CHIWESHE
JP: The applicant seeks a spoliation
order in the form of a provisional order couched as follows:
“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)
The forcible ejectment from Wolverhampton Farm of the
applicant by the first to third respondents and all those acting in concert
with them is unlawful.
(b)
The cutting of the applicant's gum plantation and sale
of the timber by the first respondent and those acting through him is unlawful.
(c)
The fourth respondent shall do all that is necessary to
give effect to or enforce the terms of the above orders.
(d)
Respondents shall pay the costs of this application
INTERIM RELIEF
GRANTED
Pending
finalization of the matter, the following relief is granted;
(i)
First to third respondents and all those acting through
or in concert with them claiming occupation or in possession of the applicant's
house on Wolverhampton farm, Chipinge and shall restore possession and
occupation of the house to the applicant who is hereby entitled forthwith to
resume occupation of the house and to continue his farming operations without
hindrance, interference or obstruction.
(ii)
First respondent and those acting through him shall not
harvest applicant's gum plantation and shall not sell the timber.
(iii)
If necessary fourth respondent shall do all that is
necessary to enforce the terms of this order.
SERVICE OF
PROVISIONAL ORDER
1.
Service of this application and provisional order shall
be made on the respondents by applicant's legal practitioners and/or the Deputy
Sheriff, Harare.”
According
to the applicant on 13 June 2010 him and his wife were at home at Wolverhampton
Farm, Chipinge District when first, second and third respondents came to their
home in a motor vehicle. The three respondents
were in the company of some youths. The
applicant says the respondents ordered him and his wife to pack their belongings
and vacate the house. The applicant
refused to vacate saying he was due to attend a court case at the Chipinge
Magistrates Court the following week (I understood it to be the case in which
he would have been prosecuted for refusing to vacate gazetted land). The respondents would not listen to any of
the applicant's pleas and in fear for their safety the applicants packed what
they could and left the house at around midnight.
Respondents
demanded the keys to the house and these were duly handed to them. The applicant says they were in the time
given unable to remove most of their property including livestock, farm
equipment, tractors, implements and household effects. The applicant says before he left, the
respondents forced him to sign a note stating that he had left the house
empty. The applicant says that since
their departure no one is looking after their property including crops and
livestock. Further he states that the
first respondent is already cutting down gum trees on the farm and selling
same.
The
second and third respondents failed to attend despite service of the notice of
set down having been effected, nor did they file any papers. The fourth respondent is not opposed to the
grant of the order sought and will abide by the court's ruling.
The
first respondent has filed a notice of opposition and an opposing
affidavit. In that affidavit he states
that he is a business person running a bakery and two shops in Chipinge. He is a lawful beneficiary of the land reform
programme in terms of an offer letter issued to him by the acquiring authority
on 10 February 2009. He has
been allocated subdivision 19 of Wolverhampton farm in Chipinge measuring one
hundred and fifty hectares. He is one of
nineteen new farmers who were allocated land on the farm. He states that most of the new farmers have
been taking up their plots since 2004.
He has moved onto the fields within the boundaries of his allocated
plot. He denies the allegations of
spoliation leveled against him and specifically denies committing any acts of
looting and theft as alleged. He says
that the applicant removed his belongings from the farm house on 13 June 2010
and left other property in the hands of one Magaisa, applicant's clerk. He says he has duly moved onto the farm
fields which the applicant had not been using in the last three years. The fields had been abandoned and therefore
the question of spoliation does not arise.
He says he and his employees have been on the fields since beginning
of the 2009-2010 farming season. He denies occupation of the farm house and
says the second and third respondents told him that the applicant had left
voluntarily. He produced a note signed
by the applicant to that effect. He
denied cutting down applicant's gum trees and blames the other new farmers
resettled on the farm for doing so. He
further states that this application has been filed for purposes of delaying
the applicant's trial at the magistrates court set down for 30 June 2010. He produced his offer letter duly signed by
the Acquiring Authority.
In
addition, he produced an official map of the farm indicating that the farm is
on the Model A2 type of resettlement and showing the subdivisions made in
pursuance of that objective. The
subdivisions are numbered one to eighteen and the hectrage on each of them
indicated. There is no subdivision 19. The only plot measuring 150 hectares is plot
17. I assume that is the plot the first respondent is referring to. That might suggest that the offer letter is
defective in so far as it indicates a plot number not reflected on the
resettlement subdivisions. Both the
applicant and the first respondent say the applicant's house and the first
respondent's fields are on the same plot, the one that measures one hundred and
fifty hectares. I will assume that to be
plot number 17 on the map.
(Papers received
from both the applicant and the first respondent during the course of writing
of this judgment confirm my construction of the history of the farm and the
identification of subdivision 17 as the property to which the present dispute
relates. I am indebted to both counsel
for their prompt response in that regard)
During
the hearing of the matter Mr Maanda
for the applicant advised that the criminal charge pending at Chipinge
Magistrates Court against the applicant had been withdrawn before plea. I have not seen official confirmation of that
development. Assuming that to be the case, it is a development that is
consistent with what the applicant told the court so far as the history of the
farm is concerned. He says that the subdivisions on the farm are a result of
agreement between him and the acquiring authority in terms of which the rest of
the farm would be offered to new farmers and he would retain that portion of
the farm on which the main house and outbuildings are located, measuring one
hundred and fifty hectares. I assume
this portion to be plot number 17 erroneously referred to as subdivision
nineteen on the first respondent's offer letter.
Secondly
and also consistent with the history of the farm, new farmers have been taking
up the rest of the plots since 2004. The
applicant has not raised any issues against them and appears to be in peaceful
co-existence with them.
The
problem seems to arise with the arrival of the first respondent, armed with the
offer letter dated 10 February 2009. If the offer letter, as I presume, relates
to the same subdivision on which the applicant's house is situated and in
respect of which the applicant, given the history of the farm, believes to have
been specifically reserved for his use and occupation, then conflict is bound
to arise.
It
appears to me then that the applicant, prior to the arrival of the first
respondent and more dramatically before the events of 13 June 2010, was in
peaceful and undisturbed possession of plot 17 measuring one hundred and fifty
hectares. It is the respondents who,
without due process, have sought to despoil the applicant's possession. They
were not even prepared to wait for the outcome of the criminal proceedings
against the applicant scheduled for 13 June 2010.
I
would dismiss the first respondent's defence on the grounds that the
applicant's version of events is more probable and consistent with the history
of the farm. I believe the first
respondent was directly involved in the events of the thirteenth of June
2010. In any event by his own admission
the first respondent is occupying the same plot as the applicant. The applicant has not been evicted from this
plot through due process of law and therefore the first respondent cannot take
up the plot without the applicant's consent.
To say that he has not been involved in the removal of applicant from
the house and is therefore not to blame is no defence to the present
application. The fact remains that he is
on that subdivision occupied by the applicant.
It does not matter whether he has chosen to confine himself to the
fields or any other portion of the applicant's subdivision.
Accordingly,
I reject the first respondent's defence to this application. As for the second and third respondents an order
will be made against them in default.
The fourth respondent does not oppose the application or any order that
the court may deem appropriate. Given
the history of the farm it would be imprudent to grant an order covering the
whole farm. Plot 17 measuring 150
hectares is the subject matter of this application. The rest of the farm is occupied by persons
other than first, second and third respondents.
Those persons have not been cited as respondents and it would be
improper to bring them under the purview of the present order. In any event I get the impression that the
applicant has agreed with the allocations made in respect of the rest of the
new farmers hence the peaceful co-existence.
The
provisional order is granted in the following terms:
That you show cause to this
Honourable Court why a final order should not be made in the following terms.
TERMS OF FINAL ORDER SOUGHT
(a)
The forcible ejectment from subdivision 17 of
Wolverhampton Farm of the applicant by the first to third respondents and all
those acting in concert with them is unlawful.
(b)
The cutting of the applicant's gum plantation and sale
of the timber by the first respondent and those acting through him is unlawful.
(c)
The fourth respondent shall do all that is necessary to
give effect to or enforce the terms of the above orders.
(d)
Respondents shall pay the costs of this application
INTERIM RELIEF
GRANTED
Pending
finalization of the matter, the following relief is granted;
(i)
First to third respondents and all those acting through
or in concert with them claiming occupation or in possession of the applicant's
house on subdivision 17 of Wolverhampton
farm, Chipinge, shall restore possession and occupation of the house to the
applicant who is hereby entitled forthwith to resume occupation of the house
and to continue his farming operations on subdivision 17 of Wolverhampton farm (measuring
one hundred and fifty hectares) without hindrance, interference or obstruction.
(ii)
First respondent and those acting through him shall not
harvest applicant's gum plantation and shall not sell the timber.
(iii)
If necessary fourth respondent shall do all that is necessary
to enforce the terms of this order.
Maunga, Maanda & Associates, applicant's legal practitioners
Mutamangira & Associates, first respondent's legal
practitioners
Civil Division of the
Attorney General, for second to third respondents
