Bakasa & 28 Ors v Ministry of Lands, Agriculture, Water, Climate and Rural Resettlements (HC MT 2 of 2019; HMT 1 of 2019) [2019] ZWHHC 1 (17 January 2019)

CHRISTOPHER BAKASA 1^ST APPLICANT

and

ZOZINHU PATRICK AGUSHTO 2^ND APPLICANT

and

NDIRINI NJAITE 3^RD APPLICANT

and

WONDER CHIPFUYAMITI 4^TH APPLICANT

and

LEONARD BHASIKORO 5^TH APPLICANT

and

BINDALA MIDYA 6^TH APPLICANT

and

TECLA MATOSI 7^TH APPLICANT

and

JOSHUA CHINYADZA 8^TH APPLICANT

and

MOSES AIDI 9^TH APPLICANT

and

RAYMOND ZOZINHU 10^TH APPLICANT

and

MARIA GORIATI 11^TH APPLICANT

and

MAORIDI AIDI 12^TH APPLICANT

and

NJAITI NJAITI 13^TH APPLICANT

and

MARIA MIKEZHI 14^TH APPLICANT

and

MANZOU JABULANI 15^TH APPLICANT

and

THOMAS SANDAWARA 16^TH APPLICANT

and

MIRIAM BECHANI 17^TH APPLICANT

and

MEMORY TARUVINGA 18^TH APPLICANT

and

LLOYD JAMES 19^TH APPLICANT

and

MEKI JAMES 20^TH APPLICANT

and

TAURAI VIRANIKI 21^ST APPLICANT

and

ELISHA SHAYANOWAKO 22^ND APPLICANT

and

LOVEMORE ZUZE 23^RD APPLICANT

and

THEMBA PUNZAI 24^TH APPLICANT

and

MASONDO ZIVANAI 25^TH APPLICANT

and

OBERT SANDE 26^TH APPLICANT

and

THOMAS DIZA 27^TH APPLICANT

and

GRACE KARUVA 28^TH APPLICANT

and

GODFREY DAISON 29^TH APPLICANT

versus

MINISTRY OF LANDS, AGRICULTURE, WATER, RESPONDENT

CLIMATE AND RURAL RESETTLEMENTS

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 17 January 2019

Urgent Chamber Application

P Nyakureba, for the applicants

P Garwe, for the respondent

MUZENDA J: The twenty-nine (29) applicants are illegal settlers at Yorkshire 7C Farm, Makoni District, Headlands and according to them have been in occupation of the said land since 2003. On the 10^th of January 2019 they brought this application as an urgent chamber application seeking the following relief:

“TERMS OF FINAL ORDER SOUGHT:

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

1. The threat to evict the 1^st to 29^th applicants and their families from Yorkshire 7C Farm, Headlands without a Court Order by the respondent and all those acting in concert with it or under its instructions is hereby declared unlawful.

2. The respondent is permanently interdicted from evicting the applicants from Yorkshire 7C Farm, Headlands without first securing a Court Order.

3. Respondent shall pay the costs of this application on attorney-client scale.

INTERIM RELIEF GRANTED

Pending finalisation of the matter, the following relief is granted:

1. Respondent and those acting in concert with it or under its instructions are interdicted from arbitrarily evicting 1^st-29^th applicants from Yorkshire 7C, Headlands, destroying their homesteads, livestock and their crops.

2. The 1^st to 29^th applicants and their families shall remain in occupation of their homesteads.”

I directed the registrar to set the matter down for the 17^th January 2019 and have the respondents served. On the date of hearing I asked Mr Nyakureba to address the court on the aspect of urgency. From the applicants’ papers, it can be noted that the applicants wrongly cited the respondent. The appropriate part to be cited is the Minister and not the Ministry. The Respondent issued eviction notices to the applicants on the 4^th of January 2019 and the current application was issued by the Deputy Registrar of this court on the 10^th January 2019. There are 5 days in between, from the 5^th to 9^th of January 2019. It was on this basis that the court asked the applicant to proffer an explanation as to why the applicants did not timeously approach the court after getting the notices of eviction.

Mr Nyakureba submitted that all the applicants were unsophisticated rural peasant farmers who admittedly took time to approach legal practitioners and after instructing their current legal practitioners, the lawyers had to go to Headlands and assess the situation where after they had to prepare court papers. In Mr Nyakureba’s view it was a reasonable one. The argument proffered by the applicants did not find favour with this court, the certificate of urgency prepared by TAFADZWA JARICHA nor the affidavits prepared on behalf of the applicants did not address this delay an explanation was only advanced by Mr Nyakureba. This, in the court’s view was not proper.

In the matter of Kuvarega v Registrar General and Anor. 1998 (1) ZLR 188 (H) chatikobo j at 188 had this to say:

“What constitutes urgency is not only the imminent arrival of the day of reckoning, a matter is also urgent, if at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near, is not the type of urgency contemplated by the rules. If there has been any delay, the certificate of urgency or supporting affidavit must contain an explanation to the non-timeous action.” (My emphasis).

The applicants were aware from 2003 that they were illegal settlers and did not do anything to legalise their occupation. They have no legal basis to stay on that piece of land. The applicants failed to establish grounds upon which they should be preferentially treated and allow their matter to be dealt with urgently, they did not show such good cause to be treated differently from most litigants.

See the matter of General Transport and Engineering (Private) Limited and others v Zimbabwe Banking Corporation Limited 1998 (2) ZLR 301 (H) per gillespie j. In my view the application failed to qualify to jump the queue and be on lead ahead of other matters on the ordinary roll. It failed to qualify as warranting to be treated as critical or high priority and deserving of immediate attention.

See Ramwide Investments (Private) Limited v Ronderbuild Zimbabwe (Private) Limited and Ors 2016 (2) ZLR 275 (H) per matanda-moyo j.

The applicants have failed to convince this court that this application is urgent. The imminent eviction is not per se a ground moving the matter to be heard on urgent basis. Accordingly it is hereby ordered that:

The application is not urgent and is hereby removed from the roll of urgent matters.

Maunga Maanda & Associates, applicant’s legal practitioners