explained to the
Committee that my understanding of the law was that an eviction order
had to be issued by a judge or Magistrate in a court of law. I was
told in no uncertain terms that my understanding was incorrect and
that they stood by their view that the notice to cease operations
constituted an eviction sanctioned by law…..”
Ms
Mahere further argued that the threat uttered as contained in
paragraph 29 as quoted grounded a reasonable fear of unlawful
eviction by the respondents hence the urgent resort to seek
interdictory relief pending the determination of the pending
application for review per case no. HC12727/16.
Even
though l considered the matter to be urgent I was concerned with the
procedure adopted and invited Ms Mahere to address the issue i.e.
whether the correct procedure in casu was an urgent court application
as opposed to an urgent chamber application.
My
concern was based on the fact that applicant had more than one and
half months as at 12 May 2017 to 30 June 2017 in the rules of court.
Ms
Mahere did not consider that there was any scope for an urgent court
application and brought my attention to Order 32 Rule 244 which she
considered as authority for an urgent chamber application until I
brought her attention to Rule 223A.
For
the avoidance of doubt the rules of this court explicitly provide for
urgent court applications and here is how:
Order
32 Rule 232 dealing with the time for opposition to a court
application provides as follows:
“232
The time within which a respondent in a court application may be
required to file a notice of opposition and opposing affidavit shall
be not less than ten days exclusive of the day of service plus one
day for eve additional 200km………..: provided that in urgent
cases a court application may specify a shorter period for the filing
of opposing affidavits if the court on good cause shown agrees to
such shorter period.”- the underlining is for purpose of emphasis.
The
court's agreement to a shorter period would obviously be easily
obtained if in the certificate of urgency in terms of Rule 223A the
applicant addresses the issue of the shortened dies induciae.
Once
an opposing affidavit is filed within the shortened dies induciae the
matter can be set down in terms of Rule 223(2)(a) as read with Rule
238(i)(a) and (b) which provides for setting down of urgent
applications for hearing.
Respondent's
heads of argument in an urgent court application have to be filed in
terms of Rule 238(2a)(ii) which provides as follows;
“Provided
that -
(i)……………
(ii)
the respondent's heads shall be filed at least five days before the
hearing.”
There
is therefore an obligation for applicant in an urgent court
application to afford the respondent at least five days to the
hearing for purposes of filing heads of argument as in terms of Rule
238(2)(b) a party who fails to file heads of argument in terms of
Rule 238(2)(a) shall be barred.
It
is clear that when diligently applied the rules provide an
alternative to the flood gate of urgent chamber applications that
this court has to reckon with.
I
dare say that an urgent court application can easily be disposed of
within a period of about 15 working days.
Thus
a lot of urgent chamber applications are needless avoidance of urgent
court applications.
In
fact l dare say that an urgent application should be made as an
urgent court application unless as provided in Rule 226(2), the
matter is so urgent that it cannot wait to be resolved through an
urgent court application.
This
interpretation to Rule 226(2)(a) is as consistent with reference to a
court application under the said rule.
By
its very nature a court application whether urgent or ordinary
provides litigants with an equal and proper opportunity to ventilate
their positions on a matter in dispute unlike an urgent chamber
application where a party may simply appear before a judge without
any opposing papers and make submissions not supported on any
evidence before the judge.
Urgent
Chamber Applications by their nature are time consuming as one has to
content with at least two court appearances i.e. initially to obtain
a provisional order and subsequently at confirmation of the
provisional order on the return date whereas an urgent court
application will guarantee a final judgment based on one hearing thus
reducing the court's workload through duplication as the papers
have to be read at least twice.
There
obviously are more advantages in adopting the urgent court
application procedure than the urgent chamber application procedure.
It
however is not proposed to provide an exhaustive list of the
advantages at this stage. It is clear therefore that in light of the
foregoing applicant ought to have brought his application as a urgent
court application.
On
the merits Ms Mahere submitted that applicant had satisfied the
requirements of an interim interdict and that in regard to the fear
of harm actual or imminent she emphasised the significance of the
events of 29 May 2017 in particular the opinion as allegedly
expressed i.e. that the letter contained a notice to cease farming
operation and activities on subdivisions for Plot 345.
Applicant
further argued that unless the interdict was granted applicant risked
suffering irreparable loss of the winter wheat crop and if ejected
the pending review application if eventually successful would become
of academic value only if not brutum fulmen.
She
argued further that applicant did not have an alternative
satisfactory remedy to the interim interdict.
She
therefore submitted that the respondents had to be stopped in their
tracks by the grant of the paragraph (a) of the interim relief per
provisional order after applicant abandoned paragraph (b) of the
interim relief sought.
First
and second respondents opposed the application and stressed that the
respondents did not regard letter dated 10 May 2017 as a Court Order
and thus did not intend to act upon it to eject applicant as
suggested by applicant.
They
also argued that the application was not necessary in the light of
CHITAPI J's judgment granting a Spoliation Order to applicant.
They
therefore on that basis sought the dismissal of the application.
Second
respondent also opposed the application contending that in its papers
the applicant had not suggested that he was involved in the conduct
complained about by the applicant and did not believe that he was
properly cited in these proceedings.
He
thus considered that as against him the application had to be
dismissed with costs. He was content to abide the order of CHITAPI J
and was at this stage awaiting the administrative steps to be taken
by the allocating authority before he can take steps to lawfully
eject the applicant.
The
letter of 10 May 2017 from Tsimba the Acting Provincial Resettlement
Officer Mashonaland East addressed to applicant reads as follows:
“Re:
Cut-Off Date of Occupation and Farming Activities at Plot 3 & 5
Ivordale Farm Goromonzi
Reference
is made to the above.
You
are advised that the cut-off date of your occupation and farming
activities at Plot 3 & 5 Ivordale is 30 June 2017 which was
reached after assessment of your farming activities in the stated
submissions on 9 February 2017. You have to confine your farming
activities in sub-division 4 of Ivordale Farm measuring 247.09
hectares which was allocated to you. After 30 June no further
activities by you at plot 3 & 5 of Ivordale Farm will be
entertained.”
After
listening to the parties submissions l make the following findings:
(i)
The interim relief of a spoliation order granted to the applicant by
CHITAPI J in HC12511/16 is extant and all respondents are bound by it
as the provisional order has not been discharged.
(ii)
Applicant's review application per HC12727/16 is still pending and
an answering affidavit therein was filed on the 9th February 2017 and
almost 3 months had passed to the 10th May 2017 when applicant was
written the notice to cease operations on behalf of first respondent
(the subject of complaint).
(iii)
No explanation has been given by the applicant as to why the review
application has not been set down - no heads of argument have been
filed to date despite the provisions of Rule 236(4) of the High Court
of Zimbabwe Rules 1971.
The
filing of the Urgent Chamber Application in the circumstances does
not appear to be warranted.
Had
applicant been diligent in its pursuit of the application for review
this application would probably not have been necessary.
It
is accepted that in terms of Rule 229C(b) the use of the incorrect
form of application does not justify in itself the dismissal of the
application.
Despite
the finding that an urgent court application ought to have been
preferred to an Urgent Chamber Application I find that applicant
ought to have set-down its review application instead of mounting the
current application especially given the interim relief as granted by
CHITAPI J aforesaid.
This
is typically a case where the old adage i.e. that the law comes to
the aid of the diligent and not the sluggard should be restated.
Applicant
abandoned paragraph (b) of the interim relief sought and applied only
for an order in terms of paragraph (a) of the interim relied sought.
However
I refuse the application in its entirety.
As
respondents opposed the application they are entitled to their costs.
I accordingly make the following order. It is ordered that:
(i)
The application is dismissed.
(ii)
Applicant to pay respondents costs.
Honey
& Blankenberg, applicant's legal practitioners
Messrs
Venturas & Samukange, 2nd respondent's legal practitioners
Civil
Division Attorney General's Office, 1st and 3rd respondent's
legal practitioners
