Dzingai Nevhunjere v Sam Parirenyatwa & 5 Others

### Preamble
1
HH 289-11
HC 7157/10
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DZINGAI NEVHUNJERE

versus

SAM PARIRENYATWA & 5 OTHERS

HIGH COURT OF ZIMBABWE

MUTEMA J

HARARE, 22 March, 16 May, 6 June and 25 October 2011

Opposed Court Application

P. Ngarava, for the applicant

J. Mambara, for the 1st respondent

J. Dodo, for the 2nd - 6th respondents

MUTEMA J:  On 20 October 2010 my brother UCHENA J granted a provisional order in favour of the applicant couched in this vein:-

“INTERIM RELIEF GRANTED:

Pending the final determination of this matter, the applicant is granted the following interim relief:

That the first respondents (sic) and all those claiming through them (sic) and acting under his instructions be and is hereby ordered not to disturb, disrupt or interfere, directly or indirectly, in any way with the applicant’s farming, agricultural and business operations and use of the rehabilitated and renovated borehole on state land adjacent to the applicant’s Plot Number 8 at Danbury Park Farm, along Old Mazowe Road, Mazowe;

That the first respondent be and is hereby ordered to return the applicant’s equipment namely a 15 horse power electric pump and a 7.5 HP 4 Pole 380V E/Motor (Booster) unlawfully removed/confiscated by the first respondent and all those acting under his instructions”.

The terms of the final order being sought, the subject of this application,

were:

“That the respondents show cause to this Honourable Court why a Final Order should not be made in the following terms:

(a)	the respondents and all those claiming through them and acting

under their instructions should not be interdicted, restrained and prohibited from approaching, visiting and entering the structure(s) on the rehabilitated and renovated borehole adjacent to the applicant’s Plot Number 8 situate at Danbury Park farm, Mazowe, Mashonaland Central Province; and that

(b) the respondents (first, second and third respondents jointly and

severally the one paying the other(s) to be absolved pay the costs of this application on Attorney-Client Scale (that is on a higher scale)” (sic).

At the hearing of the matter on 25 October, 2011 Mr Ngarara, in a show of amnesia, sought to flog a dead horse by raising a point in limine that the second, third, fourth and fifth respondents were barred for filing their heads of argument late without seeking condonation therefor. This was unnecessarily dilatory because the applications for condonation of late filing of heads had been granted by consent on 22 March, 2011.

He also raised the point in limine against the first respondent, viz that he had dirty hands because he had not fully complied with the provisional order by not also returning the 7.5 HP 4Pole 380V E/Motor booster. The record of proceedings is replete with accusations and counter accusations as to who was to blame for this alleged non-compliance. The court could not be persuaded one way or the other but since the item in question had been brought to court by the first respondent the court ordered it produced and was subsequently handed over to the applicant.

What then remained for the court’s resolution was whether the order sought should be discharged or confirmed, in other words, whether the applicant had established the requirements of a final interdict. To this end, what could be gleaned from the papers filed of record are the following:-

The contentious borehole is situated on the State land. The first respondent has an offer letter pertaining to plot 17 Danbury Park Farm while the applicant’s offer letter relates to Plot 8. While the applicant has no proof of any permission to use part of the State land in question the first respondent, via annexure ‘A’ to his opposing affidavit proved authority by third respondent for him to at least occupy and take care of the homestead on the State land. That annexure ‘A’ reads;

“We hereby confirm that on or about the 27th November 2002 this office as the responsible Authority entered into a written contract with Sam Parirenyatwa in terms of which the said Parirenyatwa was appointed the caretaker of the Danbury Park, homestead. By virtue of that contract and appointment the said Sam Parirenyatwa was granted the exclusive right to occupy and take care of the said homestead on behalf of the Ministry of Lands, Agriculture and Rural Resettlement.

No other person has any right to interfere with Mr Parirenyatwa, attached to the application for peace order and confirm that the copy titled “CONTRACT OF EMPLOYEMNT OF UNGRADED EMPLOYEE CONTRACT ENGAGEMENT OF CASUAL LABOUR” is true and correct copy of the contract in terms of which Mr Parirenyatwa was appointed caretaker to Danbury Park Farm Homestead. We have also been shown the opposing affidavits deposed to by Dzingayi Nevhunjere and Wicknos Chiambiro in Case No. B 23/03. We wish to advise the court that these two persons have no right whatsoever to interfere with Sam Parirenyatwa’s right of peaceful possession and occupation of the Danbury Park Farm Homestead. Their claims are denied by this office.”  While annexure ‘A’ does not constitute allocation by the third respondent of the State land to the first respondent, the first respondent enjoys greater rights over the State land than the applicant especially as pertains to the contentious borehole situate on this State land which feeds the homestead to which the first respondent has caretakership. It seems clear that what the applicant simply did and out of land greed, was to unlawfully allocate himself the State land and the borehole on it and started forming thereon. The fact that he has been farming on it unlawfully for over 8 years does not and can never legitimise what he did. Neither can the recommendation by his member of parliament to the third respondent ‘that the State land adjacent to Plot 8 be annexed and allocated as an extension of Plot 8 to Cde Nevhunjere”

Also, annexure ‘B’ to the first respondent’s opposing affidavit clearly shows that the applicant was once convicted of theft of a motor pump from the borehole in the custody of or under the caretakership of the first respondent and was sentenced to a wholly suspended sentence of 12 months imprisonment by the magistrates’ court. That pump was recovered by the police from the applicant’s house and was positively identified by the first respondent. There is no proof on record of the alleged appeal/review of the magistrate’s judgment.

Annexure ‘E’ an affidavit by a neighbour farmer is corroborative of the first respondent’s averments that it is the latter who has the right over the borehole in question and that the applicant is responsible for vandalism and or theft of property on the State land. Annexure ‘F’ to the first respondent’s opposing affidavit is a peace order in favour of the first respondent against the applicant and one W. Chiyambiro issued by the Bindura Magistrates’ Court inter alia, interdicting the two from going or coming within 100m of the Danbury Park Farm homestead occupied by the first respondent. There is also a writ of ejectment in favour of the first respondent against the applicant and Chiyambiro from the farm in question dated 14 April, 2005.

More importantly, in terms of Makuku’s supplementary affidavit, the borehole in question is now situate on plot 17 (first respondent’s) and accordingly, the final relief sought by the applicant has been overtaken by events hence cannot be granted or confirmed.

In view of the foregoing, particularly Makuku’s supplementary affidavit, I have not been persuaded that the applicant has managed to establish any of the recognised requirements of a final interdict. Applicant has no clear right to be on the State land while the first respondent has. The court should not be used to sanction the applicant’s illegal activities. Applicant has alternative satisfactory remedy and will not suffer irreparable harm or injury if the order is not confirmed. He has an alternative remedy from the third respondent to formally apply to be allocated or offered the State land in question. In any event, going by Makuku’s supplementary affidavit the third respondent has already subdivided the state land and allocated portions of it to the various beneficiaries the applicant included. Lastly the balance of convenience does not favour the applicant but the respondents especially the first respondent.

In the result, the provisional order issued by this court on 20 October, 2010 is hereby discharged with costs.

Ngarara, Moyo & Chikono, applicant’s legal practitioners

J. Mambara & Partners, 1st respondent’s legal practitioners

Civil Division of the Attorney General’s Office, 2nd, 3rd, 4th, fifth and sixth respondents’ legal practitioners