Chinotimba & Anor v H De Foiard Brown (Pvt) Ltd & Anor (HC 1217 of 2015; Ref HC 890 of 2015) [2015] ZWHHC 777 (6 October 2015)

1 HH 777-15 HC 1217/15 Ref HC 890/15 JOSEPH CHINOTIMBA and EDWIN CHINOTIMBA versus H DE FOIAD BROWN (PRIVATE) LIMITED and MINISTER OF LANDS AND RURAL RESSETTLEMENT HGH COURT OF ZIMBABWE BHUNU J HARARE, 12 February 2015 and 16 February 2015 and 25 March 2015 and 7 April 2015 and 8 April 2015 and 10 April 20 15 and 7 October 2015 Urgent Chamber Application J Samukange, for the applicants C Kachambwa, for the 1st respondent Mrs S Muchemwa, for the 2nd respondent BHUNU J: This matter came before me as an urgent chamber application in which the parties were wrangling over the occupation of certain pieces of land held under deed of transfer 2645/90 situate in the district of Chipinge called (1) the remainder of Strepie of Hofstede measuring 164, 6548 hectares and (2) Chihosa of subdivision A of Excelsior of Hofstede measuring267, 6601 hectares. During the course of the hearing the respondents quite correctly conceded that they had no right to possess and occupy the disputed land as the first applicant had purchased the land without first obtaining a certificate of no present interest as required by law. That concession left the respondents with no option but to abandon their contest for the occupation of the disputed land. Having abandoned their claim to the land the applicants lay claim to certain movable property situate at the farm and in the possession of the respondents. The applicants then filed HH 777-15 HC 1217/15 Ref HC 890/15 a comprehensive schedule in which they listed all the claimed movable property. The respondents disputed ownership of certain movables. In the course of negotiations the parties made progress making concessions one way or the other. A stalemate was however reached when the parties could not compromise on the ownership of certain movables. At that point in time, to break the stalemate and narrow the issues I suggested that effect be given to the undisputed movables so that only the contested issues could be referred to trial. My suggestion found no favour with one side of the parties who adopted the stance that if there was no agreement on certain properties then they were putting everything in issue. The matter was further complicated by the introduction of an absentee previous occupier whom it was said may have an interest in the disputed property. One party having put everything in issue I am ill-equipped to determine the disputed issues on the papers or on the basis of concessions made one way or the other in an attempt to reach a compromise. Either party is quite entitled to fight its cause through to the end without being hamstrung by anything which might have been done or said in the spirit of compromise. When negotiating a compromise parties are supposed to negotiate in absolute confidence free from fear that whatever they do or say during that exercise will be used against them in the event that the matter proceeds to trial. There having been no amicable settlement of the dispute over movable property, all the parties concerned are entitled to their day in court for the dispute to be resolved on the merits on the basis of available evidence. I therefore come to the conclusion that the party who placed everything in issue following failure to reach a compromise was well within his rights. It is settled law that a conditional acceptance is no acceptance at all as it constitutes an out and out rejection of the offer. What this means is that there was no compromise regarding ownership and possession of the movables. The parties however agreed that should either party use any property that will be determined to belong to the other party then, the user shall pay reasonable hire fee for the property. It is accordingly ordered: 1. That the 1st Respondent H De Foiard Brown (Private) has no lawful authority to occupy and use acquired state land being (1) the remainder of Strepie of Hofstede HH 777-15 HC 1217/15 Ref HC 890/15 measuring 164, 6548 hectares and (2) Chihosa of subdivision A of Excelsior of Hofstede measuring 267, 6601 hectares 2. That the 2nd Applicant Edwin Chinotimba be and is hereby declared to be the lawful occupier of certain piece of acquired state land being subdivision 5 (five) Chihosa of subdivision A of excelsior of hofstede in Chipinge District of Manicaland Province measuring 164,00 hectares in extent in terms of his offer letter dated 17 February 2015. 3. That the issue of disputed ownership of movable property be and is hereby referred to trial after observing due process with the papers already filed standing as pleadings and parties are hereby granted leave to file any supplementary papers. 4. Should either party be found to have used any property which is later determined by the court to belong to the other party then, the user shall pay reasonable compensation for the use or replacement of the property. 5. The 1st respondent shall bear costs of this application. Venturas & Samkange, 1st & 2nd applicants’ legal practitioners Dube, Manikai & Hwacha, 1st respondent’s legal practitioners The Attorney-Generals’ Office, the 2nd respondent’s legal practitioners