Urgent Chamber Application
KAMOCHA J: After
hearing both counsel I dismissed the application with costs and indicated that
my written reasons would follow in due course.
These are they.
The
3rd, 4th and 5th respondents did not oppose
the application meaning that they would abide by the court's decision in the
matter.
On
15 January 2009 the 1st and 2nd respondent who were
applicants in that matter sought and were granted an order by default against
the present applicant jointly with the present 3rd, 4th
and 5th respondents. In
essence the order was to the effect that the notice gazetted by the Minister on
26 September 2008 purporting to acquire the piece of land under consideration
be declared unlawful and invalid to the extent that such action was in breach
of the terms of the Certificate of No Present Interest issued in favour of the
1st respondent on 4 September 2008 pursuant to the provisions of
section 47 of the Land Acquisition Act [Chapter 20:11].
Consequently
the executor i.e. Jan David Gutherless was granted leave to proceed with the
transfer of the said property in favour of Donald Mazwi Sibindi the 2nd
respondent herein in terms of the agreement of sale entered into by the parties
on 19 September 2008.
The
Registrar of Deeds was authorized and directed to register the deed of transfer
in favour of the second respondent.
Castro
Ndlovu together with all those who claimed through him were ordered to vacate
the property immediately so as to give vacant possession to the executor who in
turn was to give vacant possession to Sibindi as stipulated in the agreement of
19 September 2008.
In
the event of Castro Ndlovu and all those who derived claims through him failing
to vacate the said property the Deputy Sheriff of this court was authorized to
evict them from the property.
The
Minister and Castro Ndlovu were ordered to pay punitive costs on the legal
practitioner and client scale jointly and severally the one paying the other to
be absolved.
The
present applicant Castro Ndlovu was personally served with the application on
17 December 2008 but did nothing about the matter and the above order was
granted by default. He only reacted when
eviction was about to be effected in terms of the court order and filed this
urgent chamber application seeking a provisional order whose interim relief was
as follows:
“Pending the finalization of this
matter the applicants (sic) are granted the following interim relief:-
1)
That 1st and 2nd respondents be
and are hereby interdicted from executing the warrant of execution under case
number 2348/09 pending the finalization of the application filed simultaneously
with this urgent chamber application under HC 127/09.
2)
If already executed the Deputy Sheriff be and is hereby
ordered to restore the applicant vacant possession of plot 6 Airport Road, Bulawayo.”
The applicant
detailed his reasons for filing this application on a certificate of
urgency. Inter alia he stated that he had simultaneously with this
application filed an application for rescission which according to him had
merit.
In relation to the
present application it was his averment that he had invested heavily in the
property by rehabilitating the borehole which had not been functioning. He claimed to have done that by installing
the pump, motor, booster pump and electric code. He also had allegedly erected a fence around
the property. In addition to that he
claimed to have cleared one hectare of land at his expense and had invested
heavily in planting maize, butternuts and garden plants which he used in his
landscaping business thereby turning the property into a productive unit. The alleged investment cost him US$25 000,00.
He
claimed to be a trained farmer who was anticipating returns from the investment
that he had made on the land and if evicted he would suffer heavy financial
losses. His crops were perishables which
were bound to perish in the event that he was evicted.
He
employed seven full time workers who kept the crops thriving. The said workers lived on the property with
the applicant.
He
himself is married with three minor children and has two other dependants. In the event of an eviction all these people
would be rendered homeless and destitute as there was no alternative place to
keep them all.
In
conclusion applicant asserted that he was an innocent citizen who had benefited
from the government land reform programme and possessed the requisite documents
for that. He claimed to have proffered a
reasonable explanation for failing to defend the matter timeously and believed
he had a good defence to the respondent's claim. In any event the respondent would suffer no
prejudice if execution was stayed pending the application for rescission. It was his view that the scales of justice
were heavily tilted in his favour.
The
respondent on the other hand countered the applicant's claims by saying there
was no truth at all in the applicant's averments. Firstly, the respondent contended that the
applicant's explanation for failure to defend the matter was unreasonable and
unacceptable. Castro Ndlovu, the
applicant was personally served with the court application on 17 December 2008. He is a well educated and sophisticated
businessman who decided to ignore court process. His reason for doing so was that after he had
received the court application he went to consult a lands officer who according
to him advised him to ignore the court process.
No affidavit was obtained from such land officer to support the
applicant's allegation.
The
applicant's explanation is grossly unreasonable. A reasonable person of his status is not
expected to believe that a lands officer's authority supercedes that of a court
of law. Any ordinary Zimbabwean who
receives court process would either seek legal advice from a legal practitioner
or would approach the court to find out what one is expected to do. Yet the applicant who is a sophisticated
businessman chose to consult a lands officer.
The reasons for doing so become clear as one reads this judgment
further. Suffice to say at this stage
that the applicant was in willful default.
He was only spurred into action when an eviction pursuant to the default
judgment was imminent and was merely trying to postpone the day of reckoning.
The
applicant was not being truthful about the investment he claimed to have made
on the property and the rehabilitation of certain items. The deponent to the founding affidavit of the
1st respondent stated that he had gone to the property in the
company of the Deputy Sheriff who was going to effect the eviction on 26
January 2006 and had the opportunity to inspect the property for such things as
alterations or improvements. He
discovered that the borehole had been vandalized contrary to the claims that it
had been repaired. The applicant's
claims were clearly false. Similarly his
claim that he had erected a fence around the property was false as there was no
new or added fence on the property. The
fence was still as originally invested by the deponents family.
The applicant was
also being untruthful when he claimed to have cleared a hectare of land for
agricultural purposes. The maize he
claimed to have planted was on patch of land approximately 20m x 20m and was
certainly no more than the size of a nutrition garden. The patch of land on which he had planted
butternuts was approximately 100m x 20m.
The combined value of the maize crop and the butternut, according to the
deponent, was completely negligible. There
was no truth at all in the suggestion that applicant had invested an equivalent
of US$25 000,00 as that was not even visible anywhere on the property.
This
court has repeatedly emphasized that applicants who approach the court on
urgent basis need to be extra careful about what they say in their founding
affidavits. Where it is found that a
litigant was less than candid with the court such litigant should not expect
the court to come to his/her assistance.
In casu, as shown above the
applicant's affidavit was riddled with out and out falsehoods.
The
applicant claimed that he was an innocent citizen who had benefited from the
land reform programme. There is also no
truth in this assertion. The
circumstances under which he acquired the property are briefly these.
When
the 1st respondent decided to dispose of this property he duly
offered it to the state as required by law.
On 4 September 2008 the relevant Minister replied in the form of what is
known as a Certificate of No Present Interest which was valid for twelve months
from the date of issue i.e. 4 September 2008.
The
1st respondent then advertised the property. Amongst the people who showed interest in the
property was the present applicant whose offer fell far too short of what the
applicant required. He could not even
raise a tenth of the amount that the 1st respondent required as the
purchase price of the plot. Naturally
his offer was unacceptable. The 1st
respondent then accepted the offer of Donald Mazwi Sibindi the 2nd
respondent who then bought the plot. An
agreement of sale was concluded on 19 September 2008.
While
the parties were still processing transfer documents relating to transfer of
the property the applicant invaded and occupied it. Upon being confronted to show his authority
he produced a letter purportedly written and signed by a Ms Graham – Provincial
Land Officer – Estate Management. The
letter was dated 26 September 2008.
The
letter recommended the applicant as the beneficiary of the property. It was also stated in the letter that the
Ministry of Lands, Land Reform and Resettlement was then processing an offer
letter to him for the property.
On
the same date that Ms Graham wrote the letter a formal Notice of Acquisition
was gazetted purporting to acquire the property.
What
the applicant did was that when his bid to purchase the property failed he
proceeded to the Ministry of Lands, Land Resettlement where he got a letter
from Ms Graham which gave him the courage to go and invade and occupying the
property. That was highly improper as
the letter offended the provisions of the Certificate of No Present Interest
issued on 4 September 2008 valid for 12 months.
The applicant acted improperly on the strength of the advice he got from
the land officer. That explains why he
ignored court process because he placed so much reliance on the lands officer. Applicant ought to have known that the lands
officer was not employed to give advice on legal matters. That is the domain of those trained in law.
This
court finds the actions of Ms R Graham to be disturbing. It is difficult to understand how she could
have written the letter of “Confirmation of Plot Ownership” on 26 September
2008 when on 4 September 2008 the Minister of Lands, Land Reform and
Resettlement had issued a Certificate of No Present Interest valid for 12
months from 4 September 2008. She did
that after she had been approached by the applicant whose bid to purchase the
same plot was unsuccessful a few days before he approached her. After she had given him the letter of
confirmation of ownership of the plot he immediately invaded the plot and took
occupation on the strength of the said letter without a proper offer letter and
before the plot was designated. He did
this being aided and abetted by Ms R Graham.
This
conduct of Ms R Graham needs to be investigated. Accordingly this court recommends that the
Office of the Chief Land Officer Matabeleland North institutes such
investigations with a view to take appropriate action against her if she is
held culpable.
A copy of this
judgment shall be availed to the Ministry of Lands, Land Reform and
Resettlement via the Office of the Chief Land Officer – Matabeleland North.
In
the light of the foregoing the application was held to be devoid of any merits
and was accordingly dismissed with costs.
Dube-Banda,
Nzarayapenga & Partners, applicant's legal practitioners
Jeol, Pincus, Konson
& Wolhuter, 1st and 2nd respondents'
legal practitioners
