THE MINISTER OF LANDS, AGRICULTURE, WATER
CLIMATE AND RURAL RESETTLEMENT
HIGH COURT OF ZIMBABWE
HARARE, 29 May 2020
Urgent Chamber Application
W T Mufuka, for the applicant
S Mpofu, for the 1st respondent
Ms A Magunde, for the 2nd respondent
ZHOU J: This is an application for a mandament van spolie. The applicant is the holder of an offer letter in respect of a piece of land described in the papers as plot No. 13 Moorfield Farm which was issued to him by the relevant Government authorities under the land reform programme’s A1 Model. Applicant’s offer letter is dated 29 June 2016. Applicant alleges, and it is admitted by the first respondent, that on 8 May, 2020 the first respondent disturbed his occupation of the land by moving in a tractor and commencing ploughing on the piece of land occupied by the applicant.
The application is opposed by the first respondent on the ground that she also holds an offer letter which relates to a piece of land which includes in it the land allocated to the applicant. It is common cause that the first respondent has an offer letter under the A2 Model of the land reform programme. The second respondent has acknowledged the double allocation. After the filing of the application I postponed argument to enable the second respondent to resolve the predicament of the two offerees. By letter dated 26 May 2020 the second respondent advised both applicant and the first respondent that he is resolving the issue by revoking the offer letter issued to the applicant and finding alternative land for him. In the meantime, according to the second respondent, the applicant must be allowed to remain in occupation of the piece of land pending processing of alternative land to him. The first respondent, by copy of the letter, was advised not to interfere with the applicant’s occupation of the disputed land in the intervening period.
The first respondent has, however, spurned the proposal not to interfere with the applicant’s occupation. She insists that she intends to proceed with the ploughing. She alleges that because she was the first to be allocated the land and has invested in it then she should proceed with the cropping.
The requirements for the mandament van spolie are trite. An applicant who seeks that relief must allege and prove that:
- He or she was in peaceful and undisturbed occupation of the property, and
- That the respondent has wrongully disturbed that occupation.
The principle which underpins the mandament is encapsulated in the Roman maxim: spoliatus ante omnia restituendus est. The effect of this maxim is that where the mandament van spolie is sought the status quo ante must be restored, without inquiry into the merits of the title of the parties. The rationale for this principle is easy to fathom; it is to prevent self-help.
In casu the applicant’s peaceful and undisturbed occupation of the land in question is not in dispute. It is clearly established. The first respondent acknowledges the occupation but alleges that she had been allocated the area earlier than the applicant. This is an irrelevant consideration as it pertains to who has better title between the two. The interference with the occupation is equally established. The first respondent accepts that on or about 8 May 2020 she moved a tractor on the disputed piece of land and started ploughing. This is the act of interference with the peaceful occupation. First respondent alleges that this act of interference with the applicant’s occupation is not an isolated event, but part of previous activities which would qualify as interference. This is a startling submission not just because it is an admission to committing an unrelenting act of self-help but does not constitute a valid defence to a mandament van spolie. The recognized defences to such an action are settled. The first respondent cannot present to this court that because she has previously breached the law by committing an act of self-help then she is entitled to perpetuate further breaches. She does not have an order of court authorizing her to interfere with the applicant’s occupation of the land. The fact that she has invested more than the applicant in the land is irrelevant too, because the balance of convenience is not a consideration where the mandament van spolie is sought.
In all the circumstance, the applicant has proved entitlement to the relief sought.
In the result, the provisional order is granted in terms of the draft thereof.
Thompson, Stevenson & Associates, applicant’s legal practitioners
Munangati & Associates, 1st respondent’s legal practitioners
Civil Division of the Attorney General’s Office, 2nd respondent’s legal practitioners