Brian Davies v Floyd Ambrose and The Officer Commanding - ZRP, Matabeleland North Province

### Preamble
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HB 20/21
HC 20/21
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BRIAN DAVIES

Versus

FLOYD AMBROSE

And

THE OFFICER COMMANDING   - ZRP, MATABELELAND NORTH PROVINCE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

22 FEBRUARY 2021

Urgent Chamber Application

J. Tshuma, for the applicant

M. Mahaso, for the 1strespondent

DUBE-BANDA J: This is an urgent application. This application was lodged in this court on 16 January 2021. The application was placed before me and I directed that the copy of the application be served on the respondents. This application was considered on the papers filed by the parties without oral argument, in accordance with paragraph 4 of Practice Directive 2 of 2021 issued by the Chief Justice of Zimbabwe. The application is opposed by 1st respondent.

In this urgent chamber application, the applicant seeks a provisional order drawn in the terms:-

Terms of final order sought

That you show cause to this Honourable Court on the return date why a final order should not be made in the following terms:

That the provisional order be and is hereby confirmed;

That the 1st respondent and all those acting under or through him be and hereby interdicted from entering or interfering with the peaceful occupation of the applicant of Lot 15 Tabas Induna Farm, Umguza, Bulawayo.

That the 1st respondent be and is hereby ordered to pay costs of suit on the legal practitioner and client scale.

Interim relief granted

Pending the finalisation of this matter, the applicant be and hereby granted the following relief:

The 1st respondent and all persons claiming through and under him shall remove, or cause the removal of themselves and all persons occupying certain piece of lands being Lot 15 Tabas Induna Farm, Umguza within 24 hours of the service of this order.

Failing such removal, the Sheriff of this Honourable Court be and is hereby authorised, and directed to evict all such persons from Lot 15 Tabas Induna Farm, Umguza.

The 2nd respondent be and is hereby directed to provide an escort and any other physical assistance necessary for the Sheriff, during the service and execution of this order including the authority to destroy all the temporary structures erected on the land in question by 1st respondent and all those claiming under or through him.

The 1st respondent and all persons claiming through and under him are interdicted and barred from continuing to allocate or portion or resettle any portion of the above mentioned properties to third parties.

The 1st respondent shall pay the costs of this application on the legal practitioner and client scale.

Service of this application and provisional order

That the service of this provisional order and application shall be served on the parties as follows:

On the 1st respondent at Lot 15 Tabas Induna Farm, Umguza, Bulawayo.

On the 2nd respondent at Central Police Station, Fife Street, Bulawayo.

Applicant’s legal practitioners, or a messenger in their employ are authorised to serve the provisional order and process as stated above.

That the 2nd respondent be and is hereby directed to escort the applicants legal practitioners, persons in their employ, or the Sheriff of the High Court of Zimbabwe and give all assistance necessary to serve all process in this matter.

Other than resisting the application on the merits, the 1st respondent in his opposing papers also raised four preliminary objections, being; non-disclosure of material information; use of wrong form; requirements of an interdict not met; and the non-joiner of Minister of Lands.  When dealing with the merits, 1st respondent also attacked the urgency of the application. I am of the view that some of the points raised do not qualify to be elevated to the status of points in limine. I say so because, in general, a point in limine is a point of law which whenever successfully raised has consequence of disposing of the dispute or the proceedings before even the merits of the dispute can be touched upon. See: Mokhosi & 15 others V Justice Charles Hungwe & 5 Others (Cons Case No/02/2019) [2019] LSHC 9 (02 May 2019). In The Minister of Justice, Legal and Parliamentary Affairs versus Hwange Colliery Company Limited HH 132/20 the court said a point in limine, is a point which when properly raised as well as argued, is capable of disposing of the case which is before the court.

The points in limine raised relating to non-disclosure of material information, and that the requirements of an interdict have not been met can summarily be disposed of by simply saying that these are factual issues, which speak to the merits of the application. They are not points of law which could be dispositive of the matter, without considering the merits. Put differently, these points are merits based, and do not qualify to be points in limine.

The point in respect of non-joinder, it has been said that, as a matter of procedure, it is trite that a party instituting legal proceedings must cite every person who has a direct or substantial interest in the matter, or who is likely to be prejudicially affected by the relief sought therein. The failure to do so is not necessarily fatal in every case inasmuch as the courts have an inherent discretion to cure any material non-joinder by giving such directions as may be just and appropriate for that purpose. This is explicitly recognised in rule 87 of the High Court Rules, 1971. See: Tour Operators Business Association of Zimbabwe v Motor Insurance Pool, Zimbabwe Revenue Authority, Insurance and Pensions Commission and Attorney-General of Zimbabwe CCZ 5/15.

It is common cause that Lot 15 Tabas Induna Farm, Umguza, Bulawayo, is gazetted land. It is indeed correct that it is the Minister responsible for lands who administers the Gazetted Land (Consequential Provisions) Act [Chapter 20:28], which regulates occupation of Gazetted land. As I will show later in this judgment, this is in substance an application for a spoliation order, i.e. its objects are to restore possession, and to put a stop to unlawfully taking the law into one’s own hands. In the premises, I take the view that the Minister’s interests in the present matter is purely remote, if any, therefore his non-joinder is not material and not fatal to this application. This point in limine has no merit, and is refused.

There is an attack on the Form used in this application. It is said the Form is incorrect or alien. It is contended that it does not meet the requirements of Form 29B, in that it does not set out in summary the basis of the application.  Form 29B is structured as follows:

Application is hereby made for an Order in terms of the order/draft order annexed to this application on the grounds that

(Set out in summary the basis of the application)

The accompanying affidavit/s and document/s are tendered in support of the application.

The Form used to anchor in this application is structured as follows:

Urgent chamber application

Application is hereby made for an order directing the ejectment of the 1st respondent in terms of the provisional order annexed to this application and the restoration of peaceful and undisturbed occupation of the applicant to Lot 15 Tabas Induna Farm. The founding affidavit of Brian Davis and annexures are tendered in support of the application.

I perceive nothing irregular, incorrect or alien about the Form used in this application. It complies with the requirements of Form 29B. It notifies the 1st respondent that his ejectment from the farm is sought to restore peaceful and undisturbed occupation of the farm to the applicant. The grounds upon which the application has been made are clear from the application. This point in limine has no merit and is refused.

Again towards the end of the opposing affidavit, the urgency of the application is attacked. It is contended that this is self-created urgency.  It is alleged that applicant delayed approaching this court, in that if the incidents complained of occurred on the 12 February 2021, approaching the court on the 17 February 2021, amounted to an inordinate delay. First, respondent gets the dates wrong, the incidents complained off are said to have occurred on the 9th February 2021. This application was filed on the 16th February 2021. I take the view that this attack on urgency is raised as a matter of routine. It neither has any factual basis, nor merit. It is refused. See: Telecel Zimbabwe (Pvt) v POTRAZ & Ors 2015 (1) ZLR 651 (H) at page 659B – E.

It seems to me that the real issue that arises in this case is whether this is an application for a spoliation. If it is a spoliation, whether the provisional order sought is competent at law.  Cut to the borne, this is an application for a spoliation. The averments in the certificate of urgency, the founding affidavit, and the relief sought speak to spoliation. Spoliation is a possessory remedy. The objects of spoliation are as follows: to restore the possession of the things possessed; to put a stop to unlawfully taking the law into one’s own hands; to protect the person who apparently has a possessory right and to prevent disturbance of public peace. In the case of Botha & Anor v Barrett 1996 (2) ZLR 73 (S) GUBBAY CJ stated as follows at p 79 D-E:

It is clear law that in order to obtain a spoliation order two allegations must be made and proved. These are: that the applicant was in peaceful and undisturbed possession of the property; and, that the respondent deprived him of the possession forcibly or wrongfully against his consent. See: Magadzire v Magadzire & Ors SC 196/98, Botha & Anor v Barret 1996 (20 ZLR 73 (S).

In the certificate of urgency, it is contended that; applicant has been in undisturbed possession of a portion of a farm known as Lot 15 Tabas Induna Farm, Umguza since July 2015, by virtue of a cession agreement with the 1st respondent. Applicant and his family continued in peaceful and undisturbed occupation of the farm. Having failed to evict the applicant in court, the 1st respondent took the law into his own hands and forcible occupied the property on the evening of the 9th February 2021, by breaking the locks and refusing to leave the property to date. The conduct of the 1st respondent amounts to an unlawful eviction of the applicant which warrants the remedy of spoliation which is inherently urgent in nature.

In the founding affidavit, it is contended that; this is an urgent application for the eviction of the 1st respondent and all those claiming occupation under him or through him from a portion of a farm known as Lot 15 Tabas Induna Farm, Umguza, and restoring peaceful and undisturbed occupation to the applicant. Since July 2015, following a cession agreement with the 1st respondent, I have enjoyed peaceful and undisturbed possession of a portion of the farm known as Lot 15 Tabas Induna Farm, Umguza, Bulawayo. Accordingly, the 1st respondent has no lawful right to evict me from Lot 15 Tabas Induna Farm (hereafter ‘the farm’ / ‘the lodge’), I thereafter remained in peaceful occupation of the farm. On the 9 February 2021, without a court order, the 1st respondent along with ten other people acting on his instructions, unlawfully deprived me and my family of possession of the farm by breaking the locks at the gate and entered the property, changed the locks and refused to leave the property. I annex hereto the supporting affidavit of my daughter who was present at the property at the time of the invasion. The matter is urgent and cannot wait to be considered as an ordinary court application because the 1st respondent remains occupying my house on the farm in question and refuses to leave. We have been deprived of peaceful occupation of our home, privacy and safety on our premises. I cannot go home with my family in this condition. I am advised and verily believe that the law does not allow members of the public to take matters in their own hands. The 1st respondent must restore possession of the farm to me and my family. In the event that he believes he has a lawful right to occupy the property, he must prove this in a court of law and follow due process.

Applicant does not directly characterise his application as a spoliation. The fact that applicant does not call his application, an application for spoliation is immaterial. This court looks at the substance rather than what a litigant choses to call his application, or its form. See: Econet (Pvt) Ltd v Minister of Information, Posts and Telecommunications 1997 (1) ZLR 342 at 344-345. Looking and considering its substance, it is clear that this is an application for a spoliation order.  A clear right to be restored to the possession of the property has to be established. A spoliation order cannot be granted on evidence of a prima facie right. In J.C. Conolly   and    Sons    (Private)    Limited v     R.C. Ndhlukula  the     Minister     of     Lands     and     Rural     Resettlement SC 22/18, the court said the law is settled that an order of spoliation is final in nature and that it determines the immediate right of possession of a particular res.  It is frequently followed by further proceedings between the parties concerning their rights to the property in question – Nienaber v Stuckey 1946 AD 1049, 1053; Malan & Another v Green Valley Farm Portion 7 Holt Hill 434 CC and Others 2007 (5) SA 114 (ECD), 124 A-B. Moreover a spoliation order cannot be granted on the evidence of a prima facie right - Blue Range Estates P/L v Muduvisi 2009 (1) ZLR 368, 377D.

Although the applicant characterises the order he seeks at this stage as interim relief, it is in substance a final order.  In Blue Range Estates P/L v Muduvisi 2009 (1) ZLR 368, the court said the fact an order sought is in the form of an interim relief is irrelevant to the consideration of the question whether it is final or interlocutory. The issue of an order in the form in which it was applied for does not make the order itself a provisional order. Applicant seeks an order that the 1st respondent and all persons claiming through and under him to remove, or cause the removal of themselves from the farm within 24 hours of the service of the order. Failing such removal, the Sheriff of this Honourable Court be and is hereby authorised, and directed to evict all such persons from the farm. Once this order is granted, it restores the property to the applicant, and as such finally settles that issue of possession as between the parties. The effect of the interim relief sought is final. Once 1st respondent is evicted from the farm, applicant would have achieved its desires, there would be no dispute for resolution of on the return date. This court cannot accede to such a request. This court cannot grant a final order on proof of a prima facie right. See: Chikafu v Dodhill (Pty) Ltd and Others SC 28/09; J.C. Conolly and  Sons (Private)    Limited v R.C. Ndhlukula the Minister of Lands and Rural Resettlement SC 22/18; Blue Range Estates P/L v Muduvisi 2009 (1) ZLR 368.

This court can neither grant a provisional order in an application for spoliation, nor can it grant a final order that has not been asked for. In Constantine Guvheya Dominic Chiwenga v Marry Mubaiwa SC 86/20, the Supreme Court said respondent approached the court a quo seeking a ‘provisional’ spoliation order on a prima facie basis. It said it is trite that a spoliation order being final in effect cannot be granted as an interim order on the evidence of a prima facie right, as happened in this case. It held that, seeking a ‘provisional’ spoliation order, was misplaced and bad at law. The Chiwenga case applies with equal force in this case.

I did not consider the merits, and I make no finding thereon. All I can say at this stage is that even if applicant has a meritorious case, this court cannot grant what it considers a competent order (final relief) because it is not what applicant has asked for. See: Constantine Guvheya Dominic Chiwenga v Marry Mubaiwa (supra). As the applicant’s claim is incompetent and a nullity at law, this court finds that this application is not properly before it and strikes it off the roll.

Costs

Each side sought costs against the other on a legal practitioner and client scale. It is trite that the issue of costs falls within the discretion of the court. In exercising this discretion however, the court is guided by a number of settled principles which all support the achieving of fairness and justice between the parties.  The general rule is that costs follow the cause. However, in casu, I take the view that the 1st respondent had not raised this issue upon which this matter turned, i.e. spoliation, and it was only raised by this court, therefore no award of costs should be made in his favour. See: Commander Zimbabwe National Army, Commander Zimbabwe Defence Forces,  Minister of Defence v  Nester Chidembo,   Emmanuel  Masendeke SC 117/20.

Disposition

Accordingly, I make the following order:

The matter be and is hereby struck off the roll with no order as to costs.

Webb, Low & Barry, applicant’s legal practitioners

Tanaka Law Chambers, respondent’s legal practitioners