Nyasha Makumbe and Ernest Zimunu and Willard Muchemenye v David Gopo

### Preamble
1
HH 89/21
HC 93/2021
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NYASHA MAKUMBE

and

ERNEST ZIMUNU

and

WILLARD MUCHEMENYE

versus

DAVID GOPO

HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE, 8 March 2021

Urgent Chamber Application

T Kuchenga, for the appellants

N Sithole, for the respondent

MUREMBA J: The respondent is a holder of a 99 year lease agreement in respect of Maketo Farm also known as subdivision 23 of Battle Fields. The three applicants who are Nyasha Makumbe, Ernest Zimunu and Willard Muchemenye individually entered into 20 year lease agreements with the respondent in 2018 and 2019.

In terms of the lease agreements the applicants are allowed to carry out farming activities. In terms of their obligations, they are supposed to pay rentals and effect various developments which include erection of perimeter fence, construction of staff quarters, homestead, dip tanks and roads. It is common cause that on 2 February 2021, the respondent served each applicant with a 3 months’ notice to vacate the farm by 30 April 2021. The respondent averred in the notices that the applicants were in breach of their contracts because they failed to make improvements on the farm in terms of the lease agreements.

The applicants consequently filed the present urgent chamber application seeking an interdict. The first applicant is the one who deposed to the founding affidavit with the second and third applicants deposing to supporting affidavits.

The first applicant made the following averments. Having signed the lease agreement he commenced farming activities and proceeded to effect the agreed developments. However, the respondent has on several occasions disrupted his farming activities. The respondent has on several occasions had unjustified altercations with his farm employees and this resulted in his employees resigning from work on 2 occasions for fear of unjustified victimization by the respondent. The respondent has on several occasions stated his intention to unilaterally change the terms of the lease agreement. He at times hinted that rentals should be paid monthly instead of annually as agreed. He comes to the farm unannounced for unjustified reasons and this usually results in nothing but disruption of his farming activities. At the end of January in 2021 the respondent came to the farm with an unidentified white man and toured the farm and left. On 2 February 2021 the respondent then wrote a letter to the applicant giving him 3 months’ notice to vacate. The applicant highlighted to the respondent that he was not in breach of the lease agreement, but the respondent remained adamant. The applicants have procured barbed wire to erect the fence and fencing was due to commence on 10 February 2021. When the respondent was informed about it, he said that he would come to stop them from doing further activities on the farm save to wind down operations. The crops will need more than 3 months before they can be harvested. It is difficult to find alternative land to carry out farming activities. 30 April 2021 is close by hence the urgent chamber application.

The first applicant averred that the averments he made equally apply to the second and third applicants. The behaviour of the respondent has been uniform to all of them and he gave them similar notices. The first applicant went on to address the requirements of an interdict. He averred that he has a clear right to occupy and use the farm until 2039 as he has a valid lease agreement and he has not breached the terms thereof. Should the respondent’s actions and threats of evicting them be allowed to stand, the applicants will suffer irreparable harm as they are not in a position to find alternative farming land in the time frame provided. He averred that the notice given to him is unlawful and therefore a nullity. There is no other remedy available to the applicants other than to interdict the respondent from proceeding with the threat of eviction.

In their supporting affidavits the second applicant and the third applicant averred that they associate themselves with the averments made by the first applicant in his founding affidavit. They added that they have crops and livestock on the farm and that they have effected developments on the farm. They went on to attach images of those developments and their individual lease agreements with the respondent which they each signed on 21 July 2018. The first applicant entered into the lease agreement with the respondent on 1 January 2019.

In short it is the applicants’ averment that they have crops in the fields and livestock on the farm and these cannot be moved in time provided by the respondent. The applicants contend that they are not in breach of their lease agreements.

The interdict the applicants were initially seeking was worded as follows:

“TERMS OF FINAL ORDER SOUGHT

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

That the respondent be and is hereby interdicted from interfering with the farming activities and the employees of the applicants without justified cause.

That the respondent be and is hereby interdicted from harassing and threatening applicants and those deriving occupation through them.

That the respondent be and is hereby interdicted from visiting the farm unannounced and without the prior consent of the applicants.

That the respondent pay cost of this application

INTERIM RELIEF GRANTED

Pending determination of this matter, the applicant is granted the following relief:

That respondent be and are hereby interdicted from proceeding to interfere with the applicants farming activities on subdivision 23 of Maketo Farm, Mhondoro Ngezi without following the duel legal process.

That the respondents be and is hereby interdicted from harassing and threatening the applicants and their employees and refrains from disturbing their activities on farm known as subdivision 23 of Maketo Farm, Mhondoro Ngezi.

SERVICE OF THIS ORDER

That the applicants’ legal practitioners shall serve the order upon the respondent.”

Basically, the interim and the final reliefs the applicants were seeking were the same. In response to the application the respondent raised a point in limine to the effect that the reliefs sought by the applicant were incurably bad as they were similar. The applicants then applied to amend the reliefs. They applied to amend the terms of the final order as follows.

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

That it be declared that the lease agreements between the applicants and the respondent remain valid.

That the respondent be and is hereby interdicted from visiting the farm unannounced and without the prior consent of the applicants.

That the respondent pays the costs of this application.”

No objection was made to the application to amend.

The second point in limine that was raised by respondent is that the lease agreements that the applicants seek to rely on are invalid or illegal as they do not comply with the provisions of s 28 (1) of the Land Commission Act [Chapter 20:29] which require that any lease or partnership agreement be entered into with the consent of the Minister of Lands and Rural Resettlement. Without the consent of the Minister the lease agreement is of no force and effect. See s 28 (2) of the said Act. The respondent averred that the said lease agreements in casu were entered into without the consent of the Minister. He contended that without any valid lease agreements, the applicants are in breach of s 3 (1) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] for occupying land without lawful authority. The respondent averred that at the time he entered into lease agreements with the applicants he was not aware of the need to seek the consent of the Minister of Lands and Rural Resettlement. The respondent averred that the applicants cannot obtain reliefs based on illegal lease agreements and as such the application must be dismissed.

The applicants in their answering affidavit furnished proof that shows that their respective lease agreements were registered with the Ministry of Lands and Rural Resettlement. They attached a letter, Annexure A which confirms that the applicants are subtenants at Farm 23 Maketo Farm, Mhondoro Ngezi. The applicants averred that they submitted their agreements to the Ministry in the company of the respondent. They averred that the respondent was not being candid with the court when he averred that the Minister’s consent was not sought and that the parties were not aware of the need to seek the minister’s consent when they entered into the lease agreements. In light of the proof furnished, which the respondent failed to refute in his heads of argument, but simply said the letter does not amount to an approval by the Minister in terms of the Act, I hereby dismiss the point in limine. It cannot be said that the lease agreements are invalid and that the applicants have approached the court with dirty hands as the respondent averred.

The merits

In response to the merits the respondent averred that the applicants neglected to fulfil a number of obligations that the parties agreed upon in the lease agreements. He averred that the developments that were made by the first applicant fall short of the standards agreed to at the commencement of the lease agreement.

The respondent further disputed that he disrupted any of the applicants’ farming activities. He averred that the averment lacks specificity and particularity and should thus not be accepted. He also denied interfering with any of the applicant’s employees and averred that none of them had filed affidavits to that effect. No dates were given as to when this happened. I am in agreement with the respondent that these allegations of interference with farming activities and applicants’ employees are just but bald and unsubstantiated. None of the applicants referred to specific incidents and dates thereof. Names of applicants’ employees that were interfered with were not given. There were no affidavits from these employees. No details of the disruptions that happened were given. The three applicants have individual lease agreements, each applicant is leasing 400 hectares according to the lease agreements they furnished. It does not make sense that the second and third applicant decided to adopt the first applicant’s founding affidavit. In that affidavit the first applicant was giving an account of what transpired between himself and the respondent. It is illogical for the second and third applicant to claim that they also personally experienced the same harassment and disturbances that were perpetrated on the first applicant when the three applicants have separate lease agreements, have different portions of land and have different employees. I am thus unable to make a finding that the applicants or their employees have been harassed by the respondent as they allege.

I must hasten to point out that I find the application confused as it is based on two issues that are mixed up. The first one is that of disturbances and harassment that the respondent is said to be causing. It is alleged that this has been ongoing for a long time, as it is said to have happened on several occasions without mention of the dates when the incidents happened. However, as I have already discussed above, nothing gives credence to these allegations or averments.

The second basis of this application which seems to be the real reason why the applicants brought this application, and more so on an urgent basis are the notices to vacate that were served on them by the applicant. Even in dealing with the requirements of an interdict, the applicants in their founding affidavit only focused on the notice to vacate and said nothing about the other disturbances and harassment they had earlier on alleged in the initial paragraphs of the founding affidavit. The applicants want the respondent interdicted from interfering with their farming activities without following due legal process. On the return date they want a declaratur to the effect that their lease agreements with the respondent remain valid. It is therefore clear that the applicants are challenging the notices to vacate that the respondent issued against them. The respondent does not dispute issuing the notices to vacate on the basis of breach of contract and that he instructed the applicants to stop any further farming activities forthwith, including the erection of a fence. The respondent averred that the breach of contract done by the applicants is now inconsequential as the agreements are of no force and effect as he later discovered since the Minister’s consent or approval was not sought. Be that as it may, it is respondent’s averment that the notices to vacate do not cause any irreparable harm to the applicants as it is simply a communication of his intention as the landlord to take possession of the property. He averred that if the applicants do not vacate at the expiration of the notice period, he will institute eviction proceedings. The respondent averred that the applicant’s remedy is to defend the eviction proceedings when he institutes them when the appropriate time comes.

A notice to vacate is communication from the landlord that they have cancelled your lease and that you must leave or vacate their property by a certain date. It does not mean that the lessee has been evicted. If the lessee refuses or fails to vacate by the date given he or she cannot be evicted without an order of the court. It is my considered view therefore that the parties having failed to reach an agreement upon engaging each other on the issue of the notices to vacate, the applicants’ remedy is not to come to court or institute legal proceedings seeking to interdict the respondent from interfering with their farming activities without following due legal process. In the interim relief, the applicants are asking the court to grant an order that bars the respondent from evicting them without following due process of law or without obtaining an eviction order from the court. However, nothing suggests that it was the respondent’s intention to evict them without following due process of law. That is not what the notices say. There is therefore no basis upon which the applicants are seeking the temporary interdict that they are seeking. There is no cause of action for the interim relief that they are seeking. There have not been any threats that at the expiration of the notice period, the respondent will seek to evict them without following due legal process. In any case it is the respondent’s averment that if the applicants do not vacate by the end of the notice period, he will institute eviction proceedings. This clearly shows that the applicants have instituted the present proceedings hastily or too quickly. A notice to vacate is not synonymous with a threat of eviction without following due process of law.

As for the interdict that the respondent be barred from harassing and threatening the applicants and their employees and refrain from disturbing their activities on the farm, the applicants did not prove on a balance of probabilities that there have been disturbances and harassments except that after the respondent had issued them with notices to vacate that is when  he told them that in view of the notices they needed to stop further farming activities and concentrate on winding up their farming operations.

In view of the foregoing, the application is dismissed with costs.

Makururu and Partners, applicants’ legal practitioners

Muhlolo Legal Practice, respondent’s legal practitioners