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Judgment No. HB 48/15
Case No. HC 340/15
EBENEZER TRUST
versus
THE MINISTER OF LANDS
AND RURAL RESSETTLEMENT
and
P. K. MHLANGA N.O
In his capacity as Acting District Lands Officer
and
RHODIE MASHINGAIDZE
and
CHIEF MASUKU
HIGH COURT OF ZIMBABWE
MOYO J
BULAWAYO 19 FEBRAURY AND 12 MARCH 2015
Urgent Application
Mr J Tshuma for the applicant
Mr Ndlovu for the 3rd respondent
MOYO J: This is an urgent application premised on the principle of mandamus van spolie. The applicant’s case is that he has been in peaceful and undisturbed possession of Maleme Farm in the Matobo District of Matebeleland South Province.
In paragraph 29 of the applicant’s founding affidavit he states thus:
“That coercion has become so disruptive that the applicant is unable to continue its activities on the farm and the applicant’s employees are concerned about their personal welfare. Since 5 February 2015, the third respondent and certain individuals acting under him have performed the following acts:
a) they entered the farm without applicant’s knowledge or consent on numerous occasions.
b) they have locked pumps with their own padlocks and have stolen the pump’s crankshaft. The applicant has over US$ 200000 worth of chickens which require water.
Without a method of watering the said chickens the birds will die. The applicant and the students at the training institute have vast market gardening projects which require water. As the area is arid, without an adequate supply of water all of those projects will be destroyed. Already three hectares of cabbage seedlings have been lost which would have returned USD$ 15000 and one hectare of tomatoes has been lost with the value is USD$20000.
c) Additionally, the said persons also locked up the gates to my farm with their own locks in an attempt to prevent anyone from entering or exiting the premises.
d) The third respondent and those acting under or through him have instructed my workers to stop working and vacate the property. They have threatened applicant’s workers with physical harm. If they do not stop.
e) On the 6 of February 2015 the said persons occupied my homestead and also took occupation of the applicants’ office located on the property. The same people have started harvesting and selling the produce that the Trust and the communities were cultivating.”
Applicant approached this court for a spoliation order on an urgent basis for the
aforestated reasons.
The background of the matter is that the land in dispute is owned by a trust and although it was gazetted in 2003, the applicant has been allowed to remain in occupation of the remaining extent of the farm after new farmers were given other lots that were taken off the farm.
There has been numerous agreements and co-operation agreements between the Government of Zimbabwe and applicant which does community work and assists the community in many different farming projects as well as the running of an agricultural training institute within the same farm. The fourth respondent, Chief Masuku advised the court that indeed he was part of a District Lands meeting way back after the farm had been gazetted, which saw it fit to leave the applicant on the farm as the community was benefitting immensely from the Trust.
The third respondent’s case is that he was allocated this farm which was gazetted in 2003 and he has attached an offer letter dated 3 December 2014. In his opposing affidavit third respondent states thus:
Paragraph 5 “I deny this paragraph in its entirety as applicant has chosen to ignore the truth and seek to mislead the court. The whole of Maleme farm was gazetted in 2003 as shown by a copy of the Government Gazette annexed hereto as Annexure F. It was then divided into 5 subdivisions as shown on the map by a copy of the map obtained from the lands office annexed hereto as Annexure G. The training institute which applicant alleges I have been disrupting is in subdivision 4 which I occupy for the record I wish to point out clearly that since 5 February 2015 I have been in peaceful occupation of subdivision 4 of Maleme Farm, and have not in any way disrupted or interfered with the activities of Ebenezer training institute. The subdivision I occupy has fields which have tomatoes and butternuts, I have allowed the applicant’s workers to continue harvesting same.” (underlining is mine for emphasis).
It is important to note at this juncture that third respondent does not tell this court that he moved onto the piece of Land with applicant’s consent, No. He also tells us that the land he moved into has applicant’s tomatoes and butternuts. By his own admission third respondent has disturbed applicant’s peaceful possession of the land in question.
He goes on at paragraph 15 and states thus:
“Applicant is being economic with the truth, I peacefully occupied my allocated portion with the assistance of the police. As alluded above I have also allowed applicant time to harvest his produce. I have also assured him that as long as him and his workers co-operate he will harvest all his produce.” (emphasis is mine.)
Third respondent moved in with the assistance of the police, this in a way confirms that applicant was ordered to accept third respondent’s occupation of the farm. The police whilst they are law enforcement agents, they do not define rights nor constitute due process, they enforce rights that have been defined by a court of law and in my view they can not, where there is a dispute with regard to occupation of a piece of land start defining the rights of the parties pertaining thereto, that is for the courts.
The third respondent as a new farmer allocated land by the Ministry of Lands, could be held to derive rights from the offer letter. But deriving rights and enforcing rights are two different things. What third respondent should have done in a bid to enforce the rights he believes he has by virtue of the offer letter, would be to enforce them through due process. Due process entails approaching the courts to enforce one’s rights of occupation. Forcible occupation of a piece of land possessed by another person is unlawful and is not due process. It does not matter where one derives their right from.
Due process must be followed in the enforcement of same otherwise there would be anarchy and chaos if every person who believes that they have a right or entitlement decides to take the law into their own hands. Self-help would lead to anarchy and this is where the unlawfulness of third respondent’s conduct is.
In spoliation proceedings all an applicant has to prove is that he was in peaceful and undisturbed possession of the property, he need not prove anything beyond that.
Third respondent has admitted in his own opposing affidavit that he did move onto the land occupied by applicant with the assistance of the police. He also does not allege that applicant surrendered by consent Lot 4 of Maleme Farm to him. His own affidavit confirms that he in fact went in and seized the farm from applicant on the basis of the offer letter and on the basis that applicant had no right to remain on gazetted land.
What is important at this juncture is that applicant has proved that it was in peaceful and undisturbed possession prior to third respondent’s arrival. Spoliation proceedings are a remedy against unlawful dispossession of property.
In the case of Yeko v Qana 1973 (4) SA 735 (A) at 739 E – F the learned judge stated thus:
“In order to obtain a spoliation order the onus is on the applicant to prove the required possession, and that he was unlawfully deprived of such possession. As the appellant admits that he locked the building it was only the possession that respondent was required to establish. If the respondent was in possession the appellant’s conduct amounted to self-help. He was admittedly in occupation of the building with the intention of selling the stock for his own benefit. Whether the occupation was acquired secretly, as appellant alleged, or even fraudulently is not the enquiry. For as Voet, 41.2.16, says, the injustice of the possession of the person despoiled is irrelevant as he is entitled to a spoliation order even if he is a thief or a robber. The fundamental principle of the remedy is that no one is allowed to take the law into his own hands. All that the spoliatus has to prove, is possession of a kind which warrants the protection accorded by the remedy, and that he was unlawfully ousted.”
In Willes:- Principles of South African Law by Hutchison et al, 8th edition at page 267 the following is stated,
“If a person has been deprived of possession by violence, fraud, stealth or some other illicit method, he may obtain from the court a mandamant van spolie, or spoliation order, commanding the dispossessor to restore the possession to himself, the applicant. It is a fundamental principle that no man is allowed to take the law into his own hands.
Consequently, if a person without being authorised by a judicial decree, dispossesses another person the court, without enquiring into the merits of the dispute, will summarily grant an order for restoration of possession to the applicant, as soon as he has proved two facts, namely; that he was in possession and that he was despoiled of possession by the respondent. The policy of the law is neatly summed up in the maxim, spoliatus ante Omnia restuendus est.” (emphasis mine)
This maxim means that before the question of title can be resolved, the person deprived of possession must be restored to his previous position.
The aforestated authorities have summed it up. The act of spoliation is unlawful in all cases, land matters included. The third respondent has to restore possession to the applicant in accordance with the law and then wait for the law to take its course, so that if his rights of occupation are founded through a judicial decree, and he eventually occupies the farm, he does so lawfully.
I accordingly grant the provisional order in terms of the draft, for the reasons herein stated.
Webb, Low and Barry, applicant’s legal practitioners
R. Ndlovu and Company, 3rd respondent’s legal practitioners
