Ropafadzo Zowe v Sonny Manyande

### Preamble
1
HMT 33 -21
CIV ‘A’ 34/20
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ROPAFADZO ZOWE

versus

SONNY MANYANDE

HIGH COURT OF ZIMBABWE

MWAYERA & MUZENDA JJ

MUTARE, 26 May 2021 and 10 June 2021

Civil Appeal

I.T. Chakawata, for the Appellant

Respondent in person

MUZENDA J: This is an appeal against the whole judgment of the Magistrate court sitting at Mutare where the court granted an order in favour of the respondent for a peace Order and interdict against the appellant.

The appeal is opposed.

Facts

On 25 March 2020 respondent approached the Magistrate court with an ex parte application for a peace order and interdict. In his founding affidavit applicant contended that he was authorised to stay at Fairhelme Farm known as Sendekera Farm by the then Resident Minister for Manicaland Mandiitawepi Chimene after paying US$25 000. The respondent had been trying to forcefully evict him. In 2017 appellant instituted proceedings under case No. 2225/17 as well as HC 691/18 and HC 164/18 but later on withdrew the summons. The government had indicated that both Mandiitawepi Chimene and a company formed by her had no right over the piece of land. The subject company is called Simple Ventures (Private) Limited. The offer letter in favour of Mandiitawepi Chimene was also withdrawn.

Respondent further averred that he has been in peaceful occupation, but of late appellant had resorted to self-help. The respondent in that application has forcefully grabbed the piece of land. The respondent is using self-help without observing due process of the law. On 20 March 2019 respondent alleged in his affidavit that appellant and other people demolished all buildings occupied by the respondent and his employees. The appellant was denying the respondent the right to utilise the farm. It is the respondent’s further averments that he had since reported the problem at the farm to the Land Commission. Hence respondent was praying for an order interdicting the appellant from coming to the farm, stop demolishing his structures and keep peace.

On 28 July the respondent filed her notice of opposition and supporting documents. Appellant disputed payment of US25 000 by the respondent. She disputed the existence of any agreement of sale between respondent and Mandi Chimene. She argued that if the withdrawal of the development permit was effected the land reverted to Mandi Chimene, however there was a High Court matter under case No HC 57/19 challenging the withdrawal of the permit. She added that the respondent has no lawful authority to remain at the property. Respondent has no employees staying at the farm. Appellant further argued that she was abiding and has been using lawful process to remove unlawful occupiers. She pointed out that the tuckshop was demolished by police during a clean up operation amid covid 19 pandemic, according to the appellant respondent had no other structures at the farm. Respondent was not staying at the farm but at the Toronto Training Centre. To the appellant the respondent had failed to lay down the requirements of an interdict, he had not proved infringements on the part of the respondents, he had not shown absence of any other remedy to seek the relief.

On 3 November 2020 the court a quo granted the application in favour of the respondent. The trial court made a finding that Mandi Chimene was a fugitive from justice and cannot own a farm. He also concluded that in the absence of Mandi Chimene it was difficult to reject respondent’s evidence that he paid US$25 000 for the piece of land. The court alluded to a matter under case number 691/18 where evidence by the deponent of the affidavit in favour of Simple Ventures (PVT) Ltd indicated that the respondent was erecting structures at the subject piece of land. It would be absurd for appellant now to say respondent had no structures at the farm. The court a quo concluded that respondent’s structures were being destroyed and that injury was being inflicted. The court a quo  also made a finding to the effect that the offer letter in favour of Mandi Chimene was cancelled and concluded that the now appellant had no right to interfere with the respondent. Only the Minister of Lands has a right to interfere with the respondent. Finally the court a quo concluded further that the appellant had not shown that she had authority to be on the farm, respondent had no other remedy than to approach the court for relief.

On 3 November 2020 appellant filed a notice of appeal and spelt out her grounds of appeal as follows:

Grounds of Appeal

The court a quo erred on a question of law in finding that the respondent had a clear right to occupy the property yet no evidence was adduced to establish such a right.

The court a quo erred on question of law by finding that the respondent was in possession of the land, yet the respondent does not reside or farm at the land in question.

The court a quo erred on a question of law by finding that Mandi Chimene’s  offer letter in terms of the land redistribution issued by the Ministry of Local Government Rural and Urban Development was competently withdrawn by the Ministry’s withdrawal of the development permit of land.

The court a quo erred on a question of law by finding that the appellant has no right to interfere with the respondent, yet she is an employee of the person with a legal right to possess and control the land.

WHEREFORE the appellant prays:

That the appeal succeeds with costs

That the order of the court a quo is set aside.

Each party shall bear its own costs.

Submissions by the Parties

Mr Chakawata for the appellant submitted that the respondent failed to meet all the requirements for an interdict. The respondent failed to prove that he paid US$25 000. It was submitted by appellant that respondent had no clear right in the property in dispute. More so considering that the land is state land, respondent should at least produce a lease agreement, cession, offer letter or agreement of sale. Appellant’s counsel added further that there was no evidence preferred by the respondent to justify an award of the relief claimed and appellant cited the matter of Ruturi v Heritage Clothing (PVT) Ltd.

The appellant went on to submit that where a Notice of Withdrawal of an offer letter is not followed by a notice of cancellation the offer letter remains extant and the rights of the holder of an offer letter remains intact.

It was further submitted on behalf of the appellant that respondent never had possession of the property in dispute and respondent failed to prove the basis of his fear of harm. It was argued that respondent failed to prove as to when he moved onto the farm, when he was given authority by Mandi Chimene,and when he was in effective control of the piece of land . In effect appellant concluded that respondent did not prove his right to be on the farm. On the other hand respondent submitted that he was in lawful occupation and also by virtue of a court order in his favour. Appellant failed to evict the respondent. It is also respondent’s contention that the he managed to lay all the requirements of an interdict and the court a quo did not err in granting the application. The appellant had resorted to self-help and the respondent approached the court for relief. He prayed for the dismissal of the appeal with costs on a higher scale.

There are four grounds of appeal dealing with a number of issues stretching from ownership, possession, right of occupation, withdrawal of offer letters and cancellation to the issue of interference. Some of the issues raised by the appellant are peripheral to the pivotal issue to decide. Although those issues raised could assist a court in a way in its attempt to resolve the matter, the central issue for determination is whether the court a quo erred in granting an order prayed for by the respondent. In other words whether the respondent had on a balance of  probabilities met the requirements of an interdict. An application for an interdict and peace order by an applicant must clearly outline the facts that establish grounds that must satisfy the court that such an application deserves the relief being sought. Did the court a quo err or misdirect itself then in granting the order?

The Law

The grant of an interdict or spoliation order requires the establishment of a clear right entitling the applicant to the interdictory and spoliation relief granted by the court.

In the matter of Genzel Mining (Private) Limited v Mr J Mpofu and 2 others this court reiterated the pre-requisites of an interdict which are now worldly accepted by all courts.

A prima facie right though open to doubt

A well-grounded apprehension of irreparable harm if the interim relief is not granted and an ultimate relief is eventually granted.

A balance of convenience in favour of the granting of the interim relief, and

The absence of any other satisfactory remedy.

The effects of a temporary interdict is to maintain the status quo ante by freezing the position until the court decides where the right lies. Such right must be sufficient to sustain a cause of action. Such a right may arise out of contract or a delict. It maybe founded in the common law or on some or other statute, it may be a real right or a personal right.

It is also trite that an application for an interlocutory interdict must show a right which is being infringed or which he/she apprehends will be infringed. Failure to do so, the application must fail. Further the right set up has to be shown by a balance of probabilities. It is enough if it is prima facie established though open to doubt

The court has to decide in its discretion, whether or not to grant a temporary interdict. In its exercise of this discretion it must be satisfied that the applicant has proved an actual or well-grounded apprehension of irreparable loss if no interdict is granted and it must have regard to the balance of convenience. The balance of convenience however becomes relevant only when a prima facie ground for an interdict has been established. This is the thresh-hold that it must be crossed and failure so to do means that an application cannot succeed. The onus to establish a prima facie right rests on the applicant.

It has been said that the essence of the balance of convenience is to try to assess which of the parties will be least seriously inconvenienced by being compelled to endure what may prove to be a temporary injustice until the right answer can be found at the end of trial. The process involves weighing the respective risks that injustice may result from deciding one way rather than the other at a stage when the evidence is complete.

Analysis

In its judgment the court a quo analysed all the pleadings as well cross-references records involving the parties and pertaining to the same piece of land. Whilst analysing the related records involving the parties the court a quo noted that on one occasion the appellant or her co-respondent or the company formed by Mandiitawepi Chimene had brought an application before the courts against the current respondent seeking to stop him from putting up structures. The court a quo concluded in its evaluation of evidence placed before it that those are the very structures that respondent feared were going to be demolished. The court was satisfied that the respondent has laid the basis of a prima facie personal right, that is he purchased the piece of land for US$25 000 from a beneficiary of the land reform programme. The purchase of that land led him to take occupation. That purchase can only be disproved by Ms Mandi Chimene, for the purposes of the application for an interdict the court a quo was not privy to any other contrary evidence as to the one adduced by the respondent. The court a quo believed him on that aspect, though the prima facie right was open to doubt in the absence of an agreement of sale, receipt or cession agreement.

The piece of land in question though being state land got a development permit for residential stands, it is conspicuously clear such stands do not have an offer letter, lease or permit as submitted by the appellant’s counsel. The possible proof of a contract maybe an agreement of sale of proof of payment, but in this particular case before us, the court a quo found respondent’s evidence adequate on the aspect of how he got the piece of land and as such the court a quo believed him and accepted further that he had managed to establish on a balance of probabilities the requirement of a prima facie right. The court a quo also accepted that respondent has laid a well-grounded apprehension or irreparable harm if the order was not granted. Mandi Chimene is not in the country and contract of sale occurred in Zimbabwe, if the respondent is evicted from the piece of land, he has no recourse against Mandiitawepi Chimene. Whilst the government is looking into the matter the balance of convenience favours the granting of the interdict, to allow the respondent to utilise the piece of land until removed by the allocating authority or given relevant documents to legalise the occupation.

The possible available remedy open to the respondent is to claim refund of the US$25 000 paid to Mandi Chimene, but given the fact that she is a fugitive the court a quo was correct in my view to find that there was absence of any other alternative satisfactory remedy.

A court dealing with an application for an interdict and peace order has to decide the application in its discretion. An appeal court is reluctant to interfere with such an exercise of the discretion except in exceptional circumstances of irrationality or unreasonableness. The appellant failed in her appeal to spell out such exceptional circumstances to justify interference. Given the circumstances of this matter I see no misdirection on the part of the trial court and its finding of all the requirements of an interdict. The appeal has no merit and the following order is returned

Disposition

The appeal is dismissed

The appellant to pay costs of appeal.

MUZENDA J______________________________

MWAYERA J Agrees ___________________________

Coghlan Welsh & Guest, appellant’s legal practitioners