1

 

                                                                                                                                                                                            HB 147-15

                                                                                                                                                                                          HC 1475-15

                                                                                                                                                     XREF HC 1072-15 & HCA 84-15

 

TIMOTHY SEAN WHITE

versus

ZENZO NTULIKI

and

OFFICER IN CHARGE: ZIMBABWE

REPUBLIC POLICE, ESIGODINI

and

THE SHERIFF, BULAWAYO

 

 

HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 17 JUNE AND 16 JULY 2015

 

 

Urgent Chamber Application

 

 

Mr J. Tshuma for applicant

Advocate L. Nkomo for respondents

 

 

MAKONESE J:        This is an application made under the mandament van spolie for an order evicting first respondent and all those acting under or through him from Lot 2 of Lot 36 Essexvale Estate, more commonly known as Avalon Farm, and an urgent interdict interdicting first respondent from interfering with the applicant’s activities on the farm and ancillary relief as provided in the Draft Order.  The applicant avers that the application has been necessitated by first respondent who forcibly took possession of the farm, whilst the applicant had sought and obtained an order of this court for stay of execution pending appeal.

 

Background

The brief facts giving rise to this application are that Lot 2 of Lot 36 Essexvale, commonly known as Avalon Farm was acquired by the applicant in around 1988.  The land is subject to three mining claims which are each 10 hectares in extent.  The property has been, accordingly to the applicant been operated as a mine and the remaining farm land has been utilized to support the mine.  There is a residential building located at Avalon Farm which has been used by the mine manager.  It is located on the New Year West Mining claim (registration number 42164).  The farm was targeted for acquisition under the land reform programme in 2003.  The applicant states that the property is not suitable for agricultural purposes and to that extent he brought this to the attention of the chief lands officer Matabeleland South Province.  Applicant avers that he was advised to remain on the property and that an offer letter would be given to him in due course.  It is not disputed that the land available for any agricultural activity is insignificant and that the farm could only sustain a maximum of twenty head of cattle if used for cattle ranching.

            It is also not in dispute that the applicant continued in occupation of the farm from 2003 to the year 2014.  In November 2014, first respondent approached applicant and informed him that he had been granted an offer letter in respect of Avalon Farm.  This is when the dispute in this matter began to unfold.  Applicant’s position was that he had been granted a permit to occupy the land by the Provincial Lands Officer and that he was awaiting an offer letter. In about January 2015 criminal proceedings were commenced against the applicant at Gwanda magistrates court for contravening section 3 (3) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].  The allegation against applicant was that he was in unlawful occupation of Lot 2 Lot 36 of Essexvale Estate.  On 23 April 2015 applicant was found guilty of unlawful occupation of the farm and was ordered to vacate the farm.  Applicant immediately appealed to this court under case number HCA 84/15 against the conviction and sentence.  Further, applicant lodged with this court an urgent chamber application for stay of execution pending finalization of the appeal.  This application was filed under case number HC 1072/15.

            On 20 May 2015, the matter was heard before TAKUVA, J who made a finding that there were reasonable prospects of success on appeal and granted an order for stay of execution pending appeal.

             Inspite of the order of TAKUVA J, applicant contends that first respondent has attempted to forcibly evict him from the farm.  Applicant avers that first respondent and his agents moved into the farm and instructed him to vacate the property.  Applicant says he was also threatened if he resisted eviction.  On 6 May 2015, persons acting upon the instructions of first respondent violently opened the gates to the farm house.  Applicant remained in the house and the following morning left the farm for his safety.  First respondent’s employees began harvesting tomatoes on the farm.  A tractor was brought onto the farm and first respondent’s agents began land preparation.

            On the initial date of the hearing of this application, on 12 June 2015, applicant admitted that he had moved seventy-six head of cattle and sixty goats and forty sheep onto the farm, since he believed he was entitled as the beneficiary with an offer letter to use the farm.  At the same hearing first respondent denied harvesting any tomatoes.  He said he was out of the country at the relevant time and denied issuing any threats to the applicant.  First respondent also denied forcibly moving in on the farm.

 

Point in Limine

The first respondent has raised a preliminary issue for determination, namely that the matter is not urgent at all.  First respondent argues that the alleged urgency in the Certificate of Urgency is contrived and calculated to abuse the spoliation and interdict procedure.  He contends that applicant and himself have been in peaceful co-existence at the farm and that there is no basis for this urgent application.  First respondent argues that it is mala fide and therefore dishonest for applicant to file the urgent chamber application when applicant has not been despoiled of his possession of the farm.  First respondent cited the case of Gwarada v Johnson and others 2009 (2) ZLR 159, as authority for the position that applicant has not established that he has been despoiled of possession.

            Applicant argues that the matter has remained urgent from the time the application was filed on 8 June 2015.  The events before the filing of the urgent application have been set out above.  What is clear though is that applicant sought and obtained an order to stay the eviction pending appeal.  On 20 May 2015 this court granted the provisional order to stay execution.  That order has not been set aside and is still extant. By his own admission, first respondent states that subsequent to the granting of the order for stay of execution, he moved cattle into the property.  It is also not in dispute that the carrying capacity of the land cannot sustain more than twenty head of cattle.  The assertion that there has been some form of peaceful co-existence between the parties is not supported by the facts on record.

            In Kuvarega v Registrar General and Another 1998 (1) ZLR 188 (H) at page 193 F, CHATIKOBO, J laid the test for urgency in the following terms:

“What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if at the time the need to act arises, the matter cannot wait.  Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules…”

 

            I am satisfied that this matter is urgent.  The point in limine is accordingly without merit and I would dismiss it.

 

Merits of Application

In this matter the interim relief sought seeks in part an order for an interim interdict.  The requirements for an interim interdict are settled in our law.  They are:

1. Prima facie right
2. An injury actually committed or reasonably apprehended;
3. The absence of similar protection by an ordinary remedy.

See the cases of Setlogelo v Setlogelo 1914 AD 221 at page 227; and Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52(S).

In Tribac (Pvt) Ltd v Tobacco Marketing Board (supra), the court held at page 56 as follows:

“An application for mandamus or “mandatory interdict”, as it is often termed, can only be granted if all the requisites of the remedy of a prohibitory interdict are established ….”

 

Whether the applicant has established a prima facie right

In demonstrating a prima facie right the applicant contends that the provisional order in case number HC 1072/15 stays the eviction from the farm thereby granting him the right to occupy the property pending finalization of the appeal.  It is common cause that whilst the magistrate at Gwanda has found the applicant guilty of unlawful occupation and ordered his eviction from the farm, this court issued a provisional order staying the enforcement of the eviction pending appeal.  On this basis, it is my view that the applicant has a right to continued occupation of the farm pending appeal.  To the extent that first respondent must comply with the Provisional order to stay execution pending appeal, he may not in the meantime move onto the land, for to do so would be contemptuous of an order of this court.

 

Reasonable apprehension of injury

Applicant avers that the injury he suffers is that he is unable to farm or carry out any mining activities on the property because first respondent is actively preventing him from doing so.  As I have already indicated, at the initial hearing of this matter first respondent conceded that he has moved at least seventy-six head of cattle onto the farm.   First respondent did not deny that the carrying capacity of the farm would be stretched with a head exceeding twenty cattle.  This is so because the land available for grazing would be inadequate.  The theft of tomatoes by first respondent’s agents from the farm was not seriously denied by first respondent.  From the admitted facts applicant would suffer injury if the interim interdict was declined.

 

No alternative remedy

The applicant states that he attempted to secure assistance from the Zimbabwe Republic Police who indicated that they would not intervene in these types of matters.  At law, it would seem that the reality is that the applicant has no other remedy available to him.

 

Mandament van Spolie

Applicant alleges, and first respondent does not seriously dispute that a portion of the farm has been occupied by first respondent’s agents.  Applicant is seeking as additional relief an order evicting first respondent and all those claiming rights of occupation through him from the land in question.  First respondent argues that the balance of convenience does not favour the granting of the interim order sought because it will cause serious hardship and irreparable harm and prejudice considering that he has already taken occupation of part of the farm and brought cattle, sheep and goats on to the property.  First respondent says he has nowhere to take the cattle and goats to.  This submission is somewhat hard to believe, because the first respondent must have been keeping the cattle, goats and sheep somewhere before he moved them to the property in dispute.  Further, first respondent alleges that he has already prepared the land for him to plant ten thousand cabbages.  First respondent goes on to say that the court should exercise its discretion in his favour, considering the public interest underlying the land reform programme.

            The locus classicus on the mandament van spolie is the case of Nino Bonino v de Lange 1906 TSI 20, at page 122 in which the general principle was stated by INNES CJ, as follows:

“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 an inquiry or investigation into the merits of the dispute.”

 

            In the case of Botha and Another v Barrett 1996 (2) ZLR 73 (S) GUBBAY CJ, confirmed the principles set out in Nino Bonino (supra), and goes on to set out the test to be applied in cases for the mandament van spolie:

“It is clear that in order to obtain a spoliation order two allegations must be made and proved.  These are:

 

1. That the applicant was in peaceful and undisturbed possession of the property;

 

1. That the respondent deprived him of the possession forcibly or wrongfully against his consent.”

 

I must indicate that there is no requirement that the applicant must show that his peaceful and undisturbed possession was lawful.  See the case of Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H).  In matters under the land reform programme, the Supreme Court has confirmed the position stated in the case of Commercial Farmers Union and others v Ministry of Lands and Rural Resettlement 2010 (2) ZLR 576 (S), where the learned Chief Justice stated at page 596 as follows:

“The holders of offer letters, permits or land resettlement leases are not entitled as a matter of law to self-help.  They should seek to enforce their right to occupation through the courts.”

 

In this matter it is not disputed that the applicant has obtained an order of the court staying execution pending appeal.  He is therefore clearly on the farm in terms of the law.  The first respondent must allow due process to take effect.  The first respondent cannot ask the court to ignore its own orders and allow self-help.  In my view, the applicant has satisfied the requirements for an order under the mandament van spolie.  The first respondent must simply follow the law if he expects protection of his rights under the law.  A litigant may not on one hand seek the assistance and protection from the courts, and yet on the other hand disobeys the orders of the same courts.

In the result, the following order is made:

(1)        The application is granted in terms of the draft order.

(2)        First respondent is to pay the costs of suit.

 

 

 

Messrs Webb, Low & Barry, applicant’s legal practitioners

Mcijo- Dube and Partners, 1^st respondent’s legal practitioners