Fungai Nyamurundira v School Development Association of Claremont Secondary School

### Preamble
1
HMT 36-21
CIV ‘A’ 30/20
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FUNGAI NYAMURUNDIRA

versus

SCHOOL DEVELOPMENT ASSOCIATION OF

CLAREMONT SECONDARY SCHOOL

HIGH COURT OF ZIMBABWE

MWAYERA & MUZENDA JJ

MUTARE, 26 May 2021 and 24 June 2021

Civil Appeal

T. R. Mugabe, for the Appellant

Advocate G. R. J. Sithole with C. Maunga (Jnr) for the Respondent.

MUZENDA J: This is an appeal against the whole judgment and order handed down by a Magistrate sitting at Nyanga on 8 October 2020 where the court a quo granted an order in favour of the respondent interdicting appellant from gaining entrance into Claremont Secondary School premises, constructing a fireguard within and around the said school and barring appellant from erecting a fence around and within the respondent school.

The appeal is being opposed by the respondent.

Background

On 10 July 2020 respondent approached Nyanga Magistrate Court with an exparte application for an interdict against the appellant. In the founding affidavit Mr Philip Makande, the vice chairperson of the respondent deposed to an affidavit alleging that the school occupies a piece of land at Claremont Estate with the blessing of the government. The school authorities have since made meaningful developments at school. However on an unspecified date appellant is alleged to have taken occupation of the greater portion of the piece of land and embarked on a tree cutting spree of exotic trees meant for timber processing. The respondent also alleged that the appellant had destroyed flora of the area that beautifies the environment of the school. Appellant is said to be erecting a fireguard around the school as well as erecting a security fence on the said fireguard. Appellant also effected a fireguard which cuts through the respondent school facilities. The activities of the appellant were said to be barring respondent’s staff from accessing the premises as well as making it impossible for the pupils to gain into the school using same entry points.

It was the argument of respondent that appellant was an illegal occupier on the land in dispute. The government departments are said to have disowned the appellant and as a result the respondent moved the court a quo to grant the relief it prays for.

On 27 July 2020 appellant filed his opposing papers. He raised a preliminary point to the effect that respondent was in contempt of court for failing to pay costs as per court order of 15 July 2020 under CIV ‘A’ 38/20. He complained further that respondent was approaching the court a quo with dirty hands. It was also the appellant’s averment that the school did not have lawful authority to be at the piece of land and as such respondent was an illegal occupier. The appellant also raised a second point in limine of a non-joinder of the Minister of Lands, Agriculture Water, Climate and Rural Resettlement (“The Minister”) who is the responsible authority and as such non-joinder was fatal to the application before the court a quo. It was also the contention of appellant on points in limine that respondent’s Vice chairperson had filed a defective founding affidavit, alleging that the deponent to the founding affidavit failed to justify and establish respondent’s legal identity, status and authority in bringing the action.

On the merits appellant contended that he was a lawful occupier and has a right to put a fireguard, erect a security fence and cut trees to clear land for agricultural purposes. He said that he had an offer letter authorising him to occupy stand 25 under Claremont Farm measuring 146 hectares in extent. Appellant states further in his papers that it was him who allowed respondent to occupy part of the land allocated to him. Appellant denied cutting down trees and added that it was the respondent’s employees who were cutting down pine trees. He also denied barring pupils from accessing the school. He also challenged the authority of the District Lands Committee on issues of land occupation. It was appellant’s further averment that CIV ‘A’ 38/20 was withdrawn by the respondent.

The appellant in his opposing papers reiterated that it was necessary for the respondent to cite the Minister of Lands. He also averred that the respondent had failed to establish the pre-requisites for a relief of an interdict, and prayed that the application be dismissed with costs on attorney-client scale.

The court a quo after dealing with submissions by the parties on the preliminary points raised by the appellant dismissed all the four points in limine. The court a quo proceeded to look at the law on the requirements of an interdict and concluded that the respondent had successfully established that it has a clear right of occupation of the piece of land in question through a Bilateral Agreement. The court a quo also concluded that appellant was acting illegally by cutting down trees and eventually granted the relief sought by the respondent. Appellant was dissatisfied by the judgment and appealed against the whole of it.

Ground of Appeal

The court a quo erred in fact and at law in finding that the Ministry of Lands had no interest in the matter and in thereby declaring to either join the Ministry as a party or to call for its testimony.

The court a quo erred in fact and at law in finding  for the respondent a clear right of occupation based on an agreement as opposed to the statute prescribed right of occupation.

The court a quo erred at law in granting a final interdict based on an erroneous finding of a single requirement for an interdict absent the others.

The court a quo erred in its judgment and order which does not describe the property that is the subject of the interdict with precision for purposes of compliance with the other.

Submissions by the Parties.

Appellant’s counsel, Mr Mugabe submitted that the Minister of Lands as the acquiring authority is an interested party in all land disputes and cited s2 of the Gazetted Lands (Consequential Provisions) Act as read with s 72 of the Constitution of Zimbabwe, 2013. For one to have lawful authority, one has to have an offer letter, a permit or a land settlement lease.

An applicant seeking an interdict, must meet all the requirement for an interdict, it was submitted. The requirements are a clear right which must be established on a balance of probabilities, irreparable injury actually committed or reasonably apprehend and the absence of a similar protection by any other remedy.

It was further submitted on behalf of the appellant that the court a quo ought to have heard the acquiring authority of agricultural lands before deciding on the matter it was added that the Minister should have been joined in the proceedings a quo. It was also contended that the respondent failed to establish that it had a clear right over the respondent and failed to establish that it has a clear right over the piece of land in dispute. The production of a Memorandum of understanding between Ariston Holdings Limited, Trust Bank Corporation and Resettled Farmers/Outgrowers together with the Bilateral Investment Promotion and Protection Agreement between South Africa and Zimbabwe did not help respondent to establish a clear right, it was submitted by the appellant. In finding that the respondent had successfully established a clear right, the court a quo erred, it was submitted. The appellant reiterated that the requirements of an interdict were not fully met to warrant the court to grant the order.  The area cited by the respondent is 24: 03 hectares and the order made is not clear as to the extent of its order, it was added. The court a quo did not make use of the map on its papers it was argued and parties were left to conjecture, hence the framing of the interdict order is erroneous and almost unenforceable, submitted appellant.

On the other hand Advocate Sithole for the respondent submitted that the court a quo did not err and misdirect itself in any way. The position of the Ministry of Lands officials supports the respondent and impugns documents produced by the appellant as fake and not authentic. It was also submitted on behalf of the respondent that the bilateral agreement supports that the land in dispute belongs to the respondent. The respondent managed to establish a clear right, it was submitted. The school belongs to its owner Claremont Estates and it was the appellant who had failed to prove his occupation of the land. Counsel for the respondent referred the court to the matter of Gilbert Nyasha v Chiredzi Wildlife Investments & Another it was also the submission of the respondent that it is now settled law in this jurisdiction that any authorisation to be on land acquired by the state which is given by anyone who is not the acquiring authority is null and void. The occupier must have a permit, lease or offer letter. The respondent went on to argue that the appellant conceded in his papers that he was cutting down trees so the order stopped him from doing so as such there was no misdirection by the court a quo. There was also nothing wrong in the way the order granted was formulated, it was submitted by the respondent and respondent prayed for the dismissal of the appeal with cots on attorney-client scale.

Analysis of the appeal

Both parties agree in their heads on the law applicable to an order for an interdict as well as to the law applicable to occupation of land under the Gazetted Land. I need not to repeat the laws on the two subjects. The parties also cited relevant case law authorities on the two topics and I will not repeat the citations.

The respondent produced a map showing that the school occupies 24.03 hectares of land of Claremont Farm. That map does not show the portions where the appellant is meddling with. The map is not helpful on that aspect. The appellant talks of occupying 146 hectares of land but equally so did not use the map to show the area covering 146 hectares on Claremont farm. The intriguing question that remains unresolved in my view is which property is appellant barred from? The whole of Claremont Farm which respondent claims that it intends to extend its size or a portion of 24.03 hectares whose size is not clarified by the court? An order of a court must clarify the area of land or part of it where a party is going to be bound. Lack of clarity would lead to a constructive eviction of appellant form Claremont Farm.

Appellant possesses a certificate of occupation from a Rural District Council and a couple of letters authenticating his right of occupation. The respondent submitted that the certificate of occupation is fake because it lacks a date stamp of the Chief Executive Officer. There is no evidence from the office of the Rural District Council disowning the certificate, as such on the face of it, authentic until discarded. Appellant was not arrested over the allegations of fraud pertaining to the certificate. No one had moved for the removal of the appellant from the piece of land. If the respondent took occupation of the property in 2003, when did appellant settle on the place? What action was taken by the respondent to remove the appellant? In its papers the respondent does not specify the precise date when appellant began to encroach on its piece of land, date when appellant allegedly deforested respondent’s trees. Respondent at least must have clarified all these hazy areas.

Both parties are consensus that a settler of gazetted land must have lawful authority which is offer letter, or a permit or a land settlement lease. Although the respondent claims that there is a bilateral agreement between the Republic of South Africa and Zimbabwe, as well as an Outgrowers Farmers Agreement, it did not produce any of the document that can be termed a lawful authority to justify and legalise its occupation. Where a bilateral agreement is in existence as in this matter, the acquiring authority, the Minister must issue an offer letter in respect of a specified piece of land and the name of the beneficiary. In the absence of such a lawful authority my view is that the occupier remains an illegal occupant until given an appropriate authority by the responsible Minister. Letters from the District or Provincial officers of the issuing authority are not adequate and cannot substitute an offer letter, permit or lease. The respondent must be given an offer letter in respect of the school, so that it is protected by the law in addition to the bilateral agreement. In any case if the appellant is not an illegal occupier, respondent has an alternative remedy of applying for his eviction or the Minister can apply for his ejectment if the certificate of occupation is not authentic. In my view, the respondent did not meet all the requirements of an interdict. The information and particulars of its rights of occupation did not meet the requirements of s 2 of the Gazetted Land (Consequential Provisions) Act (supra). The bilateral agreement must be used to facilitate the offer letter, lease or permit from the issuing authority. The agreement alone is not adequate more so where there is a dispute as in this case as to the ownership and extent of interference juxtaposed to the appellant’s claim.

I am satisfied that the grounds of appeal by the appellant have merit and the appeal is upheld with costs.

The judgment and order of the court a quo is set aside and in its place the following order is returned:

“The application is dismissed with costs.”

MWAYERA J agrees _____________________

TRM Mugabe Legal Practitioners, appellant’s legal practitioners

Maunga Maanda & Associates, respondent’s legal practitioners