Aube Musanhu Family Trust v Chipo Munguma

### Preamble
1
HMA 19/19
Case No HC 137/19
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AUBE MUSANHU FAMILY TRUST

versus

CHIPO MUNGUMA

HIGH COURT OF ZIMBABWE

MAFUSIRE J

MASVINGO, 3 & 10 May 2019

Date of written judgment: 15 May 2019

Urgent chamber application

Applicant in person, represented by Mr G. Musanhu

Mr D. Chirima, for the respondent

MAFUSIRE J

[1]	This is an urgent chamber application. It pits, on the one side, one George Musanhu (“George”) fronting a trust formed by himself, the Aube Musanhu Family Trust (“the Trust”), which is cited as the applicant. On the other side is one Chipo Munguma (“Chipo”). What is sought is spoliation. Through George the Trust says it has been despoiled of a certain sugar cane farm in Chiredzi, namely Subdivision 5 of Farm 7 and 8 Hippo Valley, one of those resettlement farms by Government under its land reform programme.

[2]	George and Chipo are supposed to be family – brother-in-law and sister-in-law respectively. Unfortunately they do not recognise each other as such. In Mugaziwendota v Muzenda HMA 52-18, a trial over an intractable family feud over a deceased estate, I was driven to remark that there is credence in the Shona saying, “Pfuma yenhaka inoparadza ukama!” Literally, inheritance tears family ties apart.

[3]	There has been an unrelenting war between George and Chipo ever since the death of the late Aube Musanhu (“the deceased”) who died intestate in 2006. The war has been fought over many battles in the High Court; in the magistrates’ courts; at various police stations; in the Administrative Court; in the Ministry of Lands; in the Master’s Office; in the Judge President’s office; at Hippo Valley Estates where all sugar cane is sold and milled into sugar, just about everywhere. Some of the cases before this court are still pending. In order for me to fully appreciate the case before me, and with the authority of the Judge President, I called for all such of the relevant records as might have been dealt with elsewhere.

[4]	From such records, the background to this matter seems convoluted. The epicentre of the dispute is that farm and the sugar cane crop on it. There is also a house in Rujeko Township, Masvingo, namely Stand 4911 Rujeko Township of Fort Victoria Township Lands. But this one is of no moment in the present proceedings.

[5]	George says the farm belongs to the Trust. Chipo says it belongs to her. It should be an easy thing to say who it belongs to, or more correctly, who it has been allocated to, because it remains Government property. But the way the parties have gone about the matter has completely muddled up issues. The internecine war between them has been so blinding that the real dispute is tucked away with no immediate prospects of the courts properly adjudicating upon it. For now it is a mess, a bog or a quagmire.

[6]	Just about everything between George and Chipo is in dispute. For example, even the status of the parties before me is in dispute. Chipo says the Trust is non-existent; illegal and counterfeit with no locus standi in any legal proceedings, including this application. She says the Trust is just a façade behind which George has harangued her and her children over the years. She says she was customarily married to the deceased. She has on various occasions and at various fora produced some document from the magistrate’s court as proof of her customary marriage to the deceased.

[7]	On the other hand, George charges that Chipo is not the deceased’s surviving spouse. He says the deceased was a widower at the time of his death; that she is one of several girlfriends with whom the deceased sired children; that he left behind six minor children, two of them with Chipo. He says after the deceased’s death, Chipo has since moved on with her life and that she cohabits with her legal practitioner with whom she has borne a child. He says the document she always produces as proof of her customary marriage is bogus and fraudulent.

[8]	Chipo says after the deceased’s death the Government re-allocated the farm to her. She has on several occasions in other proceedings produced an offer letter in her name. There have been a series of court battles over that. But George says the allocation of the farm to her had been irregularly done; that everything was subsequently reversed and that the Government properly re-allocated the farm to the Trust.

[9]	George says the Trust was properly formed and registered in the Deeds Office to house all the assets left behind by the deceased, who was his elder brother, for the benefit of all his children. The farm had been allocated to the deceased during his life time. He says Chipo wants it for the exclusive benefit of only her children.

[10]	There are several other serious disputes between the parties. Fortunately, but quite regrettably, I do not have to deal with them in these proceedings. They are not before me. Spoliation is a very narrow remedy. There are certain facts that are common cause that enable me to dispose of this case. But I say regrettably because it does not appear to me that the disposal of this urgent matter will douse the fire. It may actually stoke it. The most sensible thing is for the real dispute between the parties to be resolved to finality.

[11]	As I see it, the real dispute between the parties is whether George, through a fake trust, is helping himself to the property left behind by the deceased, to the detriment of the deceased’s children and the deceased’s surviving spouse. From this several other side issues emerge, such as whether Chipo is not the surviving spouse; whether she is being selfish and trying to wrestle the farm from the rest of the estate left behind by the deceased for the exclusive benefit of her own children; who does the Government recognise as the legitimate offeree in relation to the farm, and so on.

[12]	Until the main issues are resolved to finality I see the parties engaging in legal skirmishes ad infinitum and compromising the administration of justice in the process. Needless to say, in the two sittings before me, I did caution them and rendered advice off-the-cuff. But I sense it might well have been in vain. They informed me I was not the first adjudicating officer to have done so.

[13]	Resolution of the narrow issue of spoliation before me is easy because Chipo has all but admitted flouting the law. In June 2015 the Trust, through George, got twin orders before this court, per MAKONI J, as she then was. The one was in HC 2197/15 and the other in HC 2198/15. In the former, Hippo Valley Estates were directed to remit all farm proceeds to the Trust and Chipo was directed to refund to the Trust all such proceeds as might have been paid to her already. She was also barred from undertaking any farming activities on the farm or to interfere with the Trust’s operations there.

[14]	In HC 2198/15 Chipo and all those claiming occupation through her were ordered to vacate the farm and the farm house thereon within three days.  She was also ordered to vacate the Rujeko house. She did not. The Trust issued a writ of ejectment. On 13 September 2017 she was duly evicted by the Sheriff and vacant possession of the farm and the farm house were given to the Trust.

[15]	George says since her eviction the Trust has been in peaceful and undisturbed occupation of the farm and carrying out normal farming operations. However, on 23 April 2019 Chipo recruited “bouncers” and violently evicted all the Trust employees from the farm and the farm house. He says Chipo installed one of her own people in the farm house. Efforts to engage the local police proved fruitless because Chipo and her lawyer, Mr Chirima, produced some dubious court order which they claimed entitled her to occupy the farm. The police declined to make any arrests until this court had clarified the correct position. However, some dockets were opened in respect of some reports of assault.

[16]	Mr Chirima, for Chipo, argues that the twin orders aforesaid were obtained in default after George had deliberately ensured that Chipo would not receive the processes commencing action by serving them at the wrong addresses. As such, upon becoming aware of the default judgments, Chipo applied for rescission of the two orders in September 2017 in HC 8625/17 and HC 8626/17. Ever since 2017 the applications have been pending before NDEWERE J in Harare. Such a long delay has been occasioned by the fact that the applications had been postponed sine die after the Honourable Judge had encouraged the parties to try and resolve the dispute out of court. Mr Chirima said an out of court settlement having failed, the matters have been consolidated or combined and are scheduled to be heard on 1 August 2019.

[17]	On the issue of spoliation, Chipo, in her affidavit, and Mr Chirima, in argument, deny that she hired “bouncers” and violently forced herself back on the farm. Mr Chirima submits that Chipo’s children decided enough was enough. They would not allow a situation where they would be continuously shut out from their father’s inheritance. So on the date in question, they simply walked onto the farm and occupied the farm house. Being minors Chipo feared for their safety. She followed them. She is on the farm for the sake of her children.

[18]	On whether Chipo was not being contemptuous of this court which ordered her out of the farm and not to interfere with operations, which orders are still extant, Mr Chirima implores me to consider the equities of the case. He says this case is the only chance that Chipo has had to place her case properly before the court. Grave injustice has been perpetrated against herself and her children. The relief sought by the Trust will perpetuate the injustice. The Trust is an illegal entity. Courts do not sanction an illegality.

[19]	Mr Chirima said Chipo was riding on the back of the order from the Administrative Court in 2017 in case no ACC 22/17 when she went back to the farm. In that case the Trust had applied to the Administrative Court asking it to revoke the offer letter in respect of the farm, which at that time was in Chipo’s name. George wanted the offer letter re-issued in favour of the Trust. In its judgment the Administrative Court touched on several other aspects of the dispute between the parties but ruled that the issue of resettlement farms was the sole prerogative of Government through the Ministry of Lands. It dismissed the application.

[20]	On how he could make such submissions in the face of Chipo’s application in HC 68/19 which is pending and in which she recognises that her offer letter in respect of the farm was subsequently revoked by Government and the farm re-allocated to the Trust, and where she seeks a declaratory order that her revoked offer letter be reinstated so that she is recognised as the exclusive lawful occupier of the farm, Mr Chirima professed ignorance of the application. From the papers, Chipo filed it through another firm of legal practitioners.

[21]	I was somewhat perturbed by Mr Chirima’s extraordinary stance and argument. It should have been too obvious that Chipo was in open defiance of the court. His arguments were mere pious exhortations with no legal grounding. It seemed evident he was under some kind of pressure to prove his mettle to Chipo and her daughter, both of whom were present in chambers. At the first hearing Chipo had brought her son whom, upon Mr Chirima’s request, I reluctantly allowed to speak. In a voice laden with emotions, and almost breaking, the son asked why the law was so being unfair by permitting their uncle, George, to terrorise them in the manner he was doing. On the second day, Mr Chirima also implored me to allow the daughter to say something. I declined and directed that all submissions be made through him.

[22]	I have no doubt that this family feud is an emotional drain on the parties and those around them such that at times people fail to distinguish the trees from the woods. There are unsavoury allegations and counter-allegations by not only the parties themselves, but also by several other family members, including George’s own siblings, of fraud, deceit, forgery and bribery, such that the authenticity of virtually every piece of document relevant to the matter is challenged. However, in all this, legal practitioners must be able to maintain a detached and dispassionate connection with their clients. I thought Mr Chirima was getting overwhelmed. For example, there is case HC 6456/15. George says that was the first and only application for rescission of judgment that Chipo ever filed against the order of eviction. He says it was withdrawn. He says the ones that Mr Chirima says are pending before NDEWERE J in Harare are for variation of the twin orders. There was also case no HC 6468/15, an application by Chipo for stay of eviction. It was dismissed by TAGU J for lack of urgency. Mr Chirima has not talked about them. There is more.

[23]	The argument that the Trust is an illegal entity with no locus standi is untenable. Mr Chirima knows that in May 2018 he applied in the Administrative Court under case no ACC 21/18 for the cancellation of the Deed of Trust governing the Trust. He knows that the application was dismissed for lack of jurisdiction. To date no other court, tribunal or adjudicating authority has pronounced this Trust as an illegal entity. On the contrary, not only has the Ministry of Lands re-allocated the farm to the Trust in its own name, but also the twin orders aforesaid directing Chipo’s eviction and Hippo Valley Estates to make payments are both in the name of the Trust. Furthermore, the administration of the deceased’s estate was wound up in 2014. The Master awarded the farm to the Trust. The award has not been challenged. It still stands.

[24]	The remedy of spoliation, or mandament van spolie, is designed to restore at once possession that has been deprived unlawfully: see SILBERBERG & SCHOEMAN’S The Law of Property, 5th ed., para 13.2.1.2 at p 288. See also Kama Construction (Pvt) Ltd v Cold Comfort Farm Co-operative & Ors1999 (2) ZLR 19 (SC). The applicant must show that he was in peaceful and undisturbed possession of the thing and that he was unlawfully deprived of such possession: see Botha & Anor v Barrett 1996 (2) ZLR 73 (S), at p 79D – F.

[25]	Spoliation is a quick remedy. Its rationale is to prevent anarchy in society: see Muller v Muller 1915 TPD 29, at p 31. People must not resort to self-help every time they want to recover things they feel belong to them and which may be in the possession of others. In Shoprite Checkers Ltd v Pangbourne Properties Ltd 1994 (1) SA 616 (W), the rationale was expressed this way:

“All of this of course is based upon the fundamental principle that no man is allowed to take the law into his own hands and that no one is permitted to dispossess another forcibly or wrongfully and against his consent ‘of the possession of property, whether movable or immovable’ and that if he does so ‘the Court will summarily restore the status quo ante and will do that as a preliminary to any enquiry or investigation into the merits of the dispute.’” [emphasis added]

[26]	Chipo has no leg to stand on. I do not accept her story that she merely followed the children. The probable truth is she forced her way back onto the farm and back into the farm house. If there was no violence, the police would not have been opening criminal dockets. She does not ordinarily stay at the farm. At any rate, she had been evicted in September 2017. Furthermore, even if she merely followed her children, which I do not accept, she had no right to do so without a court order, let alone to force out of the farm house those that were in occupation at the pleasure of the Trust. Mr Chirima was wrong to advise her she could rely on the Administrative Court order in ACC 22/18 or whatever other order was said to have been obtained from the magistrate’s court. ACC 22/18 from the Administrative Court had nothing to do with rights of occupation. She must move out and restore the status quo ante.

[27]	In its draft order, the Trust seeks a provisional order. That is incorrect. Spoliation is a final remedy. It does not have an interlocutory nature: see Mankowitz v Loewenthal 1982 (3) SA 758, at p 767F - H and SILBERBERG & SCHOEMAN, supra, para 13.2.1.3 at p 292. The two elements of spoliation, namely peaceful and undisturbed possession, and the act of spoliation, have to be proved on a balance of probabilities. Thus, the Trust having proved spoliation on a balance of probabilities is entitled to a final order. Costs follow the event.

[28]	The draft order also seeks an order against the police at Chiredzi directing them to investigate the various reports for contempt of court in relation to the eviction order in HC 2198/15; the reports of assault; unlawful entry; forgery of a court order by the respondent. The police are asked to present the dockets before the nearest National Prosecuting Authority (NPA) offices within seven days of the service of the order.

[29]	It was after sight of this second leg of the relief when the urgent chamber application was placed on my desk that I directed that the papers, though not citing the police, be served on them. There is a return of service by the Sheriff of the notice of set down on the police. At the hearing, there was no appearance by, or for the police or the NPA.

[30]	However, I consider it inappropriate to grant the second relief for a number of reasons, not least the fact that neither the police nor the NPA have been cited. Furthermore, these issues have not been properly ventilated before me. But this is not to suggest that the police should do nothing in relation to the reports filed with them. They are urged to carry out their Constitutional obligations. With regards contempt of court, what is of concern is that there is prima facie evidence of it. However, such a case has not properly been pleaded. It was not the real issue before me.

[31]	In the final analysis, I consider that only an order of spoliation can properly be granted. Therefore, it is ordered as follows:

i/	the respondent shall restore to the applicant forthwith peaceful and undisturbed possession of the farm known as Subdivision 5 of Farm 7 & 8 Hippo Valley, and the farm house thereon, failing which the Sheriff for Zimbabwe or the additional sheriff, and if need be, with the assistance of the police, shall evict the respondents and all those claiming occupation through her and give vacant possession of the premises to the applicant.

ii/	the respondent shall pay the costs of this application.

15 May 2019

Chirima & Associates, respondent’s legal practitioners