VEVHU RESOURCES (PRIVATE) LIMITED versus VEVHU DEVELOPMENT MARKETING COMPANY (PVT) LTD and Others (309 of 2025) [2025] ZWHHC 309 (19 May 2025)

4 HH 309-25 Case No HCH 7218/22 VEVHU RESOURCES (PRIVATE) LIMITED versus VEVHU DEVELOPMENT MARKETING COMPANY (PVT) LTD and NIFS MARKETING COMPANY and THE TRUSTEES FOR THE TIME BEING OF EVERSHINE HOUSING DEVELOPMENT TRUST and GILBERT MUCHADENYIKA and TAFADZWA KAMBARAMI and ARTWELL TIGERS and ARISE SPITZKOP RESIDENTS’ ASSOCIATION LOT 12 AND 14 HIGH COURT OF ZIMBABWE MUSITHU J HARARE: 24 March 2025 & 19 May 2025 Opposed Application-confirmation of a provisional order and eviction Mr A Mutima, for the applicant Mr L Madhuku, for the 7th respondent MUSITHU J: The applicant approached the court for the confirmation of a provisional order granted on 27 October 2022. The provisional order was granted pursuant to an urgent chamber application for the eviction of the first to sixth respondents from a piece of land described in the papers as the geographical area reserved for open spaces and institutions as per the Proposed Subdivision of Lot 14 Spitzkop, Tracing Number ME-E692 (the land). The seventh respondent was joined as an interested party midway in the proceedings, after the provisional order was granted. The said provisional order interdicted the respondents and all those claiming occupation through them from carrying out any construction activity or operating brick moulding businesses on the structures that were already built on the geographical area reserved for open spaces and institutions in terms of the above-mentioned proposed subdivision of Lot 14 Spitzkop. Background to the Applicant’s Claim The applicant is involved in land development through designing, engineering, procurement, financing and development of requisite infrastructure. The applicant applied to the then Ministry of Local Government, Public Works and National Housing (the Ministry) for land for housing development in respect of 348.68 hectares of land on Stateland known as Lots 12 and 14 Spitzkop in Zvimba District. The applicant then entered into a Memorandum of Agreement with the Government of Zimbabwe on 27 June 2019 in connection with the said land. In terms of the agreement, the applicant was to develop the land with the Ministry facilitating the process. The title of the land remained with the Government of Zimbabwe while the applicant took charge of the property after paying for the intrinsic value of the land. Sometime in 2015, the applicant entered into marketing agreements with the first to third respondents. In terms of the marketing agreements the first to third respondents were to act as the agents of the applicant for purposes of advertising the stands to prospective buyers so that once a certificate of compliance was issued, the applicant would quickly sell the stands. The marketing agreements were terminated in August 2017, and the said respondents ceased to be agents of the applicant. Notwithstanding the termination of their mandate, the first to third respondents continued to masquerade as agents of the applicant and started to allocate stands, particularly on areas that were reserved for institutional developments and open spaces. It was also averred that the fourth to sixth respondents got involved in the illegal allocation of land and started settling unsuspecting individuals on land that was never intended for residential purposes. Between August 2022 and October 2022, the applicant’s personnel visited the land intending to carry out the survey processes, but were chased away by people who claimed to have purchased stands on the said land. The illegal settlers started to construct temporary and permanent structures. Such structures were illegal because they were in violation of the subdivision permit issued to the applicant. Other illegal settlers had also started the production of bricks and other building materials. In view of the illegal occupations that were taking place, it was going to be difficult for the applicant to complete the development process within the period prescribed in the subdivision permit. Failure to comply with the subdivision permit was likely to result in the revocation of the permit by the relevant authorities. If the illegal occupants were not evicted urgently, they would continue to frustrate the development process which was subject to limited timelines. Further, allowing the continued illegal occupation of the property would be tantamount to sanctioning an illegality, which would in turn result in huge costs to the applicant as it would need to destroy the illegal structures at some point. The confirmation of the provisional order was only opposed by the seventh respondent with the rest of the respondents electing not to oppose the application. The Seventh Respondent’s Case The opposing affidavit was deposed to by Clifford Mashiri, who did not state in what capacity he was deposing to the affidavit on behalf of the seventh respondent. The affidavit raised two preliminary points. The first was that there was a fatal misjoinder in that the applicant had not cited the Ministry which was allegedly the owner of the land in dispute. The second point was that the applicant approached the court with dirty hands. This was because the applicant had violated an interdict granted by this court which barred it from carrying out developmental works on the disputed land. As regards the merits, it was alleged that the land in dispute was sold to the seventh respondents’ members as far back as 2011. Construction on the alleged piece of land had started as far back as 2017 and not in 2022 as alleged by the applicant. It was also averred that while the applicant had a membership of about 3 000, about 7 000 people had since settled on the land. The deponent further averred that the seventh respondents’ members were not claiming occupation through any of the respondents, but through the applicant itself. This was because the applicant sold State land to the seventh respondent’s members and it continued to do so. It was also averred that the applicants’ members were made to pay for administration fees, allocation fees and some monthly instalments in connection with the land from as far back as 2011. The first respondent which was an agent of the applicant, was accused of selling State land and making the applicants’ members pay for the land intrinsic value. The first respondent did so without an approved lay out plan or clearance from the Ministry. The seventh respondent denied the allegation that there was an illegal settlement arguing that the applicant condoned the settlements by selling State land to the settlers. The applicant was not the owner of the land, but it abused its agreement with the Ministry and sold State land illegally. The Justice Uchena Commission of Enquiry had also confirmed that the land was indeed State land which the applicant had no authority to sell. The Commission also found that the applicant was allocating land without an approved layout plan. The applicant was accused of collecting payments for the land intrinsic value which it had no mandate to collect from settlers abused the funds. The applicant allegedly allocated State land to the seventh respondents’ members and most of them had paid the required fees. The applicant was now in the process of transferring the same people to the Zvimba Rural District Council where they were required to pay new joining fees. The applicant was further accused of failing to carry out developmental works at Lot 14 for almost 12 years, despite collecting money from the seventh respondent’s members. There were still no roads, water or sewer reticulation systems. The seventh respondent also claimed that the subdivision permit alluded to by the applicant was acquired fraudulently. The provisions of the Regional, Town and Country Planning Act [Chapter 29:12], had not been complied with, and the said permit had since expired. The applicant was also accused of misrepresenting the status of the first to third respondents. The directors of the applicant were also the directors of the first to third respondents. The entities were therefore the same. The first to third respondents had never stopped representing the applicant. If the applicant had indeed terminated their mandate, then it would have long sought legal recourse to stop their illegal acts. In conclusion, the seventh respondent insisted that the settlers that the applicant wanted evicted were allocated stands by the same applicant. The seventh respondents’ members were in occupation of the land by virtue of the allocations made by the applicant. It was the applicant that was responsible for the chaos that it was now complaining about, when in fact it had benefited financially. It was the applicant that had violated the law. The court was urged to dismiss the application with costs. The Applicant’s Supplementary Answering Affidavit The affidavit was filed pursuant to the seventh respondent’s opposing affidavit which had only been filed after the provisional order was granted. The affidavit raised the preliminary point that the opposing affidavit filed on behalf of the seventh respondent bore a computer-generated date, and it was therefore improperly commissioned. That affidavit had to be expunged from the record of proceedings with the application proceeding as unopposed. The deponent dismissed the seventh respondent’s preliminary points asserting that the alleged non joinder of the Ministry to the proceedings was not fatal. The application could still be resolved without the involvement of the Ministry, which was merely a signatory to the Memorandum of Understanding between the parties. As regards the second preliminary point, the court was also urged to dismiss it for being devoid of merit. This was because the court order which the applicant was accused of violating was not even attached to the seventh respondent’s affidavit. Concerning the merits, the applicant insisted that the land in dispute was land which was designated as open spaces for social amenities. It was not designated for residential purposes and so no one could build houses on such land. It was also averred that the seventh respondent had failed to demonstrate how its membership was affected by the relief sought herein. The seventh respondent had also failed to establish its membership in order to demonstrate which of its members were going to be affected by the eviction of the illegal settlers. The applicant also denied selling any of its land to members of the seventh respondent. The applicant denied all the averments made in the seventh respondent’s opposing affidavit arguing that the said respondent had merely opposed the application for the sake of opposing. The applicant further argued that the failure by the seventh respondent to attach its membership list was fatal to its case, as the court would not be expected to guess which of the seventh respondent’s members were going to be affected by the relief sought. The Submissions and Analysis Whether the seventh respondent’s notice of opposition was properly before the court At the commencement of oral submissions, Mr Mutima for the applicant persisted with the preliminary point that the seventh respondent was not properly before the court. The affidavit had a computer-generated date which made it defective. In its supplementary heads of argument, the applicant made reference to several judgments of this court in which the point was extensively dealt with. The cases in point were Twin Castle Resources (Pvt) Ltd v Paari Mining Syndicate & Ors HH 153/21, Mandishayika v Sithole HH 798/15 and Ariston Management Services Limited v Econet Wireless Zimbabwe SC 123/23. In response, Mr Madhuku for the seventh respondent, submitted that the point was of no moment. He argued that the cases cited were not relevant to the issue before the court. He submitted that the Ariston Management Services Limited case involved an affidavit which had no date at all. Counsel further submitted that there was no statutory basis for requiring that a commissioner of oaths must endorse the date on which an affidavit was commissioned in his own hand. Mr Madhuku further submitted that at any rate, the point was not raised in the answering affidavit and the seventh respondent had been ambushed. The point concerning the validity of the seventh respondent’s opposing affidavit was one on a point of law. It is trite that a point of law can be raised at any stage of the proceedings, and any conceivable prejudice to the party against whom it was raised could be remedied by a postponement of the matter to allow the aggrieved party time to study the legal issue and respond. The court would have readily acceded to a request for the postponement of the matter to allow counsel for the seventh to prepare and respond to the point. No such request for a postponement of the matter was made on behalf of the seventh respondent. The fate of an affidavit with a computer-generated date has already been sealed by the judgments of the superior courts. The Mandishaya v Sithole judgment was handed down by two judges of this court sitting on appeal. At page 2 of the judgment, the court held as follows: “An affidavit is a written statement made on oath before a commissioner of oaths or other person authorised to administer oaths. The deponent to the statement must take the oath in the presence of the commissioner of oaths and must append his or her signature to the document in the presence of such commissioner. Equally the commissioner must administer the oath in accordance with the law and thereafter must append his or her signature onto the statement in the presence of the deponent. The commissioner must also endorse the date on which the oath was so administered. These acts must occur contemporaneously.” (Underlining for emphasis). The dictum in the Mandishaya case was also followed in the Twin Castle Resources matter in which the court had to deal with an affidavit bearing a date that was computer generated. Having recited the above dictum in the Mandishaya case, the court also upheld the preliminary point that that there was no valid opposing affidavit before it because the opposing affidavit bore a computer-generated date. In the Ariston Management Case, the court had to deal with the fate of an affidavit that was undated. Counsel for the respondent relied on the Mandishaya judgment in arguing the point that the appellant’s affidavit in the court a quo was invalid. In upholding the preliminary point, the court held as follows at pages 2-3 of the judgment: “In the Mandishaya case the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say that the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously. The reason behind that requirement is for the court to be satisfied that the oath was administered at a given date in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law. The court a quo was bound by the Mandishaya judgment being a judgment of the two Judges. Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law. We do not agree with Mr Magwaliba for the appellant, with his argument that the judgment was wrongly decided.” I associate myself with the views of the learned judges in the above judgments on the point of the validity of an affidavit bearing a computer-generated date. I also accept the submission by the applicant’s counsel that in the Ariston Management Case, the Supreme Court endorsed the ratio decidendi in the Mandishaya judgment. I find no reason to depart from the position of the law as espoused in the above authorities on the validity of affidavits bearing computer generated dates. The seventh respondent’s opposing affidavit must therefore suffer the same fate. The affidavit bears a computer-generated date, and this court cannot safely conclude that the commissioner’s oath was administered in the presence of both the deponent and the commissioner. The seventh respondent’s opposing affidavit is defective and it stands to be struck out. Whether the applicant is entitled to the relief that it sought The applicant’s counsel submitted that the application must be treated as unopposed once the seventh respondent’s opposing affidavit was struck out. The striking out of the seventh respondent’s opposing affidavit is not the end of the matter. The mere fact that a matter is unopposed does not necessarily mean that whatever relief is sought by an applicant must be granted by the court. The court must be satisfied with the competency and the lawfulness of the order that it is being implored to grant before it accedes to that request. During the oral submissions, I requested both counsels to address me on both the preliminary points and merits of the matter. During their addresses on the merits, the court invited counsel to address the court on whether there were no disputes of fact that were evident in the matter in view of the nature of the dispute and the unknown number of illegal settlers that were likely to be affected by the eviction order sought by the applicant. Both counsels agreed to file supplementary submissions dealing with the question of the disputes of fact. At the time of preparing this judgment, only the applicant’s counsel had filed supplementary submissions on this point. Counsel for the applicant submitted that there were no material disputes of fact that could incapacitate the court from disposing of the matter on the papers. Counsel referred to the order that I had granted in the applicant’s favour on 7 June 2024, after the seventh respondent had failed to file its opposing papers following several requests for the postponement of the matter that had been made at its request. That order was however set aside by Zhou J on 31 July 2024. My earlier order was therefore of no significance as it was essentially a default order that had been granted without regard to the merits of the relief sought by the applicant at that stage. In its supplementary submissions, the applicant averred that it was also seeking an interdict, and it had satisfied the requirements of that relief. The interdict is what the applicant was granted on an interim basis on 27 October 2022. A perusal of the draft order before the court shows that the applicant is not even seeking the confirmation of the interdict that was granted on the said date. The draft order sets out the relief sought as follows: “IT IS ORDERED THAT: Application be and is hereby granted.The Respondents and all those claiming occupation through them shall forthwith vacate the geographical area reserved for open spaces and institutions as per the Proposed Subdivision of Lot 14 Spitzkop, Tracing Number ME-E692 together with all their goods and chattels within 48 hours of service of the order and failing which, the Sheriff and such officers of the Zimbabwe Republic Police as he may require shall eject the Respondents aforesaid with all persons claiming occupation through them from the property.The Respondents and all those claiming occupation through them shall remove all illegal structures erected at the geographical area reserved for open spaces and institutions as per the proposed subdivision of Lot 14 Spitzkop, Tracing Number ME-E692, failing which the Sheriff and such officers of the Zimbabwe Republic Police as he may require shall remove all the illegal structures at the property.The officers of the Zimbabwe Republic Police be and are hereby authorized to arrest anyone who occupies or carry out construction work at the geographical area reserved for open spaces and institutions as per the proposed subdivision of Lot 14 Spitzkop, Tracing Number ME-E692.The Respondents shall pay costs of suit on a higher scale.” The application before the court was clearly one for the eviction of the respondents and had nothing to do with an interdict. This is clear if one considers the following. The cover page of the application describes it as an “URGENT CHAMBER APPLICATION FOR EVICTION.” In paragraph (8) of the founding affidavit, under the heading “NATURE OF THE APPLICATION”, the applicant stated that: “The present application is for eviction made on an urgent basis as the matter cannot wait.” In paragraph (10) of the same affidavit, the applicant proceeded to set out the requirements of such an application, being that the applicant was required to establish that it was the owner of the property or oversaw the property and that there was illegal occupation taking place. The mere fact that the applicant approached the court for eviction on urgent basis made the application incompetent. One cannot approach the court seeking a provisional order for eviction. Eviction matters are dealt with pursuant to ordinary court applications or the action procedure. If the applicant felt that the matter was urgent and could not wait, then it ought to have petitioned the court to grant an interdict to restrain the alleged illegal acts pending the application for eviction. Regrettably, as already observed, the applicant’s founding affidavit did not plead a case for a restraining order, but rather it pleaded a case for the eviction of the respondents from the land. Further, if the applicant considered the matter to be so urgent that it had to be heard without delay, then it could have still approached the court through an urgent court application for the eviction matter to be heard and determined on an urgent basis. An urgent court application is for all intents and purposes a court application which the court reckons must be heard on an urgent basis. It retains all the characteristics of an ordinary court application save for the truncation of the time limits within which pleadings must be filed and the hearing of the matter on an urgent basis. As already stated, even assuming that the applicant had petitioned the court to confirm the provisional order in which the applicant was granted an interdict, the court would have declined to confirm the provisional order on the basis that the applicant did not set out a case for an interdict in its affidavit. In fact, the applicant was not even entitled to a provisional order for an interdict because it had not even pleaded a case for that kind of relief on an interim basis. The applicant’s case as pleaded in the founding affidavit was one for eviction. In para 30 of the founding affidavit, the applicant even remarked that: “I aver that the Applicant has managed to satisfy all the requirements for eviction and that the applicant must be granted.” That statement clearly demonstrates that what the applicant had in mind was the eviction of the respondents from the land on urgent basis. Having determined that the application was one for eviction, the next issue is whether the applicant made out a case for the eviction of the respondents from the said land. As noted already, the draft order seeks the eviction of the respondents and all those claiming occupation through them. That kind of wording makes the draft order too generic and open ended. From a reading of the founding affidavit, it is clear that the first to third respondents are artificial persons. It was not even averred that these three respondents were in occupation of the land. The fourth to sixth respondents are natural persons. Their addresses for service were given as Lot 14 Spitzkop, Farm 6, Harare. The area that the eviction had to be carried out was described in the draft order as: “the geographical area reserved for open spaces and institutions as per the proposed subdivision of Lot 14 Spitzkop, Tracing Number ME-E692”. The same relief was also sought against the seventh respondent following its joinder to the proceedings. It was not even alleged that the first six respondents were in occupation of that area. The applicant’s case was that the said respondents sold or facilitated the sale of land to illegal settlers who had occupied the said open spaces. From a reading of the founding affidavit, the applicant’s complaint was about the illegal land settlers or illegal occupants who were illegally settled on the alleged open spaces by the respondents. It was not averred that any of the respondents cited herein was in occupation of the said open spaces. The illegal settlers who were the targets of the eviction claim were not identified or cited, and they are not therefore before the court. The order sought was therefore too broad and generic to the extent that it did not identify the people who were allegedly in occupation of the open spaces which were reserved for other purposes other than residential development. In para 22 of the founding affidavit, the applicant claimed that its engineering personnel which had visited the land for purposes carrying out the survey processes, was violently chased away by certain people who claimed to have bought stands on the land in question. In para 23 of its affidavit, the applicant further claimed that on 4 September 2022, its internal legal department visited the property in the company of members of the Zimbabwe Republic Police and addressed “the people who illegally settled on the mentioned pieces of land”. The pieces of land referred to were the open spaces which were reserved for other purposes, other than residential development. It was not alleged that any of those illegal settlers were the respondents cited herein. The illegal settlers were not individually identified save to refer to them by the generic terms “illegal settlers” or “illegal occupants”. For the foregoing reasons, the court is hamstrung to grant the eviction order sought by the applicant even though the application stands unopposed. The very nature of the claim and the circumstances that occasioned the institution of the present proceedings militated against approaching the court through the application route. This is one typical case which required the court to conduct an inspection in loco to verify the alleged illegal occupations and the exact location of the open spaces where the illegal occupations occurred. The applicant was required to identify the people who illegally settled themselves on its land before approaching the court with the eviction claim. In the final analysis the court determines that the application is not properly before the court and it cannot succeed. Not only was the application made on the wrong premise, but the relief sought was too generic and incompetent to be enforceable even if it was granted. Resultantly it is ordered that: The provisional order granted by this court on 27 October 2022 is hereby discharged. The applicant’s application is hereby struck of the roll for being incompetent. There shall be no order as to costs. Musithu J:……………………………………………………………………… Jiti Law Chambers, legal practitioners for the applicants Lovemore Madhuku Lawyers, legal practitioners for 7th respondent 4 HH 309-25 Case No HCH 7218/22 4 HH 309-25 Case No HCH 7218/22 VEVHU RESOURCES (PRIVATE) LIMITED versus VEVHU DEVELOPMENT MARKETING COMPANY (PVT) LTD and NIFS MARKETING COMPANY and THE TRUSTEES FOR THE TIME BEING OF EVERSHINE HOUSING DEVELOPMENT TRUST and GILBERT MUCHADENYIKA and TAFADZWA KAMBARAMI and ARTWELL TIGERS and ARISE SPITZKOP RESIDENTS’ ASSOCIATION LOT 12 AND 14 HIGH COURT OF ZIMBABWE MUSITHU J HARARE: 24 March 2025 & 19 May 2025 Opposed Application-confirmation of a provisional order and eviction Mr A Mutima, for the applicant Mr L Madhuku, for the 7th respondent MUSITHU J: The applicant approached the court for the confirmation of a provisional order granted on 27 October 2022. The provisional order was granted pursuant to an urgent chamber application for the eviction of the first to sixth respondents from a piece of land described in the papers as the geographical area reserved for open spaces and institutions as per the Proposed Subdivision of Lot 14 Spitzkop, Tracing Number ME-E692 (the land). The seventh respondent was joined as an interested party midway in the proceedings, after the provisional order was granted. The said provisional order interdicted the respondents and all those claiming occupation through them from carrying out any construction activity or operating brick moulding businesses on the structures that were already built on the geographical area reserved for open spaces and institutions in terms of the above-mentioned proposed subdivision of Lot 14 Spitzkop. Background to the Applicant’s Claim The applicant is involved in land development through designing, engineering, procurement, financing and development of requisite infrastructure. The applicant applied to the then Ministry of Local Government, Public Works and National Housing (the Ministry) for land for housing development in respect of 348.68 hectares of land on Stateland known as Lots 12 and 14 Spitzkop in Zvimba District. The applicant then entered into a Memorandum of Agreement with the Government of Zimbabwe on 27 June 2019 in connection with the said land. In terms of the agreement, the applicant was to develop the land with the Ministry facilitating the process. The title of the land remained with the Government of Zimbabwe while the applicant took charge of the property after paying for the intrinsic value of the land. Sometime in 2015, the applicant entered into marketing agreements with the first to third respondents. In terms of the marketing agreements the first to third respondents were to act as the agents of the applicant for purposes of advertising the stands to prospective buyers so that once a certificate of compliance was issued, the applicant would quickly sell the stands. The marketing agreements were terminated in August 2017, and the said respondents ceased to be agents of the applicant. Notwithstanding the termination of their mandate, the first to third respondents continued to masquerade as agents of the applicant and started to allocate stands, particularly on areas that were reserved for institutional developments and open spaces. It was also averred that the fourth to sixth respondents got involved in the illegal allocation of land and started settling unsuspecting individuals on land that was never intended for residential purposes. Between August 2022 and October 2022, the applicant’s personnel visited the land intending to carry out the survey processes, but were chased away by people who claimed to have purchased stands on the said land. The illegal settlers started to construct temporary and permanent structures. Such structures were illegal because they were in violation of the subdivision permit issued to the applicant. Other illegal settlers had also started the production of bricks and other building materials. In view of the illegal occupations that were taking place, it was going to be difficult for the applicant to complete the development process within the period prescribed in the subdivision permit. Failure to comply with the subdivision permit was likely to result in the revocation of the permit by the relevant authorities. If the illegal occupants were not evicted urgently, they would continue to frustrate the development process which was subject to limited timelines. Further, allowing the continued illegal occupation of the property would be tantamount to sanctioning an illegality, which would in turn result in huge costs to the applicant as it would need to destroy the illegal structures at some point. The confirmation of the provisional order was only opposed by the seventh respondent with the rest of the respondents electing not to oppose the application. The Seventh Respondent’s Case The opposing affidavit was deposed to by Clifford Mashiri, who did not state in what capacity he was deposing to the affidavit on behalf of the seventh respondent. The affidavit raised two preliminary points. The first was that there was a fatal misjoinder in that the applicant had not cited the Ministry which was allegedly the owner of the land in dispute. The second point was that the applicant approached the court with dirty hands. This was because the applicant had violated an interdict granted by this court which barred it from carrying out developmental works on the disputed land. As regards the merits, it was alleged that the land in dispute was sold to the seventh respondents’ members as far back as 2011. Construction on the alleged piece of land had started as far back as 2017 and not in 2022 as alleged by the applicant. It was also averred that while the applicant had a membership of about 3 000, about 7 000 people had since settled on the land. The deponent further averred that the seventh respondents’ members were not claiming occupation through any of the respondents, but through the applicant itself. This was because the applicant sold State land to the seventh respondent’s members and it continued to do so. It was also averred that the applicants’ members were made to pay for administration fees, allocation fees and some monthly instalments in connection with the land from as far back as 2011. The first respondent which was an agent of the applicant, was accused of selling State land and making the applicants’ members pay for the land intrinsic value. The first respondent did so without an approved lay out plan or clearance from the Ministry. The seventh respondent denied the allegation that there was an illegal settlement arguing that the applicant condoned the settlements by selling State land to the settlers. The applicant was not the owner of the land, but it abused its agreement with the Ministry and sold State land illegally. The Justice Uchena Commission of Enquiry had also confirmed that the land was indeed State land which the applicant had no authority to sell. The Commission also found that the applicant was allocating land without an approved layout plan. The applicant was accused of collecting payments for the land intrinsic value which it had no mandate to collect from settlers abused the funds. The applicant allegedly allocated State land to the seventh respondents’ members and most of them had paid the required fees. The applicant was now in the process of transferring the same people to the Zvimba Rural District Council where they were required to pay new joining fees. The applicant was further accused of failing to carry out developmental works at Lot 14 for almost 12 years, despite collecting money from the seventh respondent’s members. There were still no roads, water or sewer reticulation systems. The seventh respondent also claimed that the subdivision permit alluded to by the applicant was acquired fraudulently. The provisions of the Regional, Town and Country Planning Act [Chapter 29:12], had not been complied with, and the said permit had since expired. The applicant was also accused of misrepresenting the status of the first to third respondents. The directors of the applicant were also the directors of the first to third respondents. The entities were therefore the same. The first to third respondents had never stopped representing the applicant. If the applicant had indeed terminated their mandate, then it would have long sought legal recourse to stop their illegal acts. In conclusion, the seventh respondent insisted that the settlers that the applicant wanted evicted were allocated stands by the same applicant. The seventh respondents’ members were in occupation of the land by virtue of the allocations made by the applicant. It was the applicant that was responsible for the chaos that it was now complaining about, when in fact it had benefited financially. It was the applicant that had violated the law. The court was urged to dismiss the application with costs. The Applicant’s Supplementary Answering Affidavit The affidavit was filed pursuant to the seventh respondent’s opposing affidavit which had only been filed after the provisional order was granted. The affidavit raised the preliminary point that the opposing affidavit filed on behalf of the seventh respondent bore a computer-generated date, and it was therefore improperly commissioned. That affidavit had to be expunged from the record of proceedings with the application proceeding as unopposed. The deponent dismissed the seventh respondent’s preliminary points asserting that the alleged non joinder of the Ministry to the proceedings was not fatal. The application could still be resolved without the involvement of the Ministry, which was merely a signatory to the Memorandum of Understanding between the parties. As regards the second preliminary point, the court was also urged to dismiss it for being devoid of merit. This was because the court order which the applicant was accused of violating was not even attached to the seventh respondent’s affidavit. Concerning the merits, the applicant insisted that the land in dispute was land which was designated as open spaces for social amenities. It was not designated for residential purposes and so no one could build houses on such land. It was also averred that the seventh respondent had failed to demonstrate how its membership was affected by the relief sought herein. The seventh respondent had also failed to establish its membership in order to demonstrate which of its members were going to be affected by the eviction of the illegal settlers. The applicant also denied selling any of its land to members of the seventh respondent. The applicant denied all the averments made in the seventh respondent’s opposing affidavit arguing that the said respondent had merely opposed the application for the sake of opposing. The applicant further argued that the failure by the seventh respondent to attach its membership list was fatal to its case, as the court would not be expected to guess which of the seventh respondent’s members were going to be affected by the relief sought. The Submissions and Analysis Whether the seventh respondent’s notice of opposition was properly before the court At the commencement of oral submissions, Mr Mutima for the applicant persisted with the preliminary point that the seventh respondent was not properly before the court. The affidavit had a computer-generated date which made it defective. In its supplementary heads of argument, the applicant made reference to several judgments of this court in which the point was extensively dealt with. The cases in point were Twin Castle Resources (Pvt) Ltd v Paari Mining Syndicate & Ors HH 153/21, Mandishayika v Sithole HH 798/15 and Ariston Management Services Limited v Econet Wireless Zimbabwe SC 123/23. In response, Mr Madhuku for the seventh respondent, submitted that the point was of no moment. He argued that the cases cited were not relevant to the issue before the court. He submitted that the Ariston Management Services Limited case involved an affidavit which had no date at all. Counsel further submitted that there was no statutory basis for requiring that a commissioner of oaths must endorse the date on which an affidavit was commissioned in his own hand. Mr Madhuku further submitted that at any rate, the point was not raised in the answering affidavit and the seventh respondent had been ambushed. The point concerning the validity of the seventh respondent’s opposing affidavit was one on a point of law. It is trite that a point of law can be raised at any stage of the proceedings, and any conceivable prejudice to the party against whom it was raised could be remedied by a postponement of the matter to allow the aggrieved party time to study the legal issue and respond. The court would have readily acceded to a request for the postponement of the matter to allow counsel for the seventh to prepare and respond to the point. No such request for a postponement of the matter was made on behalf of the seventh respondent. The fate of an affidavit with a computer-generated date has already been sealed by the judgments of the superior courts. The Mandishaya v Sithole judgment was handed down by two judges of this court sitting on appeal. At page 2 of the judgment, the court held as follows: “An affidavit is a written statement made on oath before a commissioner of oaths or other person authorised to administer oaths. The deponent to the statement must take the oath in the presence of the commissioner of oaths and must append his or her signature to the document in the presence of such commissioner. Equally the commissioner must administer the oath in accordance with the law and thereafter must append his or her signature onto the statement in the presence of the deponent. The commissioner must also endorse the date on which the oath was so administered. These acts must occur contemporaneously.” (Underlining for emphasis). The dictum in the Mandishaya case was also followed in the Twin Castle Resources matter in which the court had to deal with an affidavit bearing a date that was computer generated. Having recited the above dictum in the Mandishaya case, the court also upheld the preliminary point that that there was no valid opposing affidavit before it because the opposing affidavit bore a computer-generated date. In the Ariston Management Case, the court had to deal with the fate of an affidavit that was undated. Counsel for the respondent relied on the Mandishaya judgment in arguing the point that the appellant’s affidavit in the court a quo was invalid. In upholding the preliminary point, the court held as follows at pages 2-3 of the judgment: “In the Mandishaya case the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say that the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously. The reason behind that requirement is for the court to be satisfied that the oath was administered at a given date in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law. The court a quo was bound by the Mandishaya judgment being a judgment of the two Judges. Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law. We do not agree with Mr Magwaliba for the appellant, with his argument that the judgment was wrongly decided.” I associate myself with the views of the learned judges in the above judgments on the point of the validity of an affidavit bearing a computer-generated date. I also accept the submission by the applicant’s counsel that in the Ariston Management Case, the Supreme Court endorsed the ratio decidendi in the Mandishaya judgment. I find no reason to depart from the position of the law as espoused in the above authorities on the validity of affidavits bearing computer generated dates. The seventh respondent’s opposing affidavit must therefore suffer the same fate. The affidavit bears a computer-generated date, and this court cannot safely conclude that the commissioner’s oath was administered in the presence of both the deponent and the commissioner. The seventh respondent’s opposing affidavit is defective and it stands to be struck out. Whether the applicant is entitled to the relief that it sought The applicant’s counsel submitted that the application must be treated as unopposed once the seventh respondent’s opposing affidavit was struck out. The striking out of the seventh respondent’s opposing affidavit is not the end of the matter. The mere fact that a matter is unopposed does not necessarily mean that whatever relief is sought by an applicant must be granted by the court. The court must be satisfied with the competency and the lawfulness of the order that it is being implored to grant before it accedes to that request. During the oral submissions, I requested both counsels to address me on both the preliminary points and merits of the matter. During their addresses on the merits, the court invited counsel to address the court on whether there were no disputes of fact that were evident in the matter in view of the nature of the dispute and the unknown number of illegal settlers that were likely to be affected by the eviction order sought by the applicant. Both counsels agreed to file supplementary submissions dealing with the question of the disputes of fact. At the time of preparing this judgment, only the applicant’s counsel had filed supplementary submissions on this point. Counsel for the applicant submitted that there were no material disputes of fact that could incapacitate the court from disposing of the matter on the papers. Counsel referred to the order that I had granted in the applicant’s favour on 7 June 2024, after the seventh respondent had failed to file its opposing papers following several requests for the postponement of the matter that had been made at its request. That order was however set aside by Zhou J on 31 July 2024. My earlier order was therefore of no significance as it was essentially a default order that had been granted without regard to the merits of the relief sought by the applicant at that stage. In its supplementary submissions, the applicant averred that it was also seeking an interdict, and it had satisfied the requirements of that relief. The interdict is what the applicant was granted on an interim basis on 27 October 2022. A perusal of the draft order before the court shows that the applicant is not even seeking the confirmation of the interdict that was granted on the said date. The draft order sets out the relief sought as follows: “IT IS ORDERED THAT: Application be and is hereby granted. The Respondents and all those claiming occupation through them shall forthwith vacate the geographical area reserved for open spaces and institutions as per the Proposed Subdivision of Lot 14 Spitzkop, Tracing Number ME-E692 together with all their goods and chattels within 48 hours of service of the order and failing which, the Sheriff and such officers of the Zimbabwe Republic Police as he may require shall eject the Respondents aforesaid with all persons claiming occupation through them from the property. The Respondents and all those claiming occupation through them shall remove all illegal structures erected at the geographical area reserved for open spaces and institutions as per the proposed subdivision of Lot 14 Spitzkop, Tracing Number ME-E692, failing which the Sheriff and such officers of the Zimbabwe Republic Police as he may require shall remove all the illegal structures at the property. The officers of the Zimbabwe Republic Police be and are hereby authorized to arrest anyone who occupies or carry out construction work at the geographical area reserved for open spaces and institutions as per the proposed subdivision of Lot 14 Spitzkop, Tracing Number ME-E692. The Respondents shall pay costs of suit on a higher scale.” The application before the court was clearly one for the eviction of the respondents and had nothing to do with an interdict. This is clear if one considers the following. The cover page of the application describes it as an “URGENT CHAMBER APPLICATION FOR EVICTION.” In paragraph (8) of the founding affidavit, under the heading “NATURE OF THE APPLICATION”, the applicant stated that: “The present application is for eviction made on an urgent basis as the matter cannot wait.” In paragraph (10) of the same affidavit, the applicant proceeded to set out the requirements of such an application, being that the applicant was required to establish that it was the owner of the property or oversaw the property and that there was illegal occupation taking place. The mere fact that the applicant approached the court for eviction on urgent basis made the application incompetent. One cannot approach the court seeking a provisional order for eviction. Eviction matters are dealt with pursuant to ordinary court applications or the action procedure. If the applicant felt that the matter was urgent and could not wait, then it ought to have petitioned the court to grant an interdict to restrain the alleged illegal acts pending the application for eviction. Regrettably, as already observed, the applicant’s founding affidavit did not plead a case for a restraining order, but rather it pleaded a case for the eviction of the respondents from the land. Further, if the applicant considered the matter to be so urgent that it had to be heard without delay, then it could have still approached the court through an urgent court application for the eviction matter to be heard and determined on an urgent basis. An urgent court application is for all intents and purposes a court application which the court reckons must be heard on an urgent basis. It retains all the characteristics of an ordinary court application save for the truncation of the time limits within which pleadings must be filed and the hearing of the matter on an urgent basis. As already stated, even assuming that the applicant had petitioned the court to confirm the provisional order in which the applicant was granted an interdict, the court would have declined to confirm the provisional order on the basis that the applicant did not set out a case for an interdict in its affidavit. In fact, the applicant was not even entitled to a provisional order for an interdict because it had not even pleaded a case for that kind of relief on an interim basis. The applicant’s case as pleaded in the founding affidavit was one for eviction. In para 30 of the founding affidavit, the applicant even remarked that: “I aver that the Applicant has managed to satisfy all the requirements for eviction and that the applicant must be granted.” That statement clearly demonstrates that what the applicant had in mind was the eviction of the respondents from the land on urgent basis. Having determined that the application was one for eviction, the next issue is whether the applicant made out a case for the eviction of the respondents from the said land. As noted already, the draft order seeks the eviction of the respondents and all those claiming occupation through them. That kind of wording makes the draft order too generic and open ended. From a reading of the founding affidavit, it is clear that the first to third respondents are artificial persons. It was not even averred that these three respondents were in occupation of the land. The fourth to sixth respondents are natural persons. Their addresses for service were given as Lot 14 Spitzkop, Farm 6, Harare. The area that the eviction had to be carried out was described in the draft order as: “the geographical area reserved for open spaces and institutions as per the proposed subdivision of Lot 14 Spitzkop, Tracing Number ME-E692”. The same relief was also sought against the seventh respondent following its joinder to the proceedings. It was not even alleged that the first six respondents were in occupation of that area. The applicant’s case was that the said respondents sold or facilitated the sale of land to illegal settlers who had occupied the said open spaces. From a reading of the founding affidavit, the applicant’s complaint was about the illegal land settlers or illegal occupants who were illegally settled on the alleged open spaces by the respondents. It was not averred that any of the respondents cited herein was in occupation of the said open spaces. The illegal settlers who were the targets of the eviction claim were not identified or cited, and they are not therefore before the court. The order sought was therefore too broad and generic to the extent that it did not identify the people who were allegedly in occupation of the open spaces which were reserved for other purposes other than residential development. In para 22 of the founding affidavit, the applicant claimed that its engineering personnel which had visited the land for purposes carrying out the survey processes, was violently chased away by certain people who claimed to have bought stands on the land in question. In para 23 of its affidavit, the applicant further claimed that on 4 September 2022, its internal legal department visited the property in the company of members of the Zimbabwe Republic Police and addressed “the people who illegally settled on the mentioned pieces of land”. The pieces of land referred to were the open spaces which were reserved for other purposes, other than residential development. It was not alleged that any of those illegal settlers were the respondents cited herein. The illegal settlers were not individually identified save to refer to them by the generic terms “illegal settlers” or “illegal occupants”. For the foregoing reasons, the court is hamstrung to grant the eviction order sought by the applicant even though the application stands unopposed. The very nature of the claim and the circumstances that occasioned the institution of the present proceedings militated against approaching the court through the application route. This is one typical case which required the court to conduct an inspection in loco to verify the alleged illegal occupations and the exact location of the open spaces where the illegal occupations occurred. The applicant was required to identify the people who illegally settled themselves on its land before approaching the court with the eviction claim. In the final analysis the court determines that the application is not properly before the court and it cannot succeed. Not only was the application made on the wrong premise, but the relief sought was too generic and incompetent to be enforceable even if it was granted. Resultantly it is ordered that: The provisional order granted by this court on 27 October 2022 is hereby discharged. The applicant’s application is hereby struck of the roll for being incompetent. There shall be no order as to costs. Musithu J:……………………………………………………………………… Jiti Law Chambers, legal practitioners for the applicants Lovemore Madhuku Lawyers, legal practitioners for 7th respondent