Chamunorwa Charles Mutyambizi v Joseph M. Goncalves and 7 Others

### Preamble
1
HH 315-13
HC 7136/13
Ref Cases HC 9052/11
SC 300/11
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CHAMUNORWA CHARLES MUTYAMBIZI
versus
JOSEPH M. GONCALVES
and
PIRAI ISHE ZHOU
and
PHILIMON CHIKUVANYANGA
and
MARIMBI CHIOTA
and
LUCKY MOLENE CHITAKA
and
COMMISSIONER GENERAL OF POLICE N.O.
and
OFFICER COMMANDING BEATRICE DISTRICT N.O.
and
OFFICER IN CHARGE BEATRICE POLICE STATION N.O.

HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 4 September 2013 and 6 September 2013 and 25 September 2013

Mr. Ndudzo and Mr. Zvinavakobvu, for the applicant
Mr. J Samukange, for 1st to 5th respondents
Ms. R. Hove, for 6th and 8th respondents

BHUNUJ: This is an urgent chamber application for a spoliation order. The applicant and the first respondent are engaged in a nasty fight over the possession and occupation of subdivision 1 of Charmaine of Dryton situate in the district of Seke in Mashonaland East Province. The second to fifth respondents are community dwellers and leaders in the surrounding areas sympathetic to the first respondent’s cause.

The first respondent is the former owner of the farm in dispute. The farm has since been acquired by the State and has become State Land. The applicant is a new farmer who was allocated the disputed land by virtue of an offer letter dated 3 January 2005. Since then the first respondent has mounted a spirited resistance of the takeover of the disputed land. He has unfortunately lost virtually every legal challenge both in this Court and the Supreme Court.

On 23 November 2011 CHIWESHE JP granted an order in favour of the applicant against the applicant, M.M. Pretorius (Pvt) Ltd and one Sylvia Lorraine Pretorius in the following terms:

“IT IS ORDERED THAT:

1. Applicant be and is hereby declared to be the lawfully authorised to be in occupation of subdivision 1 of Charmaine of Dryton in Seke District of Mashonaland East Province in terms of the Offer Letter by the fourth respondent in his favour dated 3 January 2005.

2. First, second and third respondents be and are hereby ordered to forthwith give vacant occupation of subdivision 1 of Charmaine of Dryton in Seke District of Mashonaland East Province to the Applicant.

3. The deputy Sheriff and /or his lawful assistants be ordered to give effect to terms of (2) above.

4. First, second and third respondents to pay costs of suit.”

The first respondent and M.M Pretorius (Pvt) Ltd appealed to the Supreme Court without success. Their appeal found no favour with ZIYAMBI JA and she dismissed the appeal on 17 October 2012 under judgment number SC 39/12.

Undaunted in their desperate endeavour to retain occupation of the farm the respondents must have instigated and prevailed over the minister to withdraw the applicant’s offer letter and to issue the respondent with an offer letter for the same farm. The letter of withdrawal is dated 10 May 2012. On 2 November 2012 the Minister issued the first respondent with an offer letter covering about ¾ of the disputed land. The applicant however, successfully challenged the withdrawal letter in the Administrative Court and it was declared a nullity and invalid on 29 January 2013.

Following his success in the Courts the applicant obtained a writ of ejectment. On 6 August 2013 the Additional Sheriff gave the respondents notice of ejectment to be effected on 9 August 2013. The additional Sheriff subsequently rendered a return of service dated 15 August 2013 but date stamped 19 August 2013 dully endorsed:

“Ejectment was done in the presence of Mr. MM Pretorius (the defendant.)”

The applicant’s complaint is that on 29 August the first to fifth respondent together with a horde of other unidentified individuals besieged his farm and forcibly ejected his workers from the farm. Since then the first respondent has reoccupied the farm in open defiance of binding court orders.

Despite his hands dripping with dirt arising from his open defiance of the law and the courts the first respondent had the temerity to approach this Court seeking an order reversing the judgment of CHIWESHE JP. In doing so he sought to rely on the invalid offer letter issued by the Minister. In dismissing first respondent’s application under judgment number HH 276/13 CHIGUMBA J had this to say at p 3 of her cyclostyled judgment:

“First respondent’s (Applicant) offer letter was declared to be lawful authority for him to occupy the property by Judge President CHIWESHE on 23 November 2011. Was it subsequently rendered invalid by its purported withdrawal? The Administrative Court has declared the purported withdrawal to be null and void. That leaves first respondent’s (Applicant) offer letter of 3 January 2005 extant. Judge President CHIWESHE’s judgment of 23 November 2011 in which he declared first respondent (Applicant) to be the lawful owner of the property is also extant. It has not been set aside on appeal. Applicant (1st Respondent) was ordered to give vacant possession of the premises to first respondent (Applicant) on 23 November 2011. That order remains valid to date”.

In Florence Sigudu v Minister of Lands and Rural Resettlement N.O. and Pheneas Chihota HH–11–2013, in an opposed application whose facts are similar to the circumstances of this case, the court stated that the Land Settlement Act [Cap 20:01] does not entitle the Minister or any other authority to cancel offer letters or to terminate rights conferred there under, at p 5.

I am in respectful concurrence with the learned judge’s impeccable line of reasoning founded on a sound appreciation of the law of the land.


The first respondent does not deny being in occupation of the farm. He however denies that his occupation of the same land amounts to spoliation. His argument is that he in fact never lost possession of the farm because he was never evicted from the disputed property and the applicant never had peaceful and undisturbed occupation of the property. His assertion in this respect flies in the face of written communication in which his erstwhile lawyers made it clear that he had been evicted from the farm and was seeking safe passage from the applicant to collect his remaining belongings.

Following the ejectment the respondent’s lawyers Granger & Harvey wrote to the Applicant’s lawyers Mutamangira & Associates on 23 August 2013 requesting permission for the respondents to harvest their potato crop. The letter reads:

“RE: C.C. MUTYAMBIZI AND GONCLAVES.

We refer to today’s telecom regarding the issue of the potato crop and which you requested we put in writing.

The Gonclaves have instructed that Mr. Mutyambizi did agree to them uplifting the potato crop but at his convenience.
This was last Friday at the police station in the presence of inspector Dube.

But as yet Mr. Mutyambizi has not allowed the Gonclaves to uplift the potatoes.

Also they wish to collect some items that the Deputy Sheriff did not remove, including a generator, reverse osmosis pump with a 5000 litre tank, flower benches and tractor spares- and they enquire if they may do so”.

In response the applicant’s Lawyers had this to say:

“RE M.M. PRETORIUS & ORS V CHAMUNORWA CHARLES MUTYAMBIZI

1. We refer to the above matter (“the matter”) and to the various telephone conversations on the matter.

2. Our client is not averse to your client uplifting his potato crop. However, he requires yours to enter using the front gate and after alerting our client and/ or his security.


3. Further, the potato crop should be uplifted within a reasonable time so as not to disrupt our client’s activities which have already commenced.

4. With regard to all the other issues, kindly approach the Sheriff of the High court of Zimbabwe. However, we understand that some of the items are fixed to the ground and same have now acceded to the property and cannot be removed.

5. Our client further advises that your client has removed and/ or vandalised the fence that demarcated the northern boundary of the property.

6. You are aware that this is illegal. Enquire from your client and advise as to when he will return the fence lest a police report will be made. Regarding the issue.”

The above communication between the parties’ legal practitioners makes it clear that the applicant was lawfully ejected from the farm by the Additional Sheriff whereupon the applicant assumed peaceful and undisturbed occupation of the farm. That being the case, the first respondent’s reoccupation of the farm without the applicant’s consent can only amount to spoliation.

It is needless to say that our law frowns upon illegal self help to dispossess another. When that happens, the courts have a legal duty to restore the status quo ante. The fifth respondent who is the local counsellor and leaders of the war veterans in the area in support of the first respondent urged the court to take into account the interests of the community.

While the interests of the community are important considerations, the overriding consideration are the provisions of the law. Thus when ever community interests come into conflict with the law, they will have to give way to the dictates of the law. That is what the rule of law is all about.

The applicant’s other complaint is that the police have not been of much help in assisting him to assert and protect his rights and interests in the disputed property. It however, appears to me that the police were genuinely confused by the minister’s conduct in issuing two conflicting offer letters to two different people pertaining to the same piece of land. It was not for the police to decide the validity or otherwise of any of the contrasting letters. Now that the Court has clarified the position the police are duty bound to perform their constitutional mandate without let or hindrance.


The first to fifth respondents’ conduct in openly and deliberately defying the law and lawful Court orders is reprehensible and can only bring the due administration of justice into disrepute. That being the case, costs at the higher scale are called for.

For the foregoing reasons the application can only succeed. It is accordingly ordered:

1. That the first, second, third, fourth, and fifth respondents together with all those who act through them and on their behalf, be ordered to forthwith vacate occupation of division 1 of Chamaine of Dryton Farm to the applicant and that they be interdicted from being within 100 metre radius of the farm.

2. That first, second, third, fourth and fifth respondents be ordered not to enter Subdivision 1 of Chamaine of Dryton Farm without the consent or authority of the Applicant.

3. That the order shall be a warrant requiring any member of the Zimbabwe Republic Police to assist the Sheriff or his lawful deputy in enforcing it and to arrest anyone who acts in a manner which interferes with applicant’s occupation of subdivision 1 of Chamaine of Dryton.

4. That first, second, third, fourth, and fifth respondents jointly and severally pay costs on the scale of legal practitioner and client scale the one paying and the others to be absolved.

Mutamangira & Associates, applicant’s legal practitioners
Granger and Harvey, 1st respondent’s legal practitioners
Civil Division of the Attorney General’s Office, 6th, 7th, and 8th respondents’ legal practitioners
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