Urgent Opposed Application
GOWORA J: This matter came
before me by way of an urgent chamber application.
At the initial set down date the legal practitioners indicated that
they wished to file written submissions and the matter was
accordingly postponed for that purpose.
In view of the legal issues that were apparent from the affidavits
and that had not been canvassed I required the legal practitioners to
file supplementary heads of argument, which counsel did and I am
indebted to counsel for the same.
I had also requested a copy of a translation of a South African
judgment referred to by applicant's counsel but unhappily that was
not been given to me expeditiously with the result that this judgment
was then delayed.
The facts relevant to this dispute are as follows.
The dispute centers around Dana Farm. This farm is now owned by the
State after it was gazetted for resettlement under the land reform
program.
The first and second respondents are referred to on the papers as
former owners of the farm, although the exact nature of that
ownership has not been stated nor is it relevant for present
purposes.
What is relevant is that they were in occupation at the time the farm
was acquired.
The third respondent is a beneficiary of the land reform program but
he occupies a neighbouring farm. He is however a majority shareholder
in a company, in which first and second respondents also own shares
and which is undertaking certain farming operations on Dana, A Farm.
According to the papers the first and second respondents occupy
subdivisions 2 and 3 of the farm.
The applicant was issued with an offer letter for subdivision 1 which
he occupies.
The applicant seeks an interdict both in interim and final terms
against the respondents from use and occupation of subdivision 1 of
Dana Farm. In addition he seeks their eviction from the same.
After he and counsel for the
respondents had made submissions on the application, Mr Mlosthwa
moved for an amendment to the draft order.
Mr Musimbe
did not object to its
amendment.
The new draft order merely sought an interim interdict against the
three respondents with the eviction being reserved for the final
relief.
I find it difficult to comprehend the logic of seeking an amendment
of that nature at that stage as counsel for both sides had argued the
matter fully on the merits as related to the interdict and the
eviction. In my view no prejudice will occur to any of the litigants
if I dispose of the matter on the merits as if it were an opposed
application rather than for relief in interim terms. Although the
applicant sought to file an amendment to the draft order, the
application to amend the same was only introduced after both parties
had addressed the court in argument on the basis of the original
draft order. It seems to me therefore that the dispute between the
parties has been ventilated in full and it does not assist either of
the parties for this court to ignore that fact.
I also agree with the submission in the respondents heads of argument
that the nature of relief sought is in final terms.
Even if I considered the matter on the basis of the amended draft
order it would not change much as the relief being sought is not
materially different in the two draft orders.
I proceed now to consider the
other point in
limine raised by
the respondents.
The respondents had contended that the failure to join the Provincial
Lands Inspectorate was fatal to the applicant's case.
I disagree.
The farm was acquired and now vests in the State, which is the owner
of the land. I have to consider whether there is any effect to the
application consequent to the non citation of the responsible
minister.
It becomes necessary therefore that I consider the nature of the
relief being sought by the applicant.
The sum total of the relief sought by the applicant is an interdict
against the respondents from utilizing the permanent structures and
improvements on the subdivision that he has been offered by
government.
It is common cause that although the entire farm was gazetted and has
since been acquired the former owners, in the guise of the second and
third respondents, are still in occupation. It also seems that the
third respondent is the majority shareholder in a company that is
running farming operations on the farm.
Although the third respondent made this averment there was challenge
from him that the wrong person had been brought to court, he has
deposed to an affidavit opposing the application on the merits and
did not persist with the challenge when the matter was called.
All the respondents have been in occupation since the farm was
acquired and, my view from an assessment of the facts is that the
respondents have been in possession of the homestead, the barns and
the borehole same for the entire period that the applicant has been
in occupation of the subdivision.
The simple fact is that when he moved in they were in occupation and
have not been evicted from the same.
In terms of section 3(1) of the
Gazetted Lands (Consequential Provisions) Act [Cap
20:28] no person
may hold, use or occupy Gazetted land without lawful authority.
In the Act lawful authority is defined as an offer letter, a permit
or a land settlement lease.
The applicant is in possession of an offer letter and therefore he
has lawful authority to occupy the part of the farm allocated to him.
The respondents have contended that the offer letter is irregular.
The lawfulness of the offer letter is not before me and I cannot
comment on its validity. That is for the authorities to resolve.
What is at issue however is
whether or not the applicant has the locus
standi or right to
claim the relief that he is claiming against the respondents.
In seeking redress from this honourable court the applicant asserts a
right predicated on the offer letter in terms of which he occupies
the piece of land in question.
The applicant concedes that he has not been granted cession of rights
by the owner of the land, the Government of Zimbabwe. The applicant
contends that even though he is not the holder of a lease agreement
in respect of the piece of land in question, nevertheless, the offer
letter that he is in possession of accords him the entitlement to sue
the respondents for possessory rights over the land.
There is a plethora of cases in South Africa where the courts have
considered the rights of a lessee to a lease agreement in relation to
a trespasser or any person occupying the premises to which the lessee
is entitled to occupy by virtue of the lease agreement.
In Jadwat
and Moola v Seedat,
CANEY J dealt with the issue as follows:
“An
action for ejectment on the grounds of a defendant being in wrongful
and unlawful occupation is in essence based upon his being a
trespasser and trespass is an infringement of possession, which is
one of the rights of ownership. If the owner has parted with
possession, he cannot maintain an action for trespass against a third
party and sue him for ejectment on that ground, since possession is
not in him but in the one to whom he has parted with it; the owner
has a cause of action only if his reversionary right to possession is
injured by the trespass. Thomas
v Guirguis, supra.
If, however, the owner has not
parted with possession, he retains the right to sue for trespass and
to claim ejectment.
He
has the right to eject the trespasser in order that he may perform
his contractual obligation to the person to whom he has parted with
the right to possession, as in Jeena
v Minister
of Lands, supra.
This, in my opinion is clearly
so whether he has parted with the right to possession by selling the
property or in some other manner conferring on another the right to
possession.
Clearly,
the buyer of a property who has not obtained transfer (nor cession of
the owner's right of action) is not entitled to sue for ejectment.
Nicholas
v Wigglesworth,
1937 N.P.D. 376. Nor, in my opinion, can a lessee who has obtained
the right to possession but not obtained possession itself, sue a
trespasser for ejectment.”
This case was followed in a long line of cases by the courts in South
Africa.
As the applicant is not relying on a lease for the enforcement of his
alleged right it is not necessary that I embark on a discussion of
those cases.
The clear principle from those
cases is to the effect that a lessee acquires a personal right to
possession of the leased premises and until and unless granted vacant
possession of the said premises by the lessor such lessee has no
locus
standi in judicio
to claim the ejectment from the same of a trespasser.
As stated by VAN DIJKHORST J in
Nkadia
v Mahlazi and Ors:
“In
respect of the claim for ejectment, the applicant's objection to
the first respondent's locus
standi
is, in my view, sound. The rights acquired by the first respondent in
terms of the certificate of occupation were, in the absence of
possession on her part, merely personal rights. Her rights to vacua
possessio
are to be enforced against the person or body from whom they were
acquired. I need not here decide which of the respondents this is to
be done; cf Chiloane
v Maduenyane
1980 (4) SA 19 (T); Tshandu
v City Council
1947 (1) SA 494 (W); Bodasingh's
Estate v Suleman
1960 (1) SA 288 (N); Padayache
v Veerapan and Another
1979 (1) SA 992 (W).”
The applicant has referred me to
two South African authorities on which he relies for his right to
claim the relief that he seeks, viz
Buchholtz v Buchholt
and Steenkamp
v Mienies and Ors.
In the case of Buchholtz
(supra) the
applicant therein who had purchased an immovable property but had not
yet obtained transfer, sought to evict her husband from the premises.
The respondent had raised a point in
limine to the
effect that as the applicant was not the registered owner of the
premises she could not evict him therefrom.
In dismissing the point in
limine the court
therein opined that the principle that a purchaser who had not
obtained transfer or cession of rights from the seller had never been
intended in the literal and wide sense to relate to all conceivable
situations. Per BOTHA J at p 425A-D:
“…………………Taking
Nicholas'
case (supra) as
the origin of all what was said in the Natal cases, it is clear
beyond doubt, in my opinion, that the Courts were dealing with the
situation where a purchaser of property had not yet received either
transfer or, and this is important, possession of the property
purchased.
In
such circumstances it is indeed clear that the purchaser would have
no right to sue for the ejectment of the person in possession of the
property because the purchaser had not acquired a jus
in rem
in relation to the property.
By
virtue of his purchase of the property he acquires no more than a
jus
in personam
against the seller, and, if someone is in possession of the property,
then the purchaser must look to the seller, the owner, to obtain
vacua
possessio
of the property.
The
distinction between a situation where the purchaser has not acquired
a right in
rem
and the situation where he has acquired such a right by virtue of
actually obtaining possession, appears to me to be implicit in all
the cases. See e.g. the discussion regarding the position of a lessee
in Jadwat
and Moola v Seedat (supra at 276C-F).”
When the matter was argued before
me, reference was placed on the decision in Steenkamp
v Mienies and Ors (supra).
However as the actual judgment is in Afrikaans a full discussion on
the judgment was not possible as the legal practitioners did not at
that stage have a copy of the translation. That was subsequently
availed to me and a perusal of the same does not lead me to conclude
that the principle on the rights of a lessee to evict a trespasser
has been altered.
The applicant contends, based on
the Steenkamp
case, that by virtue of his occupation of Lot 7 of Dana A Farm he has
the locus
standi to obtain
the nature of relief he seeks from the respondents.
It is the contention of the
applicant that by virtue of being in partial occupation of Lot 7 he
has locus
standi to obtain
this relief and that there is no need to obtain vacant possession in
order to acquire locus
standi.
The applicant has in his heads of argument quoted from the head note
of the judgment and not a passage representing dicta from the Court.
A passage that could accord with what the applicant is submitting is
to the following effect:
“Apparently
they are using the farm together. However, the applicant has at least
partial occupation of the said farm and as far as I could ascertain,
by law there is nothing to prevent him under these circumstances from
enforcing his rights derived from the contract of lease, including
against first respondent.
Even if his occupation is in
some respects incomplete, it cannot be said for one moment that he
received no occupation of farm 10 and therefore has no real rights.
For
purposes of locus
standi
I view this occupation as sufficient to enforce his rights derived
from the lease contract against the first respondent. The fact that
the lessor would also have locus
standi
to obtain an eviction order against the first respondent, does not
take away the right of the applicant to claim the same relief against
the first respondent.”
I turn then to consider the legal position within this jurisdiction.
In Zimbabwe the leading authority
on this principle of law is Pedzisa
v Chikonyora,
where at p451 GUBBAY CJ made the following remarks:
“Where
a lessee's rights are personal, as in casu,
he is entitled to claim delivery of the property from the lessor. His
rights are effective against the lessor's gratitous successors and
against purchaser's who knew of the existence of the lease when
they purchased or took transfer; they are not effective against
creditors of the lessor or against the lessor's singular successor
in good faith. In the case of a short lease, the lessee has a real
right only when he is given occupation of the property; in the case
of a long lease, he has it after registration, or if he is in
occupation for the first ten years. Consequently, upon being given
occupation, or the lease being registered, the lessee would be
entitled to evict anyone who wrongfully assumes occupation of the
property, for example a trespasser. See Morkel's
Transport (Pty) Ltd v Melrose Foods (Pty) Ltd & Anor
1972 (2) SA 464 (W) at 482E-F. But not before that occurrence. This
principle is clearly set out by FANNIN J in Bodasingh's
Estate v Suleman
1960 (1) SA 288 (N) at 289A, as follows;
“In
the case of an ordinary lease, the lessee to whom possession has not
yet been given cannot sue a trespasser for ejectment from the leased
property, save under a cession of action form the lessor.”
I turn now to discuss the authorities that the applicant seeks
reliance on in his claim against the respondents.
The applicant does not state that he obtained vacant possession from
the respondents. Indeed it is accepted on the papers that he had
moved onto the farm as a requirement to comply with the terms of the
offer letter.
He goes further and suggests that by virtue of his occupation he has
acquired a right which is indistinguishable from a lessee who
obtained vacant possession and that he now has a real right to evict
the former owners whom he says are in illegal occupation.
In Buchholtz's
(supra) case the
purchaser had obtained vacua
possessio from the
seller before transfer and was thus invested with a right to occupy
by the title holder.
The facts in Steenkamp
(supra) are
somewhat more complex.
The applicant had a written agreement of lease with the second
respondent which had been entered into on 16 June 1986 in respect
portion 10 of Mier no 585. It was formerly known as portion 115. The
applicant had also alleged that he had rented the same property from
the second respondent in terms of a written lease agreement from 1
January 1981 to 31 December 1985, and that as a result of the lease
contract he was in partial occupation of the property.
The first respondent on the other hand had contended that he was in
rightful occupation of portion 10 in terms of a written agreement
between himself and the Department of Internal Affairs (Coloured
Affairs). A copy of the agreement was attached to his papers and
confirmed the agreement which was to expire on 31 December 1985.
The farm was referred to in the agreement as 139, Kooi Hoop.
The new number was portion 7 of Mier, no 585. A plan attached to the
applicant's papers shows that the farms are indeed different.
At the hearing the first respondent's counsel accepted the accuracy
of the plans and maps.
The Court then was required to
determine the point in
limine raised on
behalf of the first respondent as to the locus
standi of the
applicant to bring proceedings for the eviction of the first
respondent from portion 10 on the basis that the applicant had never
had vacua
possessio.
The finding of the court was that the applicant therein had leased
the portion in contention prior to 1981 in respect of an oral
agreement and that the applicant had at least partial occupation of
the same.
It also found that the first respondent had never leased portion 10
and thus had never acquired any rights in respect thereof.
The court found that the applicant had at least partially occupied
the farm from 1 January 1981 and further that the first respondent
had made use of the grazing on the said farm from the same date or
even earlier.
The court also stated that the
applicant could claim vacua
possessio from the
lessor since the first respondent had been trespassing on the farm
for a considerable period but that this did not detract from the fact
that the applicant had acquired a real right through the partial
occupation. There is no indication that in obtaining partial
occupation the applicant therein had been given vacant occupation by
the lessor.
The court however went on to state that even if the occupation of the
farm by the applicant was somewhat incomplete, it could not be said
that he had received no occupation of farm 10 and therefore had no
real rights.
I assume therefore from the
passage that the court found that in obtaining the partial occupation
the applicant had received vacua
possessio.
I note with interest that the
applicant did not find it necessary to discuss the Zimbabwean case of
Pedzisa
v Chikonyora (supra)
even though the respondents had placed heavy reliance on the same.
It is a judgment of the Supreme Court of this country and is
therefore binding. The judgments from South Africa where they are
distinguishable from our own can only be persuasive.
I venture to suggest that where
the judgment in Steenkamp
differs from that in Pedzisa
such dicta is not binding.
The applicant herein does not
have an agreement to lease the property. He has instead an offer
letter which courts in this jurisdiction have found not to constitute
a lease. See Airport
Game Park P/L & Anor v Karidza & Anor,
where ZIYAMBI J.A. stated;
“Not
only is this basic requirement of a lease lacking in the offer
letter, but the contents of the letter do not admit of the
interpretation sought to be placed thereon by the appellants, namely,
that the first respondent was constituted a lessee by the letter.”
And later in the same judgment at
p396C-E in discussing the judgment in Mgwaco
Farm (Pvt) Ltd v Pasi & Ors,
the learned judge of appeal stated:
“I
respectfully disagree with the conclusion of the learned judge. The
letter clearly indicates that it is only if the Minister was
satisfied that the conditions stated therein had been met that he
would enter into a lease agreement with the first respondent. The
duration of the lease and the rent payable were not set out in the
letter. Although the duration of the lease need not be specified for
a lease to be constituted, the same cannot be said of the quantum of
the rental and when it should be paid. In the absence of any
provision setting out the rental the offer letter cannot be said to
constitute a lease.”
Clearly therefore an offer letter is not a lease agreement.
The applicant has premised his right to claim relief on the basis of
such rights as would ensue on the conclusion of an agreement for
lease.
If an offer does not constitute a lease, it seems to me that it
offers a right to occupy at the pleasure of the owner of the land,
that is, the Government of Zimbabwe.
The parameters attendant on such occupation are not before me for
discussion, but on the other hand it cannot be said that the
applicant can claim the same rights as a lessee occupying under an
agreement of lease.
In a somewhat tongue in cheek
fashion the applicant contended that even if he had no locus
standi to sue for
the ejectment of the respondents from the portion of farm that is in
contention, he had locus
standi to sue for
an interdict.
In my view locus
standi is
predicated on the existence of a right, whether clear or prima facie.
Generally, a right either exists or does not.
There are situations where one can have a right in respect of certain
relief, for instance in spoliation proceedings, but no right for
obtaining other relief.
This is not so in this case.
Since the right is being sought by virtue of an entitlement to occupy
the piece of land, I do not believe that such right is capable of
qualification.
If the applicant has the right to evict the respondent then he would
have a right to an interdict against any perceived infringement of
his rights to occupy the land.
He has failed to establish the right to evict or for an interdict.
In casu,
the applicant never obtained vacant possession having moved onto the
farm under his own steam, so to speak. He has thus not acquired the
necessary locus
standi to sue the
respondents for the enforcement of rights that may accrue from his
possession of the portion of land he occupies.
I find that he has no locus
standi even to
obtain an interdict against the respondents. His application must
therefore fail on that ground.
I turn next to the issue of urgency which I left until a discussion
of the facts of the matter.
It was contended on behalf of the respondents that the applicant's
papers did not exhibit urgency.
The leading case within this
jurisdiction in relation to urgency is Kuvarega
v Registrar General & Anor,
a judgment by CHATIKOBO J. The learned judge had the following to
state at p193F-G:
“What
constitutes urgency is not only the imminent arrival of the 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 action until the deadline draws near is not
the type of urgency contemplated rules. It necessarily follows that
the certificate of urgency or supporting affidavit must always
contain an explanation of the non-timeous action if there has been
any delay”.
When an applicant files an urgent application, the Rules require,
where such an applicant is legally represented, that a certificate of
urgency be filed setting out why, in the opinion of the legal
practitioner, the matter should be treated as urgent and not await
set down in normal course.
The certificate of urgency filed on behalf of the applicant suggested
an infringement on the part of the respondents and an interference
with his occupation of the piece of land that he was in occupation
of. There was also a statement that the applicant was being denied
access to a borehole.
On the face of it therefore the matter appeared to be urgent and an
impression was created that the applicant should be allowed through
this court unhindered access to the borehole and the homestead.
It is not stated in the certificate when precisely the alleged
interference commenced.
It is only when the respondents papers are examined that it becomes
clear that there is no urgency in the application.
The applicant has been on the farm since 2008. He has not given a
precise date but going by the averment that he moved onto the farm in
order to comply with the requirements on the offer letter that
obliged him to take occupation within 30 days of the acceptance of
the offer it is safe to assume that he had moved onto the farm soon
after the month of April 2008 when the farm was offered to him.
He alleges that soon after he
moved onto the farm the respondents started interfering with his
activities in that they began to construct permanent structures on
the farm, guarded the borehole (sic),
refused to surrender the farmhouse and occupied the pigsty that is
located on his portion of the farm.
Since this application was launched in June 2009, the applicant had
waited a full year before approaching this court on an urgent basis
for relief over happenings that had taken place on the subdivision.
Given that the situation that the applicant seeks this court to
reverse has been in existence for the better part of a year it is
mischievous in the extreme for a legal practitioner to issue a
certificate that a matter is urgent in circumstances such as the
above.
A matter does not assume urgency because a litigant has plans, the
fulfillment of which require an immediate solution.
Urgency, in my view arises when an event occurs which requires
contemporaneous resolution the absence of which would cause extreme
prejudice to the applicant.
The existence of circumstances which may in their very nature be
prejudicial to the applicant is not the only factor that a court has
to take into account, time being of the essence in the sense that the
applicant must exhibit urgency in the manner in which he has reacted
to the event or the threat whatever it may be.
In the matter before me there is no urgency established.
I wish to respectfully associate
myself with the comments by GILLESPIE J in the case of General
Transport & Engineering P/L v Zimbank Corp P/L
wherein the learned judge stated:
“It
is therefore an abuse for a lawyer to put his name to a certificate
of urgency where he does not genuinely hold the situation to be
urgent. Moreover, as in any situation where the genuineness of a
belief is postulated, the good faith can be tested by the
reasonableness or otherwise of the purported view. Thus, where a
lawyer could not reasonably entertain the belief that he professes in
the urgency of a matter he runs the risk of a judge concluding that
he acted wrongfully if not dishonestly in giving his certificate of
urgency”.
There is a duty incumbent upon a legal practitioner before he files a
certificate that a matter is urgent to carefully examine the case
that his client puts to him and to satisfy himself that indeed the
matter is urgent.
As was stated by BERE J in
Dodhill
P/L and Anor v Minister of Lands and Anor
there is no formula which determines what constitutes urgency,
nevertheless a legal practitioner should be diligent in certifying
the urgency of a matter.
Sufficient thought ought to be given to the instructions from the
client as regards the issue of urgency and an opinion expressed
clearly to the applicant as regards the lack of cogent grounds to
justify urgency.
An applicant who has his matter dealt with on an urgent basis steals
a march on other litigants and it is a facility which should be
accorded only to a few deserving cases.
On the facts presented, this case did not merit such an
accommodation.
In the premises I find that the
application was not well founded and the application is therefore
dismissed with costs.
Mutamangira & Associates and
Antonio, Mlotshwa & Co, legal practitioners for the
applicant
IEG Musimbe, legal
practitioners for the respondents
1. 1956 (4) SA 273 at 276C-D
2. 1982 (2) SA 441 (T.P.D.) at 447G-H
3. 1980 (3) SA 424 (W)
4. 1987 (4) SA 186 (NCD)
5. 1992 (2) ZLR 445 (S)
6. 2004 (1) ZLR 391 (S) at 390C
7. 2003 (2) ZLR 478
8. 1998 (1) ZLR 188 (H)
9. 1998 (2) ZLR 301 at 303A-B
10. HH 40/09
1992 (2) ZLR 445 (S)
