Ryan Paul Loubser v The Minister of Lands, Land Reform and Resettlement and Samuel Chimuka

### Preamble
1
HH 507-13
HC 10704/13
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RYAN PAUL LOUBSER

versus

THE MINISTER OF LANDS, LAND REFORM AND RESETTLEMENT

and

SAMUEL CHIMUKA

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 19 December 2013 and 8 January 2014

Urgent Application

L Chigadza, for the applicant

Ms K. Warinda, for the respondent

T.G.S. Chakabva, for the 2nd respondent

MATHONSI J: The applicant is a commercial farmer who used to own Valhalla, Farm in Rusape which is now State land. He has remained on that farm by virtue of a consent order issued by the Administrative Court on 7 October 2002 in terms of which the first respondent agreed not to acquire the farm in question. He also relies on a letter dated 19 December 2007 in which the District Administrator recommended that he continues farming on the farm.

When the second respondent and another person approached him claiming to have been issued with offer letters in respect of the same farm, the applicant filed an application in the Administrative Court on 21 August 2013 seeking an order cancelling those offer letters which he says were not exhibited to him, on the basis that they had been issued in breach of the agreement between him and the first respondent.

That application is set down for hearing in that court on 16 January 2014. The second respondent however could not wait for the court date. Instead, according the applicant, he moved in on 10 December 2013 with the help of 20 people who were very violent, stopping all farming activities, and forcibly opening the workshop and garages. This way they allegedly removed the applicant from the farm, which they have taken over, including all the applicant’s property.

The applicant has therefore approached this court seeking spoliatory relief in respect of farming equipment and implements as well as farm produce and also wants to be restored at the farm.

The application is opposed. In his opposing affidavit, the second respondent asserts that the matter is not urgent because he moved onto the farm on 25 September 2013 in terms of an offer letter dated 24 May 2013. The applicant mounted an urgent application in the Administrative Court on 23 October 2013, seeking an extension of his staying at the farm, which was dismissed by that court, a fact not disclosed by the applicant in his application.

The second respondent states that he has planted 20 hectares of maize, 1 hectare of potatoes and 7 hectares potato seed await planting. He strongly denied resorting to self-help as he has never moved into the house occupied by the applicant only deploying 8 farm workers to do cropping activities at the farm. He maintained that the applicant locked up all his belongings in the farm house and left, but is free to return and collect all his belongings. He denied that the applicant has any crops on the ground and as such he will not suffer any prejudice as a result of the second respondent’s activities.

This court has repeatedly stated that the utmost good faith must be observed by all litigants approaching on an urgent basis as well as ex parte.  Such litigants must disclose all material facts which have a bearing on the outcome of the application. Urgent applications characterised by material non-disclosures or mala fides or dishonesty should be discouraged; N & R Agencies (Pvt) Ltd & Anor v Ndlovu & Anor  HB 198/11, Shungu Engineering (Pvt) Ltd v Songondimando & Anor HH 99/12, Graspeak Investments (Pvt) Ltd v Delta Operations (Pvt) Ltd & Anor  2001 (2) ZLR 551 (H); Mombeshora v Kingdom Bank Ltd & Anor  HH 497/13.

The applicant approached the Administrative Court by urgent application on 23 October 2013 seeking similar relief and in particular an extension of his stay at the farm to enable him to gather his winter crop. His application was unsuccessful. In his current approach to this court he did not find it necessary to disclose such material facts, or that the second respondent has been in occupation of the farm since 25 September 2013 and that he has put down crops on a substantial part of the farm. His was always going to be “a harvest of thorns”.

This court has also repeatedly pronounced that it is bound by the decision of the Supreme Court, as it is wont to be by virtue of the doctrine of stare decisis, in the case of CFU & Ors v Minister of Lands & Ors 2010 (2) ZLR 576 (S), that 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 that holders of such letters have the right of occupation and should be assisted by the courts; Marsden Farm (Pvt) Ltd v Chief Mashayamombe & Ors HH 314/12; Madziva v Davidson & Anor  HH 326/13.

More importantly, the Supreme Court has unequivocally pronounced in CFU & Ors, supra at 595 G and 596 A 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 jurisdiction to authorise the continued use of possession of the acquired land”, (The underlining his mine).

Clearly therefore my hands are firmly tied in this matter. The applicant has remained in occupation in open defiance and no matter how many applications he files in the Administrative Court, until such time that he is the holder of an offer letter or other recognised document, he cannot make an approach to this court for assistance. I acknowledge that the applicant is entitled to his personal property including such equipment and implements which have not been acquired. There is no basis for the second respondent to prevent him from collecting what belongs to him.

Accordingly the application is hereby dismissed with costs.

Chigadza & Associates, applicant’s legal practitioners

Attorney Genaral”s Office, 1st respondent’s legal

practitioners

Kwenda & Associates, 2nd respondent’s legal practitioners