Ndanga Consent Order (2nd) 6452/06

IN THE HIGH COURT OF ZIMBABWE CASE NO. HC /2006

HELD AT HARARE

In the matter between:-

Guest Legal Practitioners of record for the Applicants hereby certify that this matter is

urgent for the following reasons:-

1. The First and Second Respondents continue to be in contempt of eight orders

granted by this court requiring them to return to Applicants their farming equipment

and material that was under the direction of First and Second Respondents

unlawfully commandeered by force nearly a year ago and notwithstanding such

September 2006 and 28 September 2006 to issue and serve upon Applicants

notices of intention to acquire some of the said equipment. The said equipment has

been identified in circumstances where:-

a) the equipment has not in fact been returned to the rightful owners; and

b) some equipment being the subject of the original court orders has in fact not

been accounted for by Second Respondent in particular; and

c) the equipment is the subject of pending litigation in HC11/06; and

d) the rightful owners were not invited to compile an inventory of equipment “not

being used” for agricultural purposes as mandated by legislation; and

e) the Applicants have not, in any event, been afforded an opportunity to “use”

the equipment because self-evidently it is both the First and Second

Respondents themselves who have contemptuously precluded such

opportunity by commandeering the equipment and then permitting it in the

course of this last year to be distributed to settlers and senior police

personnel; and

f) the conduct of the Respondents in the circumstances is in violation of the

Administrative Justice Act which mandates that the acquiring authority must

act fairly and reasonably.

g) in any event, the notices of intention to acquire served on and dated 26

September 2006 are false, and probably fraudulent documents, purportedly

signed by Minister Mutasa on 26 September 2006 and served in Masvingo at

10:00am on the same date!

h) the documents purporting to evidence an intention to acquire the equipment

on 28 September 2006 are false as it is clear that it is the land official in

Chiredzi who is simply filling in the date, name and address on a notice

manifestly by comparing the similarity of handwriting on the dates as they

appear in the Chiredzi documents but which are different to the handwriting

on the Masvingo documents.

2. The Applicants, who have been deprived of their equipment for almost a year have

suffered considerable prejudice to date by virtue of not being in a position to utilise

their equipment and all rights to claim damages in this regard are reserved. The

Applicants are entitled forthwith to the return of their equipment and to thereafter

use or deal with their equipment as they deem fit.

3. In the premises unless the order sought is granted Applicants will continue to suffer

irreparable loss and it is their only remedy in the circumstances.

Applicants’ Legal Practitioners

Executive Chambers

George Silundika Avenue

IN THE HIGH COURT OF ZIMBABWE CASE NO. HC /2006

HELD AT HARARE

In the matter between:-

1. I am duly authorised to depose to this affidavit on behalf of all the Applicants.

a) The First Applicant is Bateleurs Peak Farm Holdings (Private) Limited a

company registered with limited liability and whose address for service is that

of its undermentioned legal practitioners.

b) The Second Applicant is Chiredzi Ranching Company (Private) Limited, a

company registered with limited liability according to the laws of Zimbabwe

and whose address for the purposes of this Application is care of its

undermentioned legal practitioners.

c) The Third Applicant is Daniel Jacobus Theron an adult male farmer whose

address for the purposes of this Application is care of his undermentioned

legal practitioners.

d) The Fourth Applicant is Dromore Farm (Private) Limited, a company

registered with limited liability according to the laws of Zimbabwe and whose

address for the purposes of this Application is care of its undermentioned

legal practitioners.

e) The Fifth Applicant is Anthony Roy Miller an adult male farmer whose

address for the purposes of this Application is care of his undermentioned

legal practitioners.

f) The Sixth Applicant is Fantaisie Farm (Private) Limited, a company

registered with limited liability according to the laws of Zimbabwe and whose

address for the purposes of this Application is care of its undermentioned

legal practitioners.

g. The Seventh Applicant is Mapanza Investments (Private) Limited, a

company registered with limited liability according to the laws of Zimbabwe

and whose address for the purposes of this Application is care of its

undermentioned legal practitioners.

h. The Eighth Applicant is Whitro Engineering (Private) Limited, a company

registered with limited liability according to the laws of Zimbabwe and whose

address for the purposes of this Application is care of its undermentioned

legal practitioners.

i. The First Respondent is Minister of State for National Security in the

President’s Office responsible for Lands, Land Reform and Resettlement.

His address is care of Block 2, Makombe Complex, Off Herbert

Chitepo/Harare Street, Harare.

j. The Second Respondent is Assistant Commissioner Ndanga, cited in her

personal and official capacity as she continues to remain in contempt of

many orders of this Court. She is an adult female and purports from time to

time to be stationed at Masvingo Police Station.

k. The Third Respondent is a Mr Timothy Mukonyora an adult male who

resides in Masvingo and who is cited in his personal capacity as it is

contended he is involved in the production of Notices of Intention to acquire

equipment referred to in this matter that are false and were not properly

authorised by the Acquiring Authority.

l. The Fourth Respondent is a Mr V. Dzvova an adult male whose full and

further particulars are unknown who resides in Chiredzi and who is cited in

his personal capacity as it is contended he is involved in the production of

Notices of Intention to acquire equipment referred to in this matter that are

false and were not properly authorised by the Acquiring Authority.

3. Late last year this Honourable Court issued upon certificates of urgency no less

than seven court orders in favour of the Applicants which inter alia ordered the First

and Second Respondents to forthwith return the farming equipment and material

belonging to the Applicants which the First and Second Respondents had caused to

be commandeered under heavy military force. The equipment was thereafter

illegally distributed with the consent, and under the directions of, First and Second

Respondents to various settlers and certain senior police personnel.

4. The following orders were granted by the High Court.

i) Bateleurs Peak Farm Holdings HC. 5854 granted by Justice Patel on the

ii) Bateleurs Peak Farm Holdings HC.6237 granted by Justice Uchena on the

2005.

2005.

December 2005.

December 2005.

vii) Whitro Engineering P/L HC5900/05 granted by Justice Guvava on 1

December 2005.

5. Copies of the aforesaid orders are attached as annexures “A”, “B”, “C”, “D”, “E” and

“F1-2”. The First and Second Respondents have failed to abide the orders.

Moreover, it is common cause that there has been no opposition filed to the orders

granted that were provisional.

6. The filing of an application for contempt in HC11/06 against Second Respondent to

which this Honourable Court is respectfully referred resulted in the granting by

Honourable Justice Karwi of an order by consent on 30 June 2006. It reads as

follows:

b) The Respondent shall by no later than 30 August 2006 either:-

7. It has taken Second Respondent virtually an entire year to locate and retrieve some

of the equipment which was recently collected by me and stored at a central point in

Masvingo being the premises of Mrs Pepler, one of the Applicants. I was in the

process of distributing it to the various Applicants.

8. The said equipment was in the process of being distributed to the Applicants when

on 26 September 2006 the First Respondent purportedly signed notices of intention

to acquire farming equipment and these were served on Mrs Pepler and Mr Roy

Miller, two of the Applicants.

9. Copies of the notices are attached as Annexures “G” and “H”. They were served by

Third Respondent, a lands official within the First Respondent’s Ministry. A

certificate of Service for one of the notices is attached as “I”. It is clear that it is

Third Respondent who has dated annexures “G” and “H”, who completed Annexure

“I” and who typed in the name and address of the owner or holder. These cannot be

regarded as official documents. They are blank documents filled in by officials. They

are false. Further annexed hereto is a faxed statement from Mrs Pepler being

Annexure “J”. Because of time constraints it has not been possible to obtain an

affidavit from Mrs Pepler who lives in Masvingo, but efforts are continuing in this

regard.

10. a) It is most significant that one of the notices was served at Mrs Peplers’

Respondent who was accompanied by five other officials who all apparently

reside in Masvingo. The notice is dated 26 September 2006. It simply cannot

be an authentic or genuine document; If it was genuine it would have had to

have been signed in the early morning by the Minister and then delivered to

Masvingo by 10:00am. This is inconceivable.

b) Similarly the notice addressed to Mr Miller is also dated 26 September 2006

and was served by the same persons mentioned in paragraph 10(a). This

notice for the same reasons has all the characteristics of being false.

11. It is also significant that neither Mrs Pepler nor Mr Miller were invited to identify

what equipment was not being used for agricultural purposes. This violates section

4 of the Farm Equipment and Material Act. As a consequence the purported

intention to acquire is for this reason invalid.

12. a) On 27 September 2006 First Respondent purported to identify equipment of

Seventh Applicant in Chiredzi. A copy of the inventory is attached as “K3”

and “K4”. The owner was not invited to make an inventory of equipment not

utilised in violation of the Act.

b) The handwriting on this inventory (K3 and K4) is identical to that on the

Notice of intention to acquire and the inventory purportedly issued by First

are attached as “K5”, “K6” and “K7”.

c) The date on “K5” is written by the same person who compiled “K3” “K4” “K6”

and “K7”. It is the writing of a lands official, it is not the First Respondent. The

documents are thus fatally defective. Quite plainly a Mr Dzvova (Fourth

Respondent) has filled in a name and date and address of the owner on

these documents.

d) In summary, therefor, it is Third Respondent who completed the documents

purportedly signed by the Minister for the attempted acquisition in Masvingo

and Fourth Respondent who completed the documents signed by the

Minister for attempted acquisition in Chiredzi.

13. a) All Applicants have been deprived by the actions of the First and Second

Respondents this last year of any opportunity to utilise their equipment. And

Third and Fourth Respondents unashamedly and with utter disdain

contemptuously seek to acquire the equipment in further violation of the

orders of this Court. It is self-evident that the unlawful commandeering of the

equipment last year and its subsequent disposal to settlers and other

unknown persons has prevented the owners from utilising their equipment. I

am advised that the Applicants do wish to put the equipment to use by inter

alia sub-contracting it to settlers.

b) The conduct of Respondents in purporting to acquire the equipment of

Applicants in the circumstances described in this application clearly violate

Section 3 of the Administrative Justice Act as it cannot be seriously

suggested that the Respondents have acted fairly or reasonably.

14. For the avoidance of doubt the equipment identified in the inventory compiled by

the said officials marked “K1” and “K2” belongs in the list referring to Mrs Pepler’s

garage to all Applicants and in the list referring to Sundowers farm to Roy Miller.

Other lists to come.

15. The Applicants are entitled to their equipment. The decision to acquire the

equipment is premature and, in any event, contemptuous of the court orders.

16. In response to the order of Mr Justice Karwi aforesaid Second Respondent on 29

August 2006 filed with this court a letter and an affidavit purporting to state under

oath that all court orders to return all the equipment have been complied with.

Copies are attached as “L” and “M1” to “M14”. I have analysed the schedules

attached in annexure “M”. Not all the equipment has been returned. I will in

HC11/06 file a detailed response and intend without delay to set down HC11/06 for

purposes of the issue of a custodial sentence it will be argued this Honourable court

should impose in respect of Second Respondent. But for present purposes I believe

I need merely draw pertinently to this Honourable Court’s attention copy of a letter

from Second Respondent to myself dated 14 September 2006 (see annexure “N”).

It expressly calls upon me to advise the Applicants “to collect their equipment from

places and on dates” mentioned in the letter. Yet in her affidavit filed two weeks

earlier on 29 August 2006 she claims to have complied with the order of 30 June

2006. This is simply false.

17. I submit this matter is urgent for the reasons referred to herein and those advanced

in the Certificate of Urgency attached hereto. The deliberate strategy and agenda

on the part of the Respondents is to deprive Applicants of their equipment in

circumstances where this approach will continue to prejudice them. Unless this

Honourable Court intervenes urgently further irreparable loss will be suffered by

Applicants.

18. In the premises an order is respectfully sought in terms of the Draft attached as “O”.