PONDORO (PVT) LTD                                                                               

and                                                                                                                 

DOUGLAS STUART TAYLOR-FREME

versus

MENDE WILSON NEMAKONDE

and

THE MAGISTRATE, CHINHOYI

HIGH COURT OF ZIMBABWE

HUNGWE J

HARARE, January 18 & 20, 2008

Urgent Chamber Application

Mr ANBM Masterson, for the Applicants

Mr Takaendesa, for the 1^strespondent

Ms Mwatse, for the 3^rdrespondent

HUNGWE J:  This matter was placed before me under a certificate of urgency on 17 January 2008. I gave directions that it be heard the following day as I deemed it appropriate that the rules of court be dispensed with in the interests of achieving justice in this particular matter. At the hearing Mr Takaendesa, for first respondent, raised two procedural points in limine regarding the lack of appropriate certification of urgency on behalf of the applicants. His second point was that the applicants ought to have anticipated the rule nisi rather than approach this court through the Chamber Book.

In the exercise of my powers in terms Order 4(c) of the High Court Rules I dispensed with the need for certification from a firm other than that preparing the applicant’s papers. I accepted Mr Masterson’s confession of ignorance of a judgement of this court against the practice and that no prejudice was suffered by failure to adhere to the rule as no conflict of interest was apparent on the papers.  

As the matter touched upon the propriety of the handling of a class of cases in the lower courts I deemed it appropriate to deal with it in this court to enable a proper ventilation of the allegations of bias raised on the papers and, if substantiated, give appropriate directions to that court. In any event I directed that the papers be served on the concerned institution to enable the appropriate response to be elicited from that court rather than proceed ex-parte as Mr Masterson had originally sought on his papers.

Applicants seek the following order;

            “1.       Final Order sought

• The order of the Magistrate in Chinhoyi Civil Case No, 22/08 on 8 January 2008 be and is hereby set aside.
• The costs of this Application are awarded to the applicants.

2.         Interim Relief Granted

Pending the finalisation of this Application and of any other order that may be given by this Court before this matter is brought to finality:-

1. The order given by the Magistrate Chinhoyi in case 22/08 is forthwith suspended.
2. No further litigation between the Applicants and the first respondent herein shall be dealt with by any of the judicial officers officiating at Magistrates Court at Chinhoyi.”

At the conclusion of the hearing I issued the following order:

“1.       The Order issued by the Magistrate in Chinhoyi Civil Case No. 22/08 on 8 January be and is hereby set aside.

1. The costs of this application are awarded to the applicants”

I have been asked to give reasons for this order. These are they.

On 8 January 2008, the first respondent (applicant in the magistrate’s court) obtained the following order;

            “ 1.      A rule nisi do issue returnable to this honourable court sitting at Chinhoyi                           on the 7 day of February 2008 at 8:30 am or soon thereafter as the  matter                            may be heard calling upon the respondents their agents or employees to                               show cause why they should not be prohibited from:-

1. Continuing to deny applicant and his employees access to the fields at the Remaining Extent of Romsey Farm,
2. Continuing to carry out agricultural activities at the Remaining Extent of Romsey Farm,
3. Visiting the fields at the Remaining Extent of Romsey Farm.

INTERIM RELIEF GRANTED

2.         That pending the return date hereto, this order operates as a temporary order prohibiting the Respondents and their agents or employees from visiting the fields or carrying out agricultural activities at the Remaining Extent of Romsey Farm.

3.         That a copy of this order shall be served immediately by the messenger of Court or by a duly attested member of the Zimbabwe Republic Police.

4.         That in the event that any of the Respondents breaches any terms of this interim order the Messenger of Court, Chinhoyi, is hereby authorised to enlist the services of the Zimbabwe Republic Police to enforce this order. Should there be any further resistance the Zimbabwe Republic Police is hereby ordered to detain the respondents upon sight and bring them to court forthwith to answer charges of contempt of court.”

Applicants approached this court for urgent relief upon being served with the above order. The first ground of complaint is the irregular manner by which the order was obtained. The second ground relates to lack of jurisdiction of the Magistrates Court to issue the order. The papers show that there has been litigation going on between the parties prior to the order complained of being issued. Particularly disturbing is the following sequence of events.

On 6 December 2007, the Magistrate presiding over the matter between these two parties under case number B140/07 in which the first respondent was seeking a peace order against the second applicant recused himself on the basis that commercial farmers had expressed their misgivings about the partiality of judicial officers at his court. As respondent was a commercial farmer, he shared the same sentiments as expressed by his colleagues. The Magistrate did not feel that in those circumstances justice would seem to be done if he presided over the matter. He therefore recused himself. He recorded these reasons on the record.

Under B170/07 the same magistrate who had recused himself in B140/07 granted a default judgement against the applicants where he knew or must have known that the respondents were opposed to the order being sought. B170/07 had been postponed when both parties appeared before him. The reason had been that the application was supported by wrong offer letters. On 13 December 2007 somehow applicants’ legal practitioner could not make it to court by the appointed time of 0830hours. This fact was relayed to the respondents’ legal practitioners and the parties were agreed that the applicants’ legal practitioners would only be at court at soon after 0900hours. This courtesy was not reciprocated when the matter was duly called. Respondents applied for default judgement before the applicants’ legal practitioner arrived at or around 0930hours.

 This was in spite of the fact that both the Magistrate and the respondents knew applicants’ opposition to the order sought. This was also in spite of the fact that the same magistrate had recused himself from the same case two days before.

As to the contents and effect of the order itself, the applicants complain that the order has the effect of preventing both applicants from continuing with their farming operations without having been afforded an opportunity to be heard on such a drastic issue.

Secondly, access to the fields and crops already in the ground is an asset worth billions of dollars and therefore greatly in excess of the Magistrates Court jurisdiction. The applicants have grown 40 hectares of tobacco, 300 hectares of soya beans, 30 hectares of maize and 20 hectares of horticultural crops for the current season. The applicants have spent in excess of $300 billion and will have to spend a further $100 billion up to harvesting of the crops.  The temporary interdict threatens to disrupt farming operations and economically ruin the applicants in the process.

Applicants argued that the Magistrate’s Court had no power to issue such an interdict. That such a court could grant an interdict such a wide interdict, in applicants’ view, demonstrated the institutional bias against white commercial farmers pervading this magisterial station.

If this was the view of the applicants, the appropriate step for the applicants would have to apply for the recusal of the specific presiding officer citing the fact, as Mr Masterson did, that such presiding officer could not, by virtue of the fact that he is a beneficiary of the land reform program, discharge his duties fairly in a given case placed before him.

As demonstrated elsewhere on the papers judicial officers are keenly aware of their duty to not only ensure that justice is done but that it be seen to be done. As I understood Mr Masterson, of particular concern to him was the fact that a senior magistrate at that station now farms on part of his client’s farm. Whether it is the Remaining Extent of Romsey, it was not made clear. There was belief, however, among his clients that Ministry of Lands officers housed in the same building somehow influenced the manner in which matters on former commercial farms were adjudicated at magistrates court, Chinhoyi.

When pressed by court on whether in his view an application for recusal could not afford his clients appropriate relief rather than a blanket prohibition of such matters being heard at Chinhoyi court, he conceded that such a course was more appropriate. He did not persist on the order he sought on the papers. Where it is intended to make such an allegation as institutional bias, legal practitioners must place before the court such facts as would support such allegations of general institutional bias, especially where judicial officers are involved, if only in the hope that corrective administrative action may be taken. It is not fair for a party to make a blanket and unsubstantiated allegation of bias regarding how judicial matters are presided upon by a magisterial station. When it was brought to Mr Masterson’s attention that his clients had in fact obtained an order favourable to them, he literally abandoned the allegation of bias. As this prayer was abandoned nothing more will be said of it.

Mr Takaendesa, for the first respondent, argued that applicant jumped the gun by approaching this court. Their remedy lay in anticipating the rule nisi in the magistrate’s court in terms of the rules of that court. As such the application should be dismissed on that basis. Secondly, he urged the court to refuse to entertain the application on the basis that they come to court with dirty hands as they have not complied with the magistrate’s court order. In any event the applicants cannot be heard for the further reason that their continued stay on the farm constitutes a criminal offence. The farm is now State property and they hold no lawful permission to remain on the farm. That permission which was granted to them expired and was not renewed. He argued that the court will be perpetuating the commission of a criminal offence were it to grant the order sought. He relied on an affidavit from one Marius Dzinoreva, a Director for Acquisition in the Ministry of State for National Security in the President’s Office Responsible for Lands, Land Reform and Resettlement for the submission that first respondent had a cession of the right to bring the action on behalf of the acquiring authority.

Further respondents hold a valid offer letter. It requires them to assume occupation and embark on farming operations. As such the applicants have no right to be on that piece of land.

The matter before me requires me to decide whether on the papers the applicants have made a case for the setting aside of the temporary interdict granted by the magistrate on 13 December 2007. That order is impugned on the grounds of lack of jurisdiction by the court and gross irregularity in the procedure adopted in obtaining the order.

First respondent states that where the magistrate had good reasons to recuse himself, he has previously done so. As there was no basis for refusing to grant a default judgement he granted it. This was in spite of the fact that this was in a matter in which he had previously recused himself. There could be no basis for setting the matter aside on the ground that this constituted gross irregularity.

Ms Mwatse, for the second respondent and in support of the first respondent, relied on the cession of rights by the acquiring authority to the beneficiary. The issue for the decision of this court is whether that court had jurisdiction to grant the order it granted and if so whether, taking into account the manner in which it was granted, it is not liable to be set aside. I believe the matter could be disposed of on these two grounds.

Section 27 of the High Court Act [Chapter 7:06] sets out the grounds upon which a decision of an inferior court may be brought on review. Lack of jurisdiction, interest in the cause, bias, malice or corruption on the part of the presiding officer and gross irregularity, among others are such grounds.

Not all procedural irregularities will qualify a superior court setting aside the proceedings leading to the result complained of. The irregularity must be so gross as to have prevented the presiding officer from deciding the issues which he had to decide. Put differently, the irregularity must have resulted in a miscarriage of justice to be sufficient ground for review.

In Telcordia Technologies Inc v Telcom SA Ltd2007 (3) SA 266 (SCA) HARMS JA says about this ground of review:

“ It is useful to begin with the oft quoted statement from Ellis v Morgan  where Mason J laid down the basic principle in these terms: 

            'But an irregularity in proceedings does not mean an incorrect judgment; it refers   not to the result, but to the methods of a trial, such as, for example, some high-  handed or mistaken action which has prevented the aggrieved party from having       his case fully and fairly determined.'

 The Goldfields Investment qualification to this general principle dealt with two situations. The one is where the decision-making body misconceives its mandate, whether statutory or consensual. By misconceiving the nature of the inquiry a hearing cannot in principle be fair because the body fails to perform its mandate. Goldfields Investment provides a good example. According to the applicable Rating Ordinance any aggrieved person was entitled to appeal to the magistrates' court against the value put on property for rating purposes by the local authority. The appeal was not an ordinary appeal but involved, in terms of the Ordinance, a rehearing with evidence. The magistrate refused to conduct a rehearing and limited the inquiry to a determination of the question whether the valuation had been 'manifestly untenable'. This meant that the appellant did not have an appeal hearing (to which it was entitled) at all because the magistrate had failed to consider the issue prescribed by statute. The magistrate had asked himself the wrong question, that is, a question other than that which the Act directed him to ask. In this sense the hearing was unfair. Against that setting the words of SCHREINER J should be understood: The law, as stated in Ellis v Morgan (supra) has been accepted in subsequent cases, and the passage which has been quoted from that case shows that it is not merely high-handed or arbitrary conduct which is described as a gross irregularity; behaviour which is perfectly well-intentioned and bona fide, though mistaken, may come under that description. The crucial question is whether it prevented a fair trial of the issues. If it did prevent a fair trial of the issues then it will amount to a gross irregularity. Many patent irregularities have this effect. And if from the magistrate's reasons it appears that his mind was not in a state to enable him to try the case fairly this will amount to a latent gross irregularity. If, on the other hand, he merely comes to a wrong decision owing to his having made a mistake on a point of law in relation to the merits, this does not amount to gross irregularity. In matters relating to the merits the magistrate may err by taking a wrong one of several possible views, or he may err by mistaking or misunderstanding the point in issue. In the latter case it may be said that he is in a sense failing to address his mind to the true point to be decided and therefore failing to afford the parties a fair trial. But that is not necessarily the case. Where the point relates only to the merits of the case, it would be straining the language to describe it as a gross irregularity or a denial of a fair trial. One would say that the magistrate has decided the case fairly but has gone wrong on the law. But if the mistake leads to the Court's not merely missing or misunderstanding a point of law on the merits, but to its misconceiving the whole nature of the inquiry, or of its duties in connection therewith, then it is in accordance with the ordinary use of language to say that the losing party has not had a fair trial. I agree that in the present case the facts fall within this latter class of case, and that the magistrate, owing to the erroneous view which he held as to his functions, really never dealt with the matter before him in the manner which was contemplated by the section. That being so, there was a gross irregularity, and the proceedings should be set aside.'

            From these authorities it appears, firstly, that the ground of review envisaged by the use of this phrase relates to the conduct of the proceedings and not the result thereof. This appears clearly from the following dictum of MASON J in Ellis v Morgan; Ellis v Dessai1909 TS 576  J at 581:1993 (1) SA p43 BRAND AJ

             'But an irregularity in proceedings does not mean an incorrect judgment; it refers not to the result but to the method of a trial, such as, for example, some high-handed or mistaken action which has prevented the aggrieved party from having his case fully and fairly determined.'

(See also, for example, R v Zackey1945 AD 505 at 509.)

            Secondly it appears from these authorities that every irregularity in the proceedings will not constitute a ground for review on the basis under consideration. In order to justify a review on this basis, the irregularity must have been of such a serious nature that it resulted in the aggrieved party not having his case fully and fairly determined. (See, for example, Ellis v Morgan (supra); Coetser v Henning and Ente NO 1926  C TPD 401 at 401996 (4) SA 4; Goldfields Investment Ltd and Another v City Council of Johannesburg and Another1938 TPD 551; and  also S v Moodie 1961 (4) SA 752 (A)) .

It is clear to me that the learned trial magistrate committed two gross procedural errors warranting this court to infer prejudicial bias on his part. First having correctly decide that it was appropriate for him to recuse himself, he then went ahead and presided over the same or similar matter. It does not matter that the matter was technically one proceeding by default. It was even more relevant that the matter so proceeded because it gave the other side fertile ground to complain that justice was not done. This is even more apparent when regard is had to the fact that the applicants raised the question of jurisdiction.  Had they been allowed to fairly state their case, one can say they would have place this issue before the learned trial Magistrate who would have directed his mind to all the issues to be decided. Because of the procedure he adopted he has prevented the other side from placing its case before him when he knew they had a case to present.

A Court of the Magistrate can only do those things the Act prescribes to it. It cannot do or act outside the four corners of the statute creating it. The court cannot ascribe to itself jurisdiction not expressly granted to it by the Act. In respect of interdicts, s 12(1) provides that subject to the limits of jurisdiction prescribed by the Act, the court may grant such interdicts. The effect of the wording of the interim interdict, in my view, is to shut the present applicant out of his home and farm. This in essence is constructive eviction of the applicant. I am fortified in this conclusion by the effect a plain reading of the order. Applicant is prohibited from visiting or working his fields. If he does so he risks an arrest by police on sight on a contempt of court charge. Assuming he can access his homestead without going through his fields, he still is foul of the order. He cannot ask his servants to tend the crops. He is virtually evicted from the land. Clearly this is in violation of the jurisdictional limit of $5 million being the current ceiling of the monetary jurisdiction of the magistrate’s court. The Act places a statutory limit of $5 million being “clear value to the occupier” on matters which the magistrate can entertain. I did not hear the respondents to argue that the interdict was within the jurisdiction prescribed by s 11 (1) (iii) of the Act.

The thrust of the respondents’ argument remained that being the previous owners, the applicants did not have lawful authority to remain on the farm. It is trite that the right to claim eviction in respect of  land acquired in terms of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] is only exercisable by the holder of the residual rights in the land. Such rights repose only with the acquiring authority. Only the Minister of Lands can bring an action claiming eviction from land on behalf of the President of the Republic of Zimbabwe, being the acquiring authority. That process is not initiated by a beneficiary under that land reform programme, or by an officer of the acquiring ministry. The process is set out in the Act. It is set in motion by a criminal prosecution of the recalcitrant farmer. The farmer is allowed to raise a defence of lawful authority. The Court is enjoined to investigate his defence before convicting such a farmer or occupier. Upon conviction by that court the occupier is automatically issued with an order evicting him.

 The process is meant to deliver vacant possession of the land to the beneficiary and avoid possible breaches of the peace that otherwise are frequent where a beneficiary is given an offer letter where the former owner is still in situ. There can be good reasons for the former owner remaining on acquired land. He could have lawful permission or some such defence to put forward upon being prosecuted. It is therefore up to the acquiring authority to initiate such prosecution thereby open the way for orderly tae over by the beneficiary. It is sound principle that resort is had only to the law.

I cannot envisage clearer procedural requirements to deliver vacant possession.

Mrs Mwatse acknowledged that I have previously pointed out that the acquiring authority ought to prosecute those farmers who, in the authority’s view, are in breach of the law by remaining on gazetted land without lawful authority. Upon securing a conviction, and only then, should an offer letter be issued over that land. She advises that no prosecution of these alleged offenders has so far taken place although my advice has been passed on to the relevant authorities. Such a step, in my respectful view, will help clear the air and give a clearer direction to the land reform programme for the national benefit. The economic benefits following stability, certainty and predictability on the farms cannot be underestimated. It remains for the authorities to adopt their programmes to accord with the law as it stands.

The present application for the reasons given above was allowed with costs.

Coghlan Welsh & Guest, legal practitioners for the applicants

Mavhunga & Sigauke, legal practitioners for the 1^strespondents

Civil Division, A-G’s Office, legal practitioners for the 2^ndrespondents