Court name
Supreme Court of Zimbabwe
Case number
SC 28 of 2009
Civil Application 80 of 2009

Chikafu v Dodhill (Pty) Ltd and Others (80/09) (SC 28 of 2009, Civil Application 80 of 2009) [2009] ZWSC 28 (06 May 2009);

Law report citations
Media neutral citation
[2009] ZWSC 28

REPORTABLE (11)


Judgment
No. SC 28/09


Civil
Application No. 80/09








NYASHA
CHIKAFU v





(1)
DODHILL (PRIVATE) LIMITED (2) SIMON DONALD
KEEVIL (3) THE MINISTER OF LANDS
AND
RURAL RESETTLEMENT








SUPREME COURT OF
ZIMBABWE


HARARE, MAY 7, 2009








W Bherebende,
for the applicant





Ms F Mahere, for
the first and second respondents





No appearance for the
third respondent





Before:
CHIDYAUSIKU CJ, In Chambers






This is an application for leave to appeal against a provisional
order granted by BERE J against the applicant in the High
Court,
such application for leave to appeal against the provisional order
having first been made to and refused by BERE J.







The facts of this matter are briefly as follows.







Dodhill (Pvt) Ltd (hereinafter referred to as “Dodhill”) owns
Dodhill Farm (“the farm”). Dodhill and the Minister
of
Lands and Rural Resettlement (“the Minister”) were involved in
litigation concerning the compulsory acquisition of the farm
by the
Minister. The litigation culminated with an agreement between
Dodhill and the Minister. In terms of that agreement the
farm was
divided into two portions. The one portion of the farm was acquired
by the Minister for agricultural purposes and the
other portion was
left in the ownership of Dodhill. This agreement was made part of
the court order by consent of the Administrative
Court.
Notwithstanding the agreement and court order, the Minister
subsequently acquired or purported to acquire that portion
of the
farm which the Minister had agreed to leave in the hands of Dodhill.
The Minister acquired the farm in terms of s 16B(2)(a)(i)
of
the Constitution of Zimbabwe (“the Constitution”). Having
acquired the farm, the Minister, in terms of an offer letter

allocated the farm to the applicant (hereinafter referred to as
“Chikafu”).







Upon acquisition, Dodhill was required to terminate farming
operations within forty days of the notice and vacate the farm within

ninety days. It is common cause that both periods have expired, but
Dodhill continues to occupy the farm contrary to the provisions
of
the Land Acquisition Act [Cap 20:10] (“the Act”) and
therefore unlawfully. Chikafu moved onto the farm and Dodhill
sought to have him removed from the farm and
launched an urgent
Chamber application in the High Court. The learned Judge in the
court a quo concluded –






1. That the farm had been legally acquired by the Minister and
legally offered to Chikafu; and







2. That although Chikafu had been legally offered the farm, he could
not move onto the farm without due process in terms of the
Act.







Chikafu was dissatisfied with the judgment and applied for leave to
appeal to this Court. The application for leave to appeal
was
refused on the ground that Chikafu had no prospects of success on
appeal. Chikafu now appeals against the refusal to grant
him leave
to appeal. The issue that falls for determination in this
application is whether Chikafu has prospects of success in
an appeal
against the judgment of BERE J.







I concluded that Chikafu had prospects of success on appeal. I
accordingly granted leave to appeal.







I granted Chikafu leave to appeal for two reasons. Firstly, it is
common cause that decided cases in this and other jurisdictions

support both Dodhill and Chikafu. In other words, there was a
divergence of authorities on the issue that fell for determination
by
the court a quo. Given this divergence of decided
cases, whichever party lost had prospects of success on appeal.
Secondly, a proper reading
of the judgment of the court a quo
reveals that it interdicted Chikafu from occupying the farm until
Dodhill had been removed from the farm in terms of the Act.
The
judgment is not interlocutory it is definitive, in which case Chikafu
is entitled to appeal as of right.







The learned Judge in the court a quo analysed the
factual dispute between the parties and concluded that the farm
belonged to the Minister. Dodhill does not, according
to its
counsel, accept that conclusion. There is, however, no cross-appeal
against that conclusion. The probabilities are that
Dodhill, having
succeeded in keeping Chikafu out of the farm, did not see much point
in taking up this issue.




After reaching a conclusion on the facts, the learned Judge in the
court a quo analysed the legal position. The learned
Judge’s analysis of the legal position was thorough and detailed.
This is what he
had to say at pp 5-7 of his judgment (judgment
No. HC 40/2009):






“THE LEGAL POSITION







There can be no doubt that spoliation as a remedy has (as) its core
value or objective protection to possession of property against

unlawful dispossession.







This is a remedy that has been recognised in our jurisdiction and
beyond for over decades.







In dealing with the principles of spoliation I find the views of
HERBSTEIN J quite apposite when the learned judge stated:







‘… two allegations must be made and proved, namely, (a) that
(the) applicant was in peaceful and undisturbed possession of
the
property, and (b) that the respondent deprived him of the possession
forcibly or wrongfully against his consent.’ (Bennet Pringle
(Pty) Ltd v Adelaide Municipality
1977 (1) SA 230 (E) at 233)







In Amler’s Precedents of Pleadings (3 ed LTC Harm and
J H Hugo, Butterworths at pp 276-277) it is stated
‘Unlawfulness in this context means a dispossession
without (the)
plaintiff’s consent or due legal process’.







This time honoured principle of our law has been enunciated in a
plethora of cases in our jurisdiction and beyond. See, for
example,
Nino Bonino v De Lange (1906 TS 120 at 122), Silo
v Naude
(1929 AD 21), Mutsotso and Ors v Commissioner of
Police and Anor
(1993 (2) ZLR 329 (H)), (and) Chisveto v
Minister of Local Government and Town Planning
(1984 (1) ZLR 248
(H)).







In the classic and leading case of Nino Bonino supra
INNES CJ (as he then was) had this to say:







‘It is a fundamental principle that no man is allowed to take the
law into his own hands; no one is permitted to dispossess another

forcibly or wrongfully and against his consent of the possession of
property, whether movable or immovable. If he does so, the
court
will summarily restore the status quo ante, and will do that
as a preliminary to any enquiry or investigation into the merits of
the dispute.’







In Chisveto’s case supra REYNOLDS J remarked as
follows:







‘Lawfulness of possession does not enter into it. The purpose
of the
mandament van spolie is to preserve law
and order and to discourage persons from taking the law into their
own hands
. To give effect to these objectives, it is necessary
for the status quo ante to be restored until such time as a
competent court of law assesses the relative merits of the claims of
each party. … The lawfulness or otherwise of the applicant’s
possession of the property does not fall for consideration at all
.
In fact the classic generalisation is sometimes made that in
respect of spoliation actions … even a robber or thief is entitled

to be restored possession of the stolen property.’ (Page 250 A-D)







Counsel for the second respondent (Chikafu) passionately argued that
the applicants (now the first and second respondents) had
no locus
standi
to bring an application for spoliation. The main thrust
of his argument was that because the applicants had exceeded the 45
and
90 day statutory maximum periods which (allow) them to remain on
the farm and the homestead respectively (s 3 of the Gazetted

Land (Consequential Provisions) Act [Cap 20:28]),
therefore the applicants must not be protected by this court.







In counsel’s view, which borrowed heavily from the position
adopted by my learned brother UCHENA J in the case of Andrew
Roy Ferrera and Katambora Estates (Pvt) Ltd v Bessie Nhandara
(HC
3995/08), if this court accepted locus standi on the part of
the applicants, then the court would be sanctioning an illegal stay
on Dodhill Farm by the applicants since the
applicants are occupying
that farm in complete violation of the law.







There was also an attempt by the second respondent’s (Chikafu’s)
counsel to seek to rely on the decision by Their Lordships
in one of
the much celebrated land cases in this country, viz Airfield
Investments (Pvt) Ltd v (1) The Minister of Lands, Agriculture and
Rural Resettlement (2) The Minister of Justice, Legal
and
Parliamentary Affairs (3) The Member-in-Charge, Chegutu Police
Station (4) The Attorney-General of Zimbabwe and (5) R Sango

(SC 36/04).







Simplified, the argument as put forward by the second respondent’s
counsel was that because the applicants’ hands are tainted
with
their illegal occupation of Dodhill Farm, the court could not
entertain them let alone grant them an order that would
perpetuate
their continued stay on the farm.”







Dodhill argued that once its possession was established and there
is proof of dispossession without reference to due process,
Dodhill’s
locus standi was established. The learned Judge was
persuaded by Dodhill’s argument. He rejected Chikafu’s
contention. In doing so
he reasoned as follows:






“Firstly, his (Chikafu’s) approach would be an attempt to
re-define the very basic requirements of a mandament van spolie
which is not concerned with the legality or otherwise of the
possession itself. See the remarks of REYNOLDS J in Chisveto’s
case supra.







I am fully cognisant of other decisions from South Africa which
have attempted to shift from the orthodox approach in dealing
with
spoliation matters. One such matter is the case of Parker v Mobil
Oil Southern Africa (Pvt) Ltd
(1979 (4) SA 250 at 255),
where VAN DEN HEEVER J stated as follows:







‘Moreover, the rule that goods dispossessed against the will
(of) the possessor must be restored forthwith, is not an absolute
one
. The reason for the rule is, according to the authorities,
certainly not because the fact of possession is elevated to a right

stronger than plenum dominium, but to discourage breaches of
the peace by self help in the case of disputes. Despite
generalisations that even the thief or robber (is) entitled to be
restored to possession, I know of no instance where our
courts, which
disapprove of metaphorical grubby hands, have come to the assistance
of an applicant who admits that he has no right
vis-à-vis
the respondent to the possession he seeks to have restored to him

(my emphasis)







Commenting on Parker’s case supra and another
similarly decided case of Coetzee v Coetzee (1982 (1) SA 933)
the learned (JUDGE PRESIDENT) MAKARAU (JP) in the recent case of
Shiriyekutanga Bus Services P/L v Total Zimbabwe remarked as
follows:







‘With respect, the weight of authority appears to be against the
learned judge. It has not been established as part of our
law in
any other decided case that an (applicant) for (a) spoliation order
has to show some reasonable or plausible claim to the
property
despoiled.







The learned judge seems to suggest that the court determining an
application for a spoliation order will look into but not closely,

the juridical nature of the possession of the applicant. (See
Coetzee v Coetzee supra). I hold a different opinion and do
so with the greatest of respect and due deference to the learned
judge. The decided cases
referred to by GUBBAY CJ in Botha
and Anor v Bennet supra
(1996 (2) ZLR 73 (S)) are quite clear
that the court does not at all look into the juridical nature of the
possession claimed
.







The doctrine of stare decisis binds me to follow the decision
in Botha and Anor v Bennet supra and not to follow Mobil v
Parker supra
and Coetzee v Coetzee supra. (HH 64-2008)
(my emphasis)







I entirely associate myself with the position adopted by the learned
(JUDGE PRESIDENT) MAKARAU (JP) that in an application
for (a)
spoliation order an applicant does not have to prove some reasonable
or plausible claim to the property, let alone the
legality or
otherwise of his possession of the property in question.







With extreme due deference to the learned judge UCHENA J, I do
not agree with the approach he seems to have adopted in the
Andrew
Roy Ferrera
case supra when he made a finding that because
the applicant in that case had defiantly continued to be on the farm
in question, therefore
he could not be granted spoliation.”











Can unlawful occupation constitute a defence to a claim for
mandament van spolie? It is quite clear that the authorities
are divergent on this issue. One line of authorities, which
includes judgments of the
High Court of Zimbabwe, supports the
contention that unlawful occupation can be a defence; while other
authorities that include
High Court of Zimbabwe judgments as well,
are to the effect that unlawful occupation is irrelevant. Given
this situation, whichever
party lost in the High Court had prospects
of success as its contention is supported by a line of decided cases.







Apart from this, the fact that different Judges of the High Court
have come to different conclusions on the same issue creates

uncertainty in the law, a situation that is totally undesirable. A
Judge faced with this situation should facilitate the resolution
of
the issue by the highest court in the land.







Although the learned Judge has labelled his order as a provisional
order, the judgment has all the hallmarks of a final judgment.
I
have some difficulty envisaging that which would happen on the return
day of the so-called provisional order. A proper reading
of the
judgment reveals that the learned Judge has interdicted or barred
Chikafu from the farm until such time as Dodhill has been
removed
from the farm in terms of the Act. There is nothing interlocutory
about the judgment apart from the label. If my understanding
of the
judgment is correct, then Chikafu can appeal as of right and does not
need the leave of the Judge.







When I granted the leave to appeal, I overlooked setting the period
within which the appeal has to be filed. I hereby rectify
that
oversight. The notice of appeal has to be filed within fifteen days
of the handing down of these reasons for judgment.























Mavhunga & Sigauke, applicant's legal practitioners



Gollop & Blank, first and second respondents' legal
practitioners