There
have been long-running legal battles between the applicants' on one side, and
the second respondent on the other, over occupation of the farm.The
background to the battles is that the applicants' were the owners of Fangudu
Farm in the Umtali District. The farm was acquired by the State in 2005.
Subsequent to the acquisition, ...
There
have been long-running legal battles between the applicants' on one side, and
the second respondent on the other, over occupation of the farm.
The
background to the battles is that the applicants' were the owners of Fangudu
Farm in the Umtali District. The farm was acquired by the State in 2005.
Subsequent to the acquisition, the second respondent was issued, by the
Minister of Land and Rural Resettlement, with an offer letter dated 11 July
2006 to occupy the land – and he proceeded to do so.
The
first application was an urgent chamber application by the applicants following
the second respondent's occupation of the farm. On 22 November 2006, CHITAKUNYE
J granted a spoliatory order in case no.HC7170/06. On November..., PATEL J
granted a judgment in favour of the applicants in case no. HH128-09, being
confirmation of the provisional order granted in HC7170/06. The judgment by
PATEL J declared the present applicants rights to -
(a)
Continue occupying the farm until a valid notice of eviction is issued;
(b)
All plantation crops, crops, and movable property on the farm until the same is
acquired in accordance with the law.
The
judgment is extant.
However,
the second respondent has filed an application in the Supreme Court for leave
to appeal against the judgment out of time.
After
having moved from the farm following the order in HH128-09 persons acting on
the authority of the second respondent moved back onto the farm. The applicants
filed another urgent chamber application in case no.HC6541/09 seeking, yet
again, spoliatory relief. A third judgment was issued by KARWI J, in default of
the second respondent, ordering the second respondent to vacate the property.
The
battle is ongoing with the second respondent having, in case no. HH16-10,
successfully sought an order of stay of execution of the order granted in case
no. HC6541/09.
The
applicants have also filed the present urgent chamber application seeking the
following interim relief -
“That
2nd respondent desist forthwith from uplifting applicants produce
and delivering it to the 1st or any other person or party, and that
the 1st respondent be interdicted from transferring the sum of
$14,361= currently held in the trust account of Venturas and
Samkange to the 2nd respondent.”
The
facts leading to the present application are that the second respondent has
been harvesting bananas from the plantation and selling the same to the first
respondent. The applicants claim that this is in defiance of the order by PATEL
J in case no. HH128-09 where their right to the plantation crops was affirmed.
Counsel
for the first respondent submitted that the proceeds from the sale of the
bananas delivered to the first respondent have been deposited in the trust
account of Venturas and Samkange pending determination of the ownership wrangle
over the bananas. He submitted that the first respondent would abide by the
court's decision as to who should receive the money. He further submitted that the first
respondent has, since becoming aware of the dispute, refused to take any
further deliveries from the second respondent.
Counsel
for the second respondent submitted that section 2 of the Land Acquisition Act
[Chapter 20:10] defined “land” to include anything permanently attached or
growing on the land. As the plantations were growing on the land they formed
part of the land, and, therefore, were also vested in the State. Counsel for
the second respondent referred me to the case of Mandindindi Farm Settlers v
Mazowe Rural District Council & Anor HH53-04.
Counsel
for the applicants' contention was that the judgment by PATEL J declared the
applicants ownership of the plantation and the fruits therefrom. The second
respondent did not appeal against the decision, and, therefore, the judgment is
binding on him.
It
appears to me that the determination of this matter rests on the interpretation
of the judgment by PATEL J, whether or not the order declared the applicants
entitlement to all the plantation's fruits as contended by the applicants.
My
understanding of the judgment by PATEL J is different from that of counsel for
the applicants.
It
is necessary to cite the exact order granted by PATEL J in respect of the
plantation crop. The relevant paragraph reads as follows -
“3.
It be declared that all plantation crops, crops, and movable property on
Fangudu belonging to the applicants
are not subject to compulsory acquisition by the 1st respondent
(Minister responsible for land) or to appropriation by any person other than a
representative, employee, or invitee of the applicants except in accordance
with the law.” (own emphasis).
It
is common cause that at the time of the order acquisition of the farm had
already taken place and the farm now belonged to the State.
It
appears to me that the operative word in that order is “belonging”. A proper
interpretation of the order, in my view, is that the crops which were owned by
the applicants were protected from compulsory acquisition – except in compliance
with the law. It does not declare the applicants as the owners of the
plantation crops. The word, in my view, that connotes a declaration of
ownership would have been the word “belong”. Had the court intended to declare
the applicants the owners of the plantation crops, it appears to me that it
would have used the word “belong” instead of “belonging”.
The
interpretation attributed to the order by counsel for the applicants would be
inconsistent with section 16(10) of the Constitution of Zimbabwe which defines
the word “land” to include “anything permanently attached to or growing on
land.” The definition provided in the Constitution of Zimbabwe is identical to
that which appears in section 2 of the Land Acquisition Act [Chapter 20:10]
referred to by counsel for the second respondent. The interpretation, as
provided in the Constitution of Zimbabwe, is consistent with the common law
that provides that growing things accede to the land. (See Bangure v Gweru City
Council 1998 (2) ZLR 396 (HC); Mandindindi Farm Settlers v Mazowe Rural
District Council & Anor HH53-04; SILBERG, The Law of Property 2nd
ed...,.; and Scheepers v Robertse 1973 (2) SA 508).
The
order by MUSAKWA J appears to have restored the status quo ante which was
prevailing before the spoliatory order by KARWI J. The second respondent cannot
remain on the land pending the determination of the application for rescission
of case no. HC6541/09. The applicants would therefore not be said to be still
in occupation of the farm or in possession of the plantation, and, therefore,
would not be entitled to the plantation crops.
They
would, in my view, be entitled to compensation from the second respondent in
the event that their occupation of the farm, and possession of the crops, is
restored to them.
I
believe that one cannot separate the produce derived from the plantation from
the plantation itself. It would be untenable where one person owns the
plantation and another owns the produce therefrom. The case of Scheepers v
Robertse 1973 (2) SA 508 (cited with approval in Bangure v Gweru City Council
1998 (2) ZLR 396 (HC) and SILBERBERG and SCHOEMAN, The Law of Property) is pertinent
in this regard as it relates to the question of ownership of produce of a
plantation. In that case, the plaintiff bought a farm from the defendant with
all improvements thereon. There were ninety-four acres of wattle plantations on
the farm. The defendant had a bark quota granted to her in terms of an Act of
Parliament. The farm was transferred into the name of the plaintiff in October
1969. In September 1970 the defendant proceeded to sell and transferred the
bark quota to the third party. HARCOURT J ruled..., that the trees in question
had stuck roots, and therefore the plantation had therefore acceded to the
farm. The bark quota also went with the farm as the quota could not be
separated from the plantation.
It is therefore my view that the only proper
interpretation of PATEL J's order is that the applicants ceased to own the plantation
and the crops therefrom, when the farm was acquired by the State. This would be
consistent with the Constitution of Zimbabwe and common law.
