Kershelmar Farms (Pvt) Ltd and Others v Dumisani Madzivanyati

The applicants (Kershelmar Farms and others) owned and occupied Esidakeni farm under Deed of Transfer 1980/90 and engaged in farming activities. The State acquired the farm and issued the respondent (Dumisani Madzivanyati) an offer letter for a portion of it. The applicants challenged the validity of the acquisition and offer letters. The respondent instituted eviction proceedings in the Magistrates Court (MC 924/21), which remained pending. The respondent moved onto the farm, disrupted farming activities, and tampered with borehole installations, threatening the applicants' crops. The applicants successfully obtained spoliatory relief under HC 1315/21 on 7 October 2021. The respondent noted an appeal on 12 October 2021 (SCB 53/21), which suspended the order. On 19 October 2021, the applicants filed this urgent application seeking leave to execute the judgment pending the appeal.

• Whether the application was urgent and brought timeously
• Whether the court had jurisdiction to hear the application in light of constitutional provisions ousting court jurisdiction over land acquisition challenges
• Whether the applicants would suffer irreparable harm if leave to execute pending appeal was refused
• Whether the appeal noted by the respondent had reasonable prospects of success
• Whether costs on a punitive scale were justified

1. The applicants were granted leave to execute the judgment in HB 190/21 (HC 1315/21) granted on 7 October 2021 notwithstanding the appeal noted on 12 October 2021 under SCB 53/21 or any other appeal that may be noted. 2. The respondent was ordered to pay costs on a legal practitioner-client scale.

1. A spoliation application does not concern ownership or rights under an offer letter, but rather the protection of peaceful and undisturbed possession and the prevention of self-help. 2. Constitutional provisions ousting court jurisdiction over challenges to land acquisition (as per Mike Campbell and Naval Phase Farming) do not prevent courts from enforcing spoliation orders or preventing self-help in relation to acquired land. 3. An offer letter for acquired agricultural land does not entitle the holder to occupy the land before the current occupier has been duly evicted through due process of law. 4. When determining whether to grant leave to execute pending appeal, courts must consider: (a) whether irreparable harm will result if execution is refused; and (b) the prospects of success of the appeal. 5. An appeal will not be permitted to operate as a suspension of a spoliation order where it would enable continued self-help and unlawful conduct pending the appeal hearing.

The court observed that if the respondent genuinely did not intend to interfere with crops and farming activities, he would suffer no prejudice from the granting of the relief sought. The court also commented that the respondent unnecessarily opposed the application, justifying an award of punitive costs. The court noted that the respondent could pursue the pending eviction proceedings (MC 924/21) as the proper legal avenue for asserting his rights, and that the appeal was likely to be heard soon, making it reasonable to maintain the status quo in the interim. The court also observed that there was a separate challenge to the acquisition and offer letters pending, but emphasized that such challenge was not before the court in this application.

This case is significant in Zimbabwean jurisprudence for clarifying the limits of constitutional provisions ousting court jurisdiction over land acquisition challenges. The judgment establishes that such provisions do not prevent courts from enforcing spoliation orders or preventing self-help, even where land acquisition is involved. The case reinforces the principle that holders of offer letters for acquired land cannot resort to self-help but must follow due process through eviction proceedings. It also demonstrates the court's willingness to grant execution pending appeal where the appeal lacks merit and is designed to allow continued unlawful conduct. The judgment upholds the rule of law by emphasizing that no party, regardless of their perceived rights under an offer letter, may bypass legal processes and resort to forcible occupation or disruption of peaceful possession.