MWAYERA
JA:
This is an appeal against the whole judgment of the High Court,
Bulawayo, handed down on 23 December 2021, granting a spoliatory
relief in favour of the respondents.
FACTUAL
BACKGROUND
The
facts giving rise to this appeal are straight forward and largely
common cause as set out herein.
The
first respondent is the owner of Esidakeni Farm held under Deed of
Transfer 1980/90 (“the farm”). On 18 December 2020, the Minister
of Lands, Agriculture, Water and Rural Resettlement acquired the
farm, through a Notice of Acquisition being General Notice 3042 of
2020, under the land reform programme.
The
respondents instituted an application in the court a
quo
seeking to nullify the purported acquisition on the basis that it was
constitutionally invalid. That application is yet to be determined.
In
March 2021, the second appellant visited the farm making enquiries
about it. Pursuant to that visit in November 2021 the third appellant
and a group of people visited the farm and advised the manager that
they had come to occupy the farm.
On
4 December 2021, the aforementioned group of people returned to the
farm and started ploughing a field known as Block F and Block H. The
group claimed that they had been given an offer letter. The fields
they cultivated had been occupied by the respondents who at the time
of invasion were preparing land for cropping.
Disgruntled
by the conduct of the incoming intruders the respondents filed an
urgent chamber application in the court a
quo
seeking spoliatory relief.
They
alleged that they had been in peaceful and undisturbed possession of
the farm. The respondents contended that they had further installed
improvements on the farm. The respondents further asserted that the
appellants had unlawfully resorted to self-help thereby disrupting
their farming activities.
The
appellants opposed the application for spoliatory relief.
They
contended that they are the rightful occupants of the farm since they
are holders of an offer letter and had given the respondents three
months notice to vacate the farm. The appellants further submitted
that when they moved in they did not cause any violence and that
there were no occupants at the time. They maintained that by virtue
of the offer letter, they were legally entitled to occupy the farm as
they did.
FINDINGS
OF THE COURT A
QUO
The
court a
quo,
in coming up with a disposition reasoned that having an offer letter
entitled a party to legally seek redress in the event that the former
occupier remained in
situ.
It reasoned that the holder of an offer letter ought to follow due
process of eviction in order to assert its rights. The court held
that holders of offer letters are empowered to seek redress by lawful
means as opposed to self-help. It thus granted the spoliation order
on the basis that the requirements for such a relief namely being in
peaceful and undisturbed possession and being wrongfully and forcibly
removed were met by the respondents.
THE
APPEAL
Aggrieved
by the decision of the court a
quo,
the appellants lodged the present appeal to this Court.
Essentially
the appellants challenged the decision on the basis that the court a
quo
misdirected itself when it granted the spoliation order in favour of
the respondents in spite of the fact that the appellants are holders
of an offer letter.
The
appellants raised 5 grounds of appeal as follows:
1.
In granting the spoliation order in favour of the respondents, the
court a
quo
erred in relying on common law principles to effectively authorize
the respondent's unlawful occupation of gazetted land and thus
rendering nugatory the clear provisions of section 3 of the Gazetted
Land (Consequential Provisions) Act [Chapter
20:28].
2.
The court a
quo
erred in evicting the appellants from the property when it was common
cause that the appellants were holders of an offer letter which made
them lawful occupiers of the disputed portion of the farm.
3.
Subdivision A of subdivision B of Umguza Block measuring 195,8095
hectares having been further subdivided, the court a
quo
erred in failing to appreciate that the appellants were in occupation
of a distinct piece of land being the remaining extent of subdivision
A of subdivision B of Umguza Block, measuring 145 hectares, as
described in the offer letter and which portion was unoccupied by the
respondents at the time the appellants took possession.
4.
The court a
quo
erred in making a finding that the respondents were wrongfully or
forcibly deprived of possession when no admissible evidence was
adduced to that effect.
5.
By ordering the appellants to pay costs of suit the court a
quo
erred in granting assistance to the respondents who were acting in
open defiance of the law.
SUBMISSIONS
BEFORE THIS COURT
Mr
Siziba,
for the appellants, submitted that the appellants as holders of an
offer letter were entitled to occupy the farm ahead of the
respondents who remained in occupation in violation of section 3 of
the Gazetted Land (Consequential Provisions) Act [Chapter
20:28]
(“The
Act”).
He
further contended that although the court does not condone self-help,
spoliation should not be granted where a former owner of acquired
land continues to stay on the farm after the expiration of ninety
days.
He
submitted that the court does not have jurisdiction to assist an
occupant who remains on the land after it has been gazetted and
acquired by the State. The appellants counsel relied on the case of
Commercial
Farmers Union and Ors v Minister of Lands and Rural Settlement and
Ors
SC 2010 (2) ZLR 576 (S).
Per
contra,
Mr
Mpofu,
for the respondents, submitted that the assertion that the appellants
were holders of an offer letter does not legally entitle them to
resort to self-help and disturb peaceful possession of the
respondents.
He
submitted that although the case of Commercial
Farmers Union supra
was distinguishable from the facts of this matter the case made it
clear that both the recipient of an offer letter and the former
occupiers had to resort to lawful means and follow due process in
effecting change of occupancy.
He
contended that instead of resorting to self-help the appellants as
holders of an offer letter could institute ejectment proceedings. He
argued that the court a
quo
properly granted spoliatory relief to the respondents.
ISSUE
FOR DETERMINATION
Although
the appellants raised 5 grounds of appeal only one issue commends
itself for determination. The issue is whether or not the court a
quo
erred in granting spoliation relief in favour of the respondents.
THE
LAW
It
is settled that in order to obtain a spoliation order two
requirements must be satisfied. In the case of Botha
and Another v Barret
1996 (2) ZLR 73 (S) GUBBAY CJ (as he then was) at p79D-E stated that:
“It
is clear law that in order to obtain a spoliation order two
allegations must be made and protected. These are:
1.
That the applicant was in peaceful and undisturbed possession of
land;
2.
That the respondent deprived him of the possession forcibly or
wrongfully against his consent.”
The
requirements for spoliatory relief were further discussed in
Streamsleigh
Investments (Pvt) Ltd v Autoband (Pvt) Ltd SC43/14.
The court held as follows:
“It
has been stated in numerous authorities that before an order for
mandamus
van spolie
may be issued an applicant must establish that he was in peaceful and
undisturbed possession and was deprived illicitly. See also Nino
Bonino v De Lange
1906
TS 120 at page 122 where the court in outlining the scope of the
mandamus
van spolie
stated as follows:
'It
is a fundamental principle that no man is allowed to take the law
into his own hands. No one is permitted to depose another forcibly or
wrongfully against his consent of possession of property whether
movable or immovable. If he does so the court will summarily restore
the status quo
ante
and will do that as a preliminary to any enquiry or investigation
into the merits of the dispute.'”
From
case law it is apparent that even if one is not the rightful owner,
if they are in undisturbed and peaceful possession due process and
not self-help ought to be followed to evict the possessor.
In
the case of Forester
Estate (Private) Ltd v M.C.R. Vengesai and The Minister of Lands in
the Office of the President and Cabinet HH19-10,
PATEL J (as he then was) made the following pertinent remarks at p3:
“An
offer letter does not entitle the holder to occupy the land allotted
to him before the current occupier has been duly evicted by due
process of the law. Consequently the offeree cannot resort to
self-help in order to dispossess or eject the occupier, no matter how
intransigent the latter may be in his refusal to vacate the property.
The offeree must wait until the State has taken steps to evict the
occupier through a court order granted by a court of competent
jurisdiction under the Gazetted Land (Consequential Provisions) Act
[Chapter
20:28]
or otherwise.
In
the absence of such court order or the consent of the current
occupier, the offeree has no self-executing right to occupy the
land.”
In
spoliation matters it is apparent the deciding factor is that
deprivation should be effected lawfully. Our law deprecates
self-help. Even the Commercial
Farmers Union
case supra
makes it clear that anarchy and chaos brought about by self-help is
not acceptable.
The
individual with an offer letter has the locus
standi in judicio
to seek the eviction of a former owner after acquisition of land by
the State. This by no means suggests authorization of invasion in a
lawless manner.
In
spoliation matters, the issue of ownership does not arise.
The
one seeking spoliation relief only has to show that they were in
peaceful and undisturbed possession and were wrongfully and forcibly
dispossessed.
APPLICATION
OF THE LAW TO THE FACTS AND ANALYSIS
In
casu
it is not in dispute that the respondents were in occupation of the
farm in question, whether lawfully or otherwise. It is also not in
contention that the appellants approached the farm and occupied the
land in question although they term it land lying fallow. The land in
question being a farm it would not be feasible for the respondents or
its workers to be on each and every inch of the farm. It is
sufficient that the respondent as de
facto
occupants were in
situ
and had commenced land preparation.
The
coming in of the appellants was not sanctioned by law since there was
no court order for eviction.
The
respondents, who had been despoiled therefore, had to approach the
court seeking a mandament
van spolie
order. The court a
quo
granted the spoliation order.
What
is at stake as highlighted earlier in case law is the lawfulness or
otherwise of the actions of the incoming possessor.
The
court in restoring the status
quo ante
will be seeking to uphold the essential rationale for the remedy
which is that the rule of law does not countenance resort to
self-help. See Ngukumba
v Minister of Safety and Security and Others
2014 (7) BCLR 788 (CC) para 10, where the court held as follows at
page 8:
“The
essence of the mandament
van spolie
is the restoration before all else of unlawfully deprived possession
to the possessor. It finds expression in the maxim
spoliatus
ante omnia restituendus est
(the despoiled person must be restored to the possession before all
else). The spoliation order is meant to prevent the taking of
possession otherwise than in accordance with the law. Its underlying
philosophy is that no one should resort to self-help to obtain or
regain possession. The main purpose of the
mandament
van spolie
is to preserve public order by restraining persons from taking the
law into their own hands and by inducing them to follow due process.”
The
appellants in this case by descending on Esidakeni Farm and starting
land preparations, disrupted the respondents peaceful and undisturbed
possession. The fact that the appellants had an offer letter does not
entitle them to resort to self-help in taking over possession without
due process of the law.
It
is this disregard of the law which prompted the respondents to
approach the court a
quo
for redress.
The
court a
quo
correctly granted the spoliation order in favour of the respondents.
In so doing the court a
quo
was buttressing the core values and objectives of protection of
possession of property against unlawful dispossession.
The
sentiments of the court in the case of Chiwenga
v Mubaiwa
SC86/20 resonate well with the circumstances of this case. The court
stated as follows at page 9:
“The
same applies to spoliation, a remedy designed to avert self-help in a
democratic civilized society. The remedy forbids the law of the
jungle where survival of the fittest reigns supreme. Thus, the courts
will quickly come to the aid of the vulnerable and the weak to
restore custody and possessions where one is unlawfully deprived of
the same by the strong and valiant.”
See
also Base
Minerals Zimbabwe (Pvt) Ltd and Ors v Mabwe (Pvt) Ltd
SC29/15 at p7 of the judgment where GWAUNZA JA (as she then was) made
the following pertinent remarks:
“Apart
from these contentions coming nowhere near establishing any of the
defences recognized by law in spoliation proceedings, I find that the
appellants are effectively advocating for an environment where the
'take the law into your own hands' adage becomes the norm. It
hardly needs mention that this approach offends against the very
raison
d'etre
of the law generally and a mandamus
van spolie
in particular, that is, the preservation, promotion and enforcement
of law and order in and amongst members of the society.”
In
casu
the mere fact that the appellants hold an offer letter is not
sufficient basis for them to take the law into their own hands and
seek to dispossess the respondents who were in possession immediately
prior to being despoiled.
It
is the brazen invasion by the appellants to the farm which disrupted
the respondents who were in peaceful and undisturbed possession,
which calls for spoliatory sanction. The appellants, without
following due process, imposed themselves on the respondents
possession. The dispossession of the respondents by the appellants
was unlawful and it was done without the respondents consent.
The
court a
quo
properly frowned at self-help which is repugnant to our
constitutional values. It thus properly restored possession to the
respondents by granting the spoliation relief.
The
requirements for a spoliation order were clearly satisfied. The
decision of the court a
quo
is unassailable. The appeal is without merit and must fail.
As
regards costs there is no reason why we should depart from the normal
trend that costs follow the result.
Accordingly,
it is ordered as follows:
“The
appeal be and is hereby dismissed with costs.”
GWAUNZA
DCJ: I
agree
CHITAKUNYE
JA: I
agree
Ndove
& Associates,
appellants legal practitioners
Webb
Low & Barry,
respondents legal practitioners
