DE Burbure (Private) Limited V Penias Kazingizi & 7 ORS

### Preamble
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HH 435-2012
HC 12821-2012
DE BURBURE (PRIVATE) LIMITED
versus
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DE BURBURE (PRIVATE) LIMITED
versus
PENIAS KAZINGIZI
and
GABELANI KANAKEMBIZI
and
FELIX MUSHAMBOZA
and
VENGESAI MAJAJI
and
LIEUTENANT GUMBO
and
DISTRICT ADMINISTRATOR, MAZOWE DISTRICT
and
THE MINISTER OF LANDS AND RURAL RESETTLEMENT
and
COMMISSIONER GENERAL OF POLICE,
ZIMBABWE REPUBLIC POLICE
and
COMMANDER DEFENCE FORCES,
ZIMBABWE DEFENCE FORCES

HIGH COURT OF ZIMBABWE
BERE J
HARARE, 13 November 2012

Urgent Application

BERE J: This case represents a very sad state of affairs on the part of the Minister as the acquiring authority of land in this country and the other ancillary Government departments in land allocation and distribution. They are not able to speak with one voice and they have been sending conflicting signals to the occupiers of Tavydale Farm. This approach does not bring transparency to the whole land regime in this country.

I accept the position of the respondents that they took occupation of the land in question in November 2011 and that they had their first harvest peacefully on the farm in 2012. That evidence has not been controversed by the applicant. In fact the applicant is not in a position to controvert that because if it was able to, it could have done so through its founding papers and possibly through supplementary affidavit since the respondents made it clear that they took peaceful occupation of the farm back in 2011. This disclosure was made by the respondents when we first dealt with this matter before the applicant was granted a postponement to amend its papers.

The time of occupation by the respondents has been confirmed by the District Administrator S. Nyakudya. I have no reason to disbelieve her on her position that the respondents took occupation of the property in question in November 2011.

If these people have been peacefully occupying this land since November of 2011, an urgent application would be most inappropriate to try and have them evicted or interdicted. The onus was on the applicant to initiate an urgent application at the right time. The applicant may have a legitimate cause of action to the situation which he is now faced with but an urgent application is out of the equation. A litigate who waits until he is faced with a crisis to act cannot and must not be allowed to take refuge in an urgent chamber application. An urgent chamber application must justify that it cannot wait for any other time. This is not one such application.

If the applicant has been able to delay the prosecution of these respondents for close to a year, surely it cannot justify the bringing in of this urgent application.

I accordingly decline to treat this application on urgent basis.

Muhonde Attorneys, Applicant’s legal practitioners
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