Chinotimba Housing Co-operative Society Limited and Owen Ndoro v Hallmark Chicks (Private) Limited and Minister of Lands, Agriculture & Rural Resettlement

### Preamble
1
HH 222-21
HC 675/21
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CHINOTIMBA HOUSING CO-OPERATIVE SOCIETY LIMITED

and

OWEN NDORO

versus

HALLMARK CHICKS (PRIVATE) LIMITED

and

MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE, 19, 24 & 26 March 2021, 13 & 30 April 2021

Urgent Chamber Application Spoliation

Mrs V.H. Tongoona, for the applicants

Advocate S.M. Hashiti & Mr T.S. Nyawo, for the 1st respondent

MUSITHU J:

INTRODUCTION

The applicants seek spoliatory relief and an interdict against 1st respondent. The application was filed on 15 March 2021. 1st Applicant is a housing co-operative registered in terms of the laws of Zimbabwe. Its founding affidavit was deposed to by its chairperson CHARLES SAUNGWEME. 2nd applicant is a member of the 1st applicant. He deposed to his own affidavit which essentially augments 1st applicant’s affidavit. There is also a supporting affidavit by SIDNEY MUMBAMARWO, who is a member of 1st applicant.  The relief sought is set out in the draft provisional order as follows:

“TERMS OF THE FINAL ORDER

That you show cause to the Honourable Court why a final order should not be made in the following terms

The Respondent and all those acting through it be and are hereby interdicted from denying Applicants and all those occupying the property through them unhindered use of all access roads and entry points into the Athena of Langford.

The Respondent is interdicted from interfering with Applicant’s occupation of the property known as Athena of Langford and its developments thereat.

That Respondent shall pay costs of suit.

INTERIM RELIEF

Pending the finalization of this matter, the Applicant is granted the following relief-

The Respondent be and is ordered to restore possession of Athena of Langford situate in the District of Salisbury to the Applicants upon service of this order, failing which the Sheriff be and is hereby authorized to assist Applicants to recover possession thereof.

The First Respondent and all those acting through it be and are hereby prohibited from denying Applicants and all those occupying the property through them unhindered use of all access roads and entry points into Athena of Langford.

The First Respondent shall not interfere with any developments made by the First Applicant on the property known as Athena of Langford.”

1st respondent opposed the application.

FACTUAL BACKGROUND

The genesis of the dispute as set out in the papers is as follows. Sometime in 2001 1st respondent’s farm, Athena of Langford (the land) was compulsorily acquired by 2nd respondent in terms of the Land Acquisition Act. 1st applicant claims that it was allocated the land through a letter dated 23 May 2006, from the then Ministry of Local Government Public Works and National Housing (Ministry of Local Government). The letter reads:

“RE: OFFER TO DEVELOP REMAINDER OF ANTENA OF LANGFORD FARM OF WATERFALLS TOWNSHIP – SALISBURY DISTRICT

This letter serves to advise that you are now permitted to develop Remainder of Athena of Langford Farm of Waterfalls Township, in Harare District.

You should however meet the following development procedure:

You should engage your planners to process the subdivision plan which should be approved by the Department of Physical Planning.

You will have to approach the Stateland Office, 16th Floor Mukwati Building to instruct surveys at your cost.

Engineering drawings for water, sewerage reticulation and roads will have to be approved by Harare City Council.

Civil works will be inspected and certified by the City of Harare.

No house construction will start before water and sewerage reticulation is in place.

The Co-operative will pay the cost of the land the price of which will be determined by the Evaluation department.

10% of the number of the stands shall be reserved for allocation to civil servants.

………….”

The letter was signed off by one SM Sibanda on behalf of the Secretary for Local Government. 1st applicant claims that it took occupation in 2006 and started servicing the land in compliance with the letter of 23 May 2006. Applicants contend that they have been enjoying peaceful and undisturbed possession of the land since then.

According to the applicants, 1st respondent instituted two urgent chamber applications under HC 9988/19 and HC 395/20 seeking to interdict 1st applicant from servicing the land. The applications were unsuccessful. 1st respondent also issued summons under HC 6573/20 against 1st applicant and its members. In the summons, 1st respondent seeks a declaratur nullifying the acquisition of the land by 2nd respondent, and its allocation to 1st applicant. 1st respondent also seeks the eviction of 1st applicant and its members from the land. The matter is pending.

Applicants’ Case

Applicants claim that on 9 March 2021, around 10 pm, 1st respondent’s security guards who were armed with guns, invaded the land and forcibly evicted 2nd applicant. 1st respondent placed security guards at the entrance in order to deny 1st applicant’s members entry into the land. In so doing, applicants claim that 1st respondent resorted to self-help. Applicants contend that 1st respondent’s conduct was interfering with their possession of the land, as well as causing damage to infrastructure. The 1st respondent had to be stopped from taking the law into its own hands. The harm likely to be suffered by applicants was irremediable. Applicants required unhindered access to the land known as Athena of Langford.

Respondent’s Case

1st respondent raised some points in limine at the outset. These are: that the certificate of urgency was irregular, it having been prepared by a lawyer in the same law firm representing the applicants; lack of urgency; citation of the wrong respondent and material disputes of fact; incompetent relief; no cause of action and absence of locus standi. I shall revert to these later in the judgment.

On the merits, 1st respondent averred that the applicants were seeking the court’s help to trespass onto private land. Applicants had failed to identify the location and extent of the land that they were deprived possession of. The court was not be expected to guess which land they sought restoration of. 1st respondent averred that applicants were, at any rate in unlawful occupation of the land they claimed to possess. The land was never acquired in terms of the relevant law. According to 1st respondent, the letter of 23 May 2006 relied on by the applicants allocated land which was non-existent. In any case, the letter emanated from the Ministry of Local Government, which was not the acquiring authority. 1st respondent further contended that in terms of Proclamation 2 of 1996, Langford Estates and Athena of Langford were declared urban land following the extension of boundaries of the City of Harare. No resettlement could be carried out in an urban area.

According to 1st respondent, the Ministry of Local Government confirmed in a letter of 7 May 2018 that the land had not acquired by the acquiring authority. The letter addressed to CFI Holdings Limited reads as follows:

“RE: STATUS OF ATHENA OF LANGFORD DEED 210/63

Reference is made to your letter of inquiry dated 20 April 2018.

May you please be advised that the Athena of Langford measuring 45.4038 hectares has not been acquired and handed over to the Ministry of Local Government, Public Works and National Housing by the land acquiring authority which is the Ministry of Lands, Agriculture and Rural Resettlement. We therefore have no jurisdiction over the land and furthermore we have no details pertaining to its allocation. To our knowledge, it is private property belonging to Hallmark Chicks (Pvt) Ltd as per Deed number 210/63.

Be guided accordingly.

……………………..”

The letter was signed off by E. Nyamadzawo on behalf of the Secretary for the Ministry. The position was confirmed yet again by the same official in a letter to the 1st applicant dated 3 May 2019. The letter reads:

“RE: APPLICATION FOR REGULARISATION OF OCCUPIED LAND AT ANTHENA OF LANGFORD FARM, SATRUDAY RETREAT FARM.

Reference is made to your request for the above.

May you please be advised that Anthena of Langford farm has not yet been handed over to this Ministry and as such, you are hereby advised to approach CFI Holdings Pvt Ltd with your request for regularization.

……..”

A similar letter had also been written to 1st applicant and three other entities on 2 May 2019, advising that the same land was not yet Stateland. The entities were urged to approach CFI Holdings with their request for regularization of the land. 1st respondent asserts that as late as August 2019, the acquiring authority clarified the status of the land in a letter dated 2 August 2019. The letter was addressed to the Director Legal Research Unit Urban and Rural Policy Studies (Legal Research Unit), and copied to the Ministry of Local Government and the 1st respondent. It reads:

“ACQUISITION STATUS FOR ATHENA OF LANGFORD MEASURING 112,1995 HECTARES, SALISBURY DISTRICT

With reference to your correspondence dated 19 July 2019:

The Ministry acknowledges receipt of your request for the acquisition status of the above mentioned urban land. Acquisition of urban land is done in terms of the Land Acquisition Act Chapter (20:10). Gazetting of urban land requires a formal request from the Ministry of Local Government, Public Works and National Housing to this ministry. The ministry acknowledges publication of the previous gazettes dated 10th June 2005 (under Section 5) and on the 5th August 2005 (under Section 8) and please note that the same property was not confirmed in the administrative court. Legally it is private urban land since the notices previously served have expired.

Hope you will be guided accordingly.

………..”

Pursuant to the above correspondence, 1st applicant approached 1st respondent with an offer to purchase the land. The offer was not accepted. 1st respondent further claims that it remained the owner of the land. The alleged works being carried out on the land by the applicants could only be illegal. 1st respondent denied that applicants carried out any infrastructural developments on the land. The only infrastructure on the land belonged to 1st respondent’s parent company. The two entities would suffer prejudice if relief sought by applicants were to be granted.

1st respondent asserts that applicants attempted to carry out some civil works in 2019, but these were still born. The land was allegedly under the protection of security guards employed by Crest Poultry Group. 1st respondent denied that applicants were ever in peaceful and undisturbed possession of land. The relief sought under HC 9988/19 and HC 3952/20 was crystalized under HC 6573/20 in order to bring finality to the several disputes involving the same land.

1st respondent dismissed 2nd applicant’s affidavit as unhelpful. The affidavit did not give the size and description of the land 2nd applicant was allocated, and how much he had paid for it. 1st applicant could not have allocated 2nd applicant land that belonged to 1st respondent. 1st respondent denied that the disturbances alleged to have occurred on 9 March 2021 ever took place. The supporting affidavit by Mumbamarwo was equally dismissed as a mere fabrication. The deponent ought to have identified the security guards who allegedly invaded the land which the applicants were in possession of.

In conclusion, 1st respondent averred that the application raised disputes of fact which were unresolvable on the papers. Applicants had also failed to demonstrate the absence of alternative remedies. The court was urged to dismiss the application with costs at the scale of attorney and client.

Applicants’ Answering Affidavits

The applicants dismissed 1st respondent’s preliminary points as meritless. The bases for impeaching the preliminaries as such will be dealt with later in the judgment. On the merits, applicants insisted they were in peaceful and undisturbed possession of Athena of Langford. This was allegedly admitted by 1st respondent in paragraph 25 of its opposing affidavit. Applicants further claimed that their possession of the land was also confirmed by: annexures “E” to “I” to the 1st respondent’s opposing affidavit which referred to “Athena of Langford”; 1st respondent’s summons under HC6573/20 in which it sought a declaratur and the eviction of the 1st respondent from the land held under title deed 210/63. In the said action 1st respondent cited 1st applicant’s address for service as Athena of Langford. The question of title to the land was not material at this stage. Neither was the absence of lawful authority to occupy the land an issue. Those matters fell for determination under HC6573/20.

Applicants insisted that the unlawful evictions and demolitions occurred at Athena of Langford, which applicants were in possession of. Applicants averred that 1st respondent all but confirmed their possession by admitting that applicants carried out some civil works on the land in 2019. Applicants further averred that the existence of pending litigation did not disqualify them from being in peaceful and undisturbed possession of the land. They claimed that they had demonstrated their right to the land even though it was open to some doubt.

Applicants insisted that the disturbances that triggered the approach to the court indeed occurred. The deponent to 1st respondent’s affidavit could not dispute that since he was not on the ground when the alleged disturbances occurred. Instead, he was relying on hearsay evidence. According to the applicants, the inspection in loco carried out by the parties jointly confirmed that the forced evictions and demolitions occurred at Athena of Langford. In HC 395/20, 1st respondent sought as part of its interim relief, that 1st applicant and four of its members be interdicted from “servicing residential stands, selling, disposing or in any way dealing with any portion of immovable property known as Certain piece of Land situate in the District of Salisbury called Athena Extension of Langford measuring 95.1104 acres held under Deed of Transfer 209 of 1963 and Certain piece of Land situate in the District of Salisbury called Athena of Langford measuring 45.4038 hectares held under Deed of Transfer 210/1963”. The developments on the ground were therefore not a fiction as alleged by 1st respondent. 1st applicant insisted that the letter of 23 May 2006, gave it rights to allocate the property to 2nd applicant as its member.

1st applicant objected to the filing of the supplementary affidavit on a procedural anomaly in that it introduced fresh allegations. 1st respondent had allegedly shifted from its position as pleaded in the opposing affidavit. I will revert to this submission latter in the judgment. Regarding the merits of the supplementary affidavit, 1st applicant insisted that it was in possession of Athena of Langford. 1st applicant averred that the map of Langford Athena and Athena Extension attached to the 1st respondent’s supplementary affidavit, did not disprove that applicants were in possession of Athena of Langford. 1st applicant further averred that annexures D1 to D4 to the 1st respondent’s supplementary affidavit showing demolitions that allegedly occurred at Langford Estates, did not place the structures at Langford Estates as claimed by 1st respondent. 1st applicants insisted the pictures depicted the structures of its members demolished at Athena of Langford. 1st applicant averred that it was not privy to events at Langford Estates since it was not in possession of that piece of land. 1st applicant also denied any involvement in the alleged violence instigated by illegal settlers at Langford Estates and the kidnapping of security guards.

2nd applicant associated himself with the averments by 1st applicant in the answering affidavit.

Developments leading to the hearing of the matter.

The matter was set down for hearing on 19 March 2021. In view of the circumstances under which the disturbances complained of occurred, and following engagements with counsel, it appeared an amicable resolution of the matter was possible if parties were given a little bit of time to visit the source of the conflicts.  I postponed the matter to 26 March 2021 to allow the parties to carry out a site visit to investigate the source and cause of the disturbances, and thereafter submit a joint report of their findings. It was hoped that the site visit would help narrow down the issues and expedite the resolution of the dispute. That was not to be. On 22 March 2020, I received a letter from applicant’s legal practitioners complaining about the conduct of 1st respondent. The letter was copied to 1st respondent’s legal practitioners. 1st respondent had allegedly demolished applicants’ structures at the Athena of Langford, notwithstanding the pending litigation before me.  A police report had been made. The letter requested that the matter be heard sooner than 26 March 2021 to avert further disturbances. 1st respondent’s legal practitioners reacted to the applicants’ letter through their own letter of 22 March 2021. They suggested that the court undertakes an inspection in loco to establish the correctness of the applicants’ complaint. I invited counsel to chambers on 24 March 2021. It was agreed that an inspection in loco by the judge was not necessary. The parties had not failed to carry out their assignment as directed by the court.

The joint site visit did not yield much. On 25 March 2021, 1st respondent filed a supplementary affidavit in which it denied any connection with the land where the disturbances allegedly occurred. It claimed to own and control Athena Extension and Athena measuring 45 hectares. That land it claimed, was not occupied by any other party other than its employees. It further claimed that the land pointed out to by 1st applicants’ members was a portion of Langford Estates (1962) (Private) Limited (Langford Estates), which adjoined its own land. Spoliation on Athena of Langford was vehemently denied. The alleged acts of spoliation may have occurred on land controlled by Langford Estates, which was not a party to these proceedings. The map of the land in question was attached to the supplementary affidavit. It was the Remainder of Langford. It had no connection with Athena of Langford.

1st respondent further alleged that the damage claimed by applicants to have occurred at Athena of Langford actually happened at Langford Estates. It was on the Remaining Extent of Langford that illegal settlers often clashed and destroyed each other’s property. The disturbances were then blamed on 1st respondent’s security guards. 1st respondent further claimed applicants had never been in peaceful and undisturbed possession of the Remaining Extent of Langford. This fact was borne out by the urgent applications filed by other co-operative societies against Taurai Shava and Crest Breeders International (Private) Limited under HC 693/20 and HC 7607/20. Of these two applications, one was deemed not urgent, and the other one was dismissed on the merits. 1st respondent also claimed that as regards Langford Estates, security guards on the ground were on the receiving end of violence perpetrated by the illegal settlers. Two security guards were allegedly kidnapped on 18 March 2021. A case of assault and kidnapping was reported at Southlea Park Police Station. The property being protected by the security guards, which included a perimeter fence was also damaged. The damage was meant to facilitate entry into the Langford Estates, as the only lawful entry point was secured. A case of malicious damage to property was also reported at the same Police Station. Several criminal complaints were also made against 1st applicants’ members Rashid Mabhugu and Charles Saungweme in connection with disturbances at the said piece of land.

On 26 March 2021, applicants filed their own report titled “REPORT ON FINDINGS AT ATHENA OF AT LANGFORD ON 24th of MARCH 2021”. The report stated that the site visit was conducted jointly by counsel for the parties and their respective clients. Also in attendance was the Chief Executive Officer of CFI Holdings (Private) Limited. The boom gate was controlled by security officers employed by CFI Holdings. They were escorted to the piece of land which 1st applicant’s members identified as Athena of Langford. On arrival, they noted that: 1st applicant’s site office had been demolished. Roofing sheets were scattered amongst other waste; a structure erected by a Mr Mumbamarwo had also been demolished. There was a crowd which had gathered narrating how the demolitions were carried out by security guards employed by CFI Holdings. Some of the demolitions had been carried out as late as 24 March 2021; 2nd applicant’s house was unaffected. The report stated that the parties failed to agree on the location of the structures that were demolished. 1st respondent’s representatives maintained that the demolitions occurred on the Remainder of Langford, while applicants insisted they were carried out on the Athena of Langford.

At the resumption of the hearing on 26 March 2021, counsel agreed that in light of the conflicting reports, there was need to rope in an expert to help demarcate boundaries in order to show the areas of conflict. To that end, the court granted an order directing the Surveyor’s General’s Department to proceed on the ground and determine the extent of the physical boundaries of Athena of Langford, and indicate the party or parties occupying the area that fell within the boundaries. The Surveyor General was ordered to prepare and submit a report within 8 days of the date of the order. Regrettably, that department advised that it was unlikely to undertake the assignment within the time stipulated because of several constraints besetting that office. That route was abandoned, and the parties agreed to proceed and argue the matter on the papers.

Points in Limine

For the applicants Mrs Tongoona objected to the filing of the 1st respondent’s supplementary affidavit arguing that it violated the rule on sequencing of affidavits in applications. She submitted that no formal application had been made for its admission, and neither had an explanation been tendered for its filing at this stage. She further submitted that applicants would be prejudiced if the affidavit was allowed to stand as it introduced fresh matters. Mr Hashiti for the 1st respondent, argued that leave to file the supplementary affidavit was sought when the parties appeared in court after the ill-fated joint site visit.  The parties failed to file a joint report as directed by the court, and ended up filing individual reports based on their respective versions.

The objection was not pursued further after Mrs Tongoona admitted that on 26 March 2021, the court had admitted into the record both the 1st respondent’s supplementary affidavit and the applicants’ own report following their tendering by counsel as a record of what transpired during the site visit. Both sets of documents were critical in the resolution of the dispute. In the exercise of my discretion, I had allowed the admission of these additional documents in terms of Order 32 rule 246 (1)(a). The circumstances under which an urgent chamber application must be heard and determined requires the judge to exercise some flexibility in dealing with evidence submitted at short notice. After all, rule 246(1)(a) permits the adducing of such further information on oath or otherwise. I cannot conceive of those rare circumstances where perceived prejudice cannot be cured by a postponement of the matter or the filing of a supplementary affidavit to deal with any additional matters that may have arisen as a result of the provision of the additional information envisaged by rule 246 (1)(a).

Irregular Certificate of Urgency

The certificate of urgency was prepared by Ringisai K.H. Mapondera who is listed as a partner in the law firm representing the applicants. 1st respondent averred that it was highly irregular for a legal practitioner from the same law firm representing the applicant to certify the urgency of the matter. A legal practitioner preparing a certificate of urgency was expected to have an independent and unbiased view of the matter. A legal practitioner from the same law firm had an interest in the matter. Mr Hashiti submitted that what made the present matter even more peculiar was that the certifying legal practitioner was also the lead counsel in the matter as shown by the law firm reference. Having taken instructions to prepare the court papers, it was inconceivable that the same legal practitioner would proceed to certify the matter as urgent. Counsel further submitted that it was an abuse for a legal practitioner to certify their own matter as urgent. He cited several decisions in support of this position.

In response Mrs Tongoona submitted that there were two schools of thought on whether a legal practitioner from the same law firm representing the applicant could certify a matter as urgent. Her argument in the main was that any irregularity surrounding the certification of a matter as urgent did not render the urgent chamber application defective. She also referred to case law authority to advance this position. Mrs Tongoona submitted that rule 242 (2) (b) did not instruct that the certification of a matter as urgent be done by a legal practitioner who was not seized with the matter. According to counsel, the rule only required that the application be accompanied by a certificate from a legal practitioner.

There are still divergent views on whether or not it is irregular for a legal practitioner from the same law firm representing a litigant to certify a matter as urgent for purposes of rule 242 (2), as read with rule 244.  The apex court is still to make a definitive pronouncement on the point. In the Chafanza case cited by Mr Hashiti, CHEDA J reasoned that a legal practitioner could not certify the urgency of a matter emanating from his law firm because he had an interest in that matter. According to the learned judge, the interest was two pronged. Firstly, he had a pecuniary interest in respect of fees to be earned from that client. Secondly, he was also interested in promoting the goodwill of the firm through a successfully prosecution of the client’s case. The learned judge concluded that it was “totally undesirable for a legal practitioner to either attest to an affidavit or sign an urgent certificate for and on behalf of a client who is being represented at his firm as such lawyer clearly has an interest in the matter at hand”.

The cases of Chidawu & Others v Shaa & Others and General Transport &Engineering (Pvt) Ltd v Zimbank Corp (Pvt) Ltd did not deal directly with the issue at hand. In the Chidawu case, GOWORA JA considered a certificate of urgency as the “sine qua non for the placement of an urgent chamber application before a judge”.  In that matter, a legal practitioner preparing a certificate of urgency had simply copied the contents of a certificate of urgency prepared by another legal practitioner in a related matter. It was argued that the legal practitioner had not applied her mind to the facts of the case when she certified the matter as urgent. The court found that to be highly improper. GOWORA JA further remarked that “In order for a certificate of urgency to pass the test of validity it must be clear ex facie the certificate itself that the legal practitioner who signed it actually applied his or her mind to the facts and the circumstances surrounding the dispute”. The learned judge also cited with approval the sentiments by GILLESPIE J in the General Transport & Engineering (Pvt) Ltd & Ors v Zimbank Corp (Pvt) Ltd matter.

In Pascoe v Minister of Lands & Rural Resettlement & 2 Others, CHITAPI J associated himself with the views of BERE J in Dodhill (Private) Limited v Minister of Lands & Rural Resettlement & Ano. The learned judge went on to opine that from a consideration of the rules, there was no requirement that a certificate of urgency should be prepared by a legal practitioner from a law firm different from the one handling the matter. I have also considered the judgment of BERE J in Mudekunye & 3 Ors v Mudekunye & 2 Ors, and I must say I find the views of the two learned judges on this point very persuasive and edifying. Quite apart from the fact that the rules of court are silent on whether or not a legal practitioner from the same law firm representing a litigant is disqualified from certifying a matter as urgent, it also makes practical sense that he not be disqualified from doing so.

In practice, a client approaches a legal practitioner to represent them in a particular matter. That legal practitioner takes full instructions, carries out a detailed research and formulates an opinion on the future course of action to take based on the outcome of the research. A legal practitioner may as well decide that the interests of his client are better served by approaching the court on an urgent basis. That decision is informed by his professional evaluation of the case, the issues and the law. He then proceeds to prepare the relevant papers. A legal practitioner from a different law firm is then expected to prepare a certificate of urgency in the matter. But in doing so, he or she predicates his/her judgment on the papers prepared by the legal practitioner who had direct interface with the client. I cannot perceive of a situation where that supposedly independent legal practitioner would demand to interface with the client to enable him/her to properly evaluate whether the matter is indeed urgent. After all a certificate of urgency is not definitive on the question of urgency.

Urgency is not an abstract subject. It has a context. It is for that reason that a judge is still reposed with discretion to determine whether or not a matter is urgent by considering the circumstances of the dispute before him/her, notwithstanding the certification of the matter as urgent. In practice a legal practitioner from a different law firm would rarely find time to go through the voluminous paperwork from another legal practitioner, just for him to certify whether or not a matter is urgent. The realities of legal practice, where time is considered a hallowed commodity may not allow for this luxury. In practice, it may actually be that the certificate of urgency is prepared by the legal practitioner handling the matter, and just passed on to a legal practitioner in a different law firm to append his/her signature.

I believe it is for this reason that in Condurago Investments (Private) Limited T/A Mnada Diamonds v Mutual Finance (Private) Limited, BHUNU J (as he then was), had to deal with a certificate of urgency that was prepared 4 days before the applicant’s founding affidavit was even commissioned.  That makes mockery of the argument that a legal practitioner from a different law firm would formulate an independent evaluation of the urgency of the matter. As officers of the court, legal practitioners are aware of their responsibilities to the courts and their clients. They are key stakeholders in the dispensation of justice. As such, I fail to find a legal or logical basis to disqualify a legal practitioner from the same law firm representing an applicant to prepare a certificate of urgency certifying the urgency of a matter. I accordingly find that there is no merit in the objection and it is hereby dismissed.

Urgency

1st respondent averred that the matter was not urgent as this court has already found so in related cases. The court was referred to the records in HC 395/20; HC 6996/20 and HC 6903/20. Respondent claims that in HC 395/20, it made allegations similar to those made by applicants in casu, but the court found that the matter was not urgent. In HC 6966/20, the court dealt with an urgent chamber application filed by another group of people in respect of the same land. The matter was deemed not urgent. The same fate befell another urgent matter under HC 6903/20.

1st respondent further averred that the offending perimeter fence referred to by the applicants was allegedly erected in December 2020. The application therefore ought to have been made at that stage. In his oral submissions, Mr Hashiti submitted that the fact that an application which was filed on 15 March 2021, was only being heard on 12 April 2021, was clear attestation of lack of urgency. Counsel referred the court to the case of Hunde & Ors v Nurses Council of Zimbabwe & Ano, where MWAYERA J set out five key constituent elements of urgency. The applicants had waited for almost a month to have their complaint determined by the court. According to counsel, applicants agreed to procedures that resulted in the deferment of the resolution of the matter, an indication of the absence of irreparable harm. Counsel further submitted that the harm allegedly suffered by applicants consequent upon the denial of access to the property was not even set out. There was also no indication of the alleged developments that were likely to be interfered with if the relief sought was not granted on an urgent basis. Counsel further submitted that applicants had failed to demonstrate the absence of an alternative remedy, considering that 1st respondent was a going concern capable of absorbing any alternative claim for damages.

In response, Mrs Tongoona argued that the question of urgency was resolved through a consideration of the time when the need to act arose. She submitted that in casu, the urgency of the matter was triggered by events of 9 March 2021. She urged the court to concern itself with the period when the events occurred and the date the application was filed. She further submitted that the mere fact that the applicants agreed to the postponement of the matter, in order for the parties to try and iron out issues as directed by the court was not a sign of capitulation on their part.

In determining whether or not a matter is urgent, a judge must make a value judgment based on the circumstances of each case. One of the key factors considered in exercising that discretion is whether an applicant took urgent remedial action when the need to do so arose. 1st respondent does not deny that some disturbances occurred. What it denies is that the disturbances occurred on 9 March 2021, and the location of such fracases. It accepts that some disturbances indeed occurred on 10 March 2021, but these involved a group of trespassers who had illegally encroached into Langford Estates. I also note that paragraphs 8-11 of the 1st respondent’s opposing affidavit deal with the question of urgency in a rather perfunctory fashion. In attacking urgency, 1st respondent relates to the manner in which this court has declined to deal with similar disputes on an urgent basis. It was never disputed that applicants acted when the need to do so arose. It was only in the oral submissions that 1st respondent was more direct in its impeachment of urgency.

The other factors that counsel for the 1st respondent’s counsel urged me to consider as per the authority of Hunda & Ors v Nurses Council of Zimbabwe  are in my view tied to the merits of the application. The court is also not persuaded by Mr Hashiti’s argument that the fact that the matter was finally heard almost a month after the application was filed speaks to the remoteness of the alleged risk of irreparable harm, and concomitantly lack of urgency. It is common cause that postponements were done with the concurrence of the parties, and at times at the instigation of the court. All that was done with a view to narrow down the areas of disputation, and hopefully to achieve an amicable resolution of the manner in an expeditious manner. It is in my view injudicious to use such a delay as an onslaught against the other litigant. This is more so as in the present case, where the court gave directions for certain assignments to be carried out by the parties in the interests of justice.

Having considered the circumstances behind the filing of this application on an urgent basis, I am satisfied that they were indeed disturbances that occurred during the period 9-10 March 2021 that also involved the applicants. The objection is therefore dismissed.

Wrong respondent and material disputes of fact

Mr Hashiti submitted that the applicants proceeded against the wrong party. The alleged disturbances were completely alien to the 1st respondent, who occupied different land altogether. That confusion was exacerbated by the applicants’ failure to correctly identify or describe the land they claimed possession of. Counsel submitted that the uncertainty led to the creation of material disputes of fact which made the matter undeterminable on the papers. It was for that reason that the parties had to agree to two site visits to establish the source of the disturbances. The two visits failed to yield an agreed position. Mr Hashiti further submitted that there was no way the court could rank the parties affidavits to establish which version was correct. In its supplementary affidavit, 1st respondent insisted it owned and controlled Athena Extension and Athena measuring 45 hectares. It claimed that the land had always been under its exclusive control. It also claimed that the land pointed out to by the applicants during the site visits was a portion of Langford Estates which adjoined its own land. This is where the disturbances allegedly occurred.

In response, Mrs Tongoona argued that the alleged citation of a wrong respondent was not a preliminary issue that could be raised at this stage. It required the court to consider the merits of the dispute. I see no merit in this submission. If the facts placed before the court at the outset show that a wrong party was sued, then what will be the need to drag that party into the merits of the dispute? To me that marks the end of the matter as far as the wrongly cited party is concerned. Mrs Tongoona further submitted that no material disputes of fact arose regarding the location of the source of the conflict as the land was sufficiently described in the papers before the court. She also pointed to proceedings instituted by 1st respondent against 1st applicant in HC 6573/20 in which the 1st applicant’s address for service was stated as Athena of Langford. Similarly in HC395/20, 1st respondent sought an interdict against 1st applicant in respect of the same Athena of Langford. The same land was identified as such in annexures F, G and H to the 1st respondent’s notice of opposition. Counsel submitted that for that reason, 1st respondent could not just make an about turn at this stage. She further submitted that the alleged disputes of fact were only raised in the 1st respondent’s supplementary affidavit for the first time as nothing was said about Athena Extension and Athena in the opposing affidavit.

In Supa Plant Investments (Pvt) Ltd v Chidavaenzi MAKARAU J (as she then was), said of material of disputes of facts:

“A material dispute of facts arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.” (Underlining for emphasis)

In Muzanenhamo v Officer in Charge CID Law & Order & 7 Ors PATEL JA explained the position further as follows:

“In this regard, the mere allegation of a possible dispute of fact is not conclusive of its existence. See Room Hire Co. (Pty) Ltd v Jeppe Street Mansions ((Pty) Ltd 1949 (3) SA 1155 (T) at 1163; Checkers Motors (Pvt) Ltd v Karoi Farmtech (Pvt) Ltd S-146-86; Boka Enterprises v Joowalay & Another 1988 (1) ZLR 107 (S) at 114B-C; Kingstons Ltd v L.D. Ineson(Pvt) Ltd 2006 (1) ZLR 451 (S) at 456C-D and 458D-E. The respondent’s defence must be set out in clear and cogent detail. A bare denial of the applicant’s material averments does not suffice. The opposing papers must show a bona fide dispute of fact incapable of resolution without viva voce evidence having been heard”

At the onset of the hearing, the parties adopted conflicting positions that prompted the court to direct that they jointly carry out a site visit to establish the exact location of the source of disturbances, and thereafter submit a joint report.  The parties remained poles apart even after two site visits. Applicants claim that they were in peaceful and undisturbed possession of Athena of Langford since 2006. To confirm that the land was compulsorily acquired by 2nd respondent, they attached extracts of the Extraordinary Government Gazette of 7 September 2001 and one of 10 June 2005, which list several other farms that were earmarked for compulsory acquisition. Paragraph 155 of the Gazette of 7 September 2001 refers to “Deed of Transfer 310/63, registered in the name of Hallmark Chick (Private) Limited, in respect of certain piece of land situate in the district of Salisbury, being Athena of Langford, measuring one hundred and twelve comma two zero (112,20) hectares”. (Underlining for emphasis) Paragraph 46 of the Extraordinary Gazette of 10 June 2005 refers to “Deed of Transfer 210/63, registered in the name of Hallmark Chicks (Private) Limited, in respect of certain piece of land situate in the district of Salisbury, being Athena of Langford, measuring one hundred and twelve comma one nine nine five (112,1995) hectares”. On the face of it, these appear to be two distinct properties, going by the title description and their size. Whether the anomaly in the description is down to a typo or they exist as two distinct properties was not explained in the founding affidavit or the letter of 23 May 2006 from the Ministry of Local Government. That presents a problem.

The letter of 7 May 2018 from the Ministry of Local Government to CFI Holdings, which is Annexure H to the 1st respondent opposing affidavit refers to “The Athena of Langford measuring 45.4038 hectares”. The title deed reference is stated as 210/63. The letter confirms that the land is private property belonging to the 1st respondent. The letter of 2 August 2019 from the Ministry of Lands to the Director of the Legal Research Unit referred to the “ACQUISITION STATUS FOR ATHENA OF LANGFORD MEASURING 112, 1995 HECTARES, SALISBURY DISTRICT”. Deed of Transfer Number 210/63 in favour of 1st respondent, which is annexure J to the opposing affidavit identifies the land as “CERTAIN piece of Land situate in the District of SALISBURY called ATHENA of LANGFORD MEASURING One Hundred and Twelve Decimal Point One Nine Five Five (112.1955) Acres”.

As already stated, 1st respondent contends that it is in possession and control of Athena Extension and Athena which measures 45 hectares. It denies that any disturbances occurred on that piece of land. In HC 395/20, 1st respondent sought an interdict against 1st applicant and four of its members. 1st respondent wanted 1st applicant herein and four of its members interdicted from:

“1.1 Servicing residential stands, selling, disposing or in any way dealing with any portion of immovable property known as Certain piece of Land situate in the District of Salisbury called Athena Extension of Langford measuring 95.1104 acres held under Deed of Transfer 209 of 1963 and Certain piece of Land situate in the District of Salisbury called Athena of Langford measuring 45.4038 hectares held under Deed of Transfer 210/1963.

1.2 Erecting any structures on immovable property known piece of Land situate in the District of Salisbury called Athena Extension of Langford measuring 95.1104 acres held under Deed of Transfer 209/1963 and Certain piece of Land situate in the District of Salisbury called Athena of Langford measuring 45.4038 hectares held under Deed of Transfer 210/1963” (Underlying for emphasis).

That application was withdrawn, with DUBE J ordering 1st respondent herein to issue summons to decisively deal with the issue of ownership and title of the land within fourteen days of the date of the order. The summons were issued under HC 6573/20 on 10 November 2020. In that action, 1st respondent herein seeks a declaratur invalidating the purported acquisition of the Athena of Langford held under Deed of Transfer Number 210/63, by the Minister of Lands. As consequential relief, it also seeks the eviction of 1st applicant herein and four of its members from that same piece of land. The defendants’ addresses therein are given as Athena of Langford, Harare. I agree with Mrs Tongoona that 1st respondent is being duplicitous in denying any association with Athena of Langford, yet there is a pending action in this court in which it seeks the eviction of 1st applicant and its members from a piece of land known as Athena of Langford. Such two-facedness clearly amounts to an attempt to mislead the court.

Be that as it may, I have deliberately made reference to the several documentation relating to Athena of Langford just to illustrate the several appellations by which the same piece of land is known. This is the same land that applicants claim to have been dispossessed of unlawfully by 1st respondent. There are about four versions of Athena of Langford going by the same name but of different sizes. The questions which arise are: from which Athena of Langford was 2nd applicant forcibly evicted by 1st respondent’s security guards?; which Athena of Langford was originally allocated to 1st applicant from which it then allegedly parceled out pieces of land to its members? The applicants’ affidavits do not clarify this position. In fact, the applicants are the architects of their own misfortunes. Their own attachments make reference to two different properties of two different dimensions. The anomalies are not explained.  The same goes for the annexures to the 1st respondent’s opposing affidavit. The land bearing the same name however has different dimensions attributed to it. Two pieces of the same land seem to share the same Deed of Transfer Number 210/63. One measures 112,1955 acres while the other measures 45,4038 hectares.

I do not see how this matter can be resolved on the papers when the applicants are not themselves clear about which land they were allegedly dispossessed of. The applicants were obviously aware of this grave difficulty, considering that this present application is just one out of a series of the many legal contests involving the same land and more or less the same parties. It was the easiest thing for the applicants to clearly identify the Athena of Langford that was originally allocated to 1st applicant, and from which the alleged disturbances occurred. This is a case which can only be resolved through oral testimony, with the court having the benefit of assessing the credibility of witnesses.

I also agree with Mr Hashiti that it is difficult to conclude if the applicants cited the proper respondents, in circumstances where they failed to correctly locate the source of disturbances and the party in possession of such land. The fact that there are several versions of Athena of Langford does not necessarily mean that it is the 1st respondent claiming control of all those pieces of land bearing its name. In any case, 1st respondent claims that it is in control of land known as Athena Extension and Athena. From the papers before the court, that land seems to exist as well.

For the foregoing reasons, the court finds that the parties conflicting positions with regard to the location of the source of disturbances are irreconcilable in so many respects, and the court is hamstrung to deal with this matter on the papers. The preliminary objection succeeds. The materiality of the disputes of fact go to the very root of the applicant’s case. The application must fall on that score. Having come to that conclusion, it is needless for this court to traverse the remaining preliminary issues.

COSTS

1st respondents sought the dismissal of the application with costs on the attorney and client scale. The general rule is that the successful party is entitled to costs on a scale which must be determined depending on the nature of the case and the manner in which the parties conducted litigation. I have already expressed my reservations with conduct of the 1st respondent in this matter. It was not entirely truthful, especially where it sought to dissociate itself from a piece of land that it is seeks to evict the applicants in a different matter. They may be several versions of Athena of Langford, but there is one in which 1st respondent seeks some relief against the applicants. For that reason this court will deny the 1st respondent costs at the level on which they were sought. The applicants themselves are not entirely without fault. The somewhat indifferent manner in which their case was pleaded in the papers deserves some censure. They ought to have properly identified the land which was allocated to 1st applicant and on which the disturbances allegedly occurred. The fact that that was not done yet the same parties have had a fair share of legal combats before this court in connection with similar land just goes to show the phlegmatic manner with which they approached this matter.

DISPOSITION

Resultantly it is ordered that:

The application is dismissed.

Applicants shall pay the 1st respondent’s costs of suit.

Mapondera & Company, applicants’ legal practitioners

Nyawo Ruzive Attorneys, 1st respondent’s legal practitioners