Commercial Farmers Union of Zimbabwe

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Martinus Odendaal - Colandra Farm HC659/2009

IN THE HIGH COURT OF ZIMBABWE                                                    Case No HC659/2009 HELD AT HARARE

In the matter between:-

MARTINUS STEPHANUS ODENDAAL                                                                 APPLICANT

AND

MRS R JUMBE                                                                                                1ST RESPONDENT

AND

A MURINGISI                                                                                                              2ND RESPONDENT

AND

THE MINISTER OF LANDS AND RURAL

RESETTLEMENT                                                                                            3RD RESPONDENT

 

URGENT CHAMBER APPLICATION

 

 

 

 

Prepared by

 

SCANLEN & HOLDERNESS

Applicant’s Legal Practitioners

13th Floor, CABS Centre

74 Jason Moyo Ave

HARARE (G.V.M/rn)

Tel:     799636-42

            702561-8

Fax:     702569 / 700826

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

 

IN THE HIGH COURT OF ZIMBABWE                                                   Case No HC659/2009

HELD AT HARARE                                                                                                 

In the matter between:-

MARTINUS STEPHANUS ODENDAAL                                                                 APPLICANT

AND

MRS R JUMBE                                                                                              1ST RESPONDENT

AND

A MURINGISI                                                                                                            2ND RESPONDENT

AND

THE MINISTER OF LANDS AND RURAL

RESETTLEMENT                                                                                                     3RD RESPONDENT

INDEX

                                                                                                                                    Pages

Urgent Chamber Application                                                                                      1-2

Address for service                                                                                                     3

Certificate of Urgency                                                                                                            4-5

Applicant’s Founding Affidavit                                                                                    6-9

Provisional Order                                                                                                        10-12

 

DATED AT HARARE THIS………………17TH……………………… DAY OF FEBRUARY, 2009

 

           

 

                                                                                                                                                                                                                                                                       ……………………………….

                                                                                                            SCANLEN & HOLDERNESS

                                                                                                          Applicant’s Legal Practitioners

                                                                                                         13th Floor, CABS Centre

                                                                                                         74 Jason Moyo Ave

                                                                                                         HARARE (G.V.M/rn)

 

TO:     THE REGISTRAR

            High Court of Zimbabwe

            HARARE       

IN THE HIGH COURT OF ZIMBABWE                                                    Case No HC659/2009

HELD AT HARARE

In the matter between:-

MARTINUS STEPHANUS ODENDAAL                                                                 APPLICANT

AND

MRS R JUMBE                                                                                              1ST RESPONDENT

AND

A MURINGISI                                                                                                            2ND RESPONDENT

AND

THE MINISTER OF LANDS AND RURAL

RESETTLEMENT                                                                                         3RD RESPONDENT

URGENT CHAMBER APPLICATION

 

TAKE NOTICE THAT the Applicant in this matter applies for an order in terms of the Draft order attached to these papers.

 

The affidavit of MARTINUS STEPHANUS ODENDAAL will be used in support of this application.

 

 

DATED AT HARARE THIS …………..17TH…………………… DAY OF FEBRUARY, 2009

 

 

 

                                                                                                            ……………………………….

                                                                                                            SCANLEN & HOLDERNESS

                                                                                                          Applicant’s Legal Practitioners

                                                                                                         13th Floor, CABS Centre

                                                                                                         74 Jason Moyo Ave

                                                                                                          HARARE (G.V.M/rn)

 

TO:     THE REGISTRAR

            High Court of Zimbabwe

            HARARE       

AND TO:        MRS R JUMBE

                        1st Respondent

                        52 Mandela Dr

                        Zengeza 5

                        CHITUNGWIZA

 

 

AND TO:        A MURINGISI

                        2ND Respondent

                        3991 Tynwald North

                        Westgate

                        HARARE

 

AND TO:        THE MINISTER OF LANDS AND RURAL SETTLEMENT

                        3RD Respondent

                        Block 2 Makombe Complex

                        Off Herbert Chitepo Ave / Harare Street

                        HARARE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE HIGH COURT OF ZIMBABWE                                                    Case No HC659/2009

HELD AT HARARE

In the matter between:-

MARTINUS STEPHANUS ODENDAAL                                                                 APPLICANT

AND

MRS R JUMBE                                                                                              1ST RESPONDENT

AND

A MURINGISI                                                                                                            2ND RESPONDENT

AND

THE MINISTER OF LANDS AND RURAL

RESETTLEMENT                                                                                         3RD RESPONDENT

ADDRESS FOR SERVICE

 

 

TAKE NOTICE that the Applicant’s address for service shall be care of Scanlen & Holderness, 13th Floor CABS Centre, 74 Jason Moyo Avenue, HARARE.

 

The postal address is P.O. Box 188, Harare

 

 

 

DATED AT THIS……………………….17TH…………………….DAY OF February, 2009

 

 

……………………………….

                                                                                                            SCANLEN & HOLDERNESS

                                                                                                          Applicant’s Legal Practitioners

                                                                                                         13th Floor, CABS Centre

                                                                                                         74 Jason Moyo Ave

                                                                                                         HARARE (G.V.M/rn)

 

 

 

 

 

IN THE HIGH COURT OF ZIMBABWE                                                    Case No HC659/2009

HELD AT HARARE

In the matter between:-

MARTINUS STEPHANUS ODENDAAL                                                                 APPLICANT

AND

MRS R JUMBE                                                                                              1ST RESPONDENT

AND

A MURINGISI                                                                                                            2ND RESPONDENT

AND

THE MINISTER OF LANDS AND RURAL

RESETTLEMENT                                                                                         3RD RESPONDENT

CERTIFICATE OF URGENCY

I, GODFREY VENGAYI MAMVURA herby certify that:

 

1.    I am a registered Legal Practitioner of the High Court of Zimbabwe practicing in partnership with the firm Scanlen & Holderness. I am instructed by the Applicant.

 

2.    The Applicant’s property has not been subject of Gazetting and is not an acquired property in terms of the constitution of Zimbabwe or other Laws of the country. Notwithstanding, the 1st and 2nd Respondents claim to have been issued with offer letters in their favor and they are, on the strength of the said offer letters asserting immediate claims to occupy the property. They have started looting from the property and have issued threats to the Applicant to summarily vacate. Threatened spoliation arises.

 

3.    Applicant’s dairy farming operations are threatened as well as his maize crop. The prospects of irreparable damage to persons and property by forced entry, threats. Looting and damage to property as well as disruption to normal business operations is real.

 

4.    The requisite elements to satisfy an interdict are present. To avoid extra Legal action an urgent declaratory and other relief becomes necessary, all other attempts to obtain reason having failed.

 

5.    With reference to established case Law and authorities, threatened spoliation applications are treated as urgent. It is submitted that this matter warrants the grant of urgent relief to avoid inimical harm.

 

 

DATED AT THIS……………………….17TH…………………….DAY OF February, 2009

 

 

                                                           

                                                                                                                                                                        .....................................................................                                                   GODFREY VENGAYI MAVURA

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE HIGH COURT OF ZIMBABWE                                                    Case No HC659/2009

HELD AT HARARE

In the matter between:-

MARTINUS STEPHANUS ODENDAAL                                                                 APPLICANT

AND

MRS R JUMBE                                                                                              1ST RESPONDENT

AND

A MURINGISI                                                                                                            2ND RESPONDENT

AND

THE MINISTER OF LANDS AND RURAL

RESETTLEMENT                                                                                         3RD RESPONDENT

FOUNDING AFFIDAVIT

 

I, MARTINUS STEPHANUS ODENDAAL hereby make oath and state that:

 

1.    I am the Applicant in this matter and the facts I depose to herein are true and correct according to the best of my knowledge and belief. Where I rely on legal contentions, I do so on the advice of my legal representative which advice I believe to be correct.

 

2.    The 1st Respondent is Mrs R. Jumbe, National I.D No 63-303225C-C63 of 52 Mandela Drive, Chitungwiza. Her full name and further particulars are unknown to me. She, however claims occupation of half of Colandra farm situated in Beatrice which is slightly over 460 hectares.

 

3.    The 2nd Respondent is A. Muringisi National I.D No. 07-082512G-G-07 of 3991 Tynwald North, Westgate, Harare. His full and further particulars are unknown to me. He, however claims occupation of half of Colandra farm situated in Beatrice.

 

4.    The 3rd Respondent is the Minister of Lands and Rural resettlement. He is cited out of an abundance of caution as the acquiring authority. The President has out of an abundance of caution as the acquiring authority. The President has conferred authority on the Minister to administer the Land Acquisition Act (Chapter 20:10); the Agricultural Land Settlement Act (Chapter 20:01); the Acquisition of farm Equipment and Materials Act

 

(Chapter 18:23) and the Gazetted Land (Consequential Provisions) Act (Chapter 20:28). His address for service shall be care of Block 2 Makombe Complex, off Herbet Chitepo/Harare Street.

 

5.    Colandra farm situated in Beatrice measuring about 460 hectares is registered in my name. I carry on the business of dairy farming and I have planted about 25 hectares of maize to feed my cattle. The farm has not been the subject of publication in terms of Section 16B (2) (a) (i) – (ii) of the constitution of Zimbabwe. It has not been compulsorily acquired by the State under the Laws of Zimbabwe. Hitherto the 4th February, 2009 no claim of occupation to Colandra farm had been made by the State or any third party beneficiary.

 

6.    On 4th February, 2009 two men came to my farm (ie Colandra farm in Beatrice) claiming that they were from the Lands Office. They did not have any official documents of I.Ds. They said that they had come to subdivide my said farm. They suggested that I should go to the District Administrator or to the Provincial governor to talk about the acquisition of the farm.

 

7.    On the 5th February, 2009 I went to ZRP Beatrice and saw Sergeant Chikita who deals with Land problems in the area. I told him about the visit. He promised to investigate the matter for us. On 7th February, 2009 I saw Sergeant Chitika at a police road block. He told me not to worry and said that there were no papers for the acquisition of Colandra farm.

 

8.    On 12th February, 2009 three people came to my farm in my absence. My wife advised them to come back when I was available. They went away.

 

9.    On 13th February, 2009 I went to see the District Administrator Mr Kundeya. He told me that they knew nothing about the acquisition of Colandra farm at all. His office had not received any paper work for the acquisition of Colandra farm at all. He suggested that I should go and see the Provincial Governor about the matter. I immediately proceeded to Marondera to see the Provincial Governor. I found the Governor Mr Chigwedere and told him my problem. The Governor advised me that there was a lot of fraud going on in the Lands office. He told me that signatures are corruptly taken off the computer by some Lands Officers. He assured me that it was government directive had been issued to that effect. He emphasized that if there was any change in government policy then that would have been communicated through his offices.

 

10.  On Saturday 14th February, 2009 at about 12:00 midday the 1st and 2nd respondents came to Colandra farm. They arrived in a Toyota double CAB motor vehicle registration number ABA 8468. They produced green papers with a Ministry of Lands Letter Head and a government crest with their names and details. They said the documents were offer letters which had been issued in their favour for the occupation of Colandra farm.

 

 

 

 

 

 

They said the farm had been subdivided between the two of them. The offer letters were dated 6th February, 2009 and purportedly signed by Mr D.N.E Mutasa. They said they are the new owners of the farm. They were in the company of two bouncers. One of the bouncers was a menacing looking Mr Mhlanga.

 

11.  Beyond any doubt the 1st and 2nd Respondents’ offer letters are invalid because Colandra farm has not been acquired by the State in accordance with the Constitution of Zimbabwe. The acquiring authority cannot issue an offer letter if the Lad I question has not been compulsorily acquired in accordance with the Law.

 

12.  But even if Colandra farm had been compulsorily acquired, our Law cognizes the right to peaceful undisturbed possession of property under the mandamenten  van spolie. Such right precludes dispossession by force, stealth or without the consent of the possessor. I am further advised and accept that for the purpose of relief an enquiry to the rights of ownership and as to who has a better possessory right is irrelevant to the grant of relief. A court, in the event of unlawful dispossession, will insist on a return of the status quo ante. I am advised that this possessory protection has not been extinguished by the promulgation of Amendment No. 17 or any other Law relating to agricultural land. But in any event, Parliament has specifically prescribed a process to achieve vacant possession by the State and not some third party. This process is provided for under Section 3 (5) of the Gazetted Land (Consequential Provisions) Act (Chapter 20:28)

 

13.  I am further advised and accept that an owner has the clear right to undisturbed use and occupation of property by reason of ownership rights. An owner is permitted to assert protection against threatened harm to property by claiming an interdict provided that the essential elements necessary for such claim are satisfied. In this regard I have a clear right or if not, a prima facie right to continue peaceful undisturbed possession and use of Colandra farm. All the other essential elements to satisfy the grant of an interdict are satisfied.

 

 

RELEVANT EVENTS CONSEQUENT TO 14 FEBRUARY, 2009

 

 

14.  I confirm that on the visit of 14th February, 2009 and the claim to the property and inspection of the premises I protested vehemently. Notwithstanding, the 1st and 2nd Respondents and their bouncers proceeded to make an inventory of permanent improvements and movable property. I have not received copies of their offer letters and documents relating to the inventory exercise. I wanted to make copies of the offer letters but they threateningly refused. They threatened that from that day onwards no equipment shall be removed from the farm. At the dairy farm they reaped two bags of

 

 

 

 

 

 

 

 

 

green maize and loaded them into their truck. They also loaded 25 litres of milk into their containers claiming that the milk was rent for staying on the farm until Monday the 16th February, 2009. They gave me until Monday the 16th February, 2009 to vacate the farm permanently.

 

      URGENCY

 

15.  On Sunday 15th February, 2009 the 1st and 2nd Respondents returned to my farm.  This time they were accompanied by three other people. They said that they were checking to see if I had removed any equipment from the farm. They threatened to use force against me and members of my family. Mr Mhlanga particularly boasted that he was very good at retribution. They said that I was going against a government directive. They demanded to see an inventory of all the farm books and the dairy records.

 

16.  On Monday 16th February, 2009 I went to the Governor’s office at Marondera. Governor Mr Chigwedere advised me that the whole process was being done unlawfully. He told me that while the farm could be acquired, no proper procedures for such acquisition had gone through his office. In my presence the Governor telephoned PROPOL and advised him that the 1st and 2nd Respondents, together with their friends must not step on Colandra farm.

 

17.  From the cumulative facts there is now an indication that the 1st and 2nd Respondents and others through them will return to the farm to loot property and to harm me and members of my family. They will seek to forcibly remove me. The threat is imminent. I am advised and accept that threatened spoliation or acts of spoliation must necessarily be dealt with on an urgent basis.

 

18.  I contend that I am entitled to interdictory relief as prayed for and that a declarator to the status of Colandra farm be provided to clear up uncertainty. Irreparable harm to my dairy farming business and to myself is manifest.

 

19. I accordingly move for an order in terms of the draft or to such further or appropriate relief as this Honourable Court may deem appropriate.

 

 

SWORN TO AT HARARE THIS .. 17TH .. DAY OF FEBRUARY, 2009.

  …………………………………..

MARTINUS STEPHANUS ODENDAAL

                                                Before me:

…………………………………..

COMMISSIONER OF OATHS

 

 

 

 

IN THE HIGH COURT OF ZIMBABWE                              CASE No HC………………/2009 HELD AT HARARE

In the matter between:-

MARTINUS STEPHANUS ODENDAAL                                                     APPLICANT

AND

MRS R JUMBE                                                                                              1ST RESPONDENT

AND

A MURINGISI                                                                                                            2ND RESPONDENT

AND

THE MINISTER OF LANDS AND RURAL

RESETTLEMENT                                                                                         3RD RESPONDENT

PROVISIONAL ORDER

 

TO:  1. MRS R. JUMBE                     1ST RESPONDENT

      

        2. A. MURINGISI                                    2ND RESPONDENT

       

        3. THE MINISTER OF LANDS AND RURAL RESETTLEMENT        3RD RESPONDENT  

 

 

 

The annexed chamber application and affidavit were used in support of this provisional order.

 

If you intent to oppose the confirmation of this provisional order, you will have to file a Notice of Opposition in form No 29B, together with one or more opposite affidavits, with the REGISTRAR OF THE HIGH COURT at HARARE within ten (10) days after the date on which this provisional order and annexures were served upon you. You will also have to serve a copy of the Notice of Opposition and affidavit (s) o the Applicant at the address for service I the application.

 

If you do not serve an opposing affidavit within the period specified above, this matter will be set down for hearing in the High Court of Zimbabwe at HARARE without further notice to you and will be dealt with as an unopposed application for confirmation of the provisional order.

 

 

 

 

If you wish to have the provisional order changed or set aside sooner than the Rules of the Court normally allow and can show good cause for this, you should approach the Applicant/Applicant’s Legal Practitioners to agree, in consultation with the REGISTRAR, on a suitable hearing date. If this cannot be agreed or there is great urgency, you may make a chamber application, on notice to the Applicant, for directions from a Judge as to when the matter can be argued.

 

 

 

 

DATE  ………………………              ………………………………………………………………

                                                                                    JUDGE /DEPUTY REGISTRAR

TERMS OF FINAL ORDER SOUGHT

 

That you can show cause to this Honourable Court why a final order should not be made in the following terms:

 

1.    That it be and is hereby declared that the property called Colandra farm situated in Beatrice measuring 460 hectares is owned by the Applicant and is lawfully occupied, used and in possession of the Applicant, his representatives, employees, invitees and their families.

 

 

Alternatively that the Applicant, his representatives, invitees and families are entitled to remain in peaceful undisturbed possession and use of Colandra farm situated in Beatrice until such – should it become necessary – as a competent Court issues an eviction order having final effect on the Applicant.

 

 

 

2.    That the 1st Respondent and the 2nd Respondent and all other persons acting through them are interdicted from summarily entering upon r remaining on Colandra farm or in any way threatening or interfering with the normal business and farming operations of the Applicant, his representatives, invitees, and family members.

 

 

 

3.    That the 1st Respondent and the 2nd Respondent jointly and severally, the one paying the other to be dissolved, pay the costs of suit.

 

 

 

 

 

 

 

 

 

INTERIM RELIEF

 

Pending confirmation or discharge of the final order the Applicant is granted the following interim relief:

 

1.    The 1st Respondent and the 2nd Respondent and all other persons acting through them be and are hereby interdicted from summarily entering upon or remaining on Colandra farm situated in Beatrice or in any way threatening or interfering with the normal business and farming operations of the Applicant, his representatives, invitees, and family members.

 

2.    That leave be and is hereby granted to the Applicant’s Legal Practitioners or the Deputy Sheriff to attend to the service of this order forthwith upon the Respondents in accordance with the Rules of the High Court.

 

 

 

 

DATE ……………………………….                           ……………………………………………….

                                                                                                JUDGE/DEPUTY REGISTRAR

 

 

 

IN THE HIGH COURT OF ZIMBABWE                                                      Case No HC659/09

HELD AT HARARE

In the matter between:-

 

MARTINUS STEPHANUS ODENDAAL                                                                 APPLICANT

AND

MRS R JUMBE                                                                                              1ST RESPONDENT

A MURINGISI                                                                                                            2ND RESPONDENT

THE MINISTER OF LANDS AND RURAL

RESETTLEMENT                                                                                         3RD RESPONDENT

 

Harare the 1st day of April 2009

 

Before the Honourable Mr Justice Mtshiya

 

Mr Mamvura for the plaintiff

Defendant in default

 

WHEREUPON, after reading documents filed of record and hearing Counsel

 

IT IS ORDERED THAT:

 

1.    IT is hereby declared that the property called Colandra farm situated in Beatrice measuring 460 hectares is owned by the applicant and is lawfully used by and is in the possession of the applicant, his representatives, employees, invitees and their families. Alternatively, it is hereby declared that the applicant, his representatives, invitees and their families are entitled to remain in peaceful undisturbed possession and use of Colandra farm situated in Beatrice until such – should it become necessary – as a competent Court issues an eviction order having final effect on the applicant.

 

2.    The 1st respondent and the 2nd respondent and all other persons acting through them are interdicted from summarily entering upon or remaining on Colandra farm or in any way threatening or interfering with the normal business and farming operations of the applicant, his representatives, invitees, and their family members.

 

 

 

 

 

 

 

3.    The 1st respondent and the 2nd respondent shall jointly and severally, the one paying the other to be absolved, pay the costs of suit.

 

 

 

 

BY THE JUDGE

 

 

 

IN THE HIGH COURT OF ZIMBABWE                                                  Case No HC659/2009

HELD AT HARARE

In the matter between:-

MARTINUS STEPHANUS ODENDAAL                                                                 APPLICANT

AND

MRS R JUMBE                                                                                              1ST RESPONDENT

AND

A MURINGISI                                                                                                            2ND RESPONDENT

AND

THE MINISTER OF LANDS AND RURAL

RESETTLEMENT                                                                                         3RD RESPONDENT

PROVISIONAL ORDER

 

TO: THE RESPONDENTS

 

TAKE NOTICE THAT on the 23rd of February, 2009 the Honourable Justice Omerjee sitting at HARARE issued a provisional order as shown overleaf.

 

 

The annexed chamber application ad affidavit were used in support of this provisional order.

 

 

If you intent to oppose the confirmation of this provisional order, you will have to file a Notice of Opposition in form No 29B, together with one or more opposite affidavits, with the REGISTRAR OF THE HIGH COURT at HARARE within ten (10) days after the date on which this provisional order and annexures were served upon you. You will also have to serve a copy of the Notice of Opposition and affidavit (s) o the Applicant at the address for service I the application.

 

 

 

 

 

 

If you do not serve an opposing affidavit within the period specified above, this matter will be set down for hearing in the High Court of Zimbabwe at HARARE without further notice to you and will be dealt with as an unopposed application for confirmation of the provisional order.

 

If you wish to have the provisional order changed or set aside sooner than the Rules of the Court normally allow and can show good cause for this, you should approach the Applicant/Applicant’s Legal Practitioners to agree, in consultation with the REGISTRAR, on a suitable hearing date. If this cannot be agreed or there is great urgency, you may make a chamber application, on notice to the Applicant, for directions from a Judge as to when the matter can be argued.

 

DATE  24-2-2009                                                        ………………………………………………………………

                                                                                    JUDGE DEPUTY REGISTRAR

 

 

TERMS OF FINAL ORDER SOUGHT

 

 

 

That you can show cause to this Honourable Court why a final order should not be made in the following terms:

 

 

4.    That it be and is hereby declared that the property called Colandra farm situated in Beatrice measuring 460 hectares is owned by the Applicant and is lawfully occupied, used and in possession of the Applicant, his representatives, employees, invitees and their families.

 

 

 

Alternatively that the Applicant, his representatives, invitees and families are entitled to remain in peaceful undisturbed possession and use of colandra farm situated in Beatrice until such – should it become necessary – as a competent Court issues an eviction order having final effect on the Applicant.

 

 

 

5.    That the 1st Respondent and the 2nd Respondent and all other persons acting through them are interdicted from summarily entering upon r remaining on Colandra farm or in any way threatening or interfering with the normal business and farming operations of the Applicant, his representatives, invitees, and family members.

 

 

 

6.    That the 1st Respondent and the 2nd Respondent jointly and severally, the one paying the other to be dissolved, pay the costs of suit.

 

 

 

 

INTERIM RELIEF

 

Pending confirmation or discharge of the final order the Applicant is granted the following interim relief:

 

3.    The 1st Respondent and the 2nd Respondent and all other persons acting through them be and are hereby interdicted from summarily entering upon or remaining on Colandra farm situated in Beatrice or in any way threatening or interfering with the normal business and farming operations of the Applicant, his representatives, invitees, and family members.

 

4.    That leave be and is hereby granted to the Applicant’s Legal Practitioners or the Deputy Sheriff to attend to the service of this order forthwith upon the Respondents in accordance with the Rules of the High Court.

 

5.    This order shall be saved upon the 1st and 2nd Respondents by the Deputy Sheriff.

 

 

 

 

DATE 23.02.09                                                                      ………………………………………….

                                                                                                JUDGE /DEPUTY REGISTRAR

  

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