H.J. Voster (Pvt) Ltd v Save Safaris (Pvt) Ltd

### Preamble
1
HB 98/19
HC 2413/18
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H.J. VOSTER (PVT) LTD

Versus

SAVE SAFARIS (PVT) LTD

IN TE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 11 & 13 JUNE 2019

Opposed Application

B. Dube for the applicant

N. Mashayamombe for the respondent

MAKONESE J:	This is an application for an interdict whose relief as set out in the draft order is in the following terms:

“1.	The respondent be interdicted from entering or conducting any business or hunting activity at Mapari Ranch held under Deed of Transfer 5251/92.

2.	Pursuant to the order in paragraph “1” above an order that applicant engages the Zimbabwe Republic Police or/and the Sheriff/Messenger of Court to enforce the order.

3.	There be  no order as to costs if the relief sought is not opposed.”

Before the commencement of the proceedings a request was made by counsel for the applicant to consolidate the proceedings under case number HC 1298/19 with this court application.  That application is before MOYO J.  The applicant in that matter is Save Safaris (Pvt) Ltd and the respondents are H.J. Voster (Pvt) Ltd and Newson Maketo.  A perusal of the record indicates that the matter under case number HC 1298/19 is an urgent chamber application.  Although the issues raised in that urgent application may appear similar it is clear that the requirements for the relief sought in both applications are substantially different.  To begin with, in the application before me, this is a court application.  The parties have filed detailed heads of argument in support of their respective positions.  In the other matter before MOYO J, the applicant has to satisfy the court that the matter is urgent.  If not, the matter may very well be removed from the roll of urgent matters.  The relief sought in that matter is an interdict pending final relief.  The requirements for a temporary relief are not the same as those for the granting of a final interdict.  It seems to me to be improper to consolidate these two matters.  I shall therefore, confine myself to the application before me.  Both counsel for the applicant and the respondent abandoned their respective points in limine, challenging the authority of the deponents to the founding affidavit and the opposing affidavit.

On the merits of the application, the applicants contend that they have established all the requirements for the granting of a final interdict.  I must point out, however, that whilst the founding affidavit does attempt to deal with such requirements, the applicant seems to have missed the point somewhat by dealing with issues that were completely irrelevant to the determination of the case.  In its heads of argument and oral submissions in support of the application for the interdict the following are listed as the issues for determination:

“(a)	What is the effect/status of an order of the court that was granted but never cancelled?

(b)   Does the Parks and Wildlife Management Authority have the power to grant hunting rights over private land?

These are the issues counsel for the applicant Mr B. Dube, dealt with at length in oral submissions.  It only became apparent that the applicant may have missed the point when Mr Mashayamombe, appearing for respondents submitted that in fact the issues set out for determination were not relevant in an application for a final interdict as sought by applicant.  It was argued that the founding affidavit was framed with such particularity that there could be no doubt that all the essential elements for an interdict had been met, regardless of the oral submissions.

I shall proceed to deal with each of the requirements for the grant of a final interdict in turn.

Whether the applicant established a clear right

The applicant contends that it is the legal owner of Mapari Ranch also known as Lot 4 Devuli Ranch located in Save Valley Conservancy and held under Deed of Transfer 525/92.  Further, the applicant avers that this court has confirmed the applicant’s private ownership of the land in question.  In this regard reference is made to orders of this court declaring that the Minister of Lands Agriculture and Rural Resettlement was permanently interdicted from giving any rights to a third party whether by way of a lease or sale.  The order also declares as null and void any land acquisition, encumbrance by the Government or the Minister of Lands.  The order of the court is extant and has not been set aside.  I do note that the order deals precisely with the issue of the acquisition of the land by the acquiring authority in terms of the land reform exercise.  The point that is in contention is whether this order has the effect of rendering void the lease agreement entered into between the respondent and the Parks and Wildlife Management Authority.  It is not in dispute that on 18th December 2017 the Parks and Wildlife Management Authority entered into a written agreement in terms of section 37 of the Parks and Wildlife Act (Chapter 20:14), granting respondent the rights to occupy the land in Mapari Hunting Concession for the purposes of carrying out hunting safaris in the designated area.  The court orders referred to earlier where granted by this court on the 19th April 2018 and the 24th July 2018.  It is the applicant’s contention that these court orders rendered null and void the hunting rights granted to the respondent in 2017.  I cannot agree with that proposition.  The hunting concession has not been challenged in this court, neither has it been set aside.  In my, view the applicant has not established a clear right.  The respondents argue that inspite of the court orders that remain extant this court cannot ignore that the land in question was expropriated.  Expropriation of land or acquisition by the State means that all the rights in that land belong to the State.  It is trite that upon land acquisition by the State the former owners cease to have ownership rights with regards that land.  Courts in this jurisdiction have dealt with this issue at great length.  See Richard Thomas Ethercrage v The Minister of State for National Security, Land Reform and Resettlement and Madzongwe HH-16-09. GUVAVA J (as she then was) had this to say:

“What is clear therefore is that once the land is acquired the former owner or occupier loses the right, after the period stipulated in the subsection, to occupy or use the land.”

This position reiterates the notion that once land acquisition took place, the land is no longer private property.  The applicant is therefore mistaken to think that it still holds ownership rights over the piece of land that was acquired by the State.  What I have sought to demonstrate is that the applicant has no clear right over the land inspite of the orders of this court seemingly holding otherwise.

Before I conclude on this aspect, I pause to observe that the Chief Registrar of Deeds filed in this matter a letter dated 8 January 2018.  This letter is in the following terms:

“Certain Piece of Land in the District of Bikita being Lot 4 of Devali Range

Reference is made to the above matter.

This is to confirm that Lot 4 of Devali Range was registered under the name of H. J. Vorster (Pvt) Ltd under Deed of Transfer 5251/92 and was acquired by the Government of Zimbabwe under caveat 95/94.  Deed of Transfer 5251/92 is missing in our office and we are unable to provide you with a copy of the same.  Deed of Transfer 4152/92 does not exist in our records.”

I am satisfied therefore, that the applicant has not established a clear right. The respondent is utilizing the land for hunts in terms of an agreement that has not been set aside.

Whether irreparable injury has actually been committed or reasonably apprehended

This next requirement for an interdict is dealt with by the applicant in a perfunctory manner.  The applicant alleges that the respondent continues invading the land and conducting illegal hunts.  The court is left wondering what the actual harm or perceived injury done to the applicant by the respondent’s conduct actually is. No attempt is made whatsoever to particularize the nature of harm caused by the respondent’s conduct.

See; ZESA Staff Pension Fund v Mushambadzi SC-57-02 ;  Setlogo v Setlogo 1914 AD 221 at 227;  and Flame Lily Investment Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd & Anor 1980 ZLR 378.

Before the court can grant a final interdict an essential requirement to be established by an applicant is that irreparable harm would be occasioned if the interdict is not granted.

Absence of a similar protection by any other remedy

The applicant’s founding affidavit doses not relate to this requirement at all.  I hold the view that before a litigant approaches the court for any specific remedy great care must be taken to ensure that what is sought in the draft order is competent.  Having done so, there is need to comply with the requirements of the law.  There is need to set out all the essential averments as would qualify the applicant for the relief being sought.  It is an exercise in futility to make an application whose relief is not supported by the founding affidavit.  The applicant’s heads of argument took the applicant’s case on wild swing, away from the requirements for an interdict.  The applicant made no attempt whatsoever to allege or make the proposition, in the founding affidavit that there was no other available protection or remedy available to it in the absence of an interdict.

For the foregoing reasons, I find that the applicant has failed to establish the basis for an interdict.  The applicant took for granted that the orders of this court referred to in these proceedings invalidated ab initio the agreement the respondent had with the Parks and Wildlife Management Authority.  That was an erroneous assumption.

In the result, the application is dismissed with costs.

Mabundu & Ndlovu Law Chambers, applicant’s legal practitioners

Wintertons c/o Mashayamombe & Company, respondent’s legal practitioners