Trustees OF THE Nharira Heritage Trust V HFM Marketing (Pvt) LTD

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HH 846-18
HC 11628/18
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TRUSTEES OF THE NHARIRA HERITAGE TRUST

versus

HFM MARKETING (PVT) LTD

HIGH COURT OF ZIMBABWE

MUZENDA J

HARARE, 20 December 2018 & 28 December 2018

Urgent Chamber Application

T Bhatasara (with F Iliff), for the applicant

C Kuhuni (with Ms Chirongoma), for the respondent

MUZENDA J:  On 17 December 2018 the applicant filed an urgent chamber application seeking the following relief.

TERMS OF THE ITERINM RELIED SOUGHT

It is hereby ordered that pending the determination by this honourable court of the issues referred herein above:

The respondent shall allow the persons listed in the document attached to the application as “”Annexure C” who were evicted from Lot 1 of subdivision A of Somerby, Harare on 14 December 2018,  to return to peaceful occupation of the land forthwith, pending the issuing of a final order in this matter;

The respondent, its agents, its employees and any third party working on its instructions are interdicted from disturbing the peaceful enjoyment, possession and use of Lot 1 of subdivision A of Somerby, Harare by the persons listed in the document attached to the application as “Annexure C”, Harare pending the issuing of a final order in this court;

The respondent shall pay the costs of this application on an ordinary scale.

TERMS OF THE FINAL ORDER SOUGHT

That the respondent shows cause, if any, why a final order should not be made in the following terms:

The respondent’s eviction of the persons listed in the document attached to the application as “Annexure C” from Lot 1 of subdivision A of Somerby, Harare on 14 December 2018 without an order of court issued against them is hereby declared unlawful.

The respondent, its agents, its employees and any third party working on its instruction, are interdicted from disturbing the peaceful enjoyment, possession and use of Lot 1 of subdivision A of Somerby, Harare by persons listed in the document attached to the application as “Annexure C”, unless on the strength of an order of a competent court issued against them, with final effect.

The respondent shall pay the costs of this application on an ordinary scale.

On 20 December 2018, an amendment was made by consent to para 3 of the interim

relief sought to the following effect. “The terms of this provisional order shall remain in force notwithstanding the noting of any appeal by the respondent.”

According to the applicant’s representative Mr Arnold Kurwakumire Kawanzaruwa Mushore the application is for a mandament van spolie order seeking to compel the respondent to allow all the members of the Nharira Hills (Nyamweda Moyo Zuruvi clan) community that were in peaceful occupation of and were evicted from Lot 1 of subdivision A of Somerby Harare on 14 December 2018, to return to peaceful occupation of Lot 1 of subdivision A of Somerby, Harare pending the determination of their rights.

On the issue of urgency the applicant contends that it acted urgently. During the eviction on 14 December 2018, applicants’ legal practitioners contacted the respondent and wrote a letter of demand advising respondent to suspend the unlawful evictions in the absence of a court order in the applicants’  names. After the eviction, applicant instructed their legal practitioners to lodge the urgent application at the earliest opportunity. The applicants are currently sleeping out in the open, with their families including young children and elderly. They have the other place to go and their health will deteriorate if they continue to sleep in the open. The respondent had already severely damaged and destroyed much of their personal possessions and homes and they fear that their property would be permanently destroyed and they wish to return to their homes urgently and protect the remains. Their cultural and traditional values are strongly tied to the land that they have been occupying as their home for 17 years and which their ancestors have used for centuries for traditional ceremonies. They fear that their traditional and cultural heritage may be permanently destroyed if they are not allowed to urgently return to the land as its custodians.

On the date of hearing the respondent raised preliminary points on two grounds

that applicant has no direct and substantial interest in the matter. It has no legal basis for initiating this application on behalf of the applicants to obtain the relief for spoliation.

that the matter is not urgent. Applicant failed to act when the need to act arose and only created urgency on the date of eviction. On 27 March 2017 applicants became aware that their rights of occupation would be under threat. They wrote a letter to that effect. On 29 January 2018 all the applicants were served with notices of ejectment giving them 3 calendar months, to vacate. On 23 April 2018 applicants their lawyers Madotsa & Associates wrote to respondent’s lawyers asking for extension of time for the occupiers to stay on the property. On 3 September 2018 the applicants were served with notices of eviction which according to applicants’ own papers the occupiers saw. They took those papers to their own lawyers who on 2 October 2018 wrote a letter to National Museums and Monuments expressing their fear of eviction and asking for urgent attention and lastly on 13 December 2018 the same applicants wrote to National Museums and Monuments seeking its intervention to avoid eviction. All these letters and correspondence are filed of record and do not need repetition.

The issue of lack of urgency once resolved would dispose of the urgent chamber application and refer the matter to the ordinary roll. On this basis this court will deal with urgency first.

The applicants chronicled the background of the information leading to this urgent chamber application. Letters were attached written by both parties and also written at the instance of the applicants and it has been noted that respondent is a holder of a valid title deed. The applicants from March 2017 were aware that their rights of occupation were under threat and they did not seek the protection of the courts. From 29 January 2018 they were served with notices of ejectment but they sat on their laurels and waited for the day of reckoning that is 14 December 2018. Their co-occupants and colleagues under case number HC 5032/18, Mr Goredema, Mr A Madzonga and Mr Chikoto were fully aware of the court proceedings and this court will take a judicial notice of that the applicants were informed of the impending eviction that is why their lawyers decided to write the letters already alluded to in this judgment. the applicants were aware of the eviction and they did not approach the court. The applicants have failed to meet the requirements of urgency outlined in the matter of Kuvarega v Registrar- General & Another 1998 (1) ZLR 188 and the respondent’s point in limine on urgency has substance. Accordingly the application is struck off the roll of urgent matters and applicant is to pay respondent’s costs.

Zimbabwe Lawyers for Human Rights, applicants’ legal practitioners

C Kuhuni Attorneys, respondent’s legal practitioners