Kershelmar Farms (Pvt) Ltd and Others v Dumisani Madzivanyati

Kershelmar Farms (Pvt) Ltd was the owner of Esidakeni Farm held under Deed of Transfer 1980/90, which it purchased in 2017. The Minister of Lands purportedly acquired the farm via General Notice 3042 of 2020 published on 18 December 2020. The respondent claimed to have been offered a portion of the farm by virtue of an offer letter issued following the acquisition. The applicant company and its shareholder-directors (2nd to 4th applicants) had instituted proceedings to nullify the acquisition in HC 1054/21. The respondent had also instituted eviction proceedings in the Magistrates' Court (MC 924/21). The applicants had been in peaceful possession since 2017, engaged in farming activities, and had installed extensive irrigation infrastructure including boreholes, pumps, and a transformer at their expense. They had planted 150,000 tomato plants (50,000 ready for harvest), 8 million onion plants, and 65,000 butternut plants. In July 2021, the respondent drove over applicants' onion fields during planting, dispatched invaders who attacked the farm manager (forcing him to hide in the bush), switched off irrigation pumps, blocked access to the farm, and subsequently tampered with borehole installations by connecting his own pipes to the main water line, thereby depriving applicants' crops of water.

• Whether the form used for the urgent chamber application (Form 25) was fatally defective under Rule 60 of the High Court Rules 2021
• Whether the 2nd, 3rd and 4th applicants had locus standi in judicio to bring the application
• Whether the applicants satisfied the requirements for a spoliation order
• Whether an offer letter entitles the holder to occupy land before the current occupier has been duly evicted by due process of law

The court ordered: (1) The respondent and all persons claiming occupation through him to remove themselves within 24 hours from Esidakeni Farm (being subdivision A of subdivision B of Umguza Block measuring 195.8095 hectares and subdivision C of subdivision B of Umguza Block measuring 358.1768 hectares); (2) The respondent to restore to the applicants possession of all farming equipment including irrigation pipes within 24 hours; (3) Failing such removal and restoration, the Sheriff is authorized to evict the respondent and all persons claiming occupation through him; (4) The respondent to pay the costs of suit. The application for interdictory relief was refused.

The binding legal principles established are: (1) In urgent chamber applications under Rule 60 of the High Court Rules 2021, failure to use Form 23 instead of Form 25 does not per se render the application fatally defective where the application is served on the interested party and the court directs a hearing on notice; (2) A company and its directors have locus standi to institute spoliation proceedings to protect possession of property registered in the company's name, regardless of challenges to the validity of share transfers; (3) To succeed in spoliation proceedings, an applicant must prove: (a) that they were in peaceful and undisturbed possession of the property, and (b) that the respondent wrongfully deprived them of that possession; (4) An offer letter issued by the Minister of Lands does not entitle the holder to occupy land before the current occupier has been duly evicted by due process of law through a court order; (5) The fact that a spoliator may be lawfully entitled to property does not render the seizure any less illegal, and the dispossessed party can still claim a spoliation order; (6) Parties are not allowed to take the law into their own hands through self-help remedies, regardless of the perceived strength of their claims.

The court made several significant observations: (1) Makonese J endorsed and followed the traditional approach to spoliation articulated by the Supreme Court in Botha v Bennet 1996 (2) ZLR 73 (S), noting that recognizing any resort to self-help without a court order is "the surest recipe for disorder, degenerating into possible violence and the aberration of the rule of law"; (2) The court observed that the respondent's attitude, as reflected in his statement that applicants "would rather have me hold on to the offer letter at home and not bother checking in on my rights," demonstrated an improper resort to self-help; (3) The court noted that while applicants sought interdictory relief in their draft order, they made no attempt to canvass and establish the requirements for an interdict in the founding affidavit, highlighting the importance of properly pleading the basis for all relief sought; (4) The court emphasized that the rules of procedure are designed to ensure that litigants are heard and given the opportunity to advance their arguments, reflecting a purposive approach to procedural compliance.

This case reaffirms fundamental principles of Zimbabwean property law in the context of land reform: (1) that offer letters issued by the Minister of Lands do not confer self-executing rights of occupation and do not entitle holders to resort to self-help; (2) that peaceful possession must be restored through spoliation orders regardless of competing claims to ownership or rights to the property; (3) that procedural irregularities in the form of urgent applications will not defeat substantive relief where the opposing party has been properly served and afforded a full opportunity to be heard; and (4) that in spoliation proceedings, the court focuses on the fact of peaceful possession and unlawful dispossession, not on underlying questions of title or ownership. The judgment reinforces the rule of law principle that parties may not take the law into their own hands, even where they may have legitimate claims to property, and must pursue their remedies through proper legal channels.