Daniel Karadzandima v Tendai Muterere

### Preamble
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HMT 62 -20
CIV ‘A’ 15/19
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DANIEL KARADZANDIMA

versus

TENDAI MUTERERE

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 24 July and 24 September  2020

CIVIL APPEAL

Appellant in person

Miss S. Muzandaka, for the respondent

MWAYERA J: The appellant who was interdicted from harvesting any produce in the respondent’s plantation located in Hamudikuwanda village Headman Mandeya, lodged an appeal against the decision of the court a quo. The interdict was in relation to a communal homestead and banana plantation thereto. The matter which was initially placed before the court a quo as an application was procedurally converted to a fully fledged trial on basis of existence of material disputes of facts. After hearing evidence the court a quo ordered the following:

“a.	the respondent or anyone operating through him be and are hearby interdicted from using, harvesting any produce in the plaintiff’s plantation located at Hamudikuwanda village Headman Mandeya.

b. 	Respondent is ordered not to visit the applicant’s piece of land.

c.	Respondent to pay costs of suite.”

The appellant irked by this decision raised grounds of appeal as discerned from the notice of appeal. The multiple grounds can easily be summarised to 3 grounds as most of the grounds are a repetition and some are not grounds but prefixes to grounds for example the first ground

“1. The learned magistrate erred in granting the respondent’s application for an interdict despite the following; …. 2”

I thus propose to summarise the grounds which relate to the same aspect and consider it in relation to the totality of the record of proceedings, written and oral submission.

A D GROUND 1, 2, 3, 4, 5, 7 AND 8

WHETHER OR NOT THE COURT A QUO ERRED IN CONCLUDING THAT THE RESPONDENT WAS THE LEGAL OCCUPANT OF THE LAND IN QUESTION AND THE OWNER OF THE BANANA AND AVOCADO PLANTATIONS ON THE LAND.

It is evident from the record that the property in question was owned by the late Peter Karadzandima a father to the appellant and one witness Luke Karadzandima. Evidence was adduced from Luke Karadzandima and village heads who confirmed that upon Luke Karadzandima’s marriage the father donated the communal land in question to Luke Karadzandima. Regularisation with local authorities was effected for and on behalf of Luke Karadzandima as the headman entered his name in his book. The said Luke Karadzandima built a communal home and started plantations on the property that he had received as a donation from his father. Luke Karadzandima in his evidence before the court a quo confirmed having sold his home to the respondent and not that he sold the communal land.

The respondent bought the homestead and the plants in the plantation. Evidence on record confirms that the sale of the homestead and plants by Luke Karanzandima to the respondent was done in the presence of the headman and village head  (p 31 record of proceedings). This was further affirmed by the local court’s decision confirming the respondent as the rightful owner Annexures “C and D” of the record of proceedings. Headman Hamudikuwanda Mandeya buttressed the respondent and Luke Karadzandima’s version that the respondent bought the homestead and plantation. The witness did not object to the sale as Luke Karadzandima was not selling the communal land but his homestead and plants and that upon selling the respondent was recorded in the village head’s register. The court a quo relied on oral evidence from witnesses and documentary evidence adduced pertaining to decisions by the local court. The fact that annexure “D” was not stamped can not amount to improper assessment of evidence. This is moreso when one considers that the headman and village head both gave oral evidence confirming the respondent’s right to the homestead and banana and avocado plants which he purchased from Luke Karadzandima. It is not in dispute the said Luke was given the property by his late father Peter Karadzandima and it became his property whereupon he built a homestead and planted bananas and avocados. When Luke Karadzandima who cited bad relations with the appellant as reason for him to sell the homestead and relocate decided to sell the home , he surely did not require his father to authorise him as he had been given the land and was in the registers of the village head as the occupant. In any event as correctly observed by the court a quo if the land belonged to the late Karadzandima  then only the executor could exercise the right to sue and be sued. The appellant has no legal basis for claiming on behalf of the estate. Basing on the evidence placed before the court a quo the respondent properly acquired the homestead and plantation leaving no doubt as to the issue of whether or not a clear right existed entitling him to the remedy of a final interdict. The grounds of appeal touching on the issue of establishment of clear right cannot be sustained in the circumstances.

AD GROUNDS 6 AND 8

THE COURT A QUO ERRED IN DISREGARDING CHIEF MUTASA’S RULING UNDER CASE NUMBER 19/13.

This ground of appeal cannot stand as it clearly relates to the supposed rights of Peter Karadzandima and not the appellant. The said Peter donated property to his son Luke Karadzandima who in turn sold the property. The earlier decision by chief Mutasa related to Peter Karadzandima and not the appellant. In any event at the time of trial in the court a quo that decision had been overturned by a Magistrates court decision  CG26/17, again on this aspect the appellant cannot seek to represent the Estate Late Peter Karadzandima if he is not the executor he has no locus standi. The 4th  and 6th  grounds of appeal crumble.

GROUND 9: WHETHER OR NOT THE COURT A QUO ERRED IN RELYING ON EVIDENCE OF TRADITIONAL LEADERS WHO WERE NOT IN POWER WHEN THE LATE PETER KARADZANDIMA WAS STILL ALIVE.

The ground of appeal has no merit. The office of the local authority holds and performs function not in personal capacity. Determination of rights does not require the presence of the judicial officer. In this case the village heads witnessed the sale and were present during Peter Karadzandima’s lifetime and same were not present but village records remained intact. Other evidence from the respondent Luke Karadzandima another relative confirms that Peter Karadzandima offered the land to his son Luke upon the latter’s marriage. Luke Karadzandima then sold the homestead and plantation to the respondent.

The court a quo presented with evidence assessed and concluded that on a balance of probabilities  the respondent managed to prove that he acquired rights to the homestead and plantations by purchasing lawfully from Luke Karadzandima. He worked and invested in the plantation which he was being barred from by the appellant. The court a quo was satisfied that the respondent had met all the requirements of a final interdict namely:

Clear right

An injury actually committed or reasonably apprehended.

Absence of a similar protection or any other remedy.

The balance of convenience favoured grant of the interdict.

Indeed the respondent had clear right to the homestead and plantation which he lawfully purchased. Injury would be occasioned by the appellant barring the respondent from entering the homestead and working on the plantation. Further injury would be occasioned by the appellant harvesting the respondent’s plants much to the detriment of the respondent. In the circumstances of the case no other remedy would satisfactorily satisfy the respondent.

I must mention that the prayer or relief sought by the appellant that the order by the court a quo be set aside and the matter to be remitted to be heard on merits is misplaced. The matter was heard on merits in a trial in which both parties gave evidence and also adduced evidence from their witnesses. It was after assessment of all the evidence that the court a quo granted the relief sought by the respondent. All the requirements of an interdict which is the remedy sought by the respondent were satisfied. The case of Setlogelo v Setlogelo AD 1914 (C) 221 is instructive on the requirements of a final interdict. All the requirements were met and the court a quo properly granted an interdict.

The appeal is unmeritorious. It is hereby dismissed with costs.

MWAYERA J  	_____________________________

MUZENDA J agrees ____________________________

Mugadza Chinzamba and Partners, Respondent’s legal practitioners