Joice Mlambo v Isaac Muguti Chivendere

The applicant was the widow of the late Smart Moyo, who held an offer letter for Subdivision 3 of Circle V of Lancastershire Estate, Shurugwi. After her husband's death, the applicant applied for succession in title to the Minister of Lands, Agriculture, Water, Climate and Rural Resettlement. While this application was being processed, on 20 August 2019, she was issued with an A2 Temporary Permit for the property. The applicant averred that without her consent, the respondent invaded the property and started conducting mining activities, erecting cyanidation tanks, cabins, mills, and fencing off an area. The respondent denied the invasion, claiming he was on the property legally in terms of mining rights acquired by the Zimbabwe National War Veterans Association (Shurugwi District) and that the Mining Commissioner had resolved a dispute in January 2013 allowing him to remain on the property for mining purposes. The respondent refused to vacate. On 4 September 2019, the applicant issued summons for eviction of the respondent and all those claiming occupation through him, plus demolition of illegal structures. The applicant then applied for summary judgment, believing the respondent had no bona fide defence.

• Whether the applicant had locus standi to bring the application for eviction
• Whether there was a material dispute of fact requiring oral evidence
• Whether there was material non-joinder of the executor of the deceased estate and the Minister
• Whether the respondent had a bona fide defence to the eviction claim
• Whether the respondent had lawful authority to occupy the property and conduct mining activities
• Whether summary judgment should be granted
• Whether costs should be awarded on an attorney and client scale

1. Summary judgment was entered in favor of the applicant. 1.1 The respondent and all those claiming occupation through him were evicted from Subdivision 3 of Circle V of Lancastershire Estate, Shurugwi. 1.2 The respondent was ordered to remove illegal structures erected on the property within seven (7) days of the order, failing which the Sheriff or his lawful deputy was ordered to remove and/or demolish same. 1.3 The respondent was ordered to pay the applicant's costs of suit on an attorney and client scale.

An A2 Temporary Permit issued by the Minister of Lands, Agriculture, Water, Climate and Rural Resettlement is sufficient to confer locus standi on the holder to institute eviction proceedings against unauthorized occupants. A party does not create a material dispute of fact by merely denying allegations without presenting substantive evidence to support their defence. In land and mining disputes, occupation of land and conducting of mining activities require proper authorization from relevant government authorities in the form of offer letters, permits, settlement leases, or mining registration certificates. Summary judgment will be granted where a defendant fails to establish a bona fide defence by providing documentary evidence of their claimed rights. Where a party resists a claim without any genuine basis and puts the other party to unnecessary expense, costs may be awarded on an attorney and client scale.

The court observed that it was unnecessary to entertain the application for an interdict pendente lite (HC 4608/20) when the main application was being argued before the court. The court commented that consolidation of the two applications had been overtaken by events as the main application was ready for hearing. The court noted that the Zimbabwe National War Veterans Association (Shurugwi District) was not a legal persona and could not sue or be sued in its own name, thus rejecting the application for joinder of that entity. The court encouraged a robust and common sense approach to resolving disputes, citing the Constitutional Court decision in Douglas Muzanenhamo v Officer in Charge CID Law & Order and Ors CCZ 3/13. The court made reference to the general principle that costs follow the result and that awards of costs on the higher attorney and client scale should not be taken lightly but are appropriate where the losing litigant was not genuine in their pursuit of litigation.

This case is significant in Zimbabwean jurisprudence as it clarifies the legal standing conferred by an A2 Temporary Permit issued under land reform legislation, establishing that such a permit is sufficient to give the holder locus standi to institute eviction proceedings. The case also reinforces the principles governing summary judgment applications, particularly that a defendant cannot create a material dispute of fact merely by denying allegations without substantiating their defence with documentary evidence. The judgment is important in the context of land reform and mining rights, establishing that occupation and mining activities on land require proper authorization from relevant government authorities, and that claims to mining rights must be supported by proper documentation such as registration certificates. The case also demonstrates the court's willingness to award punitive costs where a party pursues litigation without a genuine basis.