Cawood and Anor v Mbedzi and Anor (HC 2118 of 2001) [2002] ZWBHC 31 (8 May 2002)

Judgment No. HB 31/2002 Case No. HC 2118/2001 SAMUEL K. CAWOOD and JOCO RANCH (PVT) LTD versus KANYISO MBEDZI and O. G. DUBE IN THE HIGH COURT OF ZIMBABWE CHEDA J BULAWAYO 23 AUGUST 2001 AND 9 MAY 2002 G. R. Wernbeg for applicants M. P. Mwarewangepo for the respondent CHEDA J: The applicants seek an order against the two respondents who are the District Administrator of Beitbridge and his deputy. The order sought is to interdict them from:- causing facilitating participating; or giving sanction to (a) (b) (c) (d) the entry upon or continued occupation of first and second applicants’ properties, Respondents shall secure the immediate effective and final removal of all persons who are occupying the properties without applicants’ consent (2) with their families from the said properties. together (3) client one paying the other to be absolved. Respondents shall pay the costs of this application on an attorney and scale and to this and they shall be jointly and severally liable the Because of the similarity of this case with that of B. K. Cawood (Pvt) Limited and Mr Mbedzi, case number 1858/01, this case was not argued separately, but was treated together with number 1858/01, as what was involved was closely related. -2- 31/02 In writing the judgment I decided to make a separate one in order to be able to deal with the different aspects of this case. In this case, different dates of the arrivals of the occupiers are given. These are from 20 March 2000. The applicant gives details of what was happening on the property from this date up to July 2001. As stated in case number 1858/01, those who arrived before March 2001 are protected by the Act. They cannot be removed as the applicant prays in his draft order. Applicant says more people arrived in large numbers about April 2001. The difference between this case and the first is that in the first case the prayer was for respondent to be held in contempt, while in this one, the prayer is that the respondents be restrained from doing certain acts and to remove the occupiers. Annexure C however, is to the effect that the farm has been acquired for resettlement. Accordingly, the amendment of section 8 on Statutory Instrument 338/2001 would be applicable. The amendment authorises the acquiring authority to exercise any rights of ownership, including the right to survey, demarcate and allocate the land concerned. There can, therefore be no order made as prayed for by the applicants. The amendment also provides that the amendment be deemed to have come into operation on 23 May 2000. For the above reasons the application cannot succeed and it is dismissed. Because the amendments that defeats the applicants’ case were made after the case was filed, again as in the first case, I prefer not to make any order as to costs. Cheda J