PATEL J: On the 9th of September 2009, the applicant
obtained a spoliation order against the 1st respondent, in Case No.
HC 3989/09, evicting him from the property in question (Frogmore Farm). On the
same day, the 1st respondent appealed against this order in Case No.
SC 216/09. Relying on his offer letter from the 2nd respondent and
the notice of appeal, he then reoccupied the property on the 15th of
September 2009 without the applicant's consent. The applicant now seeks leave
to execute the order in Case No. HC 3989/09 pending appeal. The 1st
respondent resists the application on the ground that he has good prospects of
success on appeal.
Leave to
Execute Pending Appeal
The
test to be applied in an application of this nature is essentially twofold. The
Court is called upon to assess, firstly, the prospects of success on appeal
and, secondly, the preponderance of equities as between the parties. See South Cape Corporation (Pty) Ltd v
Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 545; Econet (Pvt) Ltd v Telecel Zimbabwe (Pvt)
Ltd 1998 (1) ZLR 149 (H) at 154.
In
the instant case, the prospects of success on appeal hinge upon two questions:
(i) whether the property in casu has
been duly acquired by the State and (ii) whether the 1st
respondent's offer letter entitles him to occupy the property before the
applicant has been lawfully evicted therefrom.
Acquisition
of Property
The
notice in the Gazette identifying the
land in casu for acquisition was
first published in GN No. 591/2001 on the 16th of November 2001. It
was later listed as item 30 in Schedule 7 to the Constitution (as amended by
Act N0. 5 of 2005).
The original acquisition of the
property was set aside by default in Case No. HC 8592/02 through a provisional
order which was granted on the 27th of November 2002 and later
confirmed on the 6th of November 2002. Subsequent decisions of this
Court (in Case Nos. HC 7030/06, HC 6116/07 and HC 6586/07, determined on the 27th
of June 2006, 15th of February 2008 and 29th of July
2009, respectively) have all reaffirmed or recognised the decision in Case No.
HC 8592/02. These later decisions were premised on the default judgment granted
in the original case. Their overall effect was to confer upon the applicant
rights in rem which are operative erga omnes and which can only be
overridden by clear statutory provision to that effect.
Section
16B of the Constitution and Schedule 7 thereto were brought into operation in
September 2005 through Act No. 5 of 2005. The clear object of section 16B as
read with item 30 of Schedule 7 was to acquire Frogmore Farm in September 2005
and vest title therein in the State. Although section 16B does not explicitly
override pre-existing court decisions, the specific and clear intention of the
Legislature was to validate the acquisition of all the properties listed in
Schedule 7 and to effectuate the vesting of title in the State. By necessary
implication, this was intended notwithstanding any prior decisions of the courts
to the contrary. This intention emerges fairly unequivocally not only from
section 16B(2)(a), which acquires all the lands listed in Schedule 7, but also
from the wording of section 16B(3)(a), which precludes any challenge to these
acquisitions before the courts. It is abundantly clear, therefore, that
Frogmore Farm was duly acquired by the State in terms of section 16B and
continues to vest in the State.
Prospects
of Success on Appeal
I now turn to consider the rights and status of
the 1st respondent under the offer letter issued to him by the 2nd
respondent. Despite the position taken in Top
Crop 1976 (Pvt) Ltd v Minister of Lands, Land Reform and Resettlement &
Another HH 74-2009, it seems to me that the preponderance of case authority
supports and fortifies the contrary position. An offer letter does not entitle
the holder to occupy the land allotted to him before the current occupier has
been duly evicted by due process of the law. Consequently, the offeree cannot
resort to self-help in order to dispossess or eject the occupier, no matter how
intransigent the latter may be in his refusal to vacate the property. The
offeree must wait until the State has taken steps to evict the occupier though
a court order granted by a court of competent jurisdiction under the Gazetted
Land (Consequential Provisions) Act (Chapter
20:28) or otherwise. In the absence of such court order or the consent of
the current occupier, the offeree has no self-executing right to occupy the
land. See Forrester (Pvt) Ltd v Makununu
HC 6586/07 at p. 4; Karori & Another
v Brigadier Mujaji HH 23-2007 at p. 5; Pondoro
v Taylor-Freeme & Others HH 18-2008; Bok Estates (Pvt) Ltd v Masara & Others HH 148-09 at p. 3. See
also my observations in Route Toute BV &
Others v Minister of National Security & Others HH 128-2009 at p. 9.
It
follows that in my view the 1st respondent has minimal prospects of
success on appeal against the order in Case No. HC 3989/09. In this regard, I
am cognisant of the view expressed by CHIDYAUSIKU CJ in Chikafu v Dodhill (Pvt) Ltd & Others SC 28/09 at P. 7, to the
effect that because of the divergence of opinion in the decided cases of this
Court “whichever party lost in the High Court had prospects of success” on
appeal before the Supreme Court. This observation was made obiter in the context of an application for leave to appeal. With
the greatest of respect, it cannot be relied upon to overrule the decision of
the full bench of the Supreme Court in Botha
& Another v Barrett 1996 (2) ZLR 73 (S) at 79, enunciating the
traditional requirements for the grant of a spoliation order. This traditional
approach has been adopted in the overwhelming majority of the decisions of this
Court. I have no hesitation in continuing to follow that approach for the
fundamental reason that recognising any resort to self-help without a court
order is the surest recipe for disorder, degenerating into possible violence
and the abnegation of the rule of law.
Balance of
Convenience
In
any event, even if I am wrong as to the 1st respondent's prospects
of success on appeal, it remains necessary to consider the balance of
convenience and the potentiality of prejudice to the parties in casu. According to the papers before
the Court, at the time of instituting this application the applicant had emplaced
over 1000 head of cattle on the farm and
planted various crops on circa
66 hectares of land. In contrast, the 1st respondent had only taken
several preparatory steps, by securing a loan and purchasing seed, but had not
as yet commenced farming operations.
Although both parties have demonstrated
the potentiality for harm or inconvenience to themselves, the balance of
hardship or convenience clearly favours the applicant. In my view, greater
prejudice would be sustained by the applicant if leave to execute were to be
refused than the prejudice that is likely to be suffered by the 1st
respondent if leave to execute were to be granted.
Disposition
In
the result, the applicant is entitled to the order sought granting leave to
execute pending appeal, as follows:
1. Leave be and is hereby granted to the
applicant to execute the judgment granted by this Honourable Court in Case No.
HC 3989/09 pending the determination of the appeal noted by the 1st
respondent in Case No. SC 216/09.
2. The 1st respondent shall pay
the costs of this application.
Wintertons,
applicant's legal practitioners
Antonio, Mlotshwa
& Co., 1st respondent's legal
practitioners
