Mutare Board & Paper Mills Ltd. v Matasva & Anor (HC 9485 of 2015; HH 226 of 2017) [2017] ZWHHC 226 (5 April 2017)

1 HH 226-17 HC 9485/15 MUTARE BOARD AND PAPER MILLS LTD versus TENDAI MATASVA and MINISTER OF LANDS AND RURAL RESETTLEMENT N. O HIGH COURT OF ZIMBABWE MATANDA-MOYO J HARARE, 16 March 2017 & 5 April 2017 Opposed Matter G. Madzoka, for the applicant T. Hungwe, for the 1st respondent No appearance for the 2nd respondent MATANDA-MOYO J: This is a claim for rei vindicatio. The brief facts are that the applicant is the owner of Inodzi Estate in Penhalonga. It is engaged in timber plantation. Sometime in 2010 the first respondent was allocated a plot at Inodzi Estate. Following engagements between the applicant and the second respondent such certificate was withdrawn on 17 October 2011. The first respondent was in exchange issued with an offer letter for Plot 3 Savillen Mutasa District measuring 18 hectares. The first respondent did not move off Inodzi but continued in occupation. The applicant has approached this court for the eviction of the first respondent. The first respondent opposed the relief sought on the basis that: 1. 2. he was offered plot 1 at Inodzi Estate farm and such offer is still valid and also that he is at the farm on the strength of a registered mining title in favour of Simukayi Mining Syndicate. The first respondent also averred that he is not privy to any deals between the applicant and the second respondent as he was not party to them. It is his case that he has had undisturbed possession of plot 1 Inodzi Estate from 2012 to date. The first respondent prayed that the application be dismissed with costs on a higher scale. The second respondent raised no objection to the relief sought. The second respondent filed a letter with this court indicating that he is not opposed to the order sought. HH 226-17 HC 9485/15 This application has been brought in terms of the rei vindicatio action. This action is founded in property law, action in rem and is designed to protect ownership of property. An owner of a property should not be deprived of possession and use of such property without his or her consent. See Chetty v Naidoo 1974 (3) SA 13 (A) at 20B-D where the court said: “ It is inherent in the nature of ownership that possession of res should normally be with the owner and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner e.g a right of retention or a contractual right). The owner in instituting a rei vindicatio, need therefore do no more than allege and prove that he is the owner and the defendant is holding the res- the onus being on the defendant to allege and establish any right to continue to hold against the owner.” See also Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 (3) SA 420 (A). Thus an applicant seeking to rely on the rei vindicatio must show the following: ‘1. that he or she is the owner of that property 2. 3. 4. that the property sought to be vindicated was in existence that the respondent is in possession of that property and that the applicant has not consented to such possession by the respondent. There is no doubt the property in question is owned by the applicant. The second respondent has conceded the point. The first respondent is relying on the ownership of the property by the second respondent. Once the second respondent has conceded that the ownership of the land in question rest with the applicant, that is the end of the matter. It is common cause the land is in existence and is identifiable. The respondent is in possession of that property. It is common cause the applicant has not consented to such possession by the respondent. I am satisfied that the applicant has discharged the onus upon it. See Unimark Distributors (Pvt) Ltd v Erf 94 Silvertondale (Pvt) Ltd 1992 (2) SA 986 (T), Alspite Investments (Pvt) Ltd v Westerhof 2009 (2) ZLR 226 (H). Once the applicant has shown the above the onus shifts to the respondent to show that the applicant is not the owner of the property or that the property is no longer in existence or that it is not identifiable or, that he is not in possession of that property or at least show some legal entitlement to possession of the property. See Oakland Nominees Ltd v Gelria Mining and Investment Co Ltd 1976 (1) SA 441 (A), African Sun Zimbabwe (Pvt) Ltd v Sigelani Mlongani HH 537/15. The respondent herein bases his right to possession on a permit given to him by the second respondent. However such permit has since been revoked. At the present moment the applicant is not a holder of a valid permit from the second respondent. The respondent tried to challenge such revocation, but I am of the view that this is not the HH 226-17 HC 9485/15 forum for such a challenge. Such a challenge should be directed towards the second respondent and not the applicant. The respondent tried to bring in another defence that he is occupying the land in terms of some mining rights granted to Simukai Mining Syndicate. However once it has been admitted that the land was under cultivation, there being tree plantation thereon, such land in terms of ss 30 and 31 of the Mines and Minerals Act is not open to prospecting. From the facts of this matter it is common cause such prospecting and registration of mining claim was done after the land had been put under tree plantations. In the case of Schienhouf v Minister of Justice 1926 AD 99 @ 109, INNES CJ had this to say: “It is a fundamental principle of our law that a thing done contrary to the direct prohibition of the law is void and of no force and effect. The rule is thus stated” “a quae lege feri prohibentur, si fuerint facta, non solum inutilia sed pro infectis habeantur, licet legislator fieri prohibuerit tantum, nec specialiter dexerit inutile esse debere quod factum est (Code 1.14.5): “so that what is done contrary to the prohibition of the law is not only of no effect, but must be regarded as never having been done – and whether the law giver has expressly so decreed or not, the mere prohibition operates to nullify the act.” (See, also, Brunneman and Codicem 1.14.5) The maxim “Quod contra legem fit pro infecto habetur” is also recognized in English law, and the disregard of peremptory provisions in a statute is fatal to the validity of the proceedings affected (see remarks by Lord Penzance in Howard v Bodinton (1877 2 PD 203 at p 210). See also Lion Match Co Ltd v Wessels 1946 OPD 376 at 380 – 381, York Estate Ltd v Wareham 1950 C1) SA 125 (SR) 126, Hochfeld (Pty) Ltd v Carmaldine Investments (Pty) Ltd 1955 (4) SA 296 (W) 299 A.” Refer also to McFoy v United Africa Company Ltd 1963 3 ALL ER 1169. I am satisfied that the respondent has failed to discharge the onus on him of showing some entitlement to retaining possession of the land. Accordingly I order as follows: 1. That the first respondent be and is hereby directed to vacate Inodzi Estate within (7) seven days of being served with this order. 2. In the event that the first respondent fails to vacate the property, the Sheriff or his lawful Deputy or Additional Sheriff be and is hereby ordered and directed to evict respondent from Inodzi Estate at the first respondent’s expense. 3. That the first respondent pays costs of suit. Wintertons, applicant’s legal practitioners Venturas and Samkange, 1st respondent’s legal practitioners HH 226-17 HC 9485/15