Conolly appeals to Supreme Court

Farm wrangle:  Conolly appeals to Supreme Court

Zimbabwe Standard by Nqobani Ndlovu

5 June 2016

COMMERCIAL farmer, Dave Conolly, has appealed to the Supreme Court seeking to nullify a High Court ruling directing him to vacate Centenary farm in Figtree, Matabeleland South, to pave way for President Robert Mugabe’s aide, Ray Ndhlukula.

Ndhlukula, who is the deputy chief secretary to the president and Cabinet, has been locked in a protracted legal wrangle with Conolly since 2014 over the ownership of the farm.

High Court judge, Joseph Musakwa, in his April ruling ordered Conolly to vacate Centenary farm on grounds he was in occupation of gazetted land, which was compulsorily acquired by the state in 2000.

The ruling followed Conolly’s application seeking the confirmation of a provisional order granted in his favour in 2014. The order barred Ndhlukula from evicting the farmer.

Conolly, in his Supreme Court appeal on May 18, argued the High Court judge erred in dismissing his application seeking a confirmation of a provisional order barring Ndhlukula from evicting him.

“The Honourable Court a quo[i] declined to determine the Appellant’s point in limine[ii] on the right of audience of the respondent prior to hearing argument on the merits. The respondent was, in fact, in contempt of the provisional order and the learned court a quo erred at law in hearing the respondent despite this contempt, and misdirected itself in the position that it took,” Conolly argued in his application filed on his behalf by Advocate Perpetua Dube instructed by Webb, Low and Barry.

“The appellant’s argument on the Respondent’s contempt of court was not dependent on the contempt of court order which had been appealed against, but on the actual events, and the position at the time of the court hearing argument on the return day. The learned court a quo erred at law in not paying regard to those facts.”

Conolly added: “The Honourable court a quo did not determine the question of whether or not the respondent’s actions did constitute self-help, which is against the law, and accordingly, in not determining whether or not the respondent himself was in contempt of the law and could not be heard. This was a fundamental error at law and misdirection.”

Ndhlukula and Douglas Mombeshora, the Lands and Rural Resettlement minister are cited as the first and second respondents respectively.

“The Honourable court a quo 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 Honourable Court a quo paid short shrift to the representations and overt encouragement given to the appellant by responsible government officials. The learned court a quo, accordingly, erred in not finding that these representations, which were not disputed, and were relied upon by the appellant to its detriment, were material to this matter.

“There was, in this matter, clearly an element of estoppel[iii] following upon reliance on representations and advices of government officials on government policy, which affected the question of unlawfulness, which question was the main determining factor upon which the court found that the appellant was in contempt of the law. The court a quo, therefore, erred in the finding that the appellant was in unlawful occupation of the property against the facts placed on record,” Conolly said.

Musakwa in his April ruling had blasted government officials, such as Agriculture Deputy minister, Paddy Zhanda, for protecting Conolly through frequent visits to encourage him to continue with his farming activities.

[i] The definition of “a quo”:  From which, or from whom, e.g., a court or judge “a quo” is one from which a case has been removed.

[ii] In limine:  means preliminary. A motion in limine is a motion that is tabled by one of the parties at the very beginning of the legal procedures and seeks to pull the rug out from under the feet of the other party.

[iii] A bar or impediment (obstruction) which precludes a person from asserting a fact or a right, or prevents one from denying a fact. Such a hindrance is due to a person's actions, conduct, statements, admissions, failure to act, or judgment against the person in an identical legal case.