Patrick Makava v Rosemary Mutingwende and Minister of Lands and Rural Resettlement

The first respondent held an offer letter dated 6 April 2017 for subdivision 1 of the Remaining Extent of Sandringham in Mazowe measuring 162.40 hectares. She claimed to have occupied the farm since 2000 with evidence of interactions with service providers dating to 2005. The appellant occupied the same farm, claiming he was offered it in 2013 when it was bush, and made substantial improvements. He alleged his offer letter was processed and appeared in the second respondent's system but was later lost. On 15 July 2017, the appellant began tilling the first respondent's winter ploughed field where she intended to plant cabbage on 1 August 2017. Despite warnings, he persisted. The first respondent approached the High Court on urgency seeking an interdict. The appellant opposed orally without filing opposing papers. The High Court granted a provisional interdict interdicting the appellant from interfering with farming activities on the farm. The appellant appealed.

• Whether the appeal against a provisional interdict was properly before the Supreme Court under s43(2)(d)(iii) of the High Court Act
• Whether the special power of attorney executed in the United Kingdom without authentication in terms of r3 of the High Court (Authentication of Documents) Rules 1971 was valid
• Whether the matter was properly treated as urgent when a prior court application had been filed and the appellant had occupied the farm since 2016
• Whether the High Court erred in granting an interdict without determining whether the farm occupied by the appellant was the same property as that allocated to the first respondent
• Whether the first respondent established a clear right entitling her to the grant of an interdict

The appeal was dismissed with costs awarded to the first respondent.

An interlocutory order granting or refusing an interdict is immediately appealable under s43(2)(d)(iii) of the High Court Act without requiring leave, as an exception to the general rule that provisional orders under r246(2) must be confirmed before becoming appealable. An appellant cannot raise on appeal new grounds that were not placed before and ventilated in the lower court. Where an applicant for an interdict holds a valid offer letter to land and the respondent concedes occupying the same land but has no offer letter, permit or lease, the applicant has established a clear right entitling her to interim interdictory relief to prevent interference with farming activities. The existence of a prior court application seeking different and more extensive relief (including eviction) does not bar a subsequent urgent application seeking limited interim relief where new urgent circumstances arise, and does not constitute abuse of process.

The Court noted that the general rule is that a provisional order granted under r246(2) of the High Court Rules 1971 is always subject to confirmation or discharge before it becomes final and therefore appealable, but this does not apply to interlocutory orders granting the relief of an interdict as provided in s43(2)(iii) of the High Court Act. The Court also observed that oral submissions made for the appellant were not part of the record before the Supreme Court, implicitly emphasizing the importance of having a complete record on appeal.

This case clarifies important procedural matters in Zimbabwean law regarding: (1) the appealability of interlocutory orders granting interdicts under s43(2)(d)(iii) of the High Court Act, confirming such orders are immediately appealable without leave, unlike general provisional orders under r246(2); (2) the requirements for establishing urgency in land dispute cases where immediate agricultural operations are threatened; (3) the principle that appellants cannot raise new grounds on appeal that were not ventilated before the lower court; (4) that concurrent applications seeking different relief do not constitute abuse of process where circumstances justify urgent interim relief; and (5) the evidentiary burden on parties claiming land rights under Zimbabwe's land reform program, particularly the significance of offer letters versus mere occupation and improvements.