Karori HC 3654/07

IN THE HIGH COURT OF ZIMBABWE                                          CASE NO. 3654/07HELD AT HARARE In the matter between: KARORI (PVT) LTD                                                                             FIRST APPLICANTand CHARLES INGRAM LOCK                                                           SECOND APPLICANTvs JUSTIN ITAYI MUJAJI                                                                   FIRST RESPONDENT and THE ARMY COMMANDER                                                      SECOND RESPONDENTand MRS MUJAJI                                                                                   THIRD RESPONDENTand THE COMMISSIONER OF POLICE                                                      FOURTH RESPONDENT              Before the Honourable Justice Hungwe in ChambersThis 7^th day of September 2007 at 1600hrs. Mr Masterson of Coghlan, Welsh & Guest for the ApplicantsMr Ncube of Garabga, Ncube & Partners for the First and Third RespondentsMr Chimombe of the Attorney General’s off ice for the Second and Forth Respondents Having perused the papers and heard the legal representatives of the parties. IT IS HEREBY ORDERED THAT  1.         The First Respondent is found Guilty of Contempt of this Court by virtue of the First Respondent’s refusal to comply in any way with the order issued in Case No. HC 824/07 on 23 February 2007 requiring him to withdraw from the 376-hectare portion of what was Lawrencedale 5 in the Headlands area of the Makoni District that was awarded to these Applicants in Administrative Court case No. LA 1362/03 (this piece of land is hereinafter called “the Farm”) and prohibiting him from interfering with the Applicants’ farming operations on the Farm. 2.         This finding also extends to and covers all the additional acts committed by the Third Respondent since 23 February 2007 by way of:-            i)          ploughing further land and planting further crops;ii)         taking over the use of further premises for his use and the occupation of his nominees;iii)         commanding the use of Applicants’ irrigation equipment and using it and the electrical facilities available to the Applicants to irrigate crops planted for him;iv)        interference with the Applicants’ farming operations; andv)         attempting to restrain and control the movement of persons and movable property onto and off the Farm. 3.         The First Respondent is accordingly sentenced to one month’s imprisonment with labour:-                        Provided that:-i)          the above term of imprisonment shall be suspended on condition that the First Respondent shall, within 72 hours hereafter, fully purge his contempt of the order given in Case HC 824/07 and the spoliatory acts set out in paragraph 2 above;ii)         this finding extends to all the future spoliatory acts committed by the First Respondent;iii)         during that 72 hours, the First Respondent is nevertheless prohibited from entering upon any part of the Farm. 4.         The Applicants are declared to be entitled to continue to use and occupy the Farm and all the facilities thereon unless and until their prosecution is over and an eviction order is issued against them which has final effect and is not or is no longer subject to suspension by virtue of any conditions imposed by any competent court or by virtue of any appeal. 5.         The Second Respondent is ordered to take note of the Declarator below and, if the First Respondent does not withdraw all military personnel from the Farm within 48 hours of the handing down of this order, the Applicants shall be free to apply through the Chamber Book without prior notice to the Second Respondent for an urgent order to be served on the Second Respondent to show cause why he should not be found guilty in the First Respondent’s continued contempt of the order in Case No. 824/07 or any other repetition of that contempt. 6.         The Third Respondent is found Guilty of Contempt of the Order of this Court by virtue of her resistance to police officers endeavouring to secure observance of the terms of the Court Order of 23 February 2007 after their assistance to enforce that order was sought by the agent of the Deputy Sheriff. 7.         The Third respondent is sentenced to imprisonment with labour for a period of 15 days.                        Provided that that term of imprisonment shall be wholly suspended on condition that:- i)          she does not return or enter upon the Farm, unless the Applicants have voluntarily vacated the Farm or been evicted therefrom in terms of an order of a competent court having final effect; andii)         she does not aid and abet anybody in any way attempt to evade the terms of this order or the order in Case No. HC 824/07 while these orders are in place. 9.         The Fourth Respondent is authorised and ordered to give such orders as may be necessary to ensure that the Officer Commanding Zimbabwe Republic Police, Makoni District, the Member in Charge of the Police Station at Headlands and any other Police details that may need to be involved to assist and support the agent of the Deputy Sheriff for the Makoni District to give full effect to the order of this Court as given in Harare High Court Case No. HC 824/07 which shall be annexed hereto.  10.       The Fourth Respondent is also ordered to give such orders as may be necessary to ensure that should the First Respondent, the Third Respondent or any other person acting on their instructions, whether a member of the Army or not, return to the Farm as occupied by the Applicants without:-             a)         first obtaining an order from this Court authorising such return; or            b)         the prior written consent of the Applicants; orc)         an eviction order having been issued by a competent court and having final effect; then the Police in Makoni District shall forthwith arrest such persons and report the arrests to the Criminal Registrar of this Court. 11.       This order shall also serve as a writ of ejectment to be acted upon by the agent of the Deputy Sheriff in the Makoni District and all police officers having knowledge of this order. 12.       This order shall remain of full force and effect unless and until the Applicants voluntarily and finally vacate the Farm or, following the final outcome of any prosecution, the Applicants become subject to an eviction order that is not or is no longer subject to any suspension by virtue of any order of court or of any appeal. 13.       This order may be served by a duly registered legal practitioner upon the various Respondents serving a copy for each Respondent on the legal practitioners who represented the parties at the hearing of the Application on 6 September. 14.       No appeal against this order or any part thereof shall suspend the effects of this order unless  and until such suspension is granted by this Court following an application which shall also be served on the Applicants who shall be entitled to make representations at the hearing of the application. 15.       The costs of this application and of the application in case No. HC 4208/07 shall be borne by the First Respondent and shall be payable on the highest scale. IT IS DECLARED THAT: 1.         Neither the Second Respondent nor the Fourth Respondent may decline to take effective action to enforce an order of this Court because they deem the matter to be “political” or “a land matter”. 2.         Failure by an officer of the armed forces (Army, Air Force, Police or Prison Services) to exercise powers to prevent a more junior member of those forces from disregarding an order of this High Court makes the more senior officer an accomplice to the disregard of the Court Order. 3.         Resistance by any member of the Army to an attempt to enforce a court order does prima facie constitute both a civil offence and a military offence. 4.         Neither a Notice of Eviction nor the institution of a prosecution constitute eviction orders and may not be relied upon by any of the Respondents forcefully to remove the Applicants, their workers or agents of the families of such persons from the Farm unless and until a final eviction order has been issued against that former landowner. 5.         The First Respondent’s offer letter does not constitute authority to the holder to evict the former owner from land unless it is supported by a court order following the prosecution and conviction of the former owner. 6.         Nor does that offer letter constitute authority to the First Respondent or anyone acting on his behalf or on his support to take occupation of the land specified therein in the face of resistance by an existing occupier including a former occupier who has yet to be made subject to an eviction order having full and unsuspended effect. BY THE COURT7 – 9 – 07  REGISTRAR