On
26 February 2009, under HC318/09 the respondent instituted his own application
for a provisional order against the applicants. He obtained a provisional order
in the following terms:“Terms
of the final order sought1.
That all plant and equipment on Lot 1 of Lindmill Farm in Umzingwane District
of Matabeleland South Province in extent approximately 35371 hectares ...
On
26 February 2009, under HC318/09 the respondent instituted his own application
for a provisional order against the applicants. He obtained a provisional order
in the following terms:
“Terms
of the final order sought
1.
That all plant and equipment on Lot 1 of Lindmill Farm in Umzingwane District
of Matabeleland South Province in extent approximately 35371 hectares escheat
[sic] to the State for use by the cross-applicant herein in terms of
Government's Land Acquisition Policy.
2.
That upon vacation of Lot 1 Lindmill Farm aforesaid respondents and/or their
servants, agents, contractors, assigns or successors in title shall not
vandalize or make away with plant or equipment or crop or vegetables belonging
to the cross-applicant herein situate thereon.
3.
That the first respondent in the cross-application pay [sic] the costs of the
cross-application and the main application, the latter on the legal
practitioner and own client scale.
4.
That the failure by the respondent in the main application to file his
cross-application simultaneously with the notice of opposition be and is hereby
condoned.
5.
That the withdrawal of the admission made by the respondent of paragraph 1 of
the main applicant's founding affidavit be allowed and that paragraph 1 of his
original opposing affidavit be amended by and as appears in paragraph 3 of his
supplementary affidavit.
6.
That the late filing of respondent's heads of argument be and is hereby
condoned.
Terms
of interim relief granted
1.
That pending the determination of the main application and the cross-application
the respondents, their servants, agents, assigns, contractors or successors in
title be and are hereby refrained from making away with or vandalizing any and
all plants and equipment and the cross-applicant's growing crop or vegetables
on Plot 1 Lindmill Farm aforesaid.
2.
That as interlocutory relief this chamber cross-application be consolidated and
heard together with the main chamber application under case number HC2491/08
and the same be set down for final determination within ten calendar days after
service of this provisional order.
That
the filing of the supplementary affidavit of the respondent in the main
application, together with annexures thereto be and is hereby allowed.”
I
propose to deal with these applications in turn…..,.
Cross-application
under HC318/09
It
is clear that the cross-application seeks to acquire farm equipment by virtue
of a court order.
This
application is clearly misguided. This is so because the acquisition of farm
equipment or farm material is governed by the provisions of the Acquisition of
Farm Equipment or Material Act [Chapter 18:23].
In
terms the Acquisition of Farm Equipment or Material Act [Chapter 18:23], the
only person who can acquire such items is the acquiring authority. An
individual cannot embark on a self-help exercise, even if the farm equipment or
material is situated on the farm which he has been allocated.
Section
2 the Acquisition of Farm Equipment or Material Act [Chapter 18:23] clearly
defines the meaning of and makes a distinction between farm equipment and farm
material. Farm equipment, on the one hand, is defined as movable property used
for agricultural purposes such as tractors, ploughs, irrigation equipment not
embedded in the ground, pumps not permanently attached to the ground amongst other
things. Farm material, on the other hand, is defined inter alia, as seed,
fertilizer and pesticides.
None
of the above distinctions and definitions are given in the order that is sought
by the cross-applicant. Consequently,
the order sought does not have any legal basis as there is no existing law
which sanctions the cross-applicant's claim.
Sections
4 to 9 of the Acquisition of Farm Equipment or Material Act [Chapter 18:23]
further set out, in detail, the provisions for the acquisition of farm equipment
and farm material by the State/acquiring authority. In summary, the procedure
is the following. First, the equipment and material is identified by duly
authorized representatives of the acquiring authority who enter the farm with
the written authority of the acquiring authority for such purposes, and,
thereafter, compile an inventory of items found. Second, after identification,
the farm equipment and farm material is then valuated by a duly authorized
official. Third, after the valuation
process, the equipment or material is, subject to an agreement on the value and
the purchase of such, then compulsorily acquired and an acquisition order
issued. The owner may contest the valuation of the equipment or material.
Significantly,
section 10 of the Acquisition of Farm Equipment or Material Act [Chapter 18:23]
provides that any farm equipment or farm material acquired in terms of the
Acquisition of Farm Equipment or Material Act [Chapter 18:23] shall vest in the
State for the benefit of the land reform programme. The State is authorized to
dispose the property in any manner it deems fit for valuable consideration.
The
cross-applicant has not shown that any of the above-mentioned procedures have
been followed or that he is even authorized by the acquiring authority to make
such an application.
Accordingly, the cross-application is dismissed
with costs on the ordinary scale.
