Dr Ray Ndhlukula
Thandeka Moyo, Court Reporter
THE Supreme Court yesterday reserved judgment in a matter in which a prominent Matabeleland South commercial farmer is appealing against an order to vacate a farm that the Deputy Chief Secretary to the President and Cabinet, Dr Ray Ndhlukula possesses a valid offer letter for.
David Connolly was last year ordered to vacate Centenary Farm in Figtree by Harare High Court Judge Justice Joseph Musakwa.
Connolly, through his company, JC Connolly and Sons (Pvt) Ltd, has since 2014 been locked in a legal wrangle with Dr Ndhlukula, over the ownership of the farm, citing him as the first respondent in his appeal.
Justice Musakwa said Connolly was in occupation of gazetted land, which was compulsorily acquired by the State in 2000.
Presiding over the Supreme Court session in Bulawayo yesterday, Justices Paddington Garwe, Ben Hlatshwayo and Antonio Guvava reserved the ruling to a later date.
Dr Ndhlukula in his response through his lawyer advocate Thabani Mpofu instructed by GN Mlotshwa and Company said the farm was acquired under the Land Reform programme by virtue of a constitutional process. He said the appeal was an abuse of the court process as it sought to sanction an illegality.
“Appellant’s officials were advised that first respondent now had rights to the farm and would on a given future date be exercising them. In response to that civil notification, appellant instituted proceedings. In those proceedings, it challenged the validity and authenticity of first respondent offer letter.
“It then occurred to appellant that the offer letter had been validly issued and its authenticity could not be challenged. The challenge was dropped,” said Dr Ndhlukula, in his heads of argument.
Citing a judgment by the late Chief Justice Godfrey Chidyausiku in a 2010 case CFU & ors VS the Minister of Lands and Rural Resettlement, he said the commercial farmer was not entitled to any relief as he was in defiance of the law after having been in unlawful possession of the farm.
In that ruling in the CFU matter, the late Chief Justice wrote: “Apart from this, there is a principle that a litigant who is acting in open defiance of the law cannot approach a court for assistance.”
Advocate Mpofu said that principle would be subverted if Connolly’s appeal is allowed to succeed.
“Appellant could not therefore establish, before the court a quo a right at law which would entitle it to the remedy of an interdict. The judgment of the court a quo cannot therefore be impeached. The matter is resolved,” he said.
“Appellant approached the court and asked for an interdict. It is beyond any doubt that an interdict cannot be afforded to an outlaw against an ‘in-law’ this is clear law.”
Connolly through his lawyer Advocate Tawanda Zhuwarara who was instructed by Webb, Low and Barry appealed against the judgment to vacate the farm.
“The court a quo’s fixation on framing the appellant’s possession as illegal was irrelevant on the resolution of the controversy. The defence that the possessor’s possession is illegal does not suffice as a defence in a spoliation claims.
“No matter how unlawful a person’s possession may be, his possession may not be interfered with except through due process of law,” he said in his heads of argument.
He said Justice Musakwa erred in finding that Connolly was in unlawful occupation of the property against the facts placed on record.
“The court erred at law in determining that the appellant was in unlawful occupation of the property by reason that the land at issue had been gazetted. In making this determination, the court paid short shrift to the representations and overt encouragements given to the appellant by responsible government official,” said Connolly.
“The appellant will par that this appeal be allowed with cost and the judgment of the court a quo be set aside, and replaced.”
@thamamoe