Cairo Mhandu v Jordan Tavenwa Mushore and Ronald Mushore and Sakala Chokoto and Faith Dzawo and Deputy Sheriff

HH 80-2011
                                                                                     HC 2853/11



CAIRO MHANDU
versus
JORDAN TAVENWA MUSHORE
and
RONALD MUSHORE
and
SAKALA CHOKOTO
and
FAITH DZAWO
and
DEPUTY SHERIFF.


IN THE HIGH COURT OF ZIMBABWE
BHUNU J
HARARE 24th March 2011 and 25 March 2011

Miss Murambatsvina, for the applicant
Mr Dzvetero, for the respondents

Urgent chamber Application

       BHUNU J: The applicant is the holder of an offer letter in respect of subdivision 8 of
Galloway in the district of Mazowe in Mashonaland Central Province. He is involved in a
vicious land dispute with the first four respondents hereinafter referred to as the respondents.
       None of the respondents has an offer letter relating to plot 8. The second and third
respondents claim occupation through one Gweshe the holder of an offer letter to plot 9.
       On 17 February 2011 the applicant obtained default summary judgment against the
respondents under Case Number HC 5434/10. The respondents subsequently filed an
application for rescission of judgment and the matter is yet to be determined. The respondents
then filed an application for stay of execution pending the determination of the application for
rescission of judgment. That application is yet to be determined as well. The applicant has now
filed an application for leave to execute pending the finalization of the respondents’
applications.
       The respondents resisted this application on the basis that the applicant has no locus
standi and that the matter is pending before MTSHIYA J in the sense that the issues to be
determined in an application for stay of execution are essentially the same as those to be
determined in an application for leave to execute pending determination of other proceedings.
2
HH 80-2011
HC 2853/11

       During the course of the hearing it was conceded that the applicant has locus standi in
that he is the holder of an offer letter to the disputed land. During the course of the hearing it
emerged that the dispute boils down to a boundary dispute. On the face of it, it appears to me
that those respondents who claim occupation through another cannot engage in a boundary
dispute with the applicant without seeking protection from their principal through whom they
claim occupation It also appears to me that the respondents who hold offer letters for other
plots other than plot 8 are in a precarious position regarding their entitlement to plot 8 or
portions there of.
       There is a presumption of validity of a government document regular on its face until it
is lawfully invalidated. Thus the applicant’s offer letter must be deemed valid until it is shown
otherwise. The offer letter therefore confers rights of unimpeded occupation on the applicants
until the courts have determined otherwise. The courts generally lean in favour of the
enjoyment of rights rather than their extinction. The matter would have been different had the
respondents either individually or collectively been holders of an offer letter for the disputed
piece of land.
       I consider land dispute cases to be urgent because if not resolved they disrupt
production on the land upon which the creation of wealth and the economic survival of the
nation is based. While I accept that the issues to be determined at the hearing for stay of
execution are essentially the same as those to be determined in this application for leave to
execute, it is necessary to issue an order to facilitate peace and productivity on the disputed
land pending the determination in the pending proceedings.
       As the applicant is already in possession of a valid judgment which has not been upset
at this stage he is entitled to temporary relief pending MTSHIYA J’s determination In Case
Number 2158/11. In coming to that conclusion I am mindful that the law places a heavy onus
on the respondents to convince the Court that they are entitled to stay of execution. See
Trainos Madaka v Rodney H B – 116-89. The remarks of DUMBUTSHENA AJP as he then
was in the case of Chibanda v King 1983 (1) ZLR 116 fortifies my position. In that case the
learned Judge observed that,

       “It must be borne in mind that if the Court were to extend mercy, it will be doing it at
       the expense of a litigant who has already established in Court his right and title to what
       is being claimed. Such mercy should rather be sought in the action itself before
       judgment is given, not afterwards.”
                                                                                         3
                                                                                HH 80-2011
                                                                                HC 2853/11

   The justice of the case therefore, demands that the applicant be granted interim relief
pending the judgment of MTSHIYA J. It is accordingly ordered:

   1.      That pending the judgment of MTSHIYA J in Case number 2158/11 the
           respondents be and are hereby ordered to vacate plot 8 of Galloway in the district
           of Mazowe in Mashonaland central Province.
   2.      Costs are to be costs in the cause.




   I Murambatsvina, Legal Practitioners, applicant’s legal practitioners
   Antonio & Associates, defendants’ legal practitioners