Court name
Supreme Court of Zimbabwe
Case number
SC 65 of 2007
Civil Appeal 154 of 2006

Fantaisie Farms (Pvt) Ltd and Fourteen ors v (A) F.T. Manyeruke and ors (B) and Others (Civil Appeal No. 154_06 ) (SC 65 of 2007, Civil Appeal 154 of 2006) [2008] ZWSC 65 (10 September 2008);

Law report citations
Media neutral citation
[2008] ZWSC 65

DISTRIBUTABLE (64)





Judgment
No. 65/07


Civil
Appeal No. 154/06








FANTAISIE
FARMS (PVT) LTD & FOURTEEN ORS V
(A) F.T. MANYERUKE & ORS
(B) (1)
HIPPO VALLEY ESTATES LIMITED (2) TRIANGLE
LIMITED (ADDITIONAL RESPONDENTS)








SUPREME COURT OF
ZIMBABWE


CHEDA JA, GWAUNZA JA &
GARWE JA


HARARE, JUNE 25, 2007 &
SEPTEMBER 11, 2008








A
P de Bourbon SC
, for the appellants


T
Mugadza
, for the respondents


S Moyo, for the
additional respondents









CHEDA JA:







The appellants were the registered owners of farms on which they
cultivated and produced sugar cane in the Hippo Valley and Triangle

area.







Their farms were acquired by the State in terms of s 8(1) of the
Land Acquisition Act [Cap 20:10] and allocated to the first
group respondents who settled thereon (hereinafter referred to as the
settlers).







The additional respondents are sugar cane millers.







The settlers produced sugar cane and delivered it to Hippo Valley
Estates Limited and Triangle Limited the additional respondents
for
milling.







On realizing that they would be facing conflicting claims from the
appellants and the settlers, for the proceeds of the cane
that had
been milled, the additional respondents initiated interpleader
proceedings at the High Court.







The appellants opposed this action. The High Court resolved the
matter by ordering that the settlers be awarded the proceeds
of the
sugar cane that they produced during the existence of the acquisition
orders made by the Minister of Lands, Agriculture
and Rural
Resettlement (hereinafter referred to as the Minister).







This is an appeal against that decision.







At the beginning of the hearing of this appeal, Mr Moyo
indicated that he was not going to argue for the additional
respondents but would merely await the decision of the Court.







In the Notice of Appeal the appellants stated as follows:-



“The appellants appeal against that part of the judgment in
each case in which the High Court of Zimbabwe ordered the payment
to
the settlers by the additional respondents of the proceeds of sugar
cane harvested and delivered to one of the Additional respondents

during the life span of an order made in term of s 8 of the Land
Acquisition Act [Cap 20:10] and against that part of the order
for costs which directed the appellants to pay one of half of the
costs of the additional
respondents.”







The grounds of appeal were stated as follows:-



“1. The court a quo erred in failing to consider the
validity of any order made in terms of s 8 of the Land Acquisition
Act [Cap 20:10], especially in the light of orders of the
Administrative Court and the High Court, and in light of the decision
of this
Honourable Court in the matter of Bon Espoir (Pvt) Ltd v
Chabata & Ors
. Judgment SC 45/2003.







2. The court a quo erred in failing to consider in each case
whether or not the purported acquisition of the farm was lawful and
thus whether any
occupation thereof, and any farming activities on
such farm, by any respondent was lawful.







3. The court a quo erred in finding that for the time an
order in terms of s 8 of the Land Acquisition Act [Cap 20:10]
was in effect the respondents, as beneficiaries chosen by the
acquiring authority to farm the land were entitled to the proceeds

therefrom, especially in that:-







(a) the orders made in terms of s 8 of the Act were invalid; and







(b) the respondents were not registered as cane growers in terms of
the law.







4. The court a quo erred in finding that it was lawful for
the additional respondents to make payments to the respondents,
notwithstanding that they
were not registered growers of sugar cane
in terms of the Sugar Control Production Act [Cap 18:09],
or erred in failing to find that such a payment would be unlawful.







5. The court a quo erred in failing to find that any lease of
the farms would be unlawful as there was no appointed Agricultural
Land Settlement Board
in terms of the Agricultural Land Settlement
Act [Cap 20:01].”





The central issue in this appeal is reflected in the appellants’
prayer which reads as follows:



“WHEREFORE each of the appellants pray that their appeal be
allowed with costs and that in each case the Order of the High
Court
be altered to one reading:







  1. All
    the proceeds from the delivery of sugar cane to a miller shall be
    paid by the miller to the person (company) in whose name
    the farm
    from which the sugar cane was registered in respect of the seasons
    2002/2003, 2003/2004 and 2004/2005.








  1. The
    second and further respondents will pay the costs of the
    interpleader.”








Section 8 of the Land Acquisition Act supra provides as
follows:



“Immediately after making an order in terms of subs (1) an
acquiring authority may –














  1. In
    relation to any agricultural land acquired for resettlement purposes
    exercise any right of ownership including the right to
    carry,
    demarcate, and allocate the land concerned for agricultural
    purposes, without undue interference to the living quarters
    of the
    owner or occupier of that land.”








The settlers in this case were allocated the farms by the Minister in
terms of that section. This was agricultural land. The
settlers
carried out agricultural activity on the land.







Once acquired, the land fell in the hands of the Minister and he had
all the right to allocate it.







The appellants argued that because the acquisition orders were
subsequently set aside the Minister’s actions were invalid

right from the beginning and therefore the settlers have no lawful
right to the proceeds of the sugar cane that they delivered
to the
millers during the period of the acquisition.







It is common cause that the acquisition orders were successfully
challenged by the appellants and subsequently set aside.







What then is the legal position regarding the cane produced during
that period?







The appellants contend that if the acquisitions were unlawful then
the settlers should not benefit from the proceeds of the sugar
cane.







There is nothing on the record to suggest that the settlers knew, or
were aware, that in settling them on the sugar cane farms
the
Minister was not acting in accordance with the provisions of the
relevant law. It was not for them to question the legality
of the
Minister’s actions. They were being settled by a Government
Minister, unlike where persons invaded and occupied the
land on their
own.







If the Minister was wrong in so settling them, or if he failed to
observe or comply with certain provisions of the law, that was
a
matter for the Minister and not the settlers. Anything wrong in the
procedure followed in setting them can only be attributed
to the
Minister and not to the settlers. They were not aware of anything
wrong. They were therefore bona fide occupants of land
regarding its fruits or produce.







Maarsdorps Institutes of South Africa Law Vol. II The Law of
Things
8 ed By C G Hall, states on p 42 that:



“A bona fide possessor acquires all the fruits gathered
by him before the litis contestatio in an action regarding the
possession or ownership of the ground whether they have been consumed
or are still in existence; but
he is bound to restore to the owner of
the property all fruits actually gathered by him after litis
contestatio
, because by litis contestatio a bona fide
possessor becomes converted into a mala fide possessor. He is
even liable for the fruits which he might have gathered after the
litis contestatio but negligently omitted to gather.”







On page 43 the writer also states, and I quote:-



“But where a person has built with his own material, or planted
his own trees, or sown his own seed, or made other improvements,
at
his own expense, or by means of his own labour, on the land of
another, and the latter claims back his property the former is

entitled to claim compensation for all necessary and useful expenses
he has incurred.”







The following statement also appears on this same page:-



“A lessee under a 99 year lease who has bona fide
occupied land adjoining that leased to him has, however, been held to
be entitled to recover the amount by which the land has been
enhanced
and has a jus retentioonis.”







In the South African Law of Property, Family Relations and
Succession
by R.W. Lee, we also find the following at p 11:



Bona fide possessor. A bona fide possessor is
not answerable to the person actually entitled for acts done by him
in accordance with his supposed title, nor for
the loss or
deterioration of the thing possessed which occurred before he became
aware of the other’s right.”







In Van Leuwen’s Roman Dutch Law, 2 ed vol. 1, by Mr
JUSTICE KOTZE, at p 183, we find the following by Grot 11:6
wherein he says:-



“By being in possession of property, which we bona fide
believe to be our own, we also acquire, per consequentiam rei,
the dominium of the fruits of such property.”







The above authoritative positions were followed in the case of
Fletcher & Fletcher v Bulawayo Waterworks Co. 1915 AD 636,
where the owner of a piece of land claimed compensation for water
which the respondent had pumped from a well that
had been unknowingly
sunk, which overlapped into the plaintiff’s property and
payment of profits.







HOPLEY J, held as follows on page 639 of the judgment:



“I have no difficulty in finding as a fact that defendants were
bona fide occupiers or possessors of this piece of ground over
which their operations extended and that they thought they were
sinking on
Slot’s ground. I am also of opinion that such of
their work as was of a permanent nature was done pro domino in
the genuine belief that it would be theirs for the term of their
lease and would at its expiration, or of its renewals as stipulated,

revert to Slot as was agreed upon by the terms of the lease.”







He went on to say at page 641:



“As regards the claim for an account, I cannot see on what
principle it is made.







That water which the defendants won from underground was not the
plaintiff’s water and the fact that it was got through the

misplaced well did not make it theirs. It was something like an
animal ferae naturae captured or shot by a trespasser which
does not by such act become the property of the owner of the land on
which it was captured
or killed: or the water might be likened to
fruits won by a
bona fide possessor trespassing
on another’s ground
. The law on that point being that all
fruits gathered by a bona fide possessor before litis
contestatio
are acquired by him for himself.(my underlining) (see
Maarsdorps Institutes, vol 2, p 52.”







The claim in Fletcher’s case failed because after litis
contestatio
took place no more water was taken.







For a further discussion of some of the principles referred to in
this matter, see the following cases -




  1. Rubin v Bothat 1911 AD 568;



  2. Getz & Getz v Minister of Mines, 1916 SA (TP8) 66;



  3. Wynland Construction (Pvt) Ltd v Ashley-Smith en Andere
    1985(3) SA 798;



  4. Odendaal v VanDudtshoon 1968 (3) SA 442E;



  5. See also The South African Law of Property, Family
    Relation and Succession by
    RW Lee, A M Honone and T W Price.








By comparison the Judge in the court a quo awarded the
settlers the proceeds of the sugar cane produced during the existence
of the acquisition orders only and not after.







The appellants argued that the production of sugar cane by the
settlers was in contravention of the Sugar Production Control Act

[Cap 18:09]. I do not see how the sugar cane, if produced in
contravention of that law, becomes the property of the appellants.







Section 11 of the Sugar Production Control Act provides as follows:-



“No person shall grow sugar cane for the purpose of delivering
to a factory unless he is licensed as a grower.”







Section 22(1) provides that:



“Any person who contravenes this Act shall be guilty of an
offence and liable –






  1. in
    the case of a first conviction, to a fine not exceeding two hundred
    dollars or to imprisonment for a period not exceeding six
    months;








  1. in
    the case of a second or subsequent conviction, to a fine not
    exceeding four hundred dollars or imprisonment of twelve months
    or
    to both such fine and imprisonment.”








The settlers have not been charged with the offence of producing
sugar cane without a licence. Even if they had been charged with

such an offence there is nothing in the Act to suggest that they
should be deprived of the sugar cane, or that the sugar cane could

then become the property of someone who did not produce it.







There is nothing in the Act to suggest that the miller should retain
the proceeds for himself or for any person other than the
one who
delivered it for milling.







The appellants also raised issues about the allocation of land
without the Land Board and Water Board. These are issues which

should be raised with the Minister and not the settlers.







The appellant also said the Judge in the court a quo was wrong
in having regard to s 8(2)(b)of the Land Acquisition Act in the
absence of such a valid order being in force.







As has already been pointed out, once it was accepted that such
orders had been issued, their validity had nothing to do with the

settlers but with the Minister as he was eventually challenged in
Court and the orders were set aside. The appellants cannot say
that
such orders were set aside then turn around and deny their existence
at the same time.







The appellant submitted that s 8 of the Sugar Production Control Act
provides that:-



“No miller shall receive sugar cane grown in Zimbabwe for the
manufacture of sugar other than from a grower or his duly authorized

servant or agent”







and that the term –







“grower means a person who grows sugar cane for the purpose of
delivering to a factory and who is licenced in terms of this
Act.”







It should be noted that this offence is for the miller, but the
miller has not been charged with this offence and it is therefore

irrelevant to raise this point against the settlers.







The issue of sugar quotas is also the responsibility of the Minister
and not the settlers. The Minister settled them and asked
them to
produce sugar cane.







One relevant observation is that since the appellants were not the
ones who produced and delivered the sugar cane in question to
the
millers they have no basis for claiming the proceeds either and it
would have been wrong for the millers to give the proceeds
of the
sugar cane to the appellants who were not the growers of the sugar
cane concerned.







It is irrelevant to say that up to the time of litis contestatio
there had been no lawful acquisition. What is relevant is that up to
the time of litis contestatio the settlers were bona fide
occupiers of the sugar cane farms.







The additional respondents were correct to institute interpleader
proceedings because it was not for them to determine who was
lawfully
entitled to the proceeds of the sugar cane once the proceeds were
likely to be claimed by different parties. This was
a proper case
for the interpleader procedure.







It was suggested by the appellants that the Association of the
settlers had no right to represent them. There is no reason why
the
settlers cannot be represented by their Associations as there is an
affidavit showing that the persons listed in it had authorized
the
Association to represent them.







The Judge in the court a quo was correct in pointing out that
some of the issues raised by the appellants were irrelevant as they
concerned the Minister’s
actions and not those of the settlers.







For these reasons I am satisfied that there is no merit in the appeal
and it is dismissed with costs.











GWAUNZA JA: I agree











GARWE JA: I agree






Coghlan,
Welsh & Guest
, applicant’s legal practitioners


Mutezo
& Co.
, respondent’s legal practitioners


Scanlen
& Holderness
, additional respondent’s legal
practitioners