BHUNU
J: The first two respondents were issued
with offer letters in respect of subdivision 7 and 10 of The Grove in the
district of Goromonzi under the Land Reform and Resettlement Programme (Model
A2, Phase 11) scheme respectively.
On
25 November the fifth respondent wrote to both respondents withdrawing both
offer letters. He then offered the same pieces of land to the applicant. The
parties then got embroiled in land disputes concerning the two pieces of land.
The
dispute spilled into the courts with the result that the first and second
respondents obtained a provisional order from this court on 19 November 2009 in
the following terms:
“TERMS OF THE FINAL ORDER SOUGHT
That you show
cause to this Honourable Court why a final order should not be made in the
following terms-
(a) That the respondents or any person acting on their
behalf or for the purpose of furthering the interests of the respondents be and
is hereby ordered to refrain from in anyway interfering with the first
applicant's possession or occupation of subdivision 7 of Grove Farm in
Goromonzi situate in the District of Mashonaland East Province and the second
applicant's possession of subdivision 10 of Grove Farm, Goromonzi situate in
the district of Mashonaland East and shall be so interdicted and or restrained
from any such future interference save as may be authorized by a binding and
operational order of a court of competent jurisdiction.
(b) The first, second and
third respondents shall pay the costs of suit (if they oppose this
application).
INTERIM RELIEF AMENDED
That pending the
finalization of this matter the respondents are restrained and interdicted as
follows:-
(a) The first respondent be
and is hereby interdicted and restrained from forcibly evicting the first
applicant from subdivision 2 of Grove farm, Goromonzi District of Mashonaland
East and the second applicant from subdivision 10 of Grove Farm, Goromonzi
East;
(b) That the first
respondent be and is hereby interdicted from carrying out farm operations on
the said subdivisions of Grove farm occupied by the two applicants;
(c) The first, second and
third respondents or any other person(s) acting on their behalf be and are
hereby interdicted and restrained from doing any acts likely to interfere with
the two applicants' peaceful possession and or occupation of the subdivisions
on Grove farm occupied by the applicants in terms of the offer letters dated 1
October, 2008 without due process of the law after a complaint being raised on
the acquiring authority; and
(d) The second and third
respondents or any police officer acting on behalf of the respondents are hereby
interdicted and or restrained from threatening to arrest and detain or
arresting and detaining the applicants for carrying out lawful farming
activities on the applicants' respective plots on Grove farm without due
process of the law after a complaint has been raised by the acquiring authority
SERVICE OF THE PROVIOSIONAL ORDER
(1)
Leave be and is herby granted to the applicants' legal
practitioners to serve a copy of this order on the respondents.”
Having
obtained the above provisional order on 19 November 2009 the first two
respondents have to date done nothing in pursuit of the final order and it
appears that they have no intention to set down the matter any time soon.
The
applicant has submitted that both respondents have no intention to set down the
matter because they know that they have no locus
standi and that their occupation of both pieces of land is unlawful. The
applicants have pointed to s 3 (1) of the Gazetted Land (Consequential
Provisions) Act which prohibits the occupation or use of gazetted land without
lawful authority in the form of a permit, offer letter or lease.
It
not being disputed that the applicants' offer letters have since been withdrawn
by the acquiring authority there can be no legal basis upon which the first and
second respondents can continue to hold, occupy or use the land. I am therefore
persuaded that the two respondents are merely using the provisional order to
prolong their unlawful occupation and use of the land.
Rule 236 (3)
provides that:
“Where the
respondent has filed a notice of opposition and an opposing affidavit and
within one month thereafter the applicant has neither filed nor set down the
matter for hearing, the respondent, on notice to the applicant, may either-
(a) Set down the matter for hearing in terms
of r 223.
(b) Make a chamber
application to dismiss the matter for want of prosecution, and the judge may
order the matter to be dismissed with costs or make such other order on such
terms as he thinks fit.”
In
this case it is quite apparent that the first and second respondents' failure
to set down the matter is calculated to perpetuate an illegality. That type of
behaviour amounts to an abuse of process which cannot be tolerated by the
courts. That being the case the ends of justice can only be met by dismissing
the application in case number HC 5564/ 09.
It is accordingly ordered:
- That the application in case number HC 5564/09 be and
is hereby dismissed for want of prosecution.
- That the first and second respondents pay the costs
of this application
Mlotshwa & Company, applicants'
legal practitioners
Chinamasa, Mudimu
& Dondo, 1st and 2nd respondents'
legal practitioners
