On
the merits, the respondents argued that the applicant does not have any prima facie right in that the respondents were working on “State
land” acquired on 14 November 2000. It was further submitted that on 2
August 2006, the Minister of Local Government, Public Works and National
Housing issued an offer letter to ...
On
the merits, the respondents argued that the applicant does not have any prima facie right in that the respondents were working on “State
land” acquired on 14 November 2000. It was further submitted that on 2
August 2006, the Minister of Local Government, Public Works and National
Housing issued an offer letter to Okuhle Housing Consortium authorizing it to
service and develop residential Stands on the land. The respondents
produced an Acquisition Order in terms of the Land Acquisition Act [Chapter
20:10] dated 14th November 2000. This Order authorized the City
of Bulawayo to acquire the “Western Potion of subdivision L of the Helenvale
Block measuring approximately 670 hectares as depicted on drawing number TPA
5869 being part of a farm commonly known as Denver Farm held under Deed of
Transfer 2264/85 in extent 1237 2717 hectares.”
The
effect of this Order is that the applicant was left with 567.271 hectares being
the Remaining Extent. The respondents insisted that they were not
surveying and selling Stands from this portion of the farm. Rather, they
were restricting their operations to the 670 hectares acquired by the City of
Bulawayo.
They,
however, did not produce any authority to demarcate and sell that land to third
parties.
The
applicant's counsel then sought a postponement in order to consider the Acquisition
Order and its effects on its application. The request was granted and the
matter was postponed to the 2nd of June 2014.
On
this date, counsel for the applicant submitted that the applicant has title to
the property held under Deed of Transfer number 2264/85 in the name Gamange
(Pvt) Ltd. However, its rights are subject to an order granted by consent
confirming the acquisition by the City of Bulawayo of 670 hectares after
payment of compensation. The remaining extent, measuring 567.2717 hectares,
belongs to Gamange (Pvt) Ltd and is known as the Remaining Extent of
Subdivision L of Helensvale Farm. The applicant contended that the
respondents are working on this remaining extent which has not yet been
acquired by the State in that the letter dated 9 August 2006 simply exhibits an
intention to acquire this land but it is not in itself an Acquisition Order.
Counsel for the first and second
respondents
persisted
with his submission that the respondents were working on 670 hectares belonging
to the City of Bulawayo and not surveying the applicant's land. It became
clear to the court that this dispute could only be effectively resolved through
an inspection of the area in dispute. Both legal practitioners agreed with the
court and the following order was issued by consent:
“Accordingly,
in terms of Rule 246(1)(a)(b) of the High Court Rules 1971, I consider it
necessary that the following steps be taken by the parties and their legal
practitioners, assisted by officers from the Surveyor General's Office and
Department of Town Planning from the City of Bulawayo.
1)
Carry out an inspection of the area in dispute in order to ascertain the extent
and precise boundaries of the land acquired by the Bulawayo City Council under
Acquisition Order dated 20 November 2000.
2)
Carry out an inspection of the Remaining Extent and establish its dimensions
and boundaries.
3)
Establish, through physical inspection, the precise location of Stands that
have been or are being demarcated by the respondents in relation to the two
pieces of land mentioned in (a) and (b) above.
4)
Officers from the Surveyor General's Office and Town Planning Department of the
Bulawayo City Council must submit their findings on oath.
5)
Both legal practitioners shall present such further argument as is necessary.
6)
This exercise must be carried out within 7 days from the date of this order.
7)
Matter be and is hereby postponed to the 13th June 2014.”
The
Town Planning Department and the Surveyor General's Office submitted their
reports in affidavit form. The two reports confirmed that the first and second
respondents were carrying out activities on the remaining extent belonging to
the applicant.
Counsel for the applicant submitted that since
the findings of the officers are to the effect that the first and second
respondents are not working on land acquired by the City of Bulawayo, the Acquisition
Order by the Bulawayo City Council becomes irrelevant in these
proceedings. He further submitted that the applicant is entitled to the
relief sought in the draft order.
Counsel for the first and second
respondents
did a
somersault and admitted that the first and second respondents were working on
the applicant's land. He, however, rather surprisingly insisted that they
had authority to work on the land by virtue of the offer letter issued by the
Minister of Local Government. Counsel for the third, fourth and fifth
respondents filed an opposing affidavit by the fourth respondent. The
affidavit, in paragraphs 3 and 4, reads as follows:
“Upon
discussing this matter with the Minister of Lands and Rural Resettlement,
Honourable Douglas Mombeshora, his Deputy, Honourable Tendai Savanhu, and the
Permanent Secretary, Mrs Tsvakwi, I was advised that the Government has
since decided to compulsorily acquire the land in question. I was made
to understand that the Ministry of Lands, acting upon instructions from the
Ministry of Local Government, Public Works and National Housing, has since
commenced the compulsory acquisition process of the whole of subdivision L of
Helenvale Block measuring 1237.2717 hectares. In that meeting, Mrs
Tsvakwi was then instructed by the Minister of Lands to write a letter to the
Registrar of this Honourable Court advising the court of this
development. I attach hereto marked “A” a copy of the letter from Mrs
Tsvakwi for ease of reference.
4.
In view of the above development, I verily believe that the present
application has been overtaken by events and the relief sought by applicant is
no longer capable of being granted. I am of the opinion that if
applicant is disgruntled by the latest development in the matter, it
should direct its concerns or objections to the Ministry of Lands and Rural
Resettlement and not the respondents currently before the court.”…,.
Both,
counsel for the first and second respondents and counsel for the for the third,
fourth and fifth respondents indicated
that the process of compulsorily acquiring the applicant's remaining extent has
commenced in that a notice to that effect has appeared in the Chronicle of
Friday the 13th June 2014 – the day the matter was being heard….,.
The
requirements for an interdict are well established. They are –
(i)
A clear right;
(ii)
Injury actually committed or reasonably apprehended; and
(iii)
The absence of similar protection by any other ordinary remedy – see Bluebell Inc v Lennard Clothing Manufacturers
(Pvt) Ltd 1984 (1) ZLR.
In casu, it is beyond question
that the applicant has established a clear right to the land in issue. The
applicant is the registered owner of the land. The State has expressed a
mere intention to acquire, or, at the very least, has commenced the process of
acquiring the land in question. The process of acquiring land in terms of
the Land Acquisition Act is well-known. It is tedious and where the State
is successful, the end result is an Acquisition Order. It is only after
such an order is issued that land is lawfully acquired. The Permanent
Secretary confirmed that currently the land has not yet been
acquired. Therefore, this land does not belong to the State but to the
applicant. In that respect, the fourth respondent's view that the relief
sought by the applicant is no longer capable of being granted is erroneous and
legally untenable in that it renders the provisions of the Land Acquisition Act
and the Constitution of Zimbabwe nugatory.
It
is an undeniable fact that the applicant's right is under threat. The
evidence has shown beyond a shadow of doubt that the first and second
respondents are currently working on the applicant's land without its
consent. They are busy subdividing that land into smaller pieces and
selling those pieces to third parties. This, they are doing in broad
daylight - disregarding the applicant's rights. The first and second
respondents have, and continue, to cause actual harm to the applicant.
As
regards irreparable harm, it is crystal clear that the first and second
respondents are altering the applicant's land without its consent. They
are selling it to other people. The applicant's right to use its land in
the manner it chooses has been seriously prejudiced by the respondents'
conduct. There is obviously going to be huge financial loss to the
applicant. Also, the applicant has been exposed to imminent litigation
against those third parties who are buying land from the first and second
respondents.
That
there is no alternative remedy available to the applicant as has been clearly
demonstrated by the evidence. The applicant tried to dialogue with the
fourth respondent to no avail. It then unsuccessfully sought assistance
from the police.
For
these reasons, I am impelled to conclude that the applicant has fulfilled all
the requirements for an interdict.
Accordingly,
there shall be a provisional order in the following terms:
Pending
the return date of this matter, the applicant be granted the following relief:-
1.
The 1st, 2nd and 3rd respondents be and are
hereby indicted from advertising for the sale of Subdivision L of Helenvale
Block or any portion thereof, from entering into any further agreement of sale
in respect of the land or any portion thereof, from entering the land without
the applicant's permission or from otherwise disturbing applicant's peaceful
possession of the land.
2.
This order shall not preclude the applicant or any other present legal occupier
of the farm from holding, occupying or using the land including all
improvements thereon and from continuing all operations until the finalization
of this matter.
