Marsden Farm (Pvt) Ltd v Chief Mashayamombe & 4 Ors

### Preamble
1
HH 314-12
HC 4231/12
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MARSDEN FARM (PVT) LTD

versus

CHIEF MASHAYAMOMBE

and

TENDAI CHIKETA

and

KUDZAYI GWENHERE

and

D. SHONHIWA

and

MINISTER OF LANDS, LAND REFORM & RESETTLEMENT

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 25 July & 1 August 2012

Urgent Application

I. Mureriwa with E. Nhapwi, for the 1st respondent

First respondent in person

Second respondent in default

Third respondent in person

I.O. Dhodho, for the 4th respondent

MATHONSI J: The facts of this matter are generally common cause. Marsden Farm situated in the District of Chegutu was previously owned by Michael Hughes Mino and Shelly Diane Mino, through a company known as Marsden Farm Private Limited, which held title to the farm.

On 19 July 2002 the said farm was gazetted for acquisition in terms of the Land Acquisition Act [Cap 20:10]. It was, for one reason or the other, re-gazetted on 1 March 2005. Meanwhile, in February 2003 after the farm had been acquired by the acquiring authority and had become state land for all practical purposes, the former owners sold it to Messrs Sylvester Nguni and Christopher Goromonzi, through the medium of their company Marsden Farm (Pvt) Ltd, who then commenced farming operations at the farm.

In good time, Christopher Goromonzi acquired Sylvester Nguni’s stake in the company, thereby becoming the sole owner of the equity in the company and the farm. The current directors of Marsden Farm (Pvt) Ltd are Christopher Goromonzi and Zandile Goromonzi.

The papers placed before me show that the farm has in the past been allocated to various individuals through offer letters issued by the acquiring authority. However attempts to take occupation by these individuals were successfully resisted by Christopher Goromonzi who then approached the acquiring authority seeking the delisting of the farm on the basis that it had been acquired on the erroneous understanding that it was occupied by the former white owners.  The Chief Lands Officer for Mashonaland West investigated the matter and submitted a report to the Director of Resettlement recommending that Christopher Goromonzi who owns the applicant company, be issued with an offer letter in respect of the farm.

Nothing has come out of that recommendation. It would appear that the first respondent, whose name is Ignatius Chiketa, was allocated part of the farm by the Chief Lands Officer although he has not been given an offer letter. He says that the reason he has not been given the offer is because the responsible Minister is indisposed and therefore unable to do so. He has produced a letter written by the Chief Lands Officer for Mashonaland West which reads in relevant part as follows:-

“RE: CONFIRMATION OF A2 LAND BENEFICIARYSHIP: MARSDEN FARM

This note serves to confirm that Chiketa Ignatius was allocated S/03 of Marsden Farm (118.75 ha) in extent in Chegutu District. He is on Schedule 88 and the Ministry is currently processing his offer letter”.

The lack of an offer letter did not deter the first respondent, through his

son the second respondent, from taking occupation of the farm through self-help even as the applicant remains on the ground. The third respondent was not to be out done as he also followed suit but for his part, he is the holder of an offer letter dated 24 March 2008 in terms of which he was offered subdivision 1 of Marsden Farm.  The third respondent came and forcibly took occupation of one of the storerooms at the farm on 17 April 2012. He immediately started demanding the keys to the property according to the founding affidavit deposed to by the brother to Christopher Goromonzi, one Raymond Goromonzi, who is the General Manager of the applicant. The second respondent allegedly forcibly broke the kitchen door of the main farm house and occupied the kitchen with his wife and 3 others on 14 April 2012. They have since moved to the garage of the main house following the intervention of the police.

The conduct of the first, second and third respondents prompted the applicant to bring an urgent application for spoliatory relief against the respondents arguing that, by resorting to self-help, they have violated the law and in the process despoiling the applicant who was otherwise in peaceful and undisturbed possession of the farm. The applicant seeks an order giving it peaceful and vacant possession of the farm and protection of the farm equipment and implements against interference by the respondents.

The issue which arises therefore is whether the applicant is entitled to protection of the law against the actions of the respondents. There is no doubt in my mind that the applicant was in peaceful and undisturbed possession until the respondents moved in. It cannot be disputed that the respondents also acted outside the law by resorting to self-help measures without due process and taking occupation of the farm the way they did.

If it was any other matter, the inquiry would have ended there with the applicant being restored and the status quo ante ordered. However, this is a dispute involving a farm which was compulsorily acquired by the state for resettlement in terms of the law. It is now State land in terms of s 16B of the Constitution of Zimbabwe.

In the opposing affidavit deposed to by Marius Dzinoreva on behalf of the Minister of Lands and Rural Resettlement it is accepted that although  the farm in question is now State land, the acquiring authority is seized with the matter following an application for the delisting of the farm. That affidavit reads in part as follows:-

“4.	 The property in question was gazetted in July 2002 and is now State land.

4.1.	The applicant approached our land officers claiming that he had bought the farm.

4.2.	As per the Ministry’s practice; he was requested to provide evidence to the effect that he had bought the farm i.e. agreement of sale, title deeds, evidence of payment (transfer of funds), whether there was a certificate of no present interest etc.

4.3.	He failed or neglected to do so. Only on 25th April 2012 someone said to be related to him alleged that the documentation had been submitted.

4.4.	The Ministry of Lands officials have not had sight of the documents they require to be able to determine whether the farm is indeed indigenous owned. Without such proof, the land has been subdivided and the respondents are bona fide holders of offer letters issued by the fifth respondent.

5.	As indicated by the Ex-Chief Land Officer, Chikomba, Head Office Harare was to determine whether the property was indeed indigenous.

6.	Ad para 10-15

The respondents have valid offer letters and the applicant has no locus standi being as he is on state land without lawful authority.

7.	However, in recognition of the fact that he maintained that he bought the property and the Ministry is waiting to receive the relevant documents, it is submitted that the offer letter holders should be allowed to co-exist with the applicant.

7.1.	If he succeeds in providing proof he will be allowed occupation and use of the property while the beneficiaries will be allocated land elsewhere.

8.	In the meantime, the offer letter holders should be allowed to exercise their rights in terms of the offer letter”.

I must correct that only the third respondent is a holder of an offer

letter in respect of part of the farm. The first and the second respondents do not have offer letters and until such time that they are given such offer letters they have no right whatsoever to be on the farm.

I must also add that the conclusion of this matter was delayed for a long time at the request of the parties and in particular the Ministry of Lands which requested time to conduct investigations into the applicant’s claim in order to try and resolve the matter without the necessity of the court’s intervention. Regrettably, after several postponements it would appear that the Ministry has not undertaken that exercise and Mr Dhodho, who took over from Mr Chimombe, submitted that his client does not appear to have done anything in that regard and remains rooted in the same position.

Until such time that the applicant is given an offer letter in respect of the farm his continued occupation of the acquired farm is now illegal and the applicant is committing a criminal offence in terms of s 3 of the Gazetted Lands (Consequential Provisions) Act [Cap 20:28] which criminalises the continued occupation of the land which has been acquired by the State.

It matters not, in my view, that the occupier or former owner is a black indigenous Zimbabwean. The race of the occupier is irrelevant in this scheme of things. Is the applicant, in the circumstances of this matter entitled to the assistance of the court in resisting the unlawful activities of the respondents?

That question was answered by the Supreme Court in Commercial Farmers Union & Ors v The Minister of Lands and Rural Resettlement & Ors SC 31/10 (as yet unreported) where Chief Justice CHIDYAUSIKU at pp 22-23 stated:-

“It therefore follows that the conflict between the individual applicants and former owners or occupiers of acquired land on the one hand and the holders of offer letters on the other hand is a conflict between legally entitled occupants, that is, the holders of offer letters, and the illegal occupants, the former owners or occupiers. An offer letter issued in terms of the Act is a clear expression by the acquiring authority of the decision as to who should possess or occupy its land and exercise the rights of possession or occupation on it. The holders of the offer letters, permits or land settlement leases have the right of occupation and should be assisted by the courts, the police and other public officials to assert their rights”.

The learned Chief Justice went on at p 26 to state-

“A court of law has no jurisdiction to authorise the commission of a criminal offence. In any event, spoliation is a common law remedy which cannot override the will of Parliament. A common law remedy cannot render nugatory an Act of Parliament. Apart from this, there is the principle that a litigant who is acting in open defiance of the law cannot approach a court for assistance. …. A former owner who is (in) occupation of acquired land in open defiance of the law cannot approach the courts for assistance”  (The underlining is mine).

The Chief Justice then drew the conclusion at p 27 that:-

“A former owner or occupier of acquired land who, without lawful authority, continues occupation of acquired land after the prescribed period commits a criminal offence. If the former owner or occupier continues in occupation in open defiance of the law, no court of law has the jurisdiction to authorise the continued use or possession of the acquired land”.

See also Lawry v Minister of State for National Security, Lands Reform

and Resettlement and Ors HB 102/12. I am bound by the decision of the Supreme Court which has determined that I have no jurisdiction to authorise the continued use or possession of the acquired land by the applicants.

However, this case is slightly different from the usual situation where the former owner is holding onto the farm and refusing to make way for the new owners. We have here a situation where the acquiring authority has acknowledged that, subject to proof of purchase of the farm, the applicant may be allowed to continue in occupation. The acquiring authority has even suggested that, while it is looking into the matter, the parties should be allowed to co-exist.

In that regard, the third respondent, who is the holder of an offer letter has a right to occupy his portion of the farm as his offer letter remains extant and has not been cancelled.

All the parties concede that the situation at the farm is currently chaotic with no production taking place and vandalism of equipment and the wanton felling of trees being the order of the day. As a court of law, I cannot sit back and do nothing. The first and second respondents do not enjoy the protection of offer letters like the third respondent does. They have no business being on the farm. On the other hand the applicant’s occupation has been recognised to a certain extent by the acquiring authority. The first and the second respondents should therefore vacate the farm.

In respect of the third respondent who holds an offer letter, he has also acted unlawfully by resorting to self-help. However, my hands are tied by the pronouncement of the Supreme Court in Commercial Farmers Union supra to the effect that holders of offer letters should be assisted by the courts.

It is true that this construction of the law may lead to anarchy where both the occupier and the holder of an offer letter are acting outside the law. The correct approach is for the holder of an offer letter to approach the court for an eviction order against the occupier instead of resorting to self-help thereby acting unlawfully. However, as I have stated, my hands are tied and this leaves the applicant with no remedy at all against the holder of an offer letter. The application against the third respondent must therefore fail.

The parties agreed that there must be finality to this matter and that the matter long ceased to be an urgent one. They want a final determination of the dispute. I will therefore make a final order.

Accordingly, it is ordered that:-

The first and second respondents and all these claiming through them should forthwith vacate and give vacant possession of Marsden farm situate in the District of Chegutu to the applicant.

The first and second respondents should refrain from taking any equipment or implements from the said Marsden Farm.

The application against the third respondent is dismissed.

Each party shall bear its own costs.

Scanlen & Holderness, applicant’s legal practitioners

Civil Division of Attorney General’s Office, 4th respondent’s legal practitioners