Judgment No. HB 122/14

                                                                                                            Case No. HC 1146/14

                                                                                                            X REF HC 1566/14

 GAMANGE (PVT) LTD

Versus

SMELLY DUBE

And

LIMUKANI SIBANDA

And

MINISTER OF LANDS & RURAL RESETTLEMENT

And

MINISTER OF STATE FOR PROVINCIAL AFFAIRS – BULAWAYO

And

THE SURVEYOR GENERAL – BULAWAYO

And

THE DEPARTMENT OF PHYSICAL PLANNING – BULAWAYO

And

THE REGISTRAR OF DEEDS

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 30 MAY, 2 & 13 JUNE 2014

J. Tshuma & S. Collier for the applicant

N. Mashiza for 1^st & 2^nd respondents

M. Chimombe & C. Karinga for 3^rd, 4^th and 5^th respondents

URGENT APPLICATION

            TAKUVA J:       This matter was brought before me on an urgent basis.

            The facts of the matter are that applicant owns a piece of land known as the Remainder of Helenvale Block L, measuring 567 – 2717 ha, held under Deed of Transfer number 2264/85 situate in the District of Bulawayo.  First and second respondents who are land developers are sub-dividing and selling that land notwithstanding the fact that the land belongs to the applicant.

            On 13^th day of October 2006, applicant made an application to the sixth respondent for a permit for the further subdivision of subdivision L of Helenvale Block.  Pursuant to that application, on 29^th day of July, 2008 a permit for the subdivision of the property was granted.  In terms of the permit the township was to be known as “Denver Township”.

            In 2011 the applicant engaged a team of engineers to design roads, sewer and water reticulations and in 2013 the applicant’s designs were lodged with the Umguza Rural District Council.  Since the day of its purchase, applicant has enjoyed peaceful possession of subdivision L of Helenvale Block and intends to develop the property as a township.  This peace was disturbed by 1^st and 2^nd respondents’ activities that commenced in April 2014 when applicant found a group of people with surveying equipment carrying out surveying work.  Applicant was alarmed and approached 4^th respondent for assistance.  Although he was initially promised that the surveying would be confined to “state land”, this turned out not to be the case.  Thereafter, applicant approached the Zimbabwe Republic Police but nothing came of that endeavour.

            On 22^nd May 2014 applicant saw certain persons carrying out surveying work on Subdivision L of Helenvale Block.  These people insisted that they were working on “state land”.  These persons were purportedly acting under the 4^th respondent’s authority.  The 1^st and 2^nd respondents are selling off such subdivided pieces of land to the civil service.  Applicant then filed this application.

            The application was opposed by the 1^st, 2^nd and 3^rd respondents.  Counsel for the 1^st and 2^nd respondents raised a number of points in limine some of which he abandoned.  The first point taken was that the certificate of urgency was invalid for the reason that the legal practitioner who prepared the certificate simply copied almost all the paragraphs relating to urgency from the founding affidavit.

            In my view this point in limine is without merit in that a legal practitioner has confirmed that she has read the application together with the grounds and is satisfied that the matter is urgent.  Therefore Rule 242 (2) (b) of this Court’s Rules has been complied with and the point in limine is hereby dismissed.

The second point was that the application was not urgent in that applicant should have acted on or about the 13^th March 2014.  Instead it waited until 23 May 2014.  This submission is without merit in my view for the simple reason that the certificate of urgency gives an explanation for that delay.  The law does not say wherever there is a delay the matter should be viewed as not urgent, rather it says the delay must be explained in the certificate of urgency or in the founding affidavit.  See Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 and Trust Co Mobile (Pty) Ltd & Anor v Econet Wireless (Pvt) Ltd & Anor (1) 2011 (2) ZLR 14 (H).  For that reason, this point in limine is dismissed.

            The third point in limine was that the “applicant deliberately omitted other interested parties and cited other parties recklessly and maliciously”.  It was submitted that this gives rise to “fatal mis-joinder and non-joinder which has the effect of destroying the whole application.”  I must hasten to point out that no authority was cited in support of this submission.  Be that as it may, Rule 87 (1) of this Court’s Rules makes it abundantly clear that no cause or matter shall be defeated by reason of the mis-joinder or non-joinder of any party.  Again, I do not find any merit in this point and it is accordingly dismissed.

            The fourth and final point taken in limine was that the provisional order is invalid in that the interim relief is “substantially similar” to the final order sought.  Particular reference was made to paragraph 4 which appears in both orders.  In my view the two orders are essentially different in that in the interim relief the protection sought relates to the possession of, access into and sale of portions of the land to unsuspecting third parties.  On the other hand in the final order, applicant seeks inter alia a declaratur that the land in dispute is owned by applicant and is not state land.  In order to obtain a final order an applicant must show a clear right as opposed to a prima facie right.  For these reasons the final point in limine is dismissed.

            On the merits, respondents argued that applicant does not have any prima facie right in that respondents were working on “state land” acquired on 14 November 2000.  It was further submitted that on 2 August 2006, the Minister of Local Government, Public Works and National Housing issued an offer letter to Okuhle Housing Consortium authorizing it to service and develop residential stands on the land.  Respondent produced an Acquisition Order in terms of the Land Acquisition Act [Chapter 20:10] dated 14^th November 2000.  This order authorized the City of Bulawayo to acquire the “Western Potion of subdivision L of the Helenvale Block measuring approximately 670 hectares as depicted on drawing number TPA 5869 being part of a farm commonly known as Denver Farm held under Deed of Transfer 2264/85 in extent 1237 2717 hectares”.

            The effect of this order is that applicant was left with 567.271 hectares being the Remaining Extent.  The respondents insisted that they were not surveying and selling stands from this portion of the farm.  Rather they were restricting their operations to the 670 hectares acquired by the City of Bulawayo.  They however did not produce any authority to demarcate and sell that land to third parties.

            Applicant’s Counsel then sought a postponement in order to consider the acquisition order and its effects on its application.  The request was granted and the matter was postponed to the 2^nd of June 2014.  On this date Mr Tshuma submitted that applicant has title to the property held under Deed of Transfer number 2264/85 in the name Gamange (Pvt) Ltd.  However its rights are subject to an order granted by consent confirming the acquisition by the City of Bulawayo of 670 hectares after payment of compensation.  The remaining extent measuring 567.2717 hectares belongs to Gamange (Pvt) Ltd and is known as the Remaining Extent of Subdivision L of Helensvale Farm.  Applicant contended that respondents are working on this remaining extent which has not yet been acquired by the state in that the letter dated 9 August 2006 simply exhibits an intention to acquire this land but it is not in itself an acquisition order.

            Mr Mashizha persisted with his submission that respondents were working on 670 hectares belonging to the City of Bulawayo and not surveying applicant’s land.  It became clear to the court that this dispute could only be effectively resolved through an inspection of the area in dispute.  Both legal practitioners agreed with the court and the following order was issued by consent:

“Accordingly, in terms of Rule 246 (1) (a) (b) of the High Court Rules 1971, I consider it necessary that the following steps be taken by the parties and their legal practitioners assisted by officers from the Surveyor General’s Office and Department of Town Planning from the City of Bulawayo.

1)      Carry out an inspection of the area in dispute in order to ascertain the extent and precise boundaries of the land acquired by the Bulawayo City Council under Acquisition Order dated 20 November 2000.

2)      Carry out an inspection of the Remaining Extent and establish its dimensions and boundaries.

3)      Establish through physical inspection the precise location of stands that have been or are being demarcated by the respondents in relation to the two pieces of land mentioned in (a) and (b) above.

4)      Officers from the Surveyor General’s Office and Town Planning Department of the Bulawayo City Council must submit their findings on oath.

5)      Both legal practitioners shall present such further argument as is necessary.

6)      This exercise must be carried out within 7 days from the date of this order.

7)      Matter be and is hereby postponed to the 13^th June 2014.”

The Town Planning Department and the Surveyor General’s Office submitted their reports in affidavit form.  The two reports confirmed that the 1^st and 2^nd respondents were carrying out activities on the remaining extent belonging to the applicant.  Mr Tshuma submitted that since the findings of the officers are to the effect that 1^st and 2^nd respondents are not working on land acquired by the City of Bulawayo, the acquisition order by the Bulawayo City Council becomes irrelevant in these proceedings.  He further submitted that the applicant is entitled to the relief sought in the draft order.

Mr Mashizha did a somersault and admitted that 1^st and 2^nd respondents were working on applicant’s land.  He however rather surprisingly insisted that they had authority to work on the land by virtue of the offer letter issued by the Minister of Local Government.  Mr C. Karinga who was now representing 3^rd, 4^th and 5^th respondents filed an opposing affidavit by 4^th  respondent.  The affidavit in paragraphs 3 and 4 reads as follows:

“Upon discussing this matter with the Minister of Lands and Rural Resettlement, Honourable Douglas Mombeshora, his deputy Honourable Tendai Savanhu and the Permanent Secretary Mrs Tsvakwi, I was advised that the government has since decided to compulsorily acquire the land in question.  I was made to understand that the Ministry of Lands, acting upon instructions from the Ministry of Local Government, Public Works and National Housing, has since commenced the compulsory acquisition process of the whole of subdivision L of Helenvale Block measuring 1237.2717 hectares.  In that meeting Mrs Tsvakwi was then instructed by the Minister of Lands to write a letter to the Registrar of this Honourable Court advising the court of this development.  I attach hereto marked “A” a copy of the letter from Mrs Tsvakwi for ease of reference.

4.         In view of the above development, I verily believe that the present application has been overtaken by events and the relief sought by applicant is no longer capable of being granted.  I am of the opinion that if applicant is disgruntled by the latest development in the matter, it should direct its concerns or objections to the Ministry of Lands and Rural Resettlement and not the respondents currently before the court.” (my emphasis)

Both, Mr Mashizha and Mr Karinga indicated that the process of compulsorily acquiring applicant’s remaining extent has commenced in that a notice to that effect has appeared in the Chronicle of Friday the 13^th June 2014 – the day the matter was being heard.

The requirements for an interdict are well established.  They are –

(i)                 A clear right;

(ii)               Injury actually committed or reasonably apprehended; and

(iii)             The absence of similar protection by any other ordinary remedy – see Bluebell Inc v Lennard Clothing Manufacturers (Pvt) Ltd 1984 (1) ZLR

In casu, it is beyond question that the applicant has established a clear right to the land in issue.  The applicant is the registered owner of the land.  The state has expressed a mere intention to acquire or at the very least has commenced the process of acquiring the land in question.  The process of acquiring land in terms of the Land Acquisition Act is well known.  It is tedious and where the state is successful, the end result is an acquisition order.  It is only after such an order is issued that land is lawfully acquired.  The Permanent Secretary confirmed that currently the land has not yet been acquired.  Therefore this land does not belong to the state but to the applicant.  In that respect, the 4^th respondent’s view that the relief sought by the applicant is no longer capable of being granted is erroneous and legally untenable in that it renders the provisions of the L:and Acquisition Act and the Constitution of Zimbabwe nugatory.

It is an undeniable fact that the applicant’s right is under threat.  The evidence has shown beyond a shadow of doubt that 1^st and 2^nd respondents are currently working on applicant’s land without its consent.  They are busy subdividing that land into smaller pieces and selling those pieces to 3^rd parties.  This, they are doing in broad daylight disregarding applicant’s rights.  First and second respondents have and continue to cause actual harm to the applicant.

As regards irreparable harm, it is crystal clear that the 1^st and 2^nd respondents are altering applicant’s land without its consent.  They are selling it to other people.  Applicant’s right to use its land in the manner it chooses has been seriously prejudiced by respondents’ conduct.  There is obviously going to be huge financial loss to the applicant.  Also applicant has been exposed to imminent litigation against those third parties who are buying land from 1^st and 2^nd respondents.

That there is no alternative remedy available to the applicant has been clearly demonstrated by the evidence.  Applicant tried to dialogue with 4^th respondent to no avail.  It then unsuccessfully sought assistance from the police.

For these reasons, I am impelled to conclude that applicant has fulfilled all the requirements for an interdict.

Accordingly, there shall be a provisional order in the following terms:

Pending the return date of this matter, the applicant be granted the following relief:-

1.      The 1^st, 2^nd and 3^rd respondents be and are hereby indicted from advertising for the sale of Subdivision L of Helenvale Block or any portion thereof, from entering into any further agreement of sale in respect of the land or any portion thereof, from entering the land without applicant’s permission or from otherwise disturbing applicant’s peaceful possession of the land.

2.      This order shall not preclude the applicant or any other present legal occupier of the farm from holding, occupying or using the land including all improvements thereon and from continuing all operations until the finalization of this matter.

Webb, Low & Barry incorporating Ben Baron & Partners, applicant’s legal practitioners

Messrs Sachikonye-Ushe c/o Lazarus & Sarif, 1^st & 2^nd respondents’ legal practitioners

Civil Division, Attorney General’s Office, 3^rd, 4^th & 5^th respondents’ legal practitioners