BERE
J: The aspect of bringing this matter
on urgent basis was vehemently challenged by counsel for the first and second
respondents. Counsel for the applicant was of a very strong view that given the
averments as contained in the certificate of urgency as well as the applicant's
founding affidavit looked at in conjunction with what the second respondent
alleges in his opposing affidavit, one cannot help but conclude that this
matter was justified to be heard on an urgent basis. I agree. In my view the
applicant was indeed justified to bring this matter to court on an urgent
basis. I do not see how else this matter could have been dealt with other than
the position adopted by the applicant. The preliminary point raised is
therefore not sustainable.
LOCUS STANDI IN JUDICIO
It
was argued by Mr Mlotshwa for the
first and second respondents that upon the acquisition of the farm in question
by the State on 1 February 2008, the applicant ought to have vacated the farm
after 90 days of such acquisition in accordance with the Gazetted Land
(Consequential Provisions) Act.
Counsel went on further to argue that the defiant attitude of the applicant
constituted an act of criminal conduct thereby divesting itself of any right to
bring proceedings against the respondents who are now the rightful owners of
the land in question as evidenced by the offer letters which they have.
Mr
Mlotshwa's argument assumed another
dimension when he argued that the applicant could not possibly have locus standi to bring this action to
court owing to its own illegal occupation of the farm in question. To buttress
counsel's argument reference was made to the celebrated case of Airfield Investments (Pvt) Ltd v (1) The Minister of Lands, Agriculture & Rural Resettlement, (2) The Minister of Justice, Legal & Parliamentary Affairs,
(3) The Member in Charge, Chegutu Police Station, (4) The Attorney-General of Zimbabwe, (5) R Sango
In
my view reference to the Airfield Investments (Pvt) Limited case was clearly
out of context and was made to cloud issues. That case is distinguishable from
the instant case. In the Airfield case the court was dealing with an
application for an interim interdict brought by the former farm owner which
sought to prohibit the State from proceeding with the compulsory acquisition of
the farm in question for resettlement purposes pending the determination of the
constitutionality of certain sections of the Land Acquisition Act
whereas in the instant case the applicant is merely seeking a spoliation remedy
having been despoilt of its occupation of the farm through a combination of
subtle threats and force as captured in paras 12 – 17 of the applicant's
founding affidavit.
I
do not read the Airfield case and a long line of similarly decided cases to be authority for the
proposition that the mandament van spolie
remedy has been extinguished from our law.
In
fact it is quite significant that in the Airfield
case itself their Lordships emphasized the need to respect the residual rights
of the defiant former farm owner who chooses to remain on the farm at a time he
ought to have vacated. In this regard the learned judge MALABA JA stated as
follows:
“At the end of
the maximum period of ninety days from the date of service of the order of
acquisition, the rights of the former owner or occupier cease to exist and by
operation of law he must leave the land or be evicted by order of court”
(my emphasis).
It
is clear that the learned judge was not advocating the use of violence or force
to force the former farm owner or occupier out of the land as what is reported
to have happened in this case.
That
sanity must always prevail is further provided for in the Gazetted Land
(Consequential Provisions) Act itself which calls for the criminal prosecution
of those former owners or occupiers who defiantly choose to remain on the
acquired land.
If
the legislature in its wisdom recognizes and provides for a systematic way of
evicting those who wish to desperately cling on to acquired land, surely the
process of such eviction must be followed to the letter. There can be no
question of allowing those with offer letters or beneficiaries to take the law
into their own hands because allowing that to happen would be sanctioning
illegality and nourishing chaos in the land acquisition exercise.
The
process of eviction is not for the offeree to initiate by using violence or
force but it must be civily conducted by those who are lawfully authorized to
do so.
Given
the allegations by the applicant as captured in the founding affidavit and the
responses by the first and second respondents. I am unable to agree with the
respondents' counsel that the applicant has no locus standi to bring this application for spoliation.
I
hold a very firm view that where an offeree has not acquired vacant possession
he cannot take it upon himself to evict the former farm owner from the land.
That prerogative is for the acquiring authority. I am fortified in this view by
the position adopted by my brother judge HUNGWE J when he summed up the
procedure in the following:
“There is a
specific procedure for eviction in respect of land acquired in terms of the
Gazetted Land (Consequential Provisions) Act, [Cap20:28]. The right to
claim eviction is only exisable by the acquiring authority. That process is not
initiated by a beneficiary under the land reform programme or by an officer of
the acquiring authority”
It
has been held that spoliation is a remedy available even to a thief. By
parity of reasoning a former farm owner who opts to illegally continue
squatting on acquired land is entitled to this remedy. In my view it would
infact be sanctioning illegality if this court were to make an order that would
ratify the unlawful conduct of the first and second respondents (who have used
force to evict the applicant).
ON MERITS
I
have already alluded to the uncontroverted allegations referred to by the
applicant in its founding affidavit.
The
whole motive of opposition to this application by the first and second
respondents achieve nothing except to re-affirm the first and second
respondents' misconceived view that they had a right to evict the applicants by
whatever means possible because of their offer letter and the fact that the
applicant had stayed on the farm beyond the statutory period provided by law.
As
for the third respondent, having had the privilege of hearing him in court in
addition to his own filed opposing affidavit I am satisfied that the applicant
must be deemed to have accepted his occupation of the portion of the farm which
he is occupying. For a long time the applicant's representative has seen the
third respondent working on the piece of land and for such a long time the
applicant never raised any objection. In any event the filed founding affidavit
does not seem to suggest that the third respondent has attempted to despoil the
applicant. The third respondent was in my view improperly roped into these
proceedings.
It
is against the first and second respondents that I make the following order.
It
is ordered:
1.
That the first and second respondents and all those
claiming and or acting through them be and are hereby ordered to refrain from:
1.1 Ploughing and planting the
fields on Eendarg farm also known as the
remainder of Claire or
Clare Estate Ranch;
1.2 Constructively evicting the applicant and his
workers from the said peace of
land.
2.
That pending determination of the matter the Zimbabwe Republic Police at
Nyazura
be and are hereby ordered to
assist the applicant if they breach the terms of this
order or commit criminal
offences against the applicant's directors, employees or
agents or its property.
3. Service of this order shall be effected by
the applicant's legal practitioners.
Maunga & Associates, applicant's legal practitioners
Antonio, Mlotshwa &
Company, first & second respondents' legal practitioners
Attorney-General's Office, fourth respondent's legal
practitioners
