Tendayi Mberi v Simon Nyabadza and Others

### Preamble
1
HH241-13
HC 9313/11
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TENDAYI MBERI

versus

SIMON NYABADZA

and

TAKUDZWA NYABADZA

and

ROBERT CROWNWOOD

and

CHARLES VICE

and

WONDER ZAMBUKO

and

MINISTER OF LANDS AND RURAL RESETTLEMENT

HIGH COURT OF ZIMBABWE

MTSHIYA J

HARARE, 11, 12, 16 July 2013 and 7 August 2013

I. Ndudzo, for the applicant

G.N. Mlotshwa, for the 1st – 5th respondents

Ms T. Mashiri, for the 6th respondent

MTSHIYA J: This is an opposed application wherein the applicant seeks the following relief:

“1. 1st, 2nd , 3rd , 4th and 5th Respondents and all persons claiming occupation through

them on Subdivision B of Sandibloom in Headlands Makoni District in

Manicaland Province be and are hereby interdicted from interfering whatsoever

with applicant’s rights of occupation on the farm.

2. 1st , 2nd , 3rd , 4th and 5th Respondents and all persons claiming occupation through

them on subdivision B of Sandibloom in Headlands Makoni District in Manicaland

Province be and are hereby ordered to vacate the farm within 24 hours of service

of this order.

3. 1st and 2nd Respondent to pay costs of suit.

4. The Deputy Sheriff and/or his lawful assistants be ordered to give effect to terms

of (2) above.

5. 1st , 2nd and 3rd Respondents to pay costs of suit.”

On 23 October 2007 the applicant was, through an Offer Letter and under the Land Reform Programme, offered the “whole of S/D B of Sandilboom in Makoni District of Manicaland Province for agricultural purposes........ The farm is approximately 241.00 hectares in extent.” (the land).

On 18 July 2008 the Minister of the then Ministry of National Security, Lands, Land Reform and Resettlement in the President’s Office, the Hon. D.N.E. Mutasa MP (the Acquiring Authority) purported to withdraw the Offer Letter.  He wrote to the applicant in the following terms:

“RE: WITHDRAWAL OF LAND OFFER UNDER THE LAND REFORM AND

RESETTLEMENT PROGRAMME (MODEL A2, PHASE 11)_______________

Please be advised that the Minister of State for National Security, Lands, Land Reform and Resettlement in the President’s Office is withdrawing the offer of land made to you in respect of Subdivision WHOLE of S/D B OF SANDILBOOM Farm in the MAKONI District of MANICALAND PROVINCE.  The withdrawal is in terms of the conditions of offer attached to the Offer Letter to you of 23-Oct-07.

You are therefore notified of the immediate withdrawal of the offer of subdivision WHOLE of S/D B OF SANDILBOOM measuring 241.00 hectares.  You are required forthwith to cease all or any operations that you may have commenced thereon and immediately vacate the said piece of land.

If you wish to make any representation on this issue please do so in writing within 7 days of receipt of this notification, and please direct your correspondence to the Minister.

Hon. D.N.E. Mutasa (MP)

Minister of State for National Security, Lands, Land Reform and Resettlement in the President’s Office.”

On 8 August, 2008, after the above purported withdrawal, the Acquiring Authority offered the same land to the first and second respondents.  This was apparently done on the basis that the applicant’s offer letter had indeed been withdrawn.  I must point out at this stage that on 10 July, 2013 the first and second respondents’ legal practitioners through a letter, addressed to the applicant’s legal practitioners and copied to my clerk, produced yet another offer letter on behalf of the first and second respondents which they described as “a corrected version of our client’s offer letter dated 26 September 2012.” I believe this was in  reference to the original offer letter of 8 August 2008 because the corrected version was dated 26 September 2012.  The new offer letter of 26 September 2012 was authored by the current Minister of Lands and Rural Resettlement, the Hon. H.M. Murerwa, MP. In view of what later transpired, I attach no importance to this new development.

The applicant challenged the purported withdrawal of his offer letter in this court and on 6 July 2011, under a default judgment, this court issued the following order.

“1. The withdrawal letter dated 18 July 2008 purporting to withdraw the land offer

under the land reform and resettlement programme written by the Respondent to

the Applicant be and is hereby declared to be null and void.

2. Respondent to pay costs of suit.”

The sixth respondent sought to have the default judgment of 6 July 2011 set aside.  However, on 25 January 2012 this court dismissed the sixth respondent’s application for rescission for want of prosecution.  This means the applicant’s offer letter remains extant and the sixth respondent concedes to that.  It is on the basis of his offer letter of 23 October 2007 that the applicant has now approached this court seeking the relief indicated at p 1 of this judgment.

At the commencement of the hearing the applicant’s legal practitioners pointed out that the first and second respondents, being represented by a legal practitioner, were, in terms rule 238 (2b) of the High Court Rules 1971, barred for failure to file heads of argument.  For purposes of clarity, rules 238 (2), 238 (2a) and 238 (2b) provide as follows:

“(2) Where an application, exception or application to strike out has been set down for

hearing in terms of subrule (2) of rule 223 and any respondent is to be

represented at the hearing by a legal practitioner, the legal practitioner shall file

with the registrar, in accordance with subrule (2a), heads of argument clearly

outlining the submissions relied upon by him and setting out the authorities, if

any, which he intends to cite, and immediately thereafter he shall deliver a copy

of the heads of argument to every other party.

[Subrule amended by s.i. 33 of 1996]

(2a) Heads of Argument referred to in subrule (2) shall be filed by the respondent’s

legal practitioner not more than ten days after heads of argument of the

applicants, as the case may be, were delivered to the respondent in terms of

subrule (1):

Provided that-

no period during which the court is on vacation shall be counted as part of the ten-day period.

the respondent’s heads of argument shall be filed at least five days before the hearing.

[Subrule substituted by s.i. 192 of 1997]

(2b) Where heads of argument that are required to be filed in terms of subrule (2) are

not filed within the period specified in subrule (2a), the respondent concerned

shall be barred and the court or judge may deal with the matter on the merits or

direct that it be set down for hearing on the unopposed roll.” (my own

underlining)

[Subrule inserted by s.i. 33 of 1996 and amended by s.i. 192 of 1997]

First and second respondents are, in casu represented by a legal practitioner and rule 238 (2) above applies to them.

The applicant’s heads of argument, which were filed in this court on 14 December 2011, were served on the respondents’ legal practitioners on 15 December 2011.

This application was filed on 21 September 2011 and served on sixth respondent on 21 September 2011.  The sixth respondent filed its notice of opposition on 28 September 2011.  There is no certificate of service relating to the other respondents but the first and second respondents filed their notice of opposition on 14 October 2011.

Third, fourth and fifth respondents did not file any opposing papers to the application and are therefore not before the court.

On 14 December 2011 the applicant filed his heads of Argument and served same on the first, second and sixth respondents on 15 December 2011.  The sixth respondent only filed its heads of argument on 5 April 2012 (ie over three months after being served with applicant’s heads of argument).  This was not in compliance with the rules.  Heads were supposed to be filed 10 days after 14 December 2011.  The applicant did not raise issue with same.

Taking into account the fact that I indeed heard the sixth respondent without the applicant objecting, I believe there is need to seek refuge from r 4C of the High Court Rules 1971. Accordingly, in the interests of justice and the need to have finality in litigation, I therefore deemed it only proper to invoke rule 4C and thereby condoned the sixth respondent’s non-compliance with r 238 (2a). The said r 4C provides as follows:

“4C. Departures from rules and directions as to procedure

The court or a judge may, in relation to any particular case before it or him, as

the case may be-

direct, authorize or condone a departure from any provision of these rules, including an extension of an period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice;

give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to it or him, as the case may be, to be just and expedient.”

[Rule inserted by s.i. 126 of 1989]

For reasons that I shall give herein, even if I may be wrong in invoking r 4C, I would still find no merit in the sixth respondent’s case.

The first and second respondents did not file Heads of Argument at all but instead, on 10 July 2013 they sought, in my opinion, to argue their case through a letter addressed to the applicant’s legal practitioners and copied to my clerk.

The said letter, in full, read as follows:

“RE: TENDAYI MBERI – V- SIMON NYABADZA AND OTHERS CASE NO.

HC 9313/11

In this matter our Ms. Zvinavashe has attempted to engage your Mr. Ndudzo for the purposes of bringing to his attention the futility of proceeding with the above matter in a Hearing scheduled before Hon. Justice Mtshiya on the morning of the 11th instant.  It is clear that Mr. Ndudzo is of the view that the said matter should proceed.

We wish to place on record, our reasons regarding the futility of attempting to settle this matter in Court.

That futility arises from the nature of the relief sought.

The High Court, nor Judge thereof, with respect, cannot grant the relief sought.

The reasons for this are set-out in the 6th Respondent’s Heads of Argument, which we associate ourselves with.

In the first instance, your client seeks to interdict ours from interfering with your client’s rights of occupation on the farm.

You will be aware of the landmark Supreme court decision in Airfield Investments where Malaba JA (as he was then) stated, and confirmed the legal adage to the effect that an interdict is not a remedy for preventing lawful conduct.

It is a fact, however, that both our respective clients hold Offer Letters for the same piece of land.  Both documents constitute Lawful Authority, as defined in Section 2 of the Gazetted Lands (Consequential Provisions) Act, to hold, use and occupy Gazette Land.

There is in fact nothing unlawful about both our respective clients occupation, possession and use of the disputed farm.

The interdict sought by your client falls on this simple point.

The second point as to why we consider your client’s action a futile one, is that it seeks to evict ours from the farm in question.

You will appreciate that by virtue of the Lawful Authority both our clients hold, it is with respect, beyond the competency of the High Court or a Judge thereof to order the eviction therefrom of either of these persons.

The Chief Justice’s emphatic Judgment in the CFU case, which you are no doubt well acquainted with, made it abundantly clear that the Court’s had no authority to order for the eviction of a person in possession of Lawful Authority in the form of an Offer Letter from Gazetted Land.

It seems to us therefore, that the only appropriate remedy in the current circumstances is for the Acquiring Authority, that is for the Minister of Lands & Rural Resettlement, to lawfully withdraw either of our respective clients Offer Letters.

Lastly, we attach hereto a corrected version of our clients’ Offer Letter dated 26th September, 2012 for your information and records.

Please be guided accordingly.

Yours faithfully,

TITAN LAW CHAMBERS

cc:	The Clerk

Honourable Justice Mtshiya”

Under paragraph 5 of the above letter the first and second respondents sought to associate themselves with the sixth respondent’s heads of argument.  This position was persisted with in court.

As already indicated, Mr Ndudzo, for the applicant, did not raise issue with the sixth respondent’s  late file of heads of argument, which, in any case were filed over a year before the matter was set down for hearing. He, however, strongly argued that the first and second respondents remained barred since the provision in r 238 (2a) of the High Court Rule 1971 quoted above is mandatory.  I agree.

Mr Mlotshwa who appeared for the first and second respondents, without applying for the upliftment of the bar, submitted that they were not barred.  He said all that was required was for the matter to be postponed, with respondents paying costs, so that heads of argument could then be filed.  In making that submission he relied on Muzerengi v Muchekwa 1992 (I) ZLR 58 (H) where, among other things ADAM J said:-

“Legal practitioners are forewarned that, in future, they will be required to observe and comply with R 232 (C) in regard to the filing of their heads of argument.  This will have the dual advantage of signalling to the judge due to hear the opposed matter that it is likely that the matter will proceed on the appointed date and of enabling the judge to study and consider the points and authorities raised in the heads before the date of hearing which, in turn, should result in a more meaningful hearing for all concerned.

In view of what I have said, I would warn legal practitioners that if they fail to file and serve their heads of argument timeously and the matter is a complex one requiring research on the part of the judge prior to its hearing, then if it is the applicant’s legal practitioner who is out of time, I shall have no hesitation in postponing the matter and if, as is almost invariably the case, it is the personal fault of the applicant’s legal practitioner for not having prepared, filed and served his or her heads of argument in time, in ordering the applicant’s legal practitioner or firm of legal practitioners, as the case may be, to pay the respondent’s wasted costs.  On the other hand, if it is the respondent’s legal practitioner who is personally at fault in not having prepared, filed and served the respondent’s heads in time, then when postponing the matter and ordering the respondent’s legal practitioner or firm of legal practitioners, as the case may be, to pay the applicant’s wasted costs, I shall tell the applicant’s legal practitioner that, in fairness to the applicant, I am prepared to arrange a special early hearing of the matter, out of court hours if necessary, during that Civil Term or in the vacation.  I shall adopt this procedure too if it appears unfair to allow the applicant to be prejudiced because of the fault of the applicant’s legal practitioner in having failed to file and serve the applicant’s heads of argument timeously.” (my own underlining)

Surely the above position taken by ADAM J did not change the rules.  The judge, in my view, merely explained how he, himself, would use his discretion in similar matters.  The initiative would clearly be that of the court and there is no question of the rules being changed.

I must also point out that even those parts of the rules which were amended by Statutory Instruments 33 of 1996 and 192 of 1997 did not affect the rule relating to a party being barred for failure to file Heads of Argument in terms of the rules.  In Christiam Care v Mupedzanhamo Cooperative 1996 (2) ZLR 323 (HC), where reference is made to Muzerengi, supra, ADAM J, recognising the barring effect of rule 238 (2a) had this to say:

“Since the period when the fourth respondent has to file his heads of Argument is calculated from the date when the applicant’s heads have been filed in terms of r 238 (2a) before a party can be barred under r 238 (2b) it is imperative that the provisions of r 238 be strictly complied with.”  (my own underlining.)

Indeed strict compliance, in my view, is mandatory.

In casu the first and second respondents did not comply with r 238 (2a) and are therefore, in terms of r 238 (2b), barred.  Accordingly, being barred, the first and second respondents, are disabled from associating themselves with the sixth respondents heads of argument either in writing or from the bar.  They are not before the court.

I now turn to the application as it relates to the sixth respondent, who, as I have already indicated, has no case against the applicant.

I have already given a detailed background to this matter and the unquestionable position is that the applicant is on the land on the basis of his offer letter of 23 October 2007.  The offer letter stands confirmed by the orders of this court issued on 6 July 2011 and 25 January 2012.  The current position therefore is that the rights derived by the applicant from the offer letter of 23 October 2007 still exist and remain enforceable.  There is no dispute regarding the fact that the applicant took occupation before any other claimant, including the  first and second respondents.  This court therefore has a duty to assist and protect the applicant in enforcing his rights.  This point was emphasised by CHIDYAUSIKU CJ, in Commercial Farmers Union & Others v Minister of Lands and Rural Resettlement SC 31/2010 where he stressed on the need for courts to assist holders of offer letters, permits and leases.  The Chief Justice stated:

“The holders of the offer letters, permits or land settlement leases have the right of occupation and should be assisted by the courts, the police and other public officials to assert their rights.  The individual applicants as former owners or occupiers of acquired land lost all rights to the acquired land by operation of the law.  The lost rights have been acquired by the holders of offer letters, permits or land settlement leases.  Given this legal position it is the holder of offer letters, permits or land settlement leases and not the former owners or occupiers who should be assisted by public officials in the assertion of their rights.  Thus the courts would be failing in its duty if it does not assist the applicants in this respect.  In the result the application can only succeed.”

Ms Mashiri, for the sixth respondent, submitted that “the applicant and the first and second respondents hold offer letters that confer the same rights to the farm in dispute and applicant cannot therefore apply to this court to have them ejected from land for which they have a legal right to occupy.” That, in my view, is not the correct position.  As at 18 July 2008 when the Acquiring Authority purported to withdraw the applicant’s offer letter, it knew that there was no land to allocate to the first and second respondents.  The attempted allocation on 8 August 2008 could only have a legal basis if the offer letter to the applicant had been withdrawn.  With the drawal having been declared a nullity, then the offer letter of 8 August 2008 to the first and second respondents had no legal status.  They therefore do not deserve the court’s assistance and protection.  There was no longer any land to be allocated to them.

As already indicated, the Acquiring Authority, and indeed the first and second respondents, were fully aware of the fact that no other offer would be made in the face of the applicant’s offer letter of 23 October 2007 hence the attempted withdrawal of the applicant’s offer letter on 18 July 2008 before the intended allocation to the first and second respondents.

With the withdrawal of the applicant’s offer letter having been declared a nullity, it also means that the reasons behind the attempted withdrawal fell away.  In fact, it is difficult to accept that the land was, before being acquired by the state, ever a property of the respondents.  If that were true, evidence would have been shown through, say:

Title Deeds

Agreement of sale

Certificate of no interest by the state, and

The Government Gazette used to acquire the land wherein previous ownership could have been indicated etc.

It is important to note that the first and second respondents base their claim on the offer letter that was declared a nullity and not prior ownership of the land as alleged by the sixth respondent.   The position taken by the sixth respondent is amazing and totally untenable.

Furthermore, there was no evidence that the first and second respondents were on the property when the land was allocated to the applicant.  It therefore means that there were no equal rights to talk of.  It is only the applicant who has rights deserving the protection of the court.  Accordingly there is merit in the applicant’s request for protection from this court and the relief he seeks ought to be granted.

I therefore order as follows:

1. 1st, 2nd , 3rd , 4th and 5th Respondents and all persons claiming occupation through

them on Subdivision B of Sandibloom in Headlands Makoni District in

Manicaland Province be and are hereby interdicted from interfering whatsoever

with applicant’s rights of occupation on the farm.

2. 1st , 2nd , 3rd , 4th and 5th Respondents and all persons claiming occupation through

them on subdivision B of Sandibloom in Headlands Makoni District in Manicaland

Province be and are hereby ordered to vacate the farm within 24 hours of service

of this order.

3. The Deputy Sheriff and/or his lawful assistants be ordered to give effect to terms

of (2) above, and

4. 1st and 2nd Respondent to pay costs of suit.

Messrs Mutamangira and Associates, applicant’s legal practitioners

Attorney General’s Office, 6th respondent’s legal practitioners

Messrs G.N. Mlotshwa & Company, 1st to 5th respondents’ legal practitioners.