The first applicant is Dodhill (Pvt) Ltd, a company with limited liability duly registered in accordance with the laws of Zimbabwe. The second applicant is the director and shareholder of the first applicant.The first respondent is the Minister of Lands and Rural Resettlement, cited in his capacity as the acquiring ...
The first applicant is Dodhill (Pvt) Ltd, a company with limited liability duly registered in accordance with the laws of Zimbabwe. The second applicant is the director and shareholder of the first applicant.
The first respondent is the Minister of Lands and Rural Resettlement, cited in his capacity as the acquiring authority and is responsible for the administration and implementation of the Land Acquisition Act [Chapter 20:10] and other allied pieces of legislation currently in force.
The second respondent is Nyasha Chikafu who is, in terms of the Land Acquisition Act [Chapter 20:10], the beneficiary of subdivision 1 of Dodhill in Chegutu District, Mashonaland West Province; which, incidentally, the applicants claim to have legitimate right over.
For purposes of this judgment, I will refer to the property in question as Dodhill Farm.
THE BACKGROUND
From the papers filed of record, coupled with the submissions made by the two legal practitioners representing the applicants and the second respondent, there are conflicting perceptions as regards the current status of Dodhill Farm.
The applicants feel very strongly that annexure '2' confirms their legitimate possession of the property.
Annexure '2' is a court order which was consented to at a time when the other portions of the property were voluntarily conceded to the State for purposes of agricultural resettlement following the formal gazetting of the applicants farm in January of 2005.
The second respondent's position is that following the promulgation of the constitutional amendment number 17/05, Dodhill Farm was properly allocated to her by the first respondent.
I accept the position adopted by the second respondent, that, annexure '2' was overridden by the subsequent promulgation of constitutional amendment number 17/05 which culminated in the introduction of, inter alia, section 16B(2)(a)(i) of the Constitution which conferred the ownership of the farm in question firmly in the hands of the first respondent.
I will therefore proceed on the basis that Dodhill Farm was indeed allocated to the second respondent.
APPLICANTS CASE
The applicants case is predicated upon the mandament van spolie.
Their argument is, that, on the evening of Thursday 5th day of February 2009, the second respondent, without the applicants prior knowledge and consent, summarily entered Dodhill Farm and set up a camp near the main security gate housing the applicants residence, barns, and other buildings. A tent was put up as well as a makeshift shelter. The allegations went further to say, that, the second respondent introduced or brought with her some youth who camped in the premises.
On 20 February 2009, the second respondent summarily, and without the consent of the applicants, commenced ploughing in the applicants fields where tobacco had just been harvested and on which the applicants had intended to plough an onion crop, in conformity, with the applicants programme of rotational cultivation.
The applicants outlined other incidents which amounted to the second respondent's summary occupation of Dodhill Farm.
The applicants sought the services of the police to have the status quo ante restored - but to no avail.
According to the applicants, when the second respondent was confronted, she said she had a right to occupy Dodhill Farm on the strength of her offer letter, a copy of which is marked annexure '3' in the papers filed of record.
THE SECOND RESPONDENT'S CASE
The second respondent's response to the allegations of unlawful dispossession were basically three-pronged, viz;
(i) Lack of urgency in this matter;
(ii) Lack of locus standi on the party of the applicants in bringing this application; and
(iii) In the alternative, a complete denial of the allegations levelled against her by the applicants.
In order for one to effectively deal with the second respondent's two main defences, one must consider whether the allegations by the applicants are true or not. If they are not, the two main defences would fall away.
If the allegations are found to be true, the court must then proceed to deal with those allegations in so far as they impact on the defences of lack of urgency and locus standi on the applicants.
THE ALLEGATIONS BY THE APPLICANTS
In her notice of opposition, the second respondent has emphasized the point that the ownership of Dodhill Farm now vests in the first respondent and the fact that her offer letter authorizes her to stay on the farm in question to carry out agricultural activities.
I wish to re-affirm the accepted legal position, that, in applications for a spoliation order, the question of ownership of the property in issue does not arise. As I will demonstrate later in this judgment, lawfulness to possession of the farm is equally irrelevant.
There are numerous aspects which can be gleaned from the second respondent's notice of opposition which confirm the allegations levelled against her, not only on a balance of probabilities but beyond reasonable doubt.
(i) Firstly, despite her attempt to paint the picture that the applicants consented to her occupation of the farm, the second respondent gives a completely different picture when she states:
“…,. Applicants seem to be complaining, that, I should have sought their permission first before ploughing and that they wanted to plant onions on the land which I ploughed. I am advised, which advise I accept, that, I have the lawful authority to carry out agricultural activities at the farm in the form of an offer letter. Since applicants do not own the farm, there is no reason at all for me to seek their permission to do that which is lawful.
In any event, the applicants have no right whatsoever to continue carrying out agricultural activities at the farm since doing so amounts to a criminal offence. I intend to allow applicants to finish harvesting their crops before I commence to prepare the land…,.”…,.
In my view, the above averments confirm the point made by the applicants, that, the second respondent simply moved onto Dodhill Farm without their consent, because, in her view (of course as advised by her counsel), the applicants have no right to be on the farm.
It is inconceivable, that, given her perception of the law, as advised by her counsel, the second respondent would have sought the consent of the applicants before occupying the disputed property.
Further, in her affidavit, the second respondent confirms, that, there were fights between her own employees and those of the applicants which culminated is some employees being arrested by the police from Chegutu.
If the second respondent had occupied the farm in question by consent there would have been no cause to have such running battles on the farm between the two groups of employees.
All in all, I am satisfied, that, a cursory perusal of the second's respondent's affidavit lends credence to the allegations raised by the applicants. I have absolutely no doubt in my mind, that, the second respondent acted in the manner complained of by the applicants....,.
LOCUS STANDI
The issue of locus standi on the part of the applicants cannot be looked at in a vacuum. It must be looked at in the light of the legal position governing the principle of the mandament van spolie.
THE LEGAL POSITION
There can be no doubt, that, spoliation, as a remedy, has its core value or objective, protection to possession of property against unlawful dispossession.
This is a remedy that has been recognized in our jurisdiction and beyond for over decades.
In dealing with the principles of spoliation, I find the views of HERBSTEIN J quite apposite when the learned judge stated:
“…,. Two allegations must be made and proved, namely;
(a) That applicant was in peaceful and undisturbed possession of the property; and
(b) That the respondent deprived him of the possession forcibly or wrongfully against his consent.”
See Bennet Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230E…,.
In Amler's Precedents of Pleadings, 3rd Edition LTC HARM and JH HUGO, Butterworths…, it is stated:
“Unlawfulness in this context means, a dispossession without plaintiff's consent or due legal process.”
This time honoured principle of our law has been enunciated in a plethora of cases in our jurisdiction and beyond: see, for example; Nino Bonino v De Lange 1906 TS 120…,.; Silo v Naude 1929 AD 21; Mutsotso and Others v Commissioner of Police and Anor 1993 (2) ZLR 329 (H); Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H).
In the classic and leading case of Nino Bonino v De Lange 1906 TS 120 INNES CJ…, had this to say:
“It is a fundamental principle, that, no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the court will summarily restore the status quo ante, and will do that as a preliminary to any enquiry or investigation into the merits of the dispute.”
In Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H) REYNOLDS J remarked as follows:
“Lawfulness of possession does not enter into it. The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these objectives, it is necessary for the status quo ante to be restored until such time as a competent court of law assesses the relative merits of the claims of each party….,. The lawfulness or otherwise of the applicants possession of the property does not fall for considerations at all. In fact, the classic generalization is sometime made, that, in respect of spoliation actions…, even a robber or thief is entitled to be restored possession of the stolen property.”…,.
Counsel for the second respondent passionately argued, that, the applicants had no locus standi to bring an application for spoliation.
The main thrust of his argument was, that, because the applicants had exceeded the 45 and 90 day statuary maximum periods which allows them to remain on the farm and the homestead respectively (section 3 of Gazetted Land (Consequential Provisions) Act [Chapter 20:28]), therefore, the applicants must not be protected by this court.
In counsel's view, which borrowed heavily from the position adopted by my learned brother UCHENA J in the case of Andrew Roy Ferrera and Katambora Estates (Pvt) Ltd v Bessie Nhandara HC3995/08, if this court accepted locus standi on the part of the applicants, then, the court would be sanctioning an illegal stay on Dodhill Farm by the applicants since the applicants are occupying that farm in complete violation of the law.
There was also an attempt by the second respondent's counsel to seek to rely on the decision by their Lordships in one of the much celebrated land cases in this country, viz Airfield Investments (Private) Limited v (1) The Minister of Lands, Agricultural and Rural Resettlement; (2) The Minister of Justice, Legal and Parliamentary Affairs; (3) The Member in Charge, Chegutu Police Station; (4) The Attorney General of Zimbabwe; and (5) R Sango SC36-04.
Simplified, the argument, as put forward by the second respondent's counsel, was that because the applicants hands are tainted with their illegal occupation of Dodhill Farm, the court could not entertain them let alone grant them an order that would perpetuate their continued stay on the farm.
The applicants counsel held a different view.
She argued, that, once the applicants possession is established and there is proof of dispossession without reference to due process, the applicants locus standi, is thereby established.
I agree with this position.
The position adopted by the second's respondent's counsel is fraught with so many challenges.
Firstly, his approach would be an attempt to re-define the very basic requirements of a mandament van spolie which is not concerned with the legality or otherwise of the possession itself: see the remarks of REYNOLDS J in Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H).
I am fully cognisant of other decisions from South Africa which have attempted to shift from the orthodox approach in dealing with spoliation matters.
One such matter is the case of Parker v Mobil Oil Southern Africa (Pvt) Ltd 1979 (4) SA 250…, where VAN DEN HEEVER J stated as follows:
“Moreover, the rule that goods dispossessed against the will of the possessor must be restored forthwith, is not an absolute one.
The reason for the rule is, according to the authorities, certainly not because the fact of possession is elevated to a right stronger than plenum dominimum, but, to discourage breaches of the peace by self help in the case of disputes.
Despite generalizations that even the thief or robbers entitled to be restored to possession, I know of no instance where our courts, which disapprove of metaphorical grubby hands, have come to the assistance of an applicant who admits that he has no right vis-a-vis the respondent to the possession he seeks to have restored to him.”…,.
Commenting on Parker v Mobil Oil Southern Africa (Pvt) Ltd 1979 (4) SA 250 and another similarly decided case of Coetzee v Coetzee 1982 (1) SA 933, the learned judge, MAKARAU J, in the recent case of Shiriyekutanga Bus Service v Total Zimbabwe remarked as follows:
“With respect, the weight of authority appears to be against the learned judge. It has not been established as part of our law in any other decided case that an application for spoliation order has to show some reasonable or plausible claim to the property despoiled.
The learned judge seems to suggest, that, the court determining an application for a spoliation order will look into but possession of the applicant: see Coetzee v Coetzee (supra).
I hold a different opinion, and do so with the greatest of respect and due deference to the learned judge.
The decided cases referred to by GUBBAY CJ in Botha and Another v Bennet (supra) are quite clear that the court does not at all look into the juridical nature of the possession claimed.
The doctrine of stare decisis binds me to follow the decision in Botha and Another v Bennet (supra) and Coetzee v Coetzee (supra) HH64-08.”...,.
I entirely associate myself with the position adopted by the learned judge MAKARAU J, that, in an application for spoliation order, an applicant does not have to prove some reasonable or plausible claim to the property, let alone the legality or otherwise of his possession of the property in question.
With extreme due deference to the learned judge UCHENA J, I do not agree with the approach he seems to have adopted in Andrew Roy Ferreira and Katambora Estates (Pvt) Ltd v Bessie Nhandara HC3995/08 when he made a finding, that, because the applicant in that case had defiantly continued to be on the farm in question, therefore, he could not be granted spoliation.
In my view, the learned judge prematurely dealt with the rights of the parties to the farm when, in fact, this was not the issue at stake.
It does seem to me, that, all the learned judge was supposed to consider was whether or not the applicant had been in peaceful and undisturbed possession of the farming land prior to the alleged dispossession and not to consider who was legally supposed to have been in possession of the farming land at the time of the alleged dispossession by the offeree.
In any event, such an approach, in my view, went against the weight of decades of precedent in spoliation matters.
The second challenge which is apparent from the position adopted by the second respondent's counsel is the failure to appreciate, that, by denying the applicants locus standi, the court will be sanctioning and encouraging self-help exercise by those in the position of the second respondent.
In my view, such a position would be tantamount to perpetuating an infraction of the law to the dispossession by the second respondent without following due process of law.
I hold a very strong view, that, it was certainly not the intention of the legislature to give those armed with offer letters, like the second respondent, powers of evicting defiant former farm owners like the applicants.
Such a scenario would create chaos in our farms.
Our courts must be careful not to encourage lawlessness in our farms by subtley condoning, by implication or inference, the conduct of land beneficiaries who believe they have a legitimate right to occupy land which hitherto belonged to those farm owners who choose to stubbornly or defiantly remain on the farm at a time they should have vacated.
It is not a question of weighing who, between the former owner and a beneficiary, has a preferred or a more appealing right. It is simply a question of encouraging due process of law.
This is not achieved by giving court orders which give the impression offerees can themselves carry out eviction processes.
The legislature was quite conscious, that, there would be defiant former farm owners who would endeavour to continue with farming operations after the lapse of the 90-day statutory period.
In its wisdom, the legislature created a specific procedure to deal with such errant or defiant farmers. This procedure is well spelt out in the Gazetted Lands (Consequential Provisions) Act: see sections 3-5 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].
My brother judge, HUNGWE J, correctly summed up the procedure when he stated:
“There is a specific procedure for eviction in respect of land acquired in terms of the Gazetted Lands (Consequential Provisions) Act [Cap 20:28]. The right to claim eviction is only exercisable by the acquiring authority. That process is not initiated by a beneficiary under the land reform programme or by an officer of the acquiring authority.”
See Pondoro (Pvt) Ltd and Another v Nemakonde and Anor HH18-08.
Consistent views were also echoed by my brother judge, BHUNU J, when he stated:
“Although the applicant is entitled to occupy the land, he is not entitled to evict the former owner…, because he does not own the land and has not, at any stage, acquired possession.
It is now settled law, that, a lessee who has not acquired vacant possession cannot evict anyone from the property. It is the prerogative of the acquiring authority to evict the first respondent.”
See Zakeyo Mereki v Bell In (Pvt) Ltd and Deputy Sheriff Harare (N.O.).
I note with extreme discomfort, that, the second respondent's counsel has referred to Airfield Investments (Private) Limited v (1) The Minister of Lands, Agricultural and Rural Resettlement; (2) The Minister of Justice, Legal and Parliamentary Affairs; (3) The Member in Charge, Chegutu Police Station; (4) The Attorney General of Zimbabwe; and (5) R Sango SC36-04 as authority for the proposition that the applicants have no locus standi in this case.
With respect, that case has been quoted out of context.
That case is quite distinguishable from the instant case. In that case, the focus was on considering the requirements of an interim interdict as opposed to the instant case which is primarily focused on considering the requirements of a mandament van spolie.
These two principles are quire distinct and cannot be mistaken for each other.
Counsel for the second respondent also argued, that, according to his understanding, section 16B of the Constitution of Zimbabwe, as well as section 3 of the Gazetted Lands (Consequential Provisions) Act have taken away the remedy of spoliation from our common law.
I have painstakingly perused the cited sections. I do not agree with such sentiments.
In the final analysis, I am more than satisfied, that, the applicants have locus standi to bring this action, and, having accepted their allegations against the second respondent, I am inclined to grant the provisional order sought in terms of the papers filed.
