BHUNU
J: The applicant is the holder of an offer letter in respect of subdivision 8
of Galloway in the district of Mazowe in Mashonaland Central
Province. He is involved
in a vicious land dispute with the first four respondents hereinafter referred
to as the respondents.
None
of the respondents has an offer letter relating to plot 8. The second and third
respondents claim occupation through one Gweshe the holder of an offer letter
to plot 9.
On
17 February 2011 the applicant obtained default summary judgment against the
respondents under Case Number HC 5434/10. The respondents subsequently filed an
application for rescission of judgment and the matter is yet to be determined.
The respondents then filed an application for stay of execution pending the
determination of the application for rescission of judgment. That application
is yet to be determined as well. The applicant has now filed an application for
leave to execute pending the finalization of the respondents' applications.
The
respondents resisted this application on the basis that the applicant has no locus standi and that the matter is pending before MTSHIYA J in the sense
that the issues to be determined in an application for stay of execution are
essentially the same as those to be determined in an application for leave to
execute pending determination of other proceedings.
During
the course of the hearing it was conceded that the applicant has locus standi in that he is the holder of
an offer letter to the disputed land. During the course of the hearing it
emerged that the dispute boils down to a boundary dispute. On the face of it,
it appears to me that those respondents who claim occupation through another
cannot engage in a boundary dispute with the applicant without seeking
protection from their principal through whom they claim occupation It also
appears to me that the respondents who hold offer letters for other plots other
than plot 8 are in a precarious position regarding their entitlement to plot 8
or portions there of.
There
is a presumption of validity of a government document regular on its face until
it is lawfully invalidated. Thus the applicant's offer letter must be deemed
valid until it is shown otherwise. The offer letter therefore confers rights of
unimpeded occupation on the applicants until the courts have determined
otherwise. The courts generally lean in favour of the enjoyment of rights
rather than their extinction. The matter would have been different had the
respondents either individually or collectively been holders of an offer letter
for the disputed piece of land.
I
consider land dispute cases to be urgent because if not resolved they disrupt
production on the land upon which the creation of wealth and the economic
survival of the nation is based. While I accept that the issues to be
determined at the hearing for stay of execution are essentially the same as
those to be determined in this application for leave to execute, it is
necessary to issue an order to facilitate peace and productivity on the
disputed land pending the determination in the pending proceedings.
As
the applicant is already in possession of a valid judgment which has not been
upset at this stage he is entitled to temporary relief pending MTSHIYA J's
determination In Case Number 2158/11. In coming to that conclusion I am mindful
that the law places a heavy onus on the respondents to convince the Court that
they are entitled to stay of execution. See
Trainos Madaka v Rodney H B – 116-89. The remarks of DUMBUTSHENA
AJP as he then was in the case of Chibanda
v King 1983 (1) ZLR 116 fortifies my position. In that case the learned
Judge observed that,
“It must be
borne in mind that if the Court were to extend mercy, it will be doing it at
the expense of a litigant who has already established in Court his right and
title to what is being claimed. Such mercy should rather be sought in the
action itself before judgment is given, not afterwards.”
The justice of the case therefore, demands that the applicant be granted
interim relief pending the judgment of MTSHIYA J. It is accordingly ordered:
1.
That pending the judgment of MTSHIYA J in Case number
2158/11 the respondents be and are hereby ordered to vacate plot 8 of Galloway in the district of Mazowe in Mashonaland central
Province.
2.
Costs are to be costs in the cause.
I Murambatsvina, Legal Practitioners, applicant's legal practitioners
Antonio &
Associates, defendants' legal practitioners
