CHATUKUTA
J: There have been long running
legal battles between the applicants on one side and the 2nd 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 2nd
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 2nd respondent's occupation of the farm. On 22 November 2006, CHITAKUNYE J granted a
spoliatory order in case No. HC
7170/06. On November 2009, PATEL J granted a judgment
in favour of the applicants in case No. HH 128/2009, being confirmation of the
provisional order granted in HC 7170/06.
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 plantations crops, crops and movable property on
the farm until the same is acquired in accordance with the law
The judgment is
extant. However, the 2nd
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 HH 128/09, persons acting on
the authority of the 2nd respondent moved back onto the farm. The applicants filed another urgent chamber application
in case No. HC 6541/09 seeking yet again spoliatory relief. A third judgment was issued by KARWI J, in
default of the 2nd respondent, ordering the 2nd
respondent to vacate the property.
The
battle is ongoing with the 2nd respondent having, in case No. HH 16/2010,
successfully sought an order of stay of execution of the order granted in case
No. HC 6541/09. The applicant has 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
respondent 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 Venturus and Samkange to the 2nd respondent.”
The
facts leading to the present application are that the 2nd respondent
has been harvesting bananas from the plantation and selling the same to the 1st
respondent. The applicants claim that
this is in defiance of the order by PATEL J in case No. HH 128/09 where their
right to the plantation crops was affirmed.
Mr. Samkange, for the 1st
respondent submitted that the proceeds from the sale of the bananas delivered
to 1st respondent have been deposited in the trust account of
Venturus and Samkange pending determination of the ownership wrangle over the
bananas. He submitted that the application
would abide by the court's decision as to who should receive the money. He further submitted that 1st
respondent has, since becoming aware of the dispute, refused to take any
further deliveries from the 2nd respondent.
Mr Mlotshwa, the 2nd
respondent's legal practitioner, raised three points in limine on behalf of the 2nd respondent. The first point was that the certificate of
urgency is not proper as it was signed by a legal practitioner from the same
firm as that representing the applicants.
The impropriety of the certificate would therefore render the
application not urgent. In support of
this contention, Mr Mlotshwa referred
me to the case of Aaron Chafanza v Edgars
Stores Limited & Anor HB 27/05
(2005 (1) ZLR 299).
I am
persuaded by Mr Chikumbirike's
submissions that the rules do not prescribe that a legal practitioner who signs
an urgent certificate must not be from the same firm that represents the
applicant in that matter. Rule 242(2)
simply prescribes that where an applicant is legally represented in an urgent
chamber application, the application must be accompanied by a certificate from
a legal practitioner supporting the urgency of the application. As Mr
Mlotshwa conceded, the decision in the Chafanza
case is not binding. It is my view that
there is no conflict of interest. Even
if there was such a conflict, it does not seem that the conflict would render
the application not urgent. I am
therefore of the view that nothing much turns on the propriety of the
certificate of urgency.
The
second point was that the matter was lis
pendens as there was an application pending before MUSAKWA J in case No. HC
128/09 wherein the 2nd respondent in the present application was
seeking an application for stay of execution. It appears that the issue fell on the
wayside as Mr Mlotshwa produced a
judgment by MUSAKWA J.
The
last issue was that the applicant did not have the locus standi to bring the application as the farm had been acquired
by the state. Mr Mlotshwa submitted that the farm was gazetted and therefore now
vested in the state. He submitted that s2 of the Land Acquisition Act [Chapter 20:10] defined “land” to
include anything permanently attached or growing on land. As the plantations
were growing on the land, they formed part of the land and therefore were also
vested in the state. Mr
Mlotshwa referred me to the case of Mandindindi
Farm Settlers V Mazowe Rural District Council & Anor HH 53/04. The 2nd respondent's contention
was that in light of Airfield Investments
P/L v Minister of Lands & Ors SC 36/04, the applicant does not have the locus
standi to seek an interdict against the 2nd respondent.
Mr. Chikumbirike submitted that the
judgment by PATEL J declared the applicant's ownership of the plantation and
the fruits therefrom. The 2nd
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 Mr.
Chikumbirike. 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 [Minster
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 Mr Chikumbirike would be
inconsistent with s16(10) of the
Constitution which defines the word “land” to include “anything permanently
attached to or growing on land;”. The
definition provided in the Constitution is identical to that which appears in s2 of the Land Acquisition Act referred
to by Mr. Mlotshwa. The interpretation as provided in the
Constitution 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 (supra) Silberberg The Law of Property 2nd ed p
214 and Scheepers v Robertse1973 (2)
SA 508.)
In Bangure v Gweru
City Council (supra) GILLESPIE J observed at p398C-F as follows:
If
there is any basis for the application, therefore, it must be found in the
common law. It may be said generally that improvements to property adhere to
the property and are acquired by the owner of the property through the process
of accessio. Inaedificatio is the type of non-natural accession by which
movables accede to immovables when sufficiently attached and become the
property of the landowner.
Plantatio or satio are the means of non-natural accession by which, subject to
any agreement to the contrary between planter and landowner, growing things
accede to the soil and become the landowner's property.
The intention of the planter is irrelevant to the operation of this law.
Possessors
or occupiers of property who improve the property retain certain rights in
respect of the improvements. Thus the improver or planter enjoys the ius tollendi. The right, during the
currency of occupation of the property, to remove the improvement if this can
be done without damage to the earlier state of the property itself. A further right enjoyed by the possessor or
occupier who improves property is an entitlement to compensation for the
improvements, and even a ius retentionis
to enforce that claim, is permitted to various classes of possessor or occupier
of property.”
The order by MUSAKWA J appears to
have restored the status quo ante which
was prevailing before the spoliatory order by KARWI J. The 2nd respondent cannot remain
on the land pending the determination of the application for rescission of case
No. HC 6541/09. 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 2nd 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 (supra)
(cited with approval in Bangure v Gweru City
Council and Silberberg) is
pertinent in this regard as it relates to question of ownership of produce of a
plantation. In that case plaintiff
bought a farm from the defendant with all improvements thereon. There were 94 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 a third party.
HARCOURT J ruled at p510 that 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 applicants ceased to own the
plantation and the crops therefrom when the farm was acquired by state. This would be consistent with the
constitution and common law. It was
stated in the Airfield case that the
appellants in that case had lost their rights of ownership in the land
when the land was acquired by the state and vested in the state.
The applicants ceased to be the owners of the land, plantations and
fruits in issue when the farm was acquired by the state. The applicants, not being the owners of the
farm, therefore do not have the locus
standi to seek the relief in the draft order.
In the result, the application is
dismissed with costs.
Chikumbirike & Associates, the applicants' legal practitioners
Venturus & Samkange, the 1st respondent's legal
practitioners
GN Mlotshwa & Co, 2nd respondent's legal practitioners
