Milright Farming (Private) Limited v Enoch Porusingazi and 7 Others

### Preamble
HH 195-10
HC 5029/10
MILRIGHT FARMING P/L
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MILRIGHT FARMING P/L

versus

ENOCK PORUSINGAZI

and

ENERST PORUSINGAZI

and

S. ZUZE

and

MINISTER OF LANDS AND RURAL RESETTLEMENT

and

OFFICER COMMANDING ZR POLICE CHIPINGE

and

OFFICER COMMANDING ZR POLICE MANICALAND

and

COMMISSIONER – GENERAL, ZIMBABWE REPUBLIC POLICE

and

ATTORNEY GENERAL OF ZIMBABWE

HIGH COURT OF ZIMBABWE

BHUNU J

HARARE, 3 August 2010 and ……

Mr L. Uriri, for the applicant

Mr Ndudzo, for the 1st and 2nd Respondents

Ms Dube, for the 3rd to 8th Respondents

BHUNU J:  The applicant Milrite (Private) Limited is a company dully incorporated in terms of the laws of Zimbabwe carrying on business as a farming concern under the style of Stilfontein Estates.  It is the former owner of a certain piece of farmland called Stilfontein of Umzila situate in the district of Chipinge commonly known as Stilfontein.

The second respondent is the occupier of a portion of the above disputed land in terms of an offer letter issued by the acquiring authority in terms of the Agricultural Land Settlement Act [Cap 20:01].

The first respondent is a former Member of Parliament and biological father of the second respondent.  He is alleged to be aiding and abetting his son in violently ejecting the applicant from the disputed property unlawfully seizing and using its movable assets on the land.

The third respondent S. Zuze is the Provincial Magistrate and judicial officer under the employ of the Ministry of Justice.

The remaining five respondents need no introductions as they are senior government officials whose functions are well known.

The background to this urgent chamber application is that on 26 January 2010, third respondent convicted the applicant of contravening section 3 (2) (a) as read with section 3 (3) of the Gazetted Land (Consequential Provisions) Act [Cap 20:28] at Chipinge Magistrates Court under CRB R113/09.  He then fined the applicant in the sum of US$400 and ordered its eviction together with that of its representatives and employees from Stilfontein Estates within 24 hours of the order.

The applicant immediately on the same day appealed to the High Court against both conviction and sentence.  Upon issuance of judgment the first respondent who was sitting in Court allegedly proceeded to the farm and plundered the applicant’s property.  Since then the applicant complaints that it has been denied access to the farm while its property continues to be plundered.

The applicant obtained an order from KUDYA J on 27 January 2010 staying its ejectment.  The third respondent was directed to order the police to stay the ejectment.  That judgment is yet to be enforced but I do not see how ejectment which has already occurred can be staged.

There are also various court cases pending determination by this Court.  In the meantime, the applicant has sought an order to enable it in the main to remove certain movable property including livestock from the disputed farm.

In the course of hearing Ms Dube representing all the government officials indicated that 3rd respondent was only acting in his official capacity and will abide by the judgment of this court.  She also indicated that 4th respondent being the acquiring authority has availed Chipinge West Annex at the applicant’s disposal.  Measuring 1184,157 hectares in extent to enable the applicant to continue with its cattle breeding project.  That piece of land is owned by the applicant and has not been acquired.

She also indicated that the 5th, to 7th respondents will abide by the order.  In view of these arrangements and consessions she considered the order sought to be wholly unnecessary.  This prompted Mr Uriri  to remark that,

“I abide by my papers.  The relief sought is necessary.  There is need for an inventory of all the property.  There is need to secure and remove the equipment and there appears to be no opposition.  I prey for an order.”

Although the matter is hotly contested it appears to me that the parties are of one mind that the applicant must be granted safe passage for the removal of all its unacquired movable property from Stilfontein Estates.

It is accordingly ordered that pending the determination by this Honourable Court of pending issues between the parties in this Court as at 31 August 2010:

The applicant, its representatives, employees and invitees forthwith be and are hereby permitted reasonable access to Stilfontein during working hours for the purpose of removing all its unacquired movable property from that farm.

The Deputy Sheriff  if need be with the assistance of the Zimbabwe Republic Police be and are hereby authorised and empowered to attend to the recovery of any of the applicant’s unacquired movable equipment, material or property in the possession of the first respondent or any other person acting for him.

This provisional order shall be served by the Deputy Sheriff or the applicant’s legal practitioners.

Gollop & Blank, the applicant’s legal practitioners

Mutamangira & Associates, the 1st and 2nd respondents’ legal practitioners