Ephraim Makaza v Patrick Marwizi and Minister of Lands and Rural Resettlement

### Preamble
1
HH 346/12
HC 1028/10
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EPHRAIM MAKAZA

versus

PATRICK MARWIZI

and

MINISTER OF LANDS AND RUARAL RESETTLEMENT

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 6 September 2012 & 19 September 2012

Opposed Application

M. Mutsvairo, for the applicant

B. Peresu for the 1st respondent

2nd respondent in default

MATHONSI J: The applicant and the first respondent are beneficiaries of the land reform programme having been allocated, by offer letters, neighbouring farms namely Subdivision 1A and B Angwa Farm in Makonde District of Mashonaland West Province occupied by the applicant and Subdivision 5 and 6 Angwa Farm occupied by the first respondent.

On subdivision 1A and B Angwa is located certain farming equipment which includes tobacco barns or curers generally referred to as modros which by law belong to the acquiring authority. As holder of that farm, the applicant was appointed caretaker of all the farming equipment located on his farm by the Ministry of Lands and Rural Resettlement, the acquiring authority, by letter dated 8 April 2004. That letter reads in part as follows:-

“APPOINTMENT OF CARETAKERS

This is to certify that Ephraim Makaza has been appointed as a caretaker at Angwa Farm on 8 April 2004 for a period of until date of termination.

This property is for the Ministry of Lands, Agriculture and Rural Resettlement. This service can be terminated at any time within a month notice in the event of the following conditions:

If the property is not properly looked after

If the property is needed for any other developments for the benefit of the Ministry.

If the property is needed for any developments (sic) for the benefit of the community.

Note: If the caretaker have (sic) placed any developments on this property he/she will not be compensated, and you are not allowed to remove the developments on the property as you will be causing damage to the property. The surroundings should be developed and maintained in good conditions (sic)”.

The relationship between the applicant and the first respondent has never been a good one as the two have repeatedly clashed over the use of the farming equipment located on the applicant’s farm. Although several meetings have been held with the assistance of Ministry Officials the impasse has remained. About February 2010, the first respondent dismantled the modros from the applicant’s farm, with the blessing and/or acquiescence of the second respondent’s employees in the district, and carted the equipment away to his own farm.

This prompted the applicant to approach this court by urgent application seeking spoliatory relief for the restoration of his possession of the modros, their reconstruction at his farm where they were located and for an interdict against any further interference. He submitted in his founding affidavit that before being despoiled by the first respondent he had been in peaceful and undisturbed possession of the 4 modros and that through force and wrongful means, the first respondent had dispossessed him.

Although both the respondents promptly filed opposition to the urgent application, a provisional order was granted by BERE J on 3 March 2010 containing the following interim relief:-

“INTERIM RELIEF GRANTED

Pending the finalisation of this matter or grant of any other court order that may lawfully amend or nullify this order the first respondent and through him all his supporters including workers, agents and their families shall forthwith;

cease to attempt to dismantle and remove modros from the applicant’s farm.

restore to the applicant possession and control of modros already dismantled and removed from the applicant’s farm

reconstruct the taken modros to their original form at his own expense until the issue of these modros is resolved”.

It is confirmation of that provisional order which is strongly opposed by the

respondents. The applicant also seeks a final order confirming that he was in peaceful possession of the modros in dispute, that he be restored such peaceful possession, that the first respondent be prohibited from entering his farm to dismantle farming equipment, that the second respondent or his employees be directed to refrain from assisting and encouraging the first respondent to dispossess him and that the respondents bear the costs of suit.

At the hearing of the matter Mr Peresu for the first respondent took 2 points in limine namely that there are serious disputes of fact as cannot be resolved on affidavits and as such the matter should be referred to trial. Secondly, that the applicant was not properly before the court he having failed to exhaust domestic or internal remedies available through the Ministry of Lands and Rural Resettlement.

On the issue of dispute of facts Mr Peresu argued that such dispute is located in a meeting allegedly held between the parties which was attended by Mr Frank of the relevant Ministry. In his view, the outcome of that meeting cannot be determined on the papers and yet it goes a long way in determining whether the applicant was in peaceful and undisturbed possession of the modros in dispute. He developed that argument further by saying that the evidence of Mr Frank would be useful in resolving the question of peaceful and undisturbed possession.

It is the first respondent who alleges that Mr Frank attended a meeting which resolved the issue of the modros. For that reason, he should have elicited an affidavit from Mr Frank to buttress that point. In my view, a dispute of fact does not arise out of a party’s failure to harness its evidence timeously. I agree with Mr Mutsvairo for the applicant that the issue to be determined in a spoliation application is possession by the applicant and whether such possession was taken away wrongfully. The papers before me are sufficient, in my view, to determine that issue.

Regarding the 2nd point in limine relating to internal remedies, I was unable to understand what those internal remedies were or what structure exists within the Ministry which can be followed by an aggrieved party. Indeed Mr Peresu did not cite any complaint or grievance structure recognisable at law which the applicant should have followed instead of seeking relief from this court.

It all boils down to the first respondent arguing that he would have preferred the applicant to take a certain course of action which was not taken. That, in my view, does not equate to available internal remedies and certainly does not disentitle the applicant to audience before this court. It was for the foregoing reasons that I dismissed both points in limine.

On the merits of the matter, Mr Mutsvairo for the applicant submitted that all the requirements of spoliatory relief have been met in that all the applicant is required to prove is that he was in peaceful and  undisturbed possession and that he was deprived by the first respondent forcibly or through wrongful means. Lawfulness of the possession should not detain the court in such an inquiry as the purpose of spoliatory relief is to discourage persons from taking the law into their own hands by restoring the status quo ante until a competent court has determined the respective rights of the parties.

Mr Peresu for the first respondent countered that by submitting that the applicant was never in peaceful and undisturbed possession as he was only a caretaker on behalf of the acquiring authority and for that reason he always had what he termed “qualified possession”. The property was held for the benefit of the community and had to be shared.

The requirements for spoliation were succinctly spelt out by REYNOLDS J in Chisveto v Minister of Local Government and Town Planning  1984(1) ZLR 248 at 250 A-D where he stated:-

“It is a well-recognised principle that in spoliation proceedings it need only be proved that the applicant was in possession of something and that there was a forcible or wrongful interference with his possession of that thing – that spoliatus ante omnia restituendus est (Beukes v Crous & Anor 1975(4) SA 215 (NC). Lawfulness of possession does not enter into it. The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these objectives, it is necessary for the status quo ante to be restored until such time that a competent court of law assesses the relative merits of the claims of each party. Thus it is my view that the lawfulness or otherwise of the applicant’s possession of the property in question does not fall for consideration at all”.

In Botha & Anor v Barrett 1996 (2) ZLR 73(S), GUBBAY CJ set out the requirements at 79E thus:-

“It is clear law that in order to obtain a spoliation order two allegations must be made and proved. These are:

that the applicant was in peaceful and undisturbed possession of the property; and

that the respondent deprived him of the possession forcibly or wrongfully against his consent”.

In casu, the possession of the applicant cannot be disputed. The equipment was

always located at his farm. The Ministry sanctioned such possession by appointing him caretaker. The caretakership could only be terminated by giving him one month’s notice. This was not done. I do not agree with Mr Peresu that because the modros had to be shared with the community, this then upset the peacefulness of the applicant’s possession. It is not the right of use which is in issue here but that of possession.

Mr Peresu has also tried to argue that the applicant consented to being dispossessed of the equipment. In that regard he made reference to a meeting allegedly held between the parties in which the applicant is alleged to have consented to the removal of the modros. The applicant has denied attending any such meeting. Although the first respondent said the meeting was attended by a Mr Frank of the Ministry, he has not produced a supporting affidavit from that gentleman vouching for him.

As stated by GUBBAY CJ in Botha & Anor v Barrett (supra) at 79G.

“Consent to the deprivation may be expressly given, as where the possessor is present at the time, is spoken to and gives his permission. Or it may be implied from the conduct of the possessor both before and after the removal of his property. In casu, as I have mentioned, it was for the respondent to satisfy the court on a balance of probabilities that any actions or omissions, bearing upon his loss of possession, did not warrant a finding that he had been a consenting party. It is plain to me that the respondent’s claim that he signed the agreement of 10 April 1995 under duress was lacking in bona fides”.

In that case, the respondent who was suing for spoliation was an experienced businessman who was certainly not an unworldly man and he had signed an agreement which he sought to disown. The court had no difficulty implying the existence of consent. The same cannot be said of the applicant in casu. His conduct before and after dispossession was consistent with lack of consent.

This is a man who had previously written to the first respondent making it clear that he was no longer able to let the first respondent use the modros in question as he wanted to use same exclusively. He had repeatedly quarrelled with the first respondent over the use of that equipment exhibiting a desire to use it alone.  9 days after the dismantling of the modros he rushed to court on an urgent basis seeking relief. I do not agree with Mr Peresu that 9 days was a lengthy delay for someone to summon legal assistance, prepare and file process especially for a farmer residing outside Harare. In my view, the applicant’s reaction was prompt in the circumstances.

I therefore make a finding that the applicant did not consent to the removal of the modros. Having made that finding I come to the inescapable conclusion that an act of spoliation was committed. The first respondent’s resort to self-help cannot be condoned as it is this kind of conduct which is dangerous and often leads to anarchy.

In the result I order that:

The provisional order made on 3 March 2010 be and is hereby confirmed as the applicant was at all maternal times in peaceful possession of the movable bulk curers also known as modros.

The first respondent and all those claiming through him should restore the applicant’s peaceful control and possession of the 3 bulk curers or modros.

The first respondent and all those claiming through him are prohibited from entering the applicant’s farm being subdivision 1A and B of Angwa in Makonde District of Mashonaland West Province for the purposes of dismantling or removing any movable equipment, particularly modros.

The costs of this application shall be borne by the first respondent.

Mushonga, Mutsvairo & Associates, applicant’s legal practitioners

Honey & Blanckenberg, 1st respondent’s legal practitioners