KAMOCHA J: The
applicant in this matter seeks a provisional order in the following terms:-
“Pending
finalization of this application the respondents acting personally or through
their employees, family or agents be and are hereby forthwith interdicted from:-
(1)
Entering upon or
continued unlawful occupation of Inogo Ranch.
Should the respondents continue in occupation the Deputy Sheriff, Kwekwe
be and is hereby ordered to remove the respondents, their employees and agents
from Inogo Ranch;
(2)
Interfering with
applicant or his family and workers' occupation of the Ranch;
(3)
Threatening the
applicant, his family and workers with violence; and
(4)
Interfering with
applicant's operations at Inogo Ranch and in particular, disrupting farming
activities.”
The
final order being sought calls on the respondents to show cause why a final
order should not be made in these terms:-
(1)
That the
occupation of, or attempts to occupy, a certain piece of land being the
remaining extent of Inogo Ranch situate in the district of Que Que by the
respondents personally or their employees, family and or agents before the
finalization of the application for review under High Court case number
503/2009 and any subsequent referral of the matter to the Supreme Court, be and
is hereby declared wrongful and unlawful.
(2)
That respondents
pay costs of suit on attorney and client scale jointly and severally one paying
the other to be absolved.”
The applicant is a farmer who purchased Inogo Ranch in 1990
which was then 1 600 hectares in extent.
In 2001 the farm was advertised for acquisition by government. In May 2002 he entered into an agreement with
the government in terms of which he agreed to downsize the ranch with 1 100
hectares being taken over by the government for resettlement of A1
farmers. He remained with 500
hectares. The agreement was reduced to
writing and is quoted in extenso infra
“Ref: LAN 307
Office
of the District Administrator
P
O Box 114
Kwekwe
6
May 2002
Mr
H G Grove
Inogo
Ranch
P
O Box 352
Kwekwe
ALLOCATION
OF 500 HECTARES: H G GROVE: INOGO (IGOGO) KWEKWE
Following
the Provincial Governor's visit to Igogo farm on the 5th of May 2002
you are hereby advised that you have been allocated 500 hectares of land. The remainder is allocated to the new farmers
already on the farm.
Agritex
team will visit the farm to assist you identify the land you will retain.
Your
co-operation with the new farmers is highly called for to avoid unnecessary conflicts.
Wishing
you all the best in the new set up
District
Administrator”
Applicant averred that he remained in peaceful occupation of
the farm from the date of that letter until 2005 when the Lands Officer at
Kwekwe brought the second respondent to the farm while the first respondent was
brought in October of the following year.
Applicant was then informed that the 500 hectares that had been
allocated to him in terms of the above letter had been acquired and allocated
to the two respondents.
The applicant refused to move from the ranch as he believed
that the acquiring authority had unfairly treated him and had discriminated
against him in its acquisition of the land and the reallocation thereof to the
two respondents.
Applicant contended that the
acquiring authority had no valid reason for taking away the land from him and
re-allocating it to the first respondent a legal practitioner who was gainfully
employed in his own right. Yet applicant
had no other source of livelihood. Farming
was all he had done since he purchased the farm in 1990. His conclusion was that the two respondents
were allocated with his piece of land because they were blacks and he was
white.
Applicant averred that at the
beginning of this year during the month of February he was arraigned for
contravening the Gazetted Lands (Consequential) Act provisions on allegations
that he had continued to use gazetted land without lawful authority. He tendered a plea of not guilty on the basis
that he was in lawful occupation of the said Inogo Ranch. He raised, in the court a quo, a constitutional question relating to discrimination by the
acquiring authority in its reallocating the land to the first and second
respondents. His application to refer
the matter to the Supreme Court was dismissed by the court a quo. He took the court's
decision on review to this court and that matter is pendente lite.
While he awaited finalization of the
review and a possible referral of the matter to the Supreme Court on the
constitutional issue he raised, he allegedly had been subjected to such
harassment and violence that have left him traumatized and apprehensive that he
may die any day. The perpetrators of the
harassment and acts of violence were employees of the respondents. The employees of the second and third
respondents had taken over one of the buildings that was being used by the
applicant's mechanic for accommodation.
The first respondent had built a make-shift house for use by his
employees. The perpetrators of the alleged
acts of violence and harassment were being supervised by the third respondent
who brought them provisions in the form of food and beer in the first
respondent's Toyota pick-up truck. The
applicant chronicled the incidents of violence and harassment that had
allegedly taken place since February when the prosecutions started. He claimed that these had intensified during
the previous month and not a day went by without being subjected to an act of
harassment or violence.
It was his firm belief that those
acts of violence were meant to put him under sufficient pressure to force him
off the farm. In their endeavour to put
him under pressure to move out of the farm, the respondent's men had carried
out such acts of violence that had left him traumatized and apprehensive that
he might be killed any day. The alleged
acts of harassment and violence were these:-
“Date Incident
23/02/2009 First respondent's pick-up truck drops off
two men who demand that I should unlock the gate for them so that they can get
in.
24/02/2009 First
respondent's pick-up truck driven by third respondent drops off four (4) more
people. The six (6) now threaten to beat
up the workers. They blockade the road
making it difficult for us to get into town.
27/02/2009 The
men barricade the road in three places.
They try to force open the gate to my homestead so that they can get
access into the homestead. They cut the
fence surrounding the homestead in three places leaving gaping holes in the
fence leaving us even more vulnerable to intruders. I attach hereto photographs of the damage to
the fence as Annexure “2”.
The
men strip the guard of his shot gun and break another employee's arm. I attach hereto Medical Report and
photographs as annexures “3” and “4” respectively.
27/03/2009 and
30/03/2009 Third
respondent throws out bales of hay from my storerooms. The hay was damaged by the rains. He stated in front of Detective Sergeant
Machengera that he and his men will be advancing to the homestead to take it
over.
03/04/2009 My
family and I are once again under threat of forcible ejectment. First respondent's men break the lock on the
gate and threaten to take over the homestead.
They prevent the cattle from being milked and toi-toi outside the gate
the whole morning while my family and I barricade entry into the yard till the
police arrive.
07/05/2009 First
respondent sends in his tractor and disc harrow and started discing in my
field. Once again I report to the police.
13/05/2009 I
am violently chased from the field by first respondent's men. I am pelted with stones. My tractor driver who happens to be my nephew
is hit on the back with a stone. The
tractor is also damaged. I attach hereto
photographs of the injury sustained by my nephew as annexures “5”. I attach hereto photographs of damages to the
tractor as annexure “6”.
My
workers are also violently chased out of the fields. First respondent's men take my tools that are
left behind by the workers when they are chased away. Later that evening, first respondent's men
follow my workers into the compound and assault them and chase them away. Several of them, women and small children have
to sleep in the bush. I once again
report to the police. No action is taken
by the police.
14/05/2009 My
other employees Abram and Fanwell are assaulted by first respondent's men. My employees are prevented from milking the
cattle or even opening the kraals so that the cattle can feed. On the same day about twenty (2) bags of soya
beans are stolen from the field.
This
harassment of the employees happens while police officers who had come to take
statements in respect of the previous incident are there.
15/05/2009 A
further sixty (60) bags of soya beans are stolen.
16/05/2009 I
attempt to do land preparation for the winter crop but am violently chased out
of the field by the first respondent's men.
My tractor driver is assaulted on the back.
18/05/2009 First
respondent's men again start discing in the field which we have already
fertilized. My workers are threatened
and stopped from grazing the cattle in the field.
23/05/2009 I
am verbally abused, threatened, pushed around and poked in the face by Agrippa
first respondent's worker while his other workers are watching. He threatens me to move out of the farm
before dark that day or else I would be killed.
I report this under RRB 527941.
My
herds man Chamu is chased out of the fields where he is looking after the
cattle. He fails to round up the cattle
that evening. Accordingly no milking is
done at the dairy on the 24th as the cattle are still scattered in
the bush.
24/05/2009 We
wake up to find the dairy cattle mixed with the calves. Accordingly no milking can be done.
28/05/2009 My
nephew Benjamin is assaulted on the nose by first respondent's worker Agrippa.
29/05/2009 Benjamin
is once again assaulted by Agrippa and Mack.
They
try to force him to eat a dead rat and they burn him with hot sadza on the side
of the face. This matter is reported at
Kwekwe Rural under RRB 0527956 CR 99/05/09.
I attach hereto medical report as annexure “7”.
30-31/05/09 Twenty
(20) bags of maize and forty (40) bags of sorghum are stolen from the
field. I report the matter to the police
under RRB 057971.
06/06/2009 I
am once again threatened with death by first respondent's men while checking on
the dairy cattle.
That
same evening a big party is held by first respondent's men who sing, dance and
chant threats of violence and death against myself, son Marius and nephew
Benjamin and guard Timothy. They
threaten to kill Timothy and drop his body into the dam.
07/06/2009 My
nephew is assaulted by first respondent's men Agrippa, Rodgers, Owen, Moses and
Mack on the head. I attach hereto the
medical report and photographs as annexures “8” and “9”. This was reported to Zimbabwe Republic Police
under RRB 0527981.”
The applicant averred that he had
been subjected to so much harassment, violence and humiliation to the extent
that he felt compelled to seek urgent redress from this court. He went on to contend that the respondents
should only take occupation of the ranch if he is convicted of the charges he
is facing and an eviction order has been issued against him. The respondents should wait for the courts to
make a determination on whether or not he has a valid defence to the
eviction. In the event that his defence
failed, respondents can always take occupation then and only then. They should not take the law into their own
hands.
The respondents vehemently opposed
the application. They both filed their
offer letters for the allocation of the same farm. The first respondent was, on 25 October 2006,
offered subdivision 2 of Igogo Ranch in Kwekwe District, Midlands Province for
agricultural purposes. He was offered
250 hectares in extent. While the second
respondent was offered 200 hectares in extent of Igogo in Kwekwe District of
Midlands Province on 12 October 2005.
Their respective offer letters were filed of record. Consequently, both respondents had lawful
authority to occupy their respective pieces of land.
Similarly, it seems to me that, the
applicant had been given lawful authority by the state in terms of the letter
dated 6 May 2002 quoted in extenso supra which
in my view is a permit as defined in section 2 of the Gazette Land (Consequential
Provisions) Act [Chapter
20:28]. The definition reads:
“Permit, when used as a noun, means
a permit issued by the state which entitles any person to occupy and use
resettlement land.” Quite clearly the
applicant had lawful authority to occupy that piece of land until the state
lawfully and constitutionally acquired it and decided to re-allocate it to the
two respondents albeit the challenge of the reallocation by the applicant on
the basis that it was discriminatory on the ground of colour.
The respondents strenuously denied
the allegations of violence and harassment against the applicant and his
family. There were counter-accusations
of violence being perpetrated by the
applicant. They further alleged that the
applicant was guilty of making numerous false reports against them to the
police at Kwekwe.
They filed of record a letter dated
10 June 2009 addressed to Officer Commanding Kwekwe District by the officer in
charge Zimbabwe Republic Police, Kwekwe Rural.
The Officer-In-Charge chronicled the numerous complaints officially made
to the station by applicant. In
paragraph 1 of the letter it was stated thus:-
“From
the time Igogo Farm was acquired by the government in 2001 the complainant Mr H Grove and the new beneficiaries that is Martin
Makonese and the Murwisa family have been making allegations and counter
allegations all aimed at getting police sympathy as to who should lawfully
occupy the gazetted farm.
Despite
all efforts made to finalize the case at the court H G Grove has stalled all
these efforts preferring the matter to be heard at the High Court …”
The Officer-In-Charge listed at least
nine cases which, in his view, did not merit police response as they all
appeared to the police to be of a civil nature.
He also listed other eight cases the police felt warranted their
attention and were being investigated.
In conclusion the Officer-In-Charge had this to say:-
“From the incidents reported to the police by Mr H Grove and
referred to above some of the reports have lacked evidence whilst some have
been established to be false. The police
should not be used to settle civil disputes which are pending in the High Court
and other courts. The police should
maintain law and order without being sucked into land disputes.”
The respondents averred that it was
the applicant who was committing acts of violence and cited a case in which
applicant's son shot and injured someone on the legs at Inogo Ranch. The accused is being charged with attempted murder.
Quite clearly all is far from being
well at that farm. While there may be
substance in some of the allegations that the parties are making against each
other, others have been found by the police to be baseless and false. Ex
facie, serious crimes appear to have been committed by either side.
The respondents raised points in limine which, inter alia, were that
they had a defence of lis pendens. The defence was premised on the fact that on
21 June 2007 applicant filed an application at the High Court Harare in case HC
3171/07 against Martin Makonese and Murwisa family seeking identical relief on
the basis of allegations of violence being perpetrated on him and members of
his family. Initially the application
had been filed under cover of a certificate of urgency but it had been dismissed
on the basis that it was not urgent.
That prompted applicant to file it under HC 3171/07 at the High Court
Harare as an ordinary court application.
While that matter is still pending
the applicant has launched this application on a certificate of urgency seeking
the same relief. But this time applicant
decided to move from the High Court in Harare to the High Court in
Bulawayo. Having moved to the High Court
in Bulawayo the applicant made no mention of the pending similar matter seeking
the same relief in the same court in Harare.
The applicant apologized for not
mentioning the earlier application and went on to state that it had completely
escaped his mind that he had asked for a spoliation order in that matter. The other reason for his failure to mention
the earlier application to this court was that he felt it was at its
infancy. The applicant's explanation was
far from being convincing and is ipso
facto unacceptable. His explanation
seems to suggest that he was not applying his mind when he launched the
applications because if he had done so he would have certainly remembered that
he was repeating the same application twice.
What is clear is that he wanted to
try his luck by “judge shopping”. This
court has repeatedly emphasized the need for applicants in urgent matters to be
always candid and reveal all material facts to the court. The applicant in casu was not candid with the court. There is no truth in the suggestion that he
had forgotten about the same relief that he was seeking in the earlier
application.
In my view this is a proper case
where the defence of lis pendens
should avail the respondents. Applicant
should pursue the earlier application to get the same relief, if so advised.
Having made the above finding the
need to deal with the other issues raised in this application does not arise as
the application fails on the ground that it is lis pendens.
The applicant knew that he had filed
an earlier application seeking the same relief but nevertheless filed a second
one on a certificate of urgency and did not end there but was also not candid
with the court. The court must express
its displeasure at such conduct by an award of punitive costs.
In the result this application is
dismissed with costs on an attorney and client scale.
Wilmot and Bennet applicant's legal practitioners
Cheda & Partners,
respondent's legal practitioners
