Chief Court Reporter
MORE than 59 illegal occupiers of a farm owned by businessman and politician Philip Chiyangwa have to vacate the land immediately after they lost their bid to remain in occupation of the farm without valid offer letters.
The invaders had approached the High Court seeking to stop their eviction from Old Citrus Farm outside Chinhoyi.
The farm was gazetted in accordance with the law and allocated to Chiyangwa at the height of land reform.
In terms of Section 3 of the Gazzeted Lands and Consequential Provisions Act, it is a criminal offence to remain in occupation on gazetted land 90 days after the gazetted date.
The illegal settlers have been resisting eviction from the farm and had brought two separate urgent applications which were then consolidated into a single case for purposes of determination.
In the first, the invaders under case number HC87/22 sought a spoliation order, claiming they were in peaceful and undisturbed possession of their pieces of land which they occupied.
Such an order means that the person with use of the land or other asset under dispute can continue using it while the contested case is finalised.
They accused Chiyangwa of using a writ to evict them when they were not allegedly cited on the writ.
In the other case number HC 94/22 the invaders sought a provisional order to interdict Chiyangwa and his co-respondents from evicting them and a declaratur on the return date.
This is again similar as it seeks a temporary order, in this case the stopping of Chiyangwa from evicting anyone, until the contested case is finalised.
In this application, they were alleging that when the Messenger of Court evicted them under HC 87/22 he threatened to return and evict them again.
The application was based on a threat of harm which had not materialised.
After hearing arguments from both parties’ lawyers, Justice Philda Muzofa struck off the roll the first application on the grounds that the 59 had approached the court with dirty hands, while the second case was dismissed with costs for lack of merit.
Chiyangwa had attempted to evict the invaders from his farm without success.
He then caused the arrest of a group of people on the farm for contravening the law ensuring that those in possession of gazetted land had to leave.
Following their conviction, an order for their eviction was granted.
This was followed by a writ being issued and in the process of eviction more people other than those cited in the writ were evicted.
This was the beginning of court proceedings both in the High Court and the Magistrates Court by the invaders to stop the evictions except for those cited on the writ.
“Section 3 of the Act is a law that gives a direct obligation to the applicants to act in a specific manner,” said Justice Muzofa. “They were required to vacate the farm. They opted not to comply. They, therefore, approach the court with dirty hands.”
Justice Muzofa said since the court did not deal with the matter on the merits, the application could only be struck off the roll.
In the first case there was no order as to costs after the judge found that both parties had tainted hands. She also noted that Chiyangwa and his co-respondents had resorted to self-help which, the judge said, should be frowned upon.
The invaders too had defied the law.
In the second case, Justice Muzofa ruled that the invaders’ right to occupy the land could only be proved by showing that they were in possession of an offer letter, permit or land settlement lease.
They possessed none of these, hence the judge ruled that failure to establish the prima facie right disposed of the matter.
In this regard it becomes unnecessary for the judge to consider the rest of the requirements of an interim interdict as the invaders had failed to satisfy the requirements of an interim order.
“The applicants have remained on the farm despite knowledge that the farm now vests in the State,” ruled Justice Muzofa. “They also know that the first respondent (Chiyangwa) holds a valid offer letter in respect of the farm. They must bear the cost of this application.”
Chiyangwa has been involved in a land battle with the settlers over the ownership of the farm.
He won a similar case last year where invaders were evicted, but others continued occupying the farm.