Save Valley Conservancy v The Parks and Wildlife Management Authority and 2 Ors and 12 Ors

### Preamble
1
HH 201/2013
HC3263/2013
SAVE VALLEY CONSERVANCY
versus
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SAVE VALLEY CONSERVANCY
versus
THE PARKS AND WILDLIFE MANAGEMENT AUTHORITY
and
MINISTER OF ENVIRONMENT AND NATURAL RESOURCES
MANAGEMENT
and
ARTHUR GUSENI OSCAR MUTAMBARA N.O

HIGH COURT OF ZIMBABWE
BERE J
HARARE, 07 & 16 MAY 2013 AND 20 JUNE 2013

Advocate D. Ochieng, Instructed by KJ Arnott, for the applicant
W.P. Zhangazha, for the 1st respondent
T. Mashiri, for the 2nd and 3rd respondents
T. Hove, for the 4th to 15th respondents

BERE J: This matter was brought before me as an urgent application on 07 and 16 May 2013.

After hearing arguments on the matter I concluded that the urgency of the matter had not been fully established and I therefore declined to treat the matter as urgent and ordered the applicant to pay costs.

I did indicate to the parties then that any party requiring reasons for my decision should request such reasons. The applicant has since sought to get my reasons and here they are:-

When the matter was initially heard on 07 June 2013 an application for jointer of other interested parties now appearing as 4th to 15th respondents was sought. This application was vehemently opposed by the applicant on the basis that these were either not known to the applicant or that they were non-existent.

The argument for jointer was premised on the ground that the land claimed by the applicant had been formerly acquired by the Government in terms of the Land Acquisition Act [Cap 20:10] and parcelled out to new members who had been allocated with leases and that it was therefore incumbent upon the applicant to accept the land dynamics in this country and recognise the new players on the scene. In support of the application for jointer the respondents produced several lease agreements for the new players and several hunting permits allocated to these players for the hunting reason extending between 01 January 2012 and 31 December 2012.

Faced with these documentary evidence I felt more inclined to grant the application for jointer to enable all interested parties to be heard in the proceedings.

In granting the application for jointer I was quite aware that at the slightest indication to me of the existence of possible interested parties who could inevitably be affected by these proceedings, the court could actually *meru moto* take the decision to have such individuals joined to avoid unnecessary prejudice to such parties.

My decision to have the other respondents joined in the proceedings was hailed by all the legal practitioners representing the respondents but grudgingly accepted by the applicant’s counsel.

At the hearing of the main arguments following jointer the respondents approached the case from basically two angles which were raised as points in *limine*, viz, that the applicants lacked *locus standi* to bring the action and secondly that given the history of this matter, the urgency raised by the applicant was self-created and therefore was not the urgency as contemplated by the rules of this court.

Before attempting to deal with this matter on merits, I had to first confine myself to disposing of the preliminary points.

**DID THE APPLICANT HAVE LOCUS STANDI TO BRING THIS ACTION?**

The initial argument raised in challenging the applicant was that it lacked *locus standi* in *judicio* to bring these proceedings. My initial view was that this argument was most unfortunate as I felt it ought to have been dealt with by way of a simple request of the applicant’s constitution by the respondents. As it turned out this query was partially dealt with by the production of the applicant’s constitution which *inter alia* provided the status of the applicant.

Interestingly Mr Zhangazha with the concurrence of Mr Hove raised another allied argument challenging the *locus standi* of the applicant.


The point was made with specific reference to clause 5.7 of the applicant’s constitution which is couched as follows:

“5.7 Automatic Termination of Membership and Resignation

5.7.1. If a member ceases to own or lease land within the aforesaid area then he/she shall automatically cease to be a member of the conservancy but shall nevertheless continue to be liable for his/her its full contribution for the current year together with any arrears owing to the conservancy” (my emphasis.)

The point was made and I did not hear the applicant through its counsel to be controverting the averment that the Land Acquisition Act² heralded dramatic changes in the land tenure system in this country which has swept aside the common law principles governing Government acquired land in terms of this Act.

It was contended by the respondent’s counsel that what formerly constituted the applicant was acquired by Government and the same land was subsequently allocated to other players who now include the respondents 4 to 15 who have since been issued with leases. Some of the lease agreements were produced in these proceedings.

In support of this contention the first respondent stated as follows:-

“27. The applicant is ignoring a change in ownership which came as a result of the law surrounding ownership of land in Zimbabwe. The former owners of lands which used to constitute Save Valley Conservancy lost their rights to the said land to the state by operation of law. The clause that deprived them of this land is a constitutional clause which cannot be struck off in the High Court. Any challenges on its unfairness must go to the Constitutional Court.”³

I did not hear the applicant attempting to controvert the position as eloquently stated by the first respondent. If this position is accepted (as it should be), then, in my view if regard is had to clause 5.7 of the applicant’s constitution (supra), then it goes without saying that upon the acquisition of Save Valley Conservancy by Government, the ownership of that land seized to be vested in the applicant and this in turn has undermined the status of the applicant to bring these proceedings. To this extent

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¹ Applicant’s answering affidavit. P.10 of its constitution.
² Chapter 20:10
³ Page 9 of 1st respondent’s notice of opposition.


therefore, I regard the arguments by the respondents’ counsels as both compelling and unassailable and consequently this preliminary point must be found in favour of the respondents. I must now proceed to consider the next point in limine.

**IS THIS MATTER URGENT?**

The brief history of this case is that on 06 February 2012 under case number HC 1291/2012 a substantially similar application like the one before me was placed before my brother Judge KUDYA on an urgent basis. Save for the dates, the relief sought was substantially similar to the one now being sought before me.

A perusal of case HC 1291/2012 shows that the same applicant represented by the same counsel had difficulties in securing hunting permits for the 2012 hunting season.

After hearing argument KUDYA J proceeded to grant the applicant a provisional order authorising the applicant to embark on hunting on conditions outlined in that order. I must mention that in that case the order sought was vehemently opposed by the respondents cited therein on fundamentally the same reasons being raised now.

Pursuant to the order by KUDYA J, an application for review was filed by the applicant under HC 2118/12 and again this application was strongly opposed by the respondents.

For some reason the order by KUDYA J was not confirmed and the application for review was not pursued to finality. In fact, on 30 April 2012 the applicant filed a formal notice of withdrawal of the application for review. This withdrawal was preceded by notices of opposition by the respondents.

What is clear is that for the 2012 hunting season the first and second respondents did not issue the applicant with hunting permits but the applicant’s members used the provisional order as a substitute for hunting permits. A cursory perusal of the notices of opposition in the 2012 cases clearly show that the cited respondents were categoric in their opposition to the granting of hunting permits to the applicant because of among other reasons the impact brought by the Land Acquisition Act on areas hitherto controlled by the applicant.


From 2012, despite it being clear that the first and second respondents were not keen to grant applicant permits, the applicant literally sat on the case enjoying the benefits derived from an unconfirmed provisional order of this court.

One will sadly note that in the instant case there is an attempt by the applicant to create and justify urgency in this matter by trying to compute the time prompting the alleged urgency from the assurance on 10 April 2013 to the European Union by the third respondent regarding the promised immediate release of the sought permits.

This argument did not impress me for basically two reasons. Firstly, I find that from the time the applicant obtained a provisional order granted by KUDYA J up to the time of lodging this application before me almost 14 months have elapsed without the applicant making any meaningful effort to assert its rights or the rights of its members.

Secondly, the third respondent does not administer the Act which regulates the issuing of hunting permits and it was naïve on the part of the applicant in the face of well documented opposition to its quest for the desired hunting permits to spend valuable time pursuing him let alone to try and revisit the issue of permits in February 2013 as highlighted by Mark Richard David Stonier’s founding affidavit.\(^4\)

Given that the applicant had all the time from the time it got a provisional order from this court to put its house in order, it adopted a frighteningly casual approach. The applicant deliberately waited for a crisis to occur before rushing back to court on an urgent basis to try and get another provisional order to authorise its members to embark on hunting. A provisional order cannot be a substitute for a hunting permit granted in terms of the relevant Act.\(^5\)

The court must frown at those individuals who spend valuable time nursing a potential crisis with their eyes wide open, and when the challenge reaches boiling point rush to court on an urgent basis.

The applicant has had all the time in the world to approach the court in time for a substantive remedy. In my view this is a classic case where the applicant created the urgency in order to hinge this application on such urgency.

\(^4\) Page 11 par. 22 thereof.
\(^5\) Parks and Wildlife Act [Cap 20:14]


It is a pity that I must re-state the often repeated instructive words of CHATIKOBO J in the classic case of Kuvarega vs Registrar General and Anor:-

“Urgency which stems from a deliberate or careless abstention from action while the deadline draws near is not the type of urgency contemplated by the rules.”\(^6\)

It is for these reasons that I could not allow the applicant’s case to pass the preliminary points raised by the respondents.

Kevin J. Arnott, applicant’s legal practitioners
Chinongwenya and Zhangazha, 1\(^\text{st}\) respondent’s legal practitioners
Civil Division of the Attorney General’s office, 2\(^\text{nd}\) & 3\(^\text{rd}\) respondent’s legal practitioners
Musunga and Associates, 4\(^\text{th}\) to 15\(^\text{th}\) respondents’ legal practitioners

\(^6\) 1998 (1) ZLR 188 at p.193 F-G.
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