Givemore Garande & 59 Ors v Phillip Chiyangwa & 2 Ors

### Preamble
1
HCC17-22
---------


GIVEMORE GARANDE & 59 Ors versus

PHILLIP CHIYANGWA

And

BRUCE CHIYANGWA

And

THE MESSENGER OF COURT CHINHOYI

EDWARD MANJOVO And

LUXON MUCHERENGI

And

GAMUCHIRAI MATEMERA

And

GIFT KATSIME

And

TRYMORE CHIRWADZI

Versus

PHILIP CHIYANGWA

And

BRUCE CHIYANGWA

And

MESSENGER OR COURT CHINHOYI

HIGH COURT OF ZIMBABWE MUZOFA J

CHINHOYI,22 June ,20 July & 16 September 2022

Urgent Chamber Application

Chikono & F Murisi , for the applicants

K Magorimbo , for the 1st & 2nd respondents No appearance for the 3rd respondent

MUZOFA J. By consent of both parties the two matters were consolidated as they deal with the same issues and relate to the same respondents. Although both matters were filed as urgent chamber applications, the resolution of the matter delayed partly due to some attempts to engage and reach an out of court settlement. The efforts unfortunately did not make headway.

Factual background

The applicants in both cases reside at the Old Citrus Farm, Chinhoyi, and ‘the farm’. The first respondent is a holder of an offer letter in respect of the farm issued in 2002. The second respondent is a manager at the said farm. The third respondent is cited in his official capacity.

It is apparent that there are more people in the farm besides the applicants. The first respondent has attempted to evict them from the farm without success. Eventually the first respondent caused the arrest of a group of people in the farm for contravening s3 of the Gazetted Lands (Consequential Provisions) Act (Chapter 20:28) ‘the Act’ in Phillip Chiyangwa v Patrick Mafusire & Ors under a case number only referred to as 366/20. Consequent upon their conviction, an order for their eviction was granted.

A writ was issued and in the process of eviction, it is alleged that more people other than those cited in the writ were evicted. This was the beginning of court proceedings both in the High Court and the Magistrates Court against the respondents to stop the evictions against any of the occupants except for those cited on the writ.

Under HC87/22 the applicants seek a spoliation order. They allege that they were in peaceful and undisturbed possession of their pieces of land which they occupied. The respondents used the writ to evict them .They were not cited on the writ.

Under HC 94/22 the applicants seek a provisional order to interdict the respondents from evicting them and a declaratur on the return date. They allege that when the 3rd respondent evicted the applicants under HC 87/22 he threatened to return and evict them. This application is therefore premised on a threat of harm, the harm has not materialised.

I deal with the cases separately. CASE NUMBER HC 87/22

The application was opposed. Preliminary points were taken for the respondents in respect of jurisdiction of the court, urgency, and that the applicants have dirty hands they should not be heard. The respondents also referred to material non-disclosure but the issue was not fully traversed in their affidavits nor was it argued in oral submissions. It is taken as abandoned.

I address the preliminary points first. Jurisdiction

According to Mr Magorimbo for the respondents, no court has jurisdiction to grant spoliatory relief in favour of a former owner or occupier of gazetted land/ state land who continues to occupy the land after the prescribed period. He relied on the authority of CFU & Ors v Minister of Lands & Ors1 for this proposition. Further to that, he submitted that such continued occupation constitutes a criminal offence in terms of s3 of the Gazetted Land (Consequential Provisions) Act (Chapter 20:28), a court of law cannot abet the commission of a criminal offence. Further it was argued that the common law remedy of spoliation cannot be weaponised to override a statutory provision.

For the applicant it was argued that the CFU case (supra) is being taken out of context. The court was dealing with a different cause of action. The case did not take away the court’s jurisdiction neither did it take away the former occupiers’ right to protection under a spoliation order. It did not advocate for the law of the jungle by way of self-help.

Despite the conviction that the respondent’s legal practitioner displayed in the interpretation of the CFU case (supra), I am unable to agree with it. The case must be understood within its context. It is distinguishable from the case before the court. The case does not in any way take away the court’s jurisdiction.

The applicants in the CFU case approached the court seeking various relief. They were former owners or occupiers of gazetted land. They were required to vacate the land within the stipulated period provided in the Act. They did not. The offerees forcibly took occupation

1 2010(1) ZLR 576 (SC)

without following due process. Some of the applicant’s members had been arrested for contravention s3 of the Act. Part of the relief sought was a moratorium against such prosecution. The findings of the court must be understood within the context of the relief for the moratorium against prosecution. Thus the court found that the legislature created the offence and such prosecutions cannot be defeated by a common law remedy of spoliation. The point made is that spoliation orders cannot be used as a defence to prosecution under s3 (3) of the Act. The applicants’ members were subject to prosecution.

In Kershelmar Farms ( Pvt ) Ltd & Ors v Mswelangubo Farm ( Pvt) Ltd &Ors2 a similar argument was raised based on the CFU case. Although in that case the respondents did not raise lack of jurisdiction, their argument was that the relief of spoliation was incompetent having regard to the findings by the court in the CFU case. My sister Judge KABASA dismissed it on the basis that the court in the CFU case (supra) did not sanitise self-help in any way. On the contrary, the case is authority that both the recipient of an offer letter and the former occupiers must to resort to lawful means and follow due process in effecting change of occupancy. This position was recently upheld by the Supreme Court in Mswelangubo Farm (Pvt) Ltd &Ors v Kershelmar Farms (Pvt) Ltd & Ors3. The Supreme Court, cognisant of the argument commented as follows,

‘In spoliation matters it is apparent the deciding factor is that deprivation should be effected lawfully. Our law deprecates self-help. Even the Commercial Farmers Union case supra makes it clear that anarchy chaos brought about by self-help is not acceptable. The individual with an offer letter has the locus standi in judicio to seek the eviction of a former owner after acquisition of land by the State. This by no means suggests authorization of invasion in a lawless manner.’

It is this court’s finding then that, the CFU case is inapplicable to this matter. The court has jurisdiction to hear the matter.

The preliminary point is therefore dismissed.

Urgency

Both parties conceded that it was no longer necessary to argue the point in view of the delay occasioned by the attempt to settle the matter.

2 HB280/21

3 SC 80/22

Dirty Hands

The point made is that the applicants are illegal occupiers of gazetted State land. They occupy the farm in contravention of s3 of the Act. They must have voluntarily vacated the farm. The court must not hear them as such audience is tantamount to sanctioning their illegal conduct.

In response, Mr Murisi was of a different view, he submitted that there is no court order that the applicants were required to comply with. To that extent they do not have dirty hands. The legislature in its wisdom created a criminal offence that the first respondent is at large to resort to. They have not been convicted in terms of the Act.

The concept of dirty hands has been considered and applied in our courts. It provides for a litigant to purge their dirty hands before coming to court, otherwise the court can deny them audience. In CFI Retail (Pvt) Ltd v Manyika4 the court expressed itself as follows on the issue,

‘The principle of dirty hands governs a situation where a party is under a direct obligation imposed by law to act in a specific manner which obligation the party deliberately refuses to perform. It is a time honoured principle based on the need for litigants who approach a court of law seeking relief to do so with the required degree of truthfulness, and honesty’

It means therefore that a litigant who seeks the protection of the court in respect of a subject matter, must first comply with the law in respect of that subject matter before litigating. Failure to do so commends itself to a blatant disregard of the law and courts cannot be seen to sanitize it.

Thus in ANZ (Pvt) Ltd v The Minister of State for Information and Publicity &Ors5 the court concluded,

‘This Court is a court of law and, as such, cannot connive at or condone the applicant’s open defiance of the law. Citizens are obliged to obey the law of the land and argue afterwards’. In that case the appellants had not complied with the law which required them to register before producing and distributing its newspapers. Despite that non-compliance the appellants sought to challenge the law requiring it to register.

4 CFI Retail (Pvt) Ltd v Manyika SC 8/16

5 SC111/04

In my considered view, the approach propounded by the applicants’ legal practitioner is narrow. It confines the dirty hands principle to non-compliance with court orders only. The principle actually applies to non-compliance with a law that gives a direct obligation to comply. I am fortified in this approach by the findings in the CFI case (supra) that it applies where there is a direct obligation imposed by law to act in a specific manner which obligation the party deliberately refuses to perform.

In this case s2 of the Act required the applicants to vacate the farm. They deliberately chose not to comply. They do not have any lawful authority in the form of an offer letter, a permit or a land settlement lease to remain on the farm. In terms of s3 (2) of the Act every former owner or occupier is required to vacate the land within a specified period. The applicants were therefore required to leave the farm within ninety days of acquisition. They did not. After the expiration of the ninety days the applicants became illegal settlers. They had no title or right to the land.

Now, when the applicants approach the court for protection on the same farm they are asking the court to perpetuate the illegality. This is the mischief sought to be curtailed by the dirty hands principle.

In light of the clear non-compliance with the law, the applicants cannot expect any protection of the law until they comply with the law then approach the courts. Courts cannot be seen to aid and abet an illegality.

I must comment that in Mswelangubo Farm (Pvt) Ltd &Ors v Kershelmar Farms (Pvt) Ltd & Ors (supra) the Supreme Court confirmed a judgment of the High Court sitting in Bulawayo where the former owners/ occupiers were granted spoliatory relief despite the fact that they had failed to vacate the land in terms of the Gazetted Land (Consequential Provisions) Act. The decision made herein is based on a different point taken by the respondents. In the case before the Supreme Court, the dirty hands principle was not raised therefore it was not considered. Similarly, the dirty hands principle was not raised in the other cases relating to the farm in Givemore Garande & Ors v Phillip Chiyangwa HH703/20. In Dzapasi & 29 Ors v Phillip Chiyangwa & Ors 644/21 KWENDA J disposed of the matter based on non-compliance with the law which boils down to the dirty hands principle.

Having found that the applicants failed to comply with the law the preliminary point must be upheld.

CASE HC 94 /22

As already stated the applicants seek a provisional order to interdict the first to third respondents from evicting them from the farm. On the return date the applicants will seek a declaratur that the writ issued under 366/20 against Mafusire and Others shall not be used to evict the applicants or any other person who is not a party to it and a confirmation of the interim interdict.

No preliminary issues were taken in this case.

In order to succeed in such an application, the applicants must show a prima facie right even if open to doubt, an injury actually committed or reasonably apprehended and absence of a remedy to adequately protect the applicant’s rights6.

The applicants intend to interdict the respondents from evicting them from the farm using the writ citing Mafusire and others. It is trite that an application stands or falls on the founding affidavit. The main founding affidavit by Edward Manjovo that the rest of the applicants associated with does not address the requirements of an interim interdict.

Edward’s affidavit gives a historical background to the case and how the respondents have gone about evicting the occupiers from the farm. In this narration, Edward does not address the requirements of an interdict. He does not tell the court on what basis he claims to have the prima facie right to remain on the farm to entitle him to interdict the respondents.

The farm vests in the State. Section 3(1) as read with s2 of the Gazetted Land (Consequential Provisions) Act (Chapter 20:28) provides that where a person is given an offer letter to land which was compulsorily acquired, they have the lawful authority to occupy the land. Section 3(1) of the Gazetted Land (Consequential Provisions) Act provides that no person may hold, use or occupy gazetted land without lawful authority. Section 2 of the same defines lawful authority to include an offer letter. By enacting s 3 of the Gazetted Land (Consequential

6 Setlogelo v Setlogelo 1914,

Provisions) Act, the Legislature intended that occupants with offer letters be allowed to occupy gazetted lands.

The applicants’ right to occupy the land can only be proved by showing that they are in possession of an offer letter, permit or land settlement lease. They possess none of these.

Failure to establish the prima facie right disposes of the matter. It becomes unnecessary to consider the rest of the requirements of an interim interdict. The applicants have failed to satisfy the requirements of an interim order.

Disposition

HC 87/22

Section 3 of the Act is a law that gives a direct obligation to the applicants to act in a specific manner. They were required to vacate the farm. They opted to not to comply. They therefore approach the court with dirty hands.

Since the court did not deal with the matter on the merits the application can only be struck off the roll.

There shall be no order as to costs. Both parties have tainted hands. The respondents have resorted to self-help which must be frowned upon. The applicants too have defied the law.

Accordingly, the matter is struck of the roll. No order as to costs.

HC 94/22

The applicants have failed to establish a prima facie right to remain on the farm. The applicants have remained on the farm despite knowledge that the farm now vests in the State. They also know that the first respondent holds a valid offer letter in respect of the farm. They must bear the cost of this application.

Accordingly, the application is dismissed with costs.

Moyo,Chikono & Gumiro, Applicants’ legal practitioners.

Mutamangira & Associates, 1st	& 2nd respondent’s legal practitioners.