MILRITE FARMING (PRIVATE ) LIMITED
THE MINISTER OF LANDS AND RURAL RESETTLEMENT
THE OFFICER COMMANDING ZRP CHIPINGE (DISPOL)
THE OFFICER COMMANDING ZRP MANICALAND PROVINCE (PROPOL)
COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE
THE ATTORNEY GENERAL OF ZIMBABWE
HIGH COURT OF ZIMBABWE
HARARE21, 22 and 23 April, 10 and 14 May 2010
Urgent Chamber Application
L Uriri, for the applicant
I Ndudzo, for the first respondent
UCHENA J: The applicant is the former owner of Stilfontein of Umzila of Chipinge. Its farm was acquired by the State, but it did not vacate the farm as provided by s 3 (2) of the-Gazetted Land (Consequential Privisions) Act [Cap 20:28], hereinafter called “theAct”. It was prosecuted, convicted and sentenced for contravening s 3 (3), of the Act by a Magistrate sitting at Chipinge Magistrate’s court. The magistrate evicted the applicant from Stilfontein in terms of s 3 (5) of the Act. It vacated the farm, in spite of its having applied for and obtained from KUDYA J, an order directing the magistrate, to order the Zimbabwe Republic Police, to stay its eviction pending the finalization of its application for a declarator. It did not enforce the stay by ensuring that the second respondent (magistrate) did what he had been ordered by this court to do.
The first respondent is the father of a beneficiary to whom the third respondent offered Stilfontein farm. He moved onto the farm soon after the applicant was convicted, sentenced and evicted. He is alleged to be using the applicant’s equipment, interfering with the applicant’s cattle and crops and stealing the applicant’s maize.
The second respondent is the magistrate who convicted, sentenced and evicted the applicant
The third respondent is the minister responsible for the acquisition of land and is the one who offered the farm from which the applicant was evicted to the first respondent’s son.
The fourth to sixth respondents are officials of the Zimbabwe Republic Police being cited in their official capacities. The applicant alleges that officers under them did not assist it when it made reports about the alleged illegalities taking place at Stilfontein.
The seventh respondent the Attorney General is the prosecuting authority whose officers prosecuted the applicant for refusing to vacate Stilfontein farm.
The applicant seeks an interim order on the following terms:
“It is hereby ordered that, pending the determination by this honourable court of the issues referred to herein above.
- That it be and is hereby ordered that the applicant, its representatives, employees and invitees forthwith be permitted unrestricted access to Stilfontein during working hours for the purpose of:
- picking and processing the applicant’s macadamia crop, and
- attending to the applicant’s pedigree Brahman stud …;
- attending to the applicant’s avocado plantation;
- harvesting and preserving the applicant’s maize crop; and
- … etc.”
The applicant therefore seeks orders permitting it to reenter and conduct farming operations on Stilfontein. It seeks these orders on the understanding that its eviction was stayed by KUDYA J.
The applicant stands convicted for refusing to vacate Stilfontein farm. It also stands evicted there from by an order of the second respondent. The applicant appealed against that order. The appeal is pending. The applicant and two others who had also been convicted and evicted by the second respondent made an urgent exparte application to this court for the stay of their evictions. The application was heard by KUDYA J who granted them the following interim order.:
“Pending the confirmation or discharge of the final order the following interim relief is granted and accordingly it is ordered;
- That the second respondent be and is hereby directed to forthwith order the Zimbabwe Republic Police to stay the ejectment of the applicants forthwith pending the finalization of the application for a declarator.”
The applicant according to the concessions made by Mr Uriri during the applicant’s submissions, did not ensure that the order granted by KUDYA J was implemented. He made the concession when the court asked him whether the magistrate made the order he was ordered to make by KUDYA J. The question was intended to establish whether KUDYA J’s order had been complied with. He said the magistrate did not order the police to stay the eviction. He conceded that the magistrate’s failure to comply should have been followed by an application to compel the second respondent to obey this court’s order. He conceded that the stay of ejectment was to be triggered by the second respondent’s order to the police.
The applicant’s counsel’s concessions have the following effect. The stay was to be ordered by the second respondent. The second respondent has not complied with KUDYA J’s order. There is therefore no stay on the strength of which the order now sought by the applicant can be granted. This means the applicant is prohibited by the magistrate’s eviction order from entering Stilfontein. The magistrate’s order could have been over taken by his subsequent order staying the eviction, if he had complied with KUDYA J’s order. The second respondent’s failure to comply with KUDYA J’s order means the order now sought would go against the applicant’s eviction from the farm. It would go against the principle that a court’s order remains lawful and must be obeyed until it is lawfully set aside, or stayed. Mr Uriri conceded that as things stand his client must enforce the order granted by KUDYA J to its logical conclusion, as seeking orders allowing the applicant access to Stilfontein before the stay of his eviction is finalized, has the effect of allowing a lawfully evicted person back on the farm when the eviction order is still operative. Once the applicant is back on the farm in terms of the order granted by KUDYA J he will then be able to do all the things he wants this court’s order to enable him to do.
In spite of the above concessions Mr Uriri did not withdraw the application because he did not have his client’s instructions to withdraw it. I commend him for displaying a high level of professionalism. He admirably complied with his ethical duty to concede a point of law raised by the court. He did not conceal the applicant’s failure to enforce the order granted by KUDYA J. A legal practitioner as an officer of the court has a duty to assist it in arriving at a correct decision. A legal practitioner should not give the court incorrect information or advice which is to his knowledge contrary to the law. He must not conceal material facts from the court, or deliberately mislead the court. See pp 14-15 and 16-17 of Crozier’s book on Legal Ethics (A Handbook for Zimbabwean Lawyers).
Mr Uriri correctly balanced his duty to the court with his duty to his client by not withdrawing the application even though its one that should have been withdrawn if his client had instructed him to. He advised the court that he did not have instructions to withdraw the application. On p 32 of his book on “Legal Ethics” Crozier says:
“Even though he may have general authority to do so, therefore, a legal practitioner would be most unwise to settle a case without the client’s specific consent”
In such a situation all a legal practitioner can do is to balance his duty to the court and his client, by conceding points of law, and giving the court correct information. The failure to settle will in those circumstances not prejudice the court or the other party as the other party will after the concession have no reason to fight on. It can simply pray for an order in its favour. The court on its party will benefit from the conceding legal practitioner’s professional competence, as it will have been placed in a position to easily determine the case before it.
Mr Ndudzo for the first respondent submitted that the concessions made by Mr Uriri are in essence a withdrawal and should have been made with an offer of the first respondent’s costs. Mr Uriri submitted that he had not withdrawn the application but merely made concessions which enables the court to dismiss the application. To this Mr Ndudzo’s response was the costs must follow the result. This is what should happen in general, but in this case Mr Uriri submitted that the case turned on a legal point raised by the court, therefore each party must bear its own costs. He referred to the case of Masudi v Jera HH 67-2007, where MAKARAU JP at p 5 of the cyclostyled judgment said:
“Regarding costs of this appeal, it is our view that since the appeal succeeds on a legal point that was not raised by the appellant in his notice of appeal or in his heads, we see no basis for ma king an order of costs in his favour.”
Mr Ndudzo for the first respondent submitted that this case must be distinguished from the Masudi case supra, because in the Masudi case the point of law raised by the court had not been raised by the appellant in the lower court, in his notice of appeal and in his heads of arguments prepared for the appeal. In my view there is merit in Mr Ndudzo’s submission. The denial of costs to a successful party on the ground that his counsel, had not raised a point of law, and only succeeded because of the court’s intervention, must be arrived at when it is abundantly clear that but for the court’s intervention the successful part would not have raised the point of law. In this case the issue of compliance with KUDYA J’s order was raised by the court when the applicant’s counsel was making his submissions. The respondent’s counsel had not had an opportunity to respond. One can not in these circumstances say he would not have raised it in the first respondent’s response. I am therefore satisfied that this case is distinguishable from the Masudi case supra. The first respondent incurred expenses in defending an application which the applicant should have known would not succeed because of its failure to enforce the order granted to it by KUDYA J. The costs must therefore follow the result.
In the result the applicant’s application is dismissed.
The applicant shall pay the first respondent’s costs.
Gollop & Blank, applicant’s legal practitioners
Mutamangira & Associates, 1strespondent’s legal practitioners.