Sustainable development

L.S. Waters (Pvt) Ltd. & Another v Zimbabwe National Water Authority & Others (HH 153/16 HC 1401/16) [2016] ZWHHC 153 (24 February 2016);

1

HH 153/16

HC 1401/16

 

L.S WATERS (PVT) LTD

and

JOHANNES JAKOBUS LAUBSCHER

versus

ZIMBABWE NATIONAL WATER AUTHORITY

and

MANYAME CATCHMENT COUNCIL

and

A.H. KATSANDE – ACTING MANAGER

MANYAME CATCHMENT COUNCIL

and

CDE E. MHLANGA – CHAIRMAN UPPER MANYAME

SUB-CATCHMENT COUNCIL

and

UPPER-MANYAME SUB-CATCHMENT COUNCIL

and

WENSLEY MUCHINERI – THE COMPLIANCE

MANAGER OF UPPER MANYAME

SUB-CATCHMENT COUNCIL

and

This was an application for a spoliation order to summarily undo the wrongful deprivation of property without investigating the merits.

The applicants claimed that their immovable property (10 Metcalf Road, Greendale) and equipment for water abstraction were seized by the first to sixth respondents.

The first to the sixth respondents raised two preliminary objections: that the matter was not urgent and that there was need for police to join as co-respondents since they were the ones who had seized the applicants’ property. The first objection was abandoned while the second was dealt with in the merits of the case.

The court noted that the applicants were required to prove peaceful and undisturbed control before the disturbance and that the respondent took or destroyed the control unlawfully. However, the applicant would not succeed if the respondent proved valid defenses like they did not commit the spoliation or that they were not involved in the spoliation.

The court found that the applicants were in peaceful and undisturbed possession of the property and equipment although, illegally. However, the court noted that the applicants claimed that they were despoiled of their equipment by the first to sixth respondents who were not natural persons but failed to state who acted on their behalf. The court therefore held that the respondents were not involved in the despoiling.

Accordingly, the application was dismissed with costs.

Jackson v Zimbabwe National Water Authority (HC 927/11) [2011] ZWHHC 240 (23 October 2011);

TIMOTHY CURTIS JACKSON

versus

ZIMBABWE NATIONAL WATER AUTHORITY

 

 

HIGH COURT OF ZIMBABWE

MAKONESE J

HARARE, 24 October 2011

 

 

D. Mwonzora, for plaintiff

J. Dondo,for defendant

 

 

This was an application for absolution from the instance by the defendant at the close of the plaintiffÕs case on grounds that there was no need to rebut the plaintiffÕs claims since there was a lack of sufficient evidence.
The plaintiff had instituted a claim for damages following the defendantÕs failure to avail water for irrigation purposes as was previously agreed.
The court determined whether the plaintiff had placed before the court sufficient evidence to warrant the defendant to be placed on its defence.
The court applied test of whether the plaintiff has established a prima facie case against the defendant and whether there is evidence that has been placed before the court upon which a reasonable court might give judgment against the defendant.
The court found that the plaintiff failed to establish a case against the defendant. Firstly, because the plaintiff was prevented by third parties from abstracting water from the dam because of low water levels. Secondly, in terms of the agreement between the parties the defendant did not guarantee the availability of water and was not liable for responsible for damages arising out of any failure to supply the water. Thirdly, the plaintiffÕs claim was wrongly premised since only 50 hectares of the land were under irrigation and not 90 hectares as contended.
Accordingly, the application for absolution from the instance at the close of the plaintiffÕs case was granted in favor of the defendant with costs.

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