Gilbert Jonga v Nyasha Chabata

The parties were disputing occupation rights over Subdivision 3 of Farm 45, Glendale, a state-owned farm. The applicant claimed he had been in occupation of the farm since 2002 and had an approved 99-year lease over the property (approval letter dated 27 October 2015). The respondent held an offer letter for a 36.21 hectare portion of the farm issued on 6 November 2015. In December 2016, the respondent successfully obtained a spoliatory order in HC 12380/16 (granted by Matanda-Moyo J on 9 December 2016) requiring the applicant to vacate and restoring possession to the respondent. The applicant noted an appeal against this decision on 13 December 2016 (SC 771/16). In October 2016, before the spoliatory application, the applicant had entered into an agreement with the Government to grow 100 hectares of maize under the Command Programme and planted maize in November 2016. On 22 December 2016, after the spoliatory order and the noting of the appeal, the respondent destroyed approximately 4.6-7 hectares of the applicant's maize crop. The applicant then approached the court seeking an interdict to prevent further destruction of his crop.

• Whether the application was urgent
• Whether the appeal in SC 771/16 was valid given that it was against a provisional order without leave of the High Court
• Whether the applicant approached the court with 'dirty hands' by returning to the farm after being evicted pursuant to the order in HC 12380/16
• Whether the Minister of Lands should have been joined as a party
• Whether the applicant had an alternative remedy
• Whether the requirements for an interdict were satisfied (prima facie right, actual or apprehended injury, absence of alternative remedy, and balance of convenience)

The court granted a final order interdicting the respondent from interfering with the applicant's farming operations at Subdivision 3 of Farm 45, Glendale, pending the determination of the appeal in SC 771/16. No order as to costs was made.

The binding legal principles established are: (1) The High Court has no jurisdiction to determine whether an appeal noted to the Supreme Court is defective; such determination is exclusively within the competence of the Supreme Court. (2) The noting of an appeal automatically suspends the operation of the order appealed against, and a party who acts in accordance with this suspension does not approach the court with dirty hands. (3) A respondent who executes a suspended order in the face of a pending appeal acts improperly and cannot argue that the appeal is a nullity. (4) For purposes of an interdict to protect agricultural crops, a farmer has sufficient prima facie right based on: (a) evidence of approval for occupation/lease of the land, and (b) the principle that crops not permanently attached to land belong to the person who planted them, even if occupation rights are disputed. (5) Administrative committee resolutions cannot amend, replace, or transfer rights and obligations under contractual agreements to which the committee is not a party. (6) Non-joinder of a party is not fatal where the relief sought can be determined as between the existing parties, particularly under Rule 87 of the High Court Rules.

The court noted that it was not necessary to determine who had the right to occupy the farm, as that issue was pending determination by the Supreme Court in the appeal. The court also observed that even if the applicant were found to have no right to occupy the farm, he would still be entitled to tend to and harvest his maize crop as such crop does not attach to the land as a permanent fixture, citing Bangure v Gweru City Council 1998 (2) ZLR 396 (H). The court commented that numerous submissions by the parties regarding occupation rights only clouded the issue at hand and served no purpose, as the narrow issue was protection of the crop pending appeal, not determination of occupation rights.

This case is significant for several reasons: (1) It clarifies that the High Court cannot pre-emptively determine the validity or defectiveness of an appeal to the Supreme Court - that is a matter exclusively for the appellate court. (2) It reinforces the principle that noting an appeal automatically suspends the operation of the order appealed against, and a party exercising rights during such suspension cannot be said to approach the court with 'dirty hands'. (3) It confirms that a litigant who improperly executes a suspended order and disregards a pending appeal may themselves be acting improperly. (4) It demonstrates the application of interdict requirements in the context of agricultural operations and state land allocation disputes. (5) It establishes that crops not permanently attached to land may be protected even where occupation rights are disputed. (6) It illustrates the principle that administrative resolutions (such as by a Command Programme committee) cannot override or substitute for contractual rights and obligations.