Melody Midzi v Peter Pedzisayi & 3 Ors (and all those claiming through them)

### Preamble
1
HH 163-21
HC 712/21
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MELODY MIDZI

versus

PETER PEDZISAYI

and

PARTSON CHIPUNZA

and

COLLIN SIGAUKE

and

TERESA TSURO

(and all those claiming through them)

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 18, 31 March & 14 April 2021

Urgent Chamber Application

N.Mugiya, for applicant

R.T. Kuchidza, for respondents

TAGU J: This application for a spoliation order has been brought on an urgent basis. The facts are that the Applicant MELODY MIDZI is a surviving daughter of the late AMOS MIDZI. AMOS MIDZI during his life time had been offered a land holding under the Land Reform and Resettlement Program (Model A2 PHASE II) by the Minister of Lands, Agriculture and Rural Resettlement at Subdivision 1 of Earling Farm, Beatrice in Mashonaland East Province on the 30th December 2002 for agricultural purposes measuring approximately 347.80 hectares in extent. After AMOS MIDZI’s demise the farm remained in the possession and occupation of his daughter, the Applicant herein. Since then she has been in peaceful and undisturbed possession of the farm. She has been using the farm to do extensive agro-farming as well as animal husbandry.

However, some 12 months ago the Respondents who have no Offer Letters, but claim to be War Veterans invaded and had serious problems with the Applicant’s neighbor one HOPE KATUKA who is occupying Subdivision 2 of Earling Farm, Beatrice. These disputes spilled into this Honourable Court thrice in HC 2674/19, HC 7440/19 and HC 4783/20. In all the cases the Respondents and all those that claim occupation through them were evicted from Subdivision 2 of Earling Farm, Beatrice. The orders are still extant.

Undeterred by the orders, the respondents on the 4th of March 2021 served the Applicant with a Court Application under HC 199/21 in which they are seeking an order that the Applicant should be interdicted from reporting them to the Police when they invade her Farm and that the Police must not arrest them. On 10 March 2021 case HC 199/21 was postponed to 15 March 2021 to enable the Ministry of Lands, Agriculture, Climate, Water and Rural Resettlement to submit a report on which subdivision the respondents are resident.

While the Ministry’s report was pending and on the 14th of March 2021 the Respondents and their followers invaded a portion of the Applicant’s Farm of approximately 30 hectares and started erecting their pole and dagga huts. Her worker has been told by the Respondents never to set foot five hundred metres from the besieged portion of her Farm. They are erecting boom gates so that they control people accessing the portion of the besieged Farm. The Applicant’s agricultural activities have been affected and she lost half of her Farm to the Respondents. This jolted her to file the present application for spoliation because the Respondents’ case in HC 199/21 has not been finalized and they do not have a court order to occupy her Farm.

The respondents’ counsel raised a point in limine that this matter is not urgent. His contention being that the Respondents have always been occupying Subdivision 2 of Earling Farm and not Subdivision 1. He said the orders given against them to evict them from Subdivision 2 were granted in default and the Respondents have since filed applications for rescission because they were not served with the applications. In opposition to the point in limine counsel for the applicant submitted that an application for spoliation is urgent by its very nature. The cause of action being that the Respondents invaded the Applicant’s Farm without a Court Order or Offer Letters hence resorted to self –help and that the issue of boundaries’ will be determined later.

I agree with the counsel for the Applicant’s submissions that spoliation applications are urgent by their very nature. The Applicant approached the Courts as soon as the need to act arose. She was jolted into action by the Respondents’ invasion of her farm without a court order. I find this point in limine to lack merit and I dismiss it.

Coming to the merits of the application whose facts I have already outlined above, the counsel for the Respondents submitted that this matter before me contain issues that are pending under HC 199/21. He said in HC 199/21 it was directed by the Court that the parties together with Ministry Officials are to ascertain boundaries between Subdivision 1 and Subdivision 2 of the Farm before it could give its order. The Court Order under HC 199/21 was produced where the operative part reads as follows-

“IT IS ORDERED THAT:

The 4th respondent in conjunction with the Ministry of Lands officials are to ascertain the boundaries of subdivision 1 & 2 of Earling Farm and ascertain in which part of the farm applicants are occupying.

The applicants to take part in the exercise.

A report to be furnished to court by the 29 March 2021.

Thereafter the matter to be setdown.

No order as to costs.”

The counsel for the respondents maintained that it is the issue of boundaries that respondents are concerned with. He said to give an order to evict the respondents will create confusion because the boundaries have not been done.

In his response counsel for the applicant submitted that there was no meaningful opposition to the application. He said the cause of action is the invasion of the portion of the Farm without following due process and without a court order. The cause of action in HC 199/21 is totally different from the cause of action in the present matter. In view of the numerous court orders which were tendered in court the Respondents realized that their holes have been closed hence decided to unlawfully invade the Applicant’s Farm. He said the filing of applications for rescissions do not stop their evictions. In any case the Respondents are claiming to be in Subdivision 2 so if the order is granted they will not be prejudiced in any way if they are not in Subdivision 1.

What is common cause is that the Respondents and all those that claim occupation through them are not holders of any Offer Letters. If they indeed had them none of them were produced or even mentioned. What makes the respondents’ opposition weak is the facts that knowing fully well that their Case in HC 199/21 has not yet been determined, they took the law into their own hands and invaded the Applicant’s Farm. If their defence is true that they are in Subdivision 2 and not Subdivision 1, which I doubt in view of the previous Court orders for their eviction from Subdivision 2, then there is no prejudice if the order is granted. The Applicant has managed to prove her case on a balance of probabilities and I will grant the order as prayed for.

IT IS ORDERED THAT

The Respondents and all those claiming through them be and are hereby ordered to restore status quo ante and vacate Subdivision 1 of Earling Farm Beatrice forthwith or at least not later 24 hours of the date of this order.

The Respondents and all those claiming through them are ordered to release and return the full control and possession of Subdivision 1 of Earling Farm Beatrice to the Applicant forthwith.

The Respondents and all those claiming through them be and are hereby ordered to demolish all illegal structures at Subdivision 1 of Earling Farm, Beatrice and remove their animals and all their belongings forthwith.

Should the Respondents and all those claim through them fail to comply with paragraph 3 above, the Sheriff of the High Court of Zimbabwe be and is hereby ordered to execute the order forthwith and demolish all illegal structures in Subdivision 1 of Earling Farm Beatrice.

The Respondents are ordered to pay costs of suit on a client –attorney scale.

Mugiya and Muvhami law chambers, applicant’s legal practitioners

Mundia and Mudhara, 1st, 2nd, 3rd and 4th respondents’ legal practitioners