The Autism Organisation of Zimbabwe v Martin C Grobler and Ministry of Lands and Rural Resettlement

### Preamble
1
HH 767-18
HC 8975/17
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THE AUTISIM ORGANISATION OF ZIMBABWE

versus

MARTIN C GROBLER

and

MINISTRY OF LANDS AND RURAL RESETTLEMENT

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 11 June, 2018 and 16 November, 2018

Opposed Matter

T. Gombiro, for the applicants

N. Mugiya, for the 1st respondent

Ms M. Gezera, for the 2nd respondent

MANGOTA J: I heard this application on 11 June, 2018. I delivered an ex-tempore judgment in favour of the applicant.

On 19 September, 2018 the registrar of this court wrote advising that the first respondent appealed my decision. He requested for my reasons for the same. These are they:

At the centre of the parties’ dispute is a piece of land which is called Subdivision A of Koppies of Twentydale Estate [“the farm”]. It is 40.69 hectares in extent. It is in Goromonzi District.

The second respondent acquired the farm on 15 February, 2016. He did so in terms of Government’s Land Reform Programme. He allocated the same to the applicant on 25 February 2016.

Prior to the acquisition and allocation of the farm to the applicant, the first respondent was the owner of the same. His workers are still at the farm. He is not at the same currently.

This is a rei vindicatio application. The applicant who is the holder of an offer letter which the second respondent issued to it is moving the court to evict from the farm the first respondent and all those who are claiming occupation of the farm through him.

Both respondents oppose the application. The second respondent, however, fights in the applicant’s corner. He moves the court to evict the first respondent from the farm.

The first respondent raises four in limine matters. These are that:

the second respondent is not a legal entity and it cannot, therefore, be sued in the form and manner which the applicant did;

the matter is lis pendens in CA 294/17;

the applicant is suing the wrong party in that the first respondent whom it is suing is not staying at the farm but his workers whom the applicant did not sue remain resident at the same – and

the resolution which purportedly authorises the deponent to depose to the founding affidavit is not proper at law.

He states, on the merits, that it is improper for the applicant to apply for his eviction from the farm in which he no longer has any interest. He moves the court to dismiss the application with costs which are on a legal practitioner and client scale.

Annexure D which the applicant attached to its application is a copy of the Government Gazettte through which the second respondent enquired the farm. It appears at page 10 of the record. It shows that the second respondent acquired the farm on 19 February, 2016.

Annexure C which the applicant also attached to the application is the second respondent’s offer letter to the applicant. It is dated 25 February, 2016. It appears at page 11 of the record.

The applicant, as the holder of a valid offer letter, has every right to evict from the farm any person who is holding onto the same against its will. A plethora of case authorities support the stated position. The following cases come in handy on the same:

Alan McGregor v Nehemiah Saburi & ors HH 33/11 wherein the court held that:

“…. Holders of offer letters 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 as may be applicable in each particular case.” [emphasis added].

Chidyausiku CJ expounded the principle which is enunciated in the Alan McGregor case when he succinctly remarked as follows in Commercial Farmers Union and Others v Minister of Lands and Rural Resettlement and Others SC 31/10 “ an offer letter issued in terms of the Act is a clear expression by the acquiring authority of the decision as to who should possess or occupy its land and exercise the right of possession or occupation on it. The holders of offer letters, permits or land resettlement leases have the right of occupation and should be assisted by the courts, the police and other public officials to asset their rights. The individual applicants as former owners or occupiers of the acquired land lost all rights to the acquired land by operation of the law. The lost rights have been acquired by holders of offer letters, permits or land resettlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases and not the former owners or occupiers who should be assisted by public officials in the assertion of their rights.” [emphasis added].

Property law experts Silberberg and Schoeman echo the above stated sentiments in The Law of Property, 5th edition, Lexis Nexis Bullerworths at page 653 wherein they state:

“eviction proceedings may be instituted as soon as the owner or person in charge of the property realises that illegal occupation is taking place or as soon as it comes to his or her attention that persons are occupying his or her property unlawfully”            [emphasis added].

It is evident, from the foregoing, that the court’s duty in applications of the present nature is to assist the applicant to assert its rights in the farm. The same was allocated to it on 25 February, 2016. But for the unlawful conduct of the first respondent, it should have enjoyed the benefit of what the second respondent allocated to it. The second respondent who is the owner of the farm states as much. He wants nothing other than the eviction of the first respondent from the farm to pave way for occupation of the same by the applicant.

The first respondent’s statement which is to the effect that he is not on the farm and should, therefore, not be sued cannot hold. He admits that his workers are on the farm. He is, at law, on the farm through them. Those did not happen to be on the farm on their own. He caused them to be on the same. He should, accordingly, ensure that they leave the farm. Their continued existence on the same remains affecting the applicant’s enjoyment of the farm in an adverse manner. It is for the mentioned reason, if for no other, that the applicant couched paragraphs (1) and (2) of its draft order in the form that it appears. It moves the court, in the same, to remove from the farm the first respondent and his workers who claim the right of occupation through him.

The first respondent’s statement which his to the effect that he is not on the farm but his workers are exposes his unwholesome conduct of approbating and reprobating. He cannot have his cake and eat it. His workers are claiming the right of occupation of the farm through him. They are occupying it against the applicant’s will. They should, therefore, be evicted from the same.

The first respondent‘s statement would have held if he stated that he has no connection at all to the persons who are on the farm. It is such suggested circumstances that the applicant would have been compelled to sue the persons who are at the farm. It is not compelled to do so given the circumstances of this case.

The first respondent’s first in limine matter is devoid of merit. He states that the applicant’s citation of the Ministry, instead of the Minister, of Lands renders its application defective.

The applicant’s statement on the same is that the use of the word Ministry was a typing error on its part. It indicates that the suit was/is against the Minister of Lands and Rural Resettlement.

The veracity of the applicant’s statement is evident from a reading of paragraph 4 of its founding affidavit. This appears at p 6 of the record. It reads:

“4.  The 2nd Respondent is the Minister of Lands who is the acquiring authority in terms of the Land Acquisition Act. His address of service is ……… There is no order sought against him but only cited herein has (sic) he has some interest in the matter having issued an offer letter to the Applicant” [emphasis added].

An effortless reading of the paragraph shows that the applicant refers to an individual as opposed to an institution. The use of such words as his, him, he says it all. No confusion, therefore, arises from the allegation that the applicant mis-spelt the word Minister as Ministry in its citation of the parties.

The in limine matter which the first respondent raised on the stated issue is, therefore, devoid of merit. The cited paragraph disposes of the same. It states, in clear and categorical terms, that the second respondent is the Minister, and not the Ministry, of Lands. It makes a clear distinction between the Minister and the Ministry which he supervises. It says he has some interest in the matter. It states further that he issued an offer letter to it and that he is the acquiring authority.

The first respondent’s plea of lis pendens is misplaced. He refers to his criminal appeal which he filed under CA 294/17. It is misplaced for the simple reason that the parties who are before the court in the criminal appeal are not the same as the parties for this case. The state and him are the parties for the appeal. In casu, the parties are the applicant and him. There is, therefore, no lis pendens under the stated set of circumstances.

It is accepted that the subject matter is the same in both cases. The matter relates to his eviction from the farm. However, the same cannot be said about the power or authority who/which is moving for his eviction. In the matter which he appealed, the state was moving for his eviction. In challenging the decision of the magistrate, he is moving for his continued presence on the farm. In the present application, the applicant is moving the court to evict the first respondent and his workers from the farm. The two cases are separate and distinct from each other. The branches of law under which they fall are also different. One is a criminal case and the other is a civil matter.

The first respondent’s criticism of the resolution which authorizes the deponent to depose to the applicant’s founding affidavit is made by him just for the sake of it. The directors of the applicant met and resolved to sue him as the applicant is doing. There is, therefore, nothing wrong in what they did. The deponent did not just wake up from her deep slumber and proceeded to sue him. Her organisation conferred authority upon her to sue and move the court to evict him as well as all his workers from its farm.

The first respondent, it is observed, threw into the application all what was at his disposal. He, as it were, employed all spanner works into the same. His aim and object were to obstruct the applicant’s effort towards the attainment of justice. It was, however, unfortunate for him that none of the preliminary matters which he raised held. All preliminary matters which he raised fell by the way side owing to overwhelming evidence which militated against the position which he took of the matter.

The applicant, as an offer letter holder, has the support of the court to evict the first respondent and his workers from the farm. It has every right to evict anyone, the first respondent included, who occupies the farm which the second respondent allocated to it. A fortiori when the occupation in question is, as in casu, against its will.

The applicant proved its case on a balance of probabilities. The fact that the acquiring authority supports its application confirms its entitlement to evicting the first respondent and his workers from the farm.

The application is, accordingly, granted as prayed in the draft order.

Mberi Chimwamurombe Legal Practice, applicant’s legal practitioner

Mugiya & Macharaga Law Chambers, 1st respondent’s legal practitioner

Civil Division of the Attorney General’s Office, 2nd respondent’s legal practitioner