CHEDA J: This is an
urgent application whose relief is couched in the following terms:-
“TERMS OF FINAL ORDER SOUGHT
That you show cause
to this Honourable Court why a final order should not be made in the following
terms:-
1)
That until such time as the ownership or right to occupy
the property known as Highfields Farm, in the district of Nyamandlovu, being
the remaining extent of Dlikosch (hereinafter “the farm”) is determined by a
court of competent jurisdiction and until such time as the Applicant is
lawfully evicted by due process of law and the applicant has exhausted all
legal remedies available to him, the respondents are interdicted from evicting
the applicant or from taking occupation of the farm and are ordered to allow
the Applicant to enjoy peaceful and undisturbed possession thereof. It is further ordered that the Respondents
are interdicted from interfering in any way of the farming operation carried
out by the Applicant or its directors, employees or servants or from entering
the farm or placing property or employees thereon (save as may be provided by
law).
2)
That in the event that by the time this order is
granted the Applicant has been evicted without due process of law or the Third
respondent has remained in occupation of the farm, then it is ordered that the
Third Respondent or any person occupying the farm through him, be and is hereby
evicted and the Applicant be restored to peaceful and undisturbed possession
thereof.
3)
That in the event that the appropriate officer of
Court is unable to affect the terms of this order on the third and forth
respondents then the first respondent is ordered to render all such necessary
assistance to the appropriate officer of court in executing such order.
4. That the respondents jointly and severally,
one paying the others to be absolved, pay the costs of this application.
INTERIM RELEIF GRANTED
Pending
determination of this matter, the Applicant is granted the following relief:-
1)
The respondents are interdicted from taking any steps
to evict the Applicant from the property described herein save in accordance
with an order issued by a court of competent jurisdiction.
2)
It is ordered and declared that until such time as the
relief set out in the final order is determined the Applicant and all those who
occupy the farm through him are entitled to remain in peaceful and undisturbed
possession of the farm and further entitled to continue farming operations on
the property and the third and forth respondents are interdicted from taking
any steps to occupy the farm either themselves or through any agent, servant or
employee or to hinder or disturb the Applicant in his occupation thereof. In the event that at the time of serving this
order upon him the third and forth respondents have remained in occupation of
the farm or any portion of the farm, either in person or through his agents,
employees or servants, then it is ordered that he immediately vacate the farm
and restore the applicant vacant possession thereof.
3)
It is further ordered that in the event of the first
respondent instituting a prosecution under the Gazetted Land (Consequential
Provisions) Act, [Chapter 20:28, against the applicant or any director, agent
servant or employee of the applicant then such prosecution be commenced by way
of summons
SERVICE OF PROVISIONAL ORDER
In terms of the
Rules of Court save in respect of the First respondent service may be made by
registered post in terms of Order 5 Rule 42.”
Applicant is a registered company which
carries on business in terms of the laws of Zimbabwe and carries out farming
operations in the Nyamandlovu area, Matabeleland North. Applicant is represented by Gary Denis
Godfery who deposed to a founding affidavit in this matter. It is his evidence that up to year 2000,
applicant operated five contiguous farms totalling 18000 hectares. This land was gazetted in 2000 by way of
Government notice number 509/2000.
Despite this process, applicant remained in occupation of the land up to
2007 when according to it, first respondent sympathized with its plight after
noticing that it had been left with only 200 hectares out of its original 18000
hectares holding. He expressed a view
that applicant should have been left with at least 1500 hectares since it was
in the low rainfall region of Matabeleland North. It further stated that first respondent undertook
to issue an offer letter to it, but, did not do so. No action was taken towards the finalization
of the land occupation process of the property in question until February 2009
when he was arrested and detained under the allegation of illegal occupation. However, the matter did not go to court as
the prosecutor declined to prosecute. Applicant,
therefore, continue to occupy and till the land to date.
However, on the 28th May
2010, applicant's farm was visited by members of the police, presumably under
the instructions of third respondent, they were accompanied by officials from
fourth respondent. They were looking for the deponent, but,
however, could not find him. They went
away and came back on the 31st May 2010, but, again could not find
him. It is alleged that they proceeded
to occupy the property and prevented workers from carrying on their daily duties. They further turned-off electricity supply
and cut-off water supply to staff on the farm and livestock. As a result of their actions livestock has
not been fed or watered.
In paragraph 22 of his affidavit he
stated:-
“The applicant has
no wish or intention to voluntarily vacate but there is immense pressure and I
am truly fearful that the police will act decisively in the face of any opposition. I am aware that a number of white farmers
have been detained under the most appalling conditions and indeed the police
have intimated that there will be no work allowed on the farm until (the
deponent) hands myself (sic) in”.
That Applicant is against occupation
of this property by respondent admits of no doubt as it is clear from the above
quotation by its representative.
All the respondents were served with
the urgent court application as per my directive of the 4th June
2010. Only fourth respondent has filed a
notice of opposition. Because of the
absence of an explanation by first, second and third respondents, I am unable
to comment on the reasons for their action.
Fourth respondent argued that applicant's continuous occupation of this
property is unlawful, as this is gazetted land and as such it is now state land. This fact admits of no doubt. It further argued that applicant is defiant
of the law as he ought to have ceased operations in terms of section 2 and 3 of
the Gazetted Land (Consequential Provisions) Act [Chapter 20:28].
The procedure in acquiring land as I
understand it, is that after the land has been gazetted it belongs to the
state. The sitting owner or occupier is
supposed to cease his operations within a total of 90 days after the land has
been acquired. Should he fail to vacate
the land he should be charged under the Gazetted Land (Consequential
Provisions) Act. Upon conviction, the
court is obliged to sentence him/her and issue an eviction order. In the absence of an eviction order by a
competent court, the owner/occupier cannot be evicted.
It follows, therefore, that no one
can not take over applicant's farm without a court order, as to do so amounts
to spoliation and as such is unlawful.
Equally unlawful is the occupation and the take-over of applicant's property
in order to induce Gary (the deponent) to surrender himself to the police. The police have a wide range of lawful means
of effecting a lawful arrest including the use of minimum force to achieve
their objective.
In the present matter their actions
are understandable though unlawful. They
are faced with a situation where a suspect is evading and avoiding arrest, this
on its own is frustrating. What is even
more frustrating is the fact that while he does not voluntarily surrender himself
to the police for questioning, he decides to avail himself to his legal
practitioners only and no effort is made by his legal practitioner to bring him
to the police station. Such actions by
the legal practitioners borders on an attempt to defeat the course of
justice. It is, therefore, improper.
Gary's actions are not the actions
of a law abiding citizen. In his
affidavit quoted above he makes it clear that applicant does not intend to
voluntarily surrender the farm to its owner, that is, the state. It is clear therefore that applicant through
Gary is not prepared to be governed by the laws of the land, hence his
defiance. He is not prepared to be
questioned by the police. The laws of
this country and indeed all over the world require everybody to co-operate with
the law enforcement agents. In casu, we have a suspect who prays for an
order preventing the police from carrying out investigations where a possible
offence has been committed. This is
absurd, what is even more absurd is that his lawyer seems to be ill advising
him to avoid questioning by the police.
Advocate Cherry argued that the police have been arresting white farmers
during weekends without charge. While I
am not privy to such arrests, the correct position is that Gary or anyone for
that matter is not exempted from arrest, by virtue of his race. His race is not by any stretch of imagination
superior to other races. This,
unfortunately is his thinking. Police and prison cell walls recognise no colour,
therefore, that argument is untenable.
The police are within their right to arrest Gary wherever and whenever
they find him. The rule of law demands
equal treatment before the law irrespective of colour.
Police should not occupy the farm so
as to frustrate its operations, but, should do so for the purposes of
apprehending Gary who seems to be eluding them.
In paragraph 3 of the interim order applicant prays that in the event
that first respondent decides to proceeds against Gary, they should do so by
way of summons. While there is indeed a provision for the police
to do so, I find it unreasonable for this court to prescribe the method of
arrest in the circumstances. Infact it
should be borne in mind that the method of arrest is the domain of the
police. To prescribe that police should
have a different way of arresting white farmers is to brazenly advocate and
promote racism which is unconstitutional.
These courts can not be used to
promote such illegalities. The police
cannot be prevented to carry out their duties in a manner they deem fit.
The application succeeds
and the following order is made:-
1. That
respondents be and are hereby interdicted from taking any steps to evict the Applicant
from the property being Highfields Farm in the District of Nyamandlovu being
the remaining extent of Dlikosch (hereinafter referred to as “the farm”) save
in accordance with an order issued by a court of competent jurisdiction.
2. That
applicant and all those who occupy the farm through it are entitled to remain
in peaceful and undisturbed possession of the property and further entitled to
continue farming operations on the property until they are ordered to cease
such occupation and/or operations by a court of competent jurisdiction.
3. That
second and third respondents are entitled to remain on the property for the
purposes of interviewing or arresting Gary or any such other person they are
interested in, and
4. That
the respondents jointly and severally, one paying the others to be absolved,
pay the costs of this application.
Cheda
J................................................................
Webb,
Low and Barry, applicant's legal practitioners
The Chief Land Officer
Matabeleland North (Officials) for the 4th
respondent
