GOWORA J: This
application was argued before me on 16 July which was the return day of a
provisional order granted on 4 May 2009. Although the first respondent was at
the initial hearing he did not appear on the return day. He had filed opposing
papers as well as heads of argument even though he was not legally represented.
Mr Gutu who appeared for the second respondent, the Minister and insisted on
the matter being heard on the merits and seemed not to be alive to the absence
of the first respondent and the prejudice that would ensue to the latter if the
matter was heard on the merits. After hearing counsel I granted a final order as
prayed by the applicants. Subsequent to the order being granted the first
respondent has addressed several letters to the Registrar of this honourable
court demanding a judgment. I have acceded to the request and I give my reasons
hereunder. I have however endeavoured as much as possible not to touch on the
case of the first respondent in order to allow him a window to put his case
forward should he be so inclined.
The applicant applied to this court for a
provisional order under a certificate of urgency and on 4 May 2009 this honourable
court issued a provisional order in their favour in the following terms:
PROVISIONAL
ORDER
TERMS OF FINAL ORDER SOUGHT
That you show cause to this honourable court
why a final order should not be made in the following terms:
1.
The first respondent and all those claiming
occupation through him be and are hereby ordered to forthwith restore to
applicants and their employees full possession, use and access to the tobacco
barns, grading sheds, storage sheds, workshop, office and irrigation pump
station on Plot 7 and all farming implements owned by the applicants and
located thereon.
2.
The first respondent and all those claiming
occupation through him permit the applicants and their employees to grade their
tobacco and remove it for sale thereafter.
3.
The first respondent desists from threatening
any of the applicants' workers or management in carrying out their normal
duties.
4.
Should the first respondent breach 1 and 2 or 3
that the Zimbabwe Republic Police Guruve be authorized to arrest the first
respondent.
5.
The first respondent shall pay the costs of this
application on the legal practitioner and client scale.
INTERIM
RELIEF GRANTED
Pending the determination of the above Final
Order, the applicant is granted the following relief:
1.
The first respondent and all those claiming
occupation through him be and are hereby ordered to forthwith restore to
applicants and their employees full possession, use and access to the tobacco
barns, grading sheds, storage sheds, workshop, office and irrigation pump
station on Plot 7 and all farming implements owned by the applicants and
located thereon so as to restore the status quo
prevailing on Plot 7 as at 15 April 2009.
2.
The first respondent and all those claiming
occupation through him permit the applicants and their employees to grade their
tobacco and remove it for sale thereafter.
3.
The first respondent desists from threatening
any of the applicants workers or management in carrying out their normal
duties.
4.
The first respondent shall be entitled to the
full use and occupation of Plot 7, other than the structures equipment referred
to in paragraph 1 and the applicants shall refrain from interfering with the
first respondent's farming activities, equipment and employees on Plot 7.
5.
Should the applicants or the first respondent
breach any provision of this Order the Zimbabwe Republic Police Guruve is
hereby authorized to enforce the terms of this order.
INTERIM
ORDER-RETURN DAY
1.
The respondents shall file and serve their
opposing papers in this matter by 7 May 2009.
2.
The applicants shall file and serve their
Answering Affidavit by 11
May 2009.
3.
The applicants shall file and serve their Heads
of Argument by 15 May 2009.
4.
The respondents shall file and serve their Heads
of Argument by 18 May 2009.
5.
The respondents shall index and paginate the
papers filed herein by 20
May 2009.
6.
The Registrar is hereby directed to set this
matter down for hearing in the opposed roll forthwith upon compliance with the
foregoing paragraphs.
SERVICE
OF PROVISIONAL ORDER
Service of this order may be effected by the
applicants' legal practitioners on the respondents or their legal
practitioners.
The two
applicants are companies that are duly registered as such in accordance with
the laws of this country. The second respondent is the minister responsible for
agriculture and land resettlement. The first applicant is the former owner of
Disi Farm which is situate in Mvurwi. The second applicant leased Disi Farm from
the first applicant and was in terms of the agreement of lease carrying out
farming activities on the said farm. Disi Farm has been acquired by the
government under the land reform program.
In a
founding affidavit sworn to by one Robert Strong, it is averred that the second
applicant produces approximately 500 000 kgs of tobacco every year, 30 hectares
of horticulture which is all targeted at export markets, 50 hectares of
commercial maize, 30 hectares of sugar beans. The second applicant also has
fifteen pedigree breeding cows with followers. The second applicant also
operates a wheat meal and a bakery and supplies the surrounding areas with
bread.
It is
averred further that both the first and second applicants have been actively
involved with the local community since the early 1990's and support a number
of local projects. The first applicant is alleged to have paid a substantial
sum towards the extension of Chifumbo
School in Mudindo, Guruve
and both have fully supported rural electrification of all schools in the area.
Both applicants are said to finance local school stationary requirements.
In total,
both applicants have had four farms acquired by the government for purposes of
land reform and have been assisting both A1 and A2 farmers on the acquired
farms. There has been no interference with their farming activities on Disi
Farm since the inception of the land reform program. However since May 2008 the
first respondent has stated to the applicants that he had an offer farm for a
section of Disi Farm. Through the existence of the alleged offer letter the first
respondent then moved onto plot 7 on the said farm.
Due to the
alleged illegal occupation of this portion of the farm by the first respondent
the applicants sought and obtained an order for spoliation against him under
case number HC 4110/2008 which was granted on 18 August 2008. Possession of
that portion of the farm was restored in pursuance of the order granted. This
enabled the second applicant to reap its tobacco. On 4 December 2008 it, second applicant, then
commenced the process of loading the tobacco in the barns for purposes of
having the tobacco cured. On 6
December 2008 the first respondent came to the farm and had a
discussion with Robert Strong. He said that if the applicants wished to
continue using the barns they had to pay for them. He said that he himself had
no use for the barns as he had not grown any tobacco. The first respondent had
then left but returned a short while later to threaten the applicants' workers
from returning to work the following day. On 7 December 2008 the first respondent
turned up armed with a pistol and locked all the gates. A report was made to
the police, and subsequently an urgent application filed with the court on 11
December 2008 resulted in the court issuing a
mandament van spolie against the first respondent. The order sought by the applicants
was granted with the consent of the respondent and resulted in the applicants
being restored possession of the disputed items and in addition a temporary
interdict was granted against the first respondent preventing him from
interfering with the applicants and their employees. That order was to be
effective up until 15 April
2009. The acquiring authority had also consented to the order.
It was
averred by the applicants that it had been agreed with the second respondent's
legal practitioners that the order be for a limited period and that after its
expiry the applicants should seek and obtain a formal lease for the tobacco barns
and facilities from the second respondents. The applicants were assured that
this was a mere formality. The applicants have, as stated above, sought a lease
over the tobacco barn where their tobacco is currently stored. The lease has
not yet been granted to them.
On 17 April
the first respondent returned to the area known as Plot 7 armed with a pistol
and pointed it at a clerk and forced him to hand over the keys to the
storerooms, offices, workshop and tobacco grading sheds. He then placed locks
on all the access gates. On 18 April 2009 the District Administrator instructed
that the locks that the first respondent placed be removed but after this was done
he, first respondent, came and threatened the workers and chased them off Plot
7. He was armed with a pistol. On 19 April the first respondent instructed his
workers to switch off all the pumps and lock all the sheds. Again on 21 April
the applicants' workers attempted to access the tobacco grading sheds. The
first respondent came and switched off the pumps supplying water to the
granadillas. There was a standoff between the respondent's workers and those of
the applicants. The situation was only alleviated by the arrival of the police.
The first respondent had indicated to the applicant's workers that he would
only restore possession of the tobacco barns after he and the applicants would have
negotiated a partnership agreement. Based on these allegations this court had
issued a provisional order.
The insistence
by the second respondent who was represented by Mr Gutu that the matter be should be argued on the merits despite the
absence of the first respondent who is the party against him the substantive
relief was being sought has placed this court in something of a quandary as the
first respondent was in default. I will therefore only deal with issues as they
relate to the second respondent and the applicants. It may however be
unavoidable to make reference to the first respondent as it his alleged illegal
conduct being complained against by the applicants and in fact the order being
sought is mainly against him and not the Minister. There is no dispute that the applicants have been in
possession of Disi Farm and in particular the barns, equipment and structures
situate at Plot 7. When the entire farm was acquired by the acquiring authority
the applicants were left in situ and they have remained on the premises
throughout. The barns, storerooms and curing facilities have been in their
possession all along. The acquiring authority has however not seen it fit to
evict the applicants from the same.
Mr Gutu
was correct to state that an applicant to an order for spoliation must prove
that he was in peaceful and undisturbed
possession of the thing dispossessed. It was his contention that the applicants
were not in peaceful and undisturbed possession. This contention is not
supported by the facts on the papers. The applicants have attached to their
papers a handwritten letter from the District Lands Officer dated 20 April 2009 and addressed
to the first respondent in which the writer is imploring the respondent to
allow Mr Strong to have access to the tobacco curing facilities in order to facilitate
the finalization of the curing process. This letter was attached to the
founding papers and the interim relief was granted based on those papers. The
paragraph in respect of which the contents of the letter are alluded to was not
challenged by the second respondent. An allegation or averment which is not
denied is taken to have been admitted. It is therefore difficult to understand
the submission that the applicants never had possession.
The
background to this application in fact goes back to 18 August 2008 when the first order for a mandament van spolie was granted against
the first respondent. That particular order did not refer to the barns but
merely sought to restore possession to the applicant of the portions of the
farm not allocated to the first respondent. The second order granted on 16 December 2008 with the
consent of the first and second respondent was to the following effect:
BY CONSENT IT IS ORDERED
1.
The first respondent and all those claiming
occupation through him be and are hereby ordered to restore full possession and
use of tobacco barns on Plot 7 to the applicants forthwith.
2.
The first respondent is interdicted from banning
access to the applicants employees to the tobacco barn on Plot 7
3.
The first respondent is interdicted from preventing
the applicants and their employees from carrying out their duties in curing the
applicants' tobacco.
4.
The first respondent is interdicted from
threatening the applicants' employees.
5.
This Order will be effective up to 15 April 2009
The parties do not appear to have to anticipated
the recurrence of problems between them subsequent to 15 April 2009. It may well be that the
applicants anticipated that by then a lease would have been offered to them for
the barns, it has not. The second respondent has argued that the first
respondent took occupation of Plot 7 in 2007. The first respondent is not
before me so I cannot comment on the manner in which he took occupation. The
second respondent should however have ensured that the first respondent got
vacant possession by evicting the applicants from the disputed barns and sheds.
This was not done leaving the applicants in possession of the same.
The contention by the second respondent is
to the effect that the farm was acquired by the government and as a result all
infrastructure on the land belongs to the state. The second respondent further
contends that as the applicants are not the holders of an offer letter and they
are therefore in illegal possession of the barns and storerooms on Plot 7 which
has been allocated to the first respondent. The contention is therefore that
the applicants do not have locus standi
to institute and defend any proceedings in respect of that portion of Disi Farm
and the buildings situate thereon.
In the final analysis the protection of
possession is part and parcel of the protection of the peace in a community,
which could not be maintained if every person who asserts that he has a real
right to a particular thing which is in another person's possession would be
entitled to resort to self-help. Thus
the mandament van spolie is aimed at
preserving peace and order in a community and to discourage self help.
Consequently the question of ownership or the lawfulness of the possessor is not
an issue for consideration by the court as long as the applicant can show that
he was in peaceful and undisturbed possession and that he was dispossessed
unlawfully, whether through violence, stealth or fraud. The aim is therefore to
achieve a restoration of the status quo
ante. In Chisveto v Minister of Local Government & Town Planning;
REYNOLDS J stated thus:
“Lawfulness of possession does not enter into it. The purpose
of the mandament van spolie is to
preserve law and order and to discourage persons from taking the law into their
own hands. To give effect to these objectives, it is necessary for the status quo ante to be restored until
such time as a competent court of law assesses the relative merits of the
claims of each party. Thus it is my view that the lawfulness of the applicant's
possession of the property in question does not fall for consideration at all.
In fact, the classic generalization is sometimes made in respect of spoliation
actions that even a robber or thief is entitled to be restored to possession of
the stolen property.”
In casu
the second respondent has argued that the first respondent is the holder of
an offer letter in respect of Plot 7 and that the applicants did not oppose the
occupation of Plot 7 by the first respondent. It is argued that the dispute
arose when the applicants sought to continue to use the facilities on the first
respondent's portion, the tobacco barns, grading sheds, workshop and office. The
second respondent has contended further that the applicants were through an
order of this court allowed to use the tobacco barns up to 15 April 2009 and
that they did not approach the court for an extension of the continued
use.
The second respondent is overlooking the
fact that even after the first respondent moved onto Plot 7, the applicants
remained in possession of the infrastructure that is central to this dispute
and that in order to give effect to the offer letter the second respondent had
to take legal steps to ensure that the possession by the applicants of the
infrastructure was terminated properly and that thereafter the first respondent
could assume possession. In casu the
possession by the applicants of the disputed infrastructure is not due to an
order of court. The court merely restored possession to them after an act of
spoliation. The expiry of the period agreed to by the parties did not have any
material consequence as to the possession. It did not affect the legal position
of their possession which remains the same unless and until the acquiring authority
takes some positive action for its determination. This was not done and the
courts have held on numerous occasions that an applicant will be given
possession of the property where it is shown that he was despoiled.
“It is a fundamental principle that no man is allowed to take
the law into his own hands; no-one is permitted to dispossess another
forcefully or wrongfully and against his consent of the possession of property,
whether movable or immovable. If he does so, the court will summarily restore
the status quo ante, and will do that
as a preliminary to any inquiry or investigation into the merits of the
dispute. It is not necessary to refer to any authority upon a principal so
clear.”
In my view it matters not that the
first respondent was granted an offer letter in respect of Plot 7 as the merits
of the dispute are not in issue. It may well be that in the absence of an offer
letter for the same property the applicants' occupation of the same may well be
illegal. That however, is not the point. In order to enable the first
respondent to occupy the plot legally the second respondent is obliged to evict
the applicants from the plot and thus grant the first respondent vacant
possession. Any occupation by the first respondent without an order of court
evicting the applicants from the same will be an act of spoliation and will
open the respondents to challenge regarding the said occupation. It is for
these reasons that I confirmed the provisional order granted on 4 May 2009.
I did not grant an order for the arrest of
the first respondent in the event that he was in breach of paragraphs 1, 2 and
3 of the draft order as firstly the first respondent was not before me and his
submissions on that aspect of the order had not been placed before me. In addition,
this court cannot order the police to arrest a person on alleged breach of a
court order before the court has made a finding that such person is in fact in
breach of the court order. What the applicants seek is an order protecting them
from an anticipated breach of this order. This in my view is not the correct
manner to approach a court for an order of contempt of court. The requirements
of contempt of court proceedings are known to legal practitioners and an
application where an order is sought in anticipation of breach is irregular. Every
legal practitioner knows or should be aware that before an arrest can be
ordered by this court on allegations of a party being in breach of a court
order, it is necessary for the respondent to be arraigned before the court for
a finding that the person had deliberately flouted a court order served on him
or her personally. This is done by the institution of proceedings for contempt
of court proceedings against such party. Time and time again legal
practitioners insert in their draft orders a paragraph for the arrest of a
party in the event of breach of paragraphs in the order. This is irregular and
contrary to any person's right to be heard before an order is granted against
such person. I am not able to find a person in contempt of a court in
anticipation of that such person is in contempt by obeying the court order in
the absence of a hearing with regard to the refusal to obey the court order. Legal practitioners should therefore desist
from drafting orders in this fashion. It is for these reasons I refused to
confirm the paragraph requiring his arrest in the event of breach.
It is therefore ordered as follows:
The Provisional Order granted by this court
on 4 May is hereby confirmed and an Order is issued in the following terms:
1.
The first respondent and all those claiming
occupation through him be and are hereby ordered to forthwith restore to the applicants
and their employees full possession, use and access to the tobacco barns,
grading sheds, storage sheds, workshop, office and irrigation pump station on
Plot 7 and all farming implements owned by the applicants and located thereon
so as to restore the status quo ante
prevailing on Plot 7 as at 15 April 2009.
2.
The first respondent and all those claiming occupation
through him be and are hereby ordered to permit the applicants and their
employees to grade their tobacco and remove it for sale thereafter.
3.
The first respondent be and is hereby ordered to
desist from threatening any of the applicants' workers or management in
carrying out their normal duties.
4.
The first respondent shall pay the costs of this
application.
Venturas & Samukange, applicants' legal practitioners
Civil Division of the
Attorney-General's Office, second respondent's
legal practitioners
