MUSAKWA
J: This is an application for a spoliation order and an interdict in which
second applicant claims that he and his family was summarily evicted from the remainder
of Manda Estate A by a mob that was acting at the behest of second respondent.
Subsequent to hearing the application I granted the application for spoliation
only and indicated that my reasons would be furnished later. These are they.
The
gist of the facts are that the second respondent was allocated the remainder of
Manda Estate A measuring about 724 ha. The first applicant used to own Manda
Estate in the district of Makoni measuring 2 999,9 ha. After the land was
acquired by the government for resettlement purposes applicants remained in
occupation of the remainder of Manda Estate A. The applicants are facing prosecution
under the Gazetted
Land (Consequential
Provisions) Act [Chapter 20:28]. At
the close of the state case applicants applied for discharge and a ruling is
expected to be handed down on 15 January 2010.
In
a founding affidavit deposed to by second applicant it is claimed that he and
his family were in possession of the residence at the farm when on 24 December
2009 a mob descended upon them and ordered them to vacate. They were threatened
with assault and other action if they did not comply. There is considerable
property on the farm including livestock. Applicants entered into contract
farming with some resettled farmers. They have also been denied access to that
land despite that it does not constitute part of the land that was allocated to
second respondent.
The
precursor to the events of 24 December was a visit to the farm on 19 December.
Three persons introduced themselves as representatives of second respondent.
One of them who introduced himself as Malisa or Mliswa claimed that they had
instructions to take over the farm immediately. It was also stated that the
beneficiary was tired of waiting for applicants' eviction and was also not
interested in the outcome of the pending criminal proceedings. The second
applicant contacted Police in order for them to intervene. A mob then
sporadically laid siege on the farm. They are alleged to have been using a
Mazda T35 truck and two tractors belonging to the second respondent. Farm
workers were threatened in the process.
On
20 December Police visited the farm and managed to calm the situation. However,
after Police officers left the mob resumed their hostile conduct. On the
following day the second applicant visited Rusape Police Station. After some
discussions with Police officers he was told that they would not involve
themselves as this was a political matter. Matters finally came to a head on 24
December when second applicant and his family were forced to move out of the
premises.
Mr
Drury for the applicants submitted
that there is a prescribed procedure by which an occupier of land is to be
evicted. He pointed out to provisions of the Gazetted Land
(Consequential Provisions) Act. He thus submitted that what has happened is
that whilst that process is in motion it has been pre-empted by the unlawful
eviction. He further submitted that there has been self-help as applicants'
equipment has been seized in the process.
Mr
Drury also submitted that for a
spoliation order to be granted one only has to make a prima facie case. He
cited Amler's Precedents of Pleadings third edition. He stressed that the Gazetted Land (Consequential Provisions) Act did
not oust the law on spoliation in as far as the requirement for due process is
concerned. Accordingly vacant possession can only be acquired through a
prescribed process. Consequently the legality of applicants' occupation of the
land is irrelevant.
In
respect of the order for an interdict Mr Drury
submitted that all requirements for such relief have been met. He further
submitted that the facts in the present matter are distinguishable from the
case of Airfield Investments (Private) Limited v The Minister of Lands,
Agriculture and Rural Resettlement and Others SC 36/04. This is because there
is no law that prohibits contract farming, so Mr Drury argued.
The
first respondent did not make any submissions on the merits of the application.
Ms Kundayi who appeared for the first
respondent indicated that they would abide by the decision of the court.
As
for the second respondent Mr Mlothswa
submitted that his client denies any involvement in the conduct complained of.
He thus submitted that the application is directed at the wrong respondent.
This is because in second applicant's founding affidavit the leaders of the
despoilers are named as Maliswa/Mliswa and Vashco. There is also reference to
Minister Mutasa. He therefore argued that these persons should have been cited
in the papers as the respondents.
Mr
Mlotshwa further submitted that the
applicants are required to prove two elements-
(a) Quiet
and undisturbed possession, and
(b) Unlawful
dispossession or absence of consent to the dispossession.
It
was his submission that the burden of proof required is that of a balance of
probabilities as in ordinary civil matters. In the first place applicants have
to prove that second respondent despoiled them. Since this is disputed by
second respondent a dispute of fact has arisen and cannot be resolved on the
papers.
Mr
Mlotshwa next argued that applicants
have raised some allegations that are not substantiated. Some of the allegations raised by second
respondent are not corroborated by Mr Harland or the farm manager or farm
employees. In light of the denial by second respondent a dispute of facts has
arisen that cannot be resolved on the papers.
The
next argument raised by Mr Mlotshwa
was that an order for spoliation cannot be granted on a prima facie basis.
There must be proof on a balance of probabilities. According to him applicants
have not discharged such onus and the matter should be referred to trial. He
referred to the case of Blue Rangers
Estates (Private) Limited v Jamaya Muduviri and The Minister of Lands and Rural
Resettlement SC 29/09.
Mr
Mlotshwa also attacked the relief
being sought by way of interdict. He submitted that the land concerned is
gazette land. By virtue of that fact it is inappropriate to seek an interdict
as applicants no longer have any rights to the land following its acquisition
by the State. This is particularly so taking into account the expiration of the
notice given to applicants to vacate the land in terms of section 3 (2) (i) of
the Gazetted Land (Consequential Provisions) Act.
Thus applicants are in occupation of the land in defiance of the law as they
have no lawful authority in terms of the Act.
In an application for a spoliation order an
applicant has to establish the following requirements-
(a)
That he or she was in peaceful and undisturbed possession of the property, and
(b)
That he or she was forcibly or wrongfully deprived of such possession without
their consent.
In
this respect see the cases of Diana Farm
(Pvt) Ltd. v Madondo & Another supra and Botha & Another v Barrett 1996 (2) ZLR 73 (SC).
In
Amler's Precedents of Pleadings it is stated that a spoliation order is final
and is rarely claimed by way of action by virtue of urgency that usually
accompanies it. The causa of
applicant's possession is immaterial and it is also irrelevant that the
defendant has a stronger right of possession. This is because it is actual
possession and not the right to possession that is protected. The same authors
go on to state that because the merits of plaintiff's possession and
defendant's right to possession are not justiciable in such proceedings there
are no real defences which do not amount to a denial of the plaintiff's
allegations.
The
applicants allege the occupiers of the farm houses claim doing so on behalf of
second respondent. The second respondent denies any involvement in the conduct
complained of. It is also claimed by applicants that second respondent's truck
and tractors have been used in perpetrating acts of spoliation. In addition,
some equipment is said to have been removed from applicants' butchery in Rusape
and taken back to the remainder of Manda Estate A. The equipment is described
as consisting of a tractor and a container with workshop equipment. There has
been no specific denial of the allegations by second respondent, of the use of
her vehicles in the conduct complained of. It is not denied that second
respondent and his family has been forcibly evicted from the farm. On the facts
before me it cannot be said that no spoliation has taken place and that second
respondent is not involved.
Section
3 of the Gazetted
Land (Consequential
Provisions) Act criminalizes the occupation of Gazetted land without lawful
authority. This includes the occupation of such land by former owners or
occupiers. In terms of subsection (5) a court convicting a person for
contravening the Act shall issue an order for that person's eviction from the
land. That is the only provision dealing with the eviction of an occupier of
gazette land. That is what constitutes due process. What it means is that no
one can take it upon themselves to summarily evict any occupier of Gazetted
land. In the present matter the applicants are currently undergoing trial for
violating the Act and it is only upon their eviction that they can be evicted
from the land.
In
the case of Route Toute BV & Others v Minister of
National Security Responsible for Land, Land
Reform and Resettlement HH 128-09 PATEL J dealt with a similar issue. In
that case the applicants who had been registered owners and leaseholders of a
farm claimed the right to continue to own or occupy the farm for commercial benefit.
They claimed protection against compulsory acquisition on the basis of two
bilateral treaties signed between the governments of Zimbabwe
and the Netherlands.
After the first respondent had lodged an application for confirmation of notice
to acquire the farm the applicants were thereafter served with eviction
notices. The parties subsequently entered into a settlement not to enforce the
eviction notice.
Meanwhile,
the third respondent entered the farm on the strength of an offer letter and
the eviction notice. A provisional order was granted following the filing of an
urgent application by the applicants. On the return day PATEL J dealt with a
number of issues one of which was whether the applicants were entitled to
remain on the land after they had been served with a notice of eviction. At p 7
of the cyclostyled judgment this is what he had to say:-
“As
is apparent, section 3 of the Act is clearly designed to address the lacuna in
the law that I have adverted to earlier. It specifically provides for the
prosecution and conviction of any person who continues to hold, use or occupy
Gazetted land after the stipulated period and for the eviction of such person
upon conviction. What this means in the instant case is that the applicants are
at large to remain in occupation of the farm and cannot be evicted therefrom
except by due process, viz by order
of court after prosecution and conviction in terms of the Act.”
I
am mindful that in the case of Top Crop
(1976) (Pvt) Ltd and Malcolm William Clerk v Minister of Lands and Land Reform and Resettlement and Yvone Samukeliso Gumede HH 74-09 BHUNU J
in dealing with a similar matter of spoliation came to a different decision and
dismissed an application for a spoliation order where from the facts of the
case, the second respondent had moved onto land occupied by applicants on the
strength of an offer letter. However, if it is accepted that one cannot take
the law into their own hands in order to enforce a right, the courts still have
to apply the law on spoliation notwithstanding the provisions of the Gazetted Land (Consequential Provisions) Act that
prohibit the occupation of Gazetted land without lawful authority. It would be
difficult to divorce due process from the requirements that an illegal occupier
of Gazetted land has first to be prosecuted before being ordered to vacate the
land by a competent court.
On
the issue of the interdict sought the authorities are well established that an
applicant must establish the following-
(a) A
prima facie right, even if it is open
to doubt
(b) An
infringement of such right or a well grounded apprehension of such infringement
(c) A
well grounded apprehension of irreparable harm
(d) The
absence of any other satisfactory remedy
(e) That
the balance of convenience favours the granting of the interdict.
In
this respect see Knox D'Arcy Ltd &
Others v Jamieson & Others 1995(2) SA 579, Eriksen Motors (Welkom) Ltd v Protea Motors & Another 1973 (3)
SA 685 and Mudzengi & Others v Hungwe
& Another 2001 (2) ZLR 179 (HC).
Mr
Drury's submission was that applicants
have contracts with some resettled farmers and need to access the crops. In
addition he argued that there is no statute that prohibits contract farming. I
did not hear him specifically state what rights the applicants are seeking to
protect. In view of the provisions of section 3 of the Gazetted Land
(Consequential Provisions) Act that prohibit the occupation of Gazetted land
without lawful authority it would be difficult for applicants to justify what
rights they can claim in respect of the land. By now they ought to be off the
land in question, save for waiting for due process of the law to take its
course.
I
do not think that the Airfield Investment case is distinguishable from the
present matter. Although the facts are slightly different from the instant
case, it is the principles of law enunciated therein that are of importance. In that case, after the publication of a
preliminary notice to acquire land previously owned by appellant, the appellant
objected to the intended acquisition. He then applied for an interdict to
prevent the second respondent from further proceeding with the acquisition in
terms of the Land Acquisition Act [Chapter
20:10]. Having cited a case dealing with requirements for an interdict
MALABA AJ (as he then was) had this to say at p 9:-
“The
threshold the appellant had to cross was the production of evidence which
established the existence in it of prima facie rights of ownership in the land
at the time the application for interim relief was made. An interim interdict
is not a remedy for past invasions of rights and will not be granted to a
person whose rights in a thing have already been taken from him by operation of
law at the time he or she makes an application for interim relief.
In
Stauffer Chemicals v Monsato Company 1988 (1) SA 805 at 809 F-G HARMS J said:
“…….the
basis of an interdict is the threat actual or implied on the part of a
defendant that he is about to do an act which is violation of the plaintiff's
right and that actual infringement is merely evidence upon which the court
implies an intention to continue in the same course. I would have thought it
axiomatic that an interdict is not a remedy for past invasions of rights. It is
for the protection of an existing right. See Meyer v Meyer 1948 (1) SA 484
(T).”
The
appellant was not in a position to show the existence of prima facie rights of
ownership in the land which the first respondent was about to infringe because
at the time it applied for the interim relief all the rights of ownership it
had in the land had been taken by means of the order of acquisition and vested
in the acquiring authority……….”
One
other aspect deserves to be commented on. In their draft order applicants have
sought the assistance of the Police in the enforcement of the draft order. They
did not cite the relevant Police Officers or Police Station and it would be
inappropriate to grant that order.
Accordingly,
the application is granted in terms of the draft order as amended.
Gollop & Blank,
applicants' legal practitioners
Civil Division of the
Attorney-General's Office, first respondent's legal
practitioners
Antonio
& Mlotshwa,
second respondent's legal practitioners
