Tuesday, 8 October 2019

COURT BLOCKS MINISTER FROM EVICTING FIRM


The High Court has shelved a Government plan to evict a local company from a farm in Hwange.

The company, Tetra Heights has, for some time, been locked in a wrangle with the Ministry of Lands, Agriculture and Rural Resettlement over Halfway Hotel which is on Gwaai Farm.

The ruling by Bulawayo High Court judge Justice Thompson Mabhikwa follows an application by Tetra Heights challenging its eviction from the farm, citing the Minister of Lands, Agriculture and Rural Resettlement Retired Chief Air Marshal Perrance as a respondent. 

Tetra Heights, through its lawyers Mutuso, Taruvinga and Mhiribidi Attorneys, filed an application for rescission of a default judgment under case number HC3313/18, by Bulawayo High Court judge Justice Martin Makonese, which directed the company to vacate the property.

Justice Makonese’s ruling followed an application by Minister Shiri seeking an eviction order against Tetra Heights.

In the latest development, Justice Mabhikwa rescinded his colleague’s ruling and gave Tetra Heights greenlight to file opposing papers under case number HC3313/18.

“It is ordered that the order under HC3313/18 be and hereby set aside. Applicant be and is hereby granted leave to file its notice of opposition and opposing affidavit under HC 3313/18 within 10 days of granting of this order,” ruled the judge. 

In his founding affidavit, Tetra Heights representative, Mr David Mukonoweshuro said they were on the premises at Halfway Hotel with the blessing of Minister Shiri.

“The possession was first obtained through a ministerial directive and applicant was advised that it should occupy the premises until such a time that a new tenant would have been nominated by the Government. It is imperative to state that prior to occupation of the property by the applicant, it was occupied by Mr Rob Sterling who was dispossessed of the property in 2016,” he said.

Mr Mukonoweshuro argued that the Minister “secretly” filed a chamber application and failed to serve his company resulting in a default judgment in his favour.

“It is my averment that the applicant did not willfully default to respond to the chamber application as they were not served with the papers. It is therefore my submission that the relief of rescission ought to succeed given the above averment to prove on a balance of probabilities that there is good and sufficient cause to allow the relief to be granted,” he said.

In February last year, Tetra Heights filed a chamber application at the Bulawayo High Court seeking an order directing the Minister to suspend the notice ordering it to vacate Gwaai Halfway Hotel.

Tetra Heights also wanted Minister Shiri to be compelled to provide written reasons for rejecting its application to lease Gwaai Halfway Hotel. 

The company argued that it has been in occupation of the premises since August 2016 with the blessing of former Lands Minister Douglas Mombeshora following the eviction of former owner, Mr Sterling, as part of the land reform programme.

Tetra Heights said it was advised that they should possess the property until such a time that the Government of Zimbabwe would have nominated a new tenant to occupy the premises.

When Mr Sterling was removed from the farm, his employees continued running the hotel until the Government brought Tetra Heights.

Tetra Heights was on January 4 last year given a notice to vacate the premises. In his founding affidavit deposed on behalf of Minister Shiri under case number HC3313/18, the Permanent Secretary in the Ministry of Lands, Agriculture and Rural Resettlement, Mr Ringson John Chitsiko, said the disputed property belongs to the State.

“The property in dispute was formerly owned as one business entity together with the farm prior to acquisition of the farm by the State. Upon acquisition of the farm, my Ministry decided to excise the hotel and service station from the remainder of the farm with the intention of creating a separate business entity which would be leased off to qualifying tenants who intended to utilise the same for business purposes,” he said.

Mr Chitsiko said the other portion of the farm was left out to a qualifying indigenous beneficiary to continue with the agricultural business.

In an effort to find a suitable tenant for the hotel and service station, the Ministry flighted an invitation to tender for the lease of the properties.

Tetra Heights was one of the companies that responded to the tender for the lease of the hotel and service station and its application was turned down. 

In its submission, Tetra Heights argued that it was already in occupation of the hotel and service station through a lease granted to it by the former farm owner.

However, Mr Chitsiko argued that lease is not enforceable at law due to the fact that the farm is State land.

Tetra Heights has since 2017 been locked in a legal wrangle with former workers who have invaded Gwaai Halfway House Hotel wanting to control the property. Chronicle

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