Vladimir Watson Mukada and Simba Dumbura v Evelyn Chakuiga and Minister of Lands, Agriculture, Fisheries, Water and Rural Development and Zimbabwe Land Commission

### Preamble
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HCMTJ 38-25
HCMTC 288/24
VLADIMIR WATSON MUKADA
SIMBA DUMBURA
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==============================VLADIMIR WATSON MUKADA
SIMBA DUMBURA
versus
EVELYN CHAKUINGA
And
MINISTER OF LANDS, AGRICULTURE, FISHERIES,
WATER AND RURAL DEVELOPMENT
And
ZIMBABWE LAND COMMISSION

HIGH COURT OF ZIMBABWE
SIZIBA J
MUTARE, 14 and 18 July 2025

OPPOSED APPLICATION

Mr C. Ndlovu, for the applicant
Mr T.A Mandzividza for the first respondent
Mr P. Garwe for the second and third respondents

SIZIBA J:

1. The applicants seeks an interdict against the first respondent in the following terms:

“(a) 1st Respondent be and is hereby ordered to stop interfering, disturbing, disrupting and encroaching into Applicant’s farm situated at Mutasa known as Subdivision 2 of Lot 1 of Premier Estate for the purpose of effecting improvements or any alterations as well as mining pending the resolution of the matter before the 2nd Respondent through the 3rd Respondent.
(b) 1st Respondent be and is hereby ordered to pay costs of suit on an ordinary scale.”

FACTUAL BACKGROUND

2. It is common cause that sometime in 2006, the first applicant was allocated a piece of land in Mutasa district by way of an offer letter by the second respondent which is known as Subdivision 2 of Lot 1 of Premier Estate measuring approximately 253 hectares. The first applicant claims to be in a joint venture with the second applicant. There are farming activities going on at the said farm.
 3. On the other hand, it is also common cause that on 23 November 2022, the first respondent was allocated a piece of land through a Land Settlement Permit under the A2 Model of land resettlement scheme and the same is called Subdivision 20 of Lot 1 of Premier Estate in Mutasa district. The first respondent also alleges to be doing agricultural activities on her piece of land.

4. The applicants allege that the first respondent has encroached into some 15 hectares of their piece of land and disturbed their agricultural activities. The first applicant alleges to have submitted the boundary dispute to the third respondent for adjudication. An interdict on the terms spelt out above is being sought pending resolution of the stalemate before the third respondent. The applicants allege that the first respondent threatens to take over a portion of their land with an electricity transformer, a pump house, macadamia nuts and pecan nuts under irrigation as well as an area where a dam is being constructed. The first respondent is alleged to be doing mining activities around the dam which allegation has been denied by the first respondent.

5. On the other hand, the first respondent equally alleges encroachment into her land by the applicants. She has attached documents showing that she has submitted the boundary dispute to the third respondent. Apart from opposing the granting of the interdict against her, she has also filed a counter application seeking to interdict the applicants from excavating part of her piece of land for a dam construction.

**SUBMISSIONS BY COUNSEL**

6. Mr Mandzividza did not pursue the point in limine regarding the alleged non exhaustion of domestic remedies by the applicants. He argued that there were material disputes of facts relating to the question of which party had rights over the disputed portion of land. He submitted that these disputed facts could only be addressed by ordering the second and third respondents to file papers. After some exchanges with the court, counsel conceded that the issues that he was raising were an integral part of the merits of the case. I directed the parties to address me on the merits of the case. Mr Ndlovu submitted that the first respondent’s counter application should not be considered as it had called upon the respondents (being the applicants in the main matter) to file their opposing papers at the registry in Harare rather than in Mutare. Condonation was belatedly sought by first respondent’s counsel on this aspect. I am inclined to grant such condonation because there was no prejudice to the applicants. This was a clear typing error. The applicants managed to file their opposing papers to the counter application in Mutare through the IECMS portal.

7. The thrust of Mr Ndvou’s submission was that the court should not delve into the boundary dispute that was pending before the third respondent. What the court should do is to maintain the status quo. On the other hand, Mr Mandizvidza’s submission was that no interdict should be granted to the applicants as such an interdict would have an undesirable effect of interdicting a lawful process since both parties have rights. Counsel however submitted that an interdict as against the applicants was called for.

THE LAW AND ITS APPLICATION

8. In Movement for Democratic Change (T) and Others v Timveos and Others SC 09/22 at p 9 of the cyclostyled judgment, the court described an interdict as follows:

“An interdict is a summary court order, usually issued upon application, by which a person is ordered either to do something, stop doing something or refrain from doing something in order to stop or prevent an infringement of a certain right.”

9. The requirements of a temporal interdict which both parties seek against each other in this case are a prima facie right, irreparable harm actually committed or reasonably apprehended and the absence of an alternative remedy. See Movement for Democratic Change (T) and Others v Timveos and Others (supra).

10. In Masimba Charity Huni Fuels (Pvt) Ltd v Kadurira & Anor SC39/22 at p 7 of the cyclostyled judgment, court remarked thus:

“The purpose of an interdict is to prohibit unlawful conduct, to compel the doing of a particular act or to remedy the effects of an unlawful conduct.”


11. In the context of this case, both the first applicant and the first respondent have rights over their pieces of land which derive from the second respondent according to law. None of the parties is alleging that the other party’s papers allocating it its piece of land is a forgery. Both parties have gone further to even produce some maps which outline various subdivisions at Premier Estate. Since both parties appear to have full rights of occupation at their respective pieces of land according to the documentation that is before this court, it would be wrong for this court to hold that either of them has either a *prima facie* right or clear right against the other in so far as their entitlement to their respective pieces of land is concerned on paper. Before successfully determining as to who among these protagonists is encroaching into his or her neighbour’s piece of land whether intentionally or inadvertently, it is also not possible for this court to determine the lawfulness of the operations or conduct of these parties in so far as what each of them are doing on the disputed ground is concerned. Accordingly, none of them has proven either a *prima facie* or clear right before this court and for this reason alone none of them can be granted an interdict against the other.

12. Furthermore, both parties have already approached the third respondent so as to determine their boundary dispute and this constitutes their alternative remedy which again disqualifies them from being granted an interdict before this court. None of them has alleged that the relief sought before this court is urgent. None of the parties has also demonstrated that they have petitioned the third respondent to resolve their pending encroachment dispute on an urgent basis. As for the first respondent, the alleged excavation of the land by the applicants for purposes of a dam construction cannot constitute irreparable harm as the dam in question can always be a benefit to her as well rather than a liability and if it is not wanted, again the land can be reclaimed for crop production at applicants’ cost and the same applies to the applicants’ concerns about first respondent’s alleged mining activities. The construction of a dam by the applicant at the disputed site is not urgent. The applicant has not demonstrated any injury or present loss that is apprehended to its electrical equipment and the area under cultivation as a result of first respondent’s alleged encroachment. Nothing warrants the intervention of this court on an urgent basis prior to the resolution of the boundary dispute before the third respondent. It is not applicants’ case that the first respondent is currently destroying any of its crops or plants or blocking their access to the water point or damaging its machinery. The alleged mining is being carried out at a dam rather than in the cultivated area. In my view, both parties have failed to meet all the requirements of the interdicts which they seek against the other. They should first seek to ascertain their rights before coming to this court to protect such perceived rights by way of interdicts. The court cannot grant an interdict where there is a high risk of prohibiting lawful conduct as in this case.

13. In view of the above considerations, I will order as follows:

(a) All the preliminary points by both parties be and are hereby dismissed.

(b) Both the main application and the counter application have no merit and they are hereby dismissed.

(c) Each party shall bear its own costs.

Mupindu Legal Practitioners, applicant’s legal practitioners
Masiya-Sheshe & Associates, first respondent’s legal practitioners
Civil Division of the Attorney General, second and third respondents’ legal practitioners
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