Online Reporter
Fidelis Munyoro
Chief Court Reporter
THE High Court has struck off the roll an application seeking declaratory relief in a land dispute involving Eagle Italian Leather (Pvt) Ltd, the Ministry of Lands, Agriculture, Water, Fisheries and Rural Settlement, and Norbert Njazi against Lowveld Leather Products (Pvt) Ltd and the Registrar of Deeds.
Justice Tawanda Chitapi ruled that the applicants had failed to use the correct legal procedure, seeking a declaratory order instead of addressing a prior court judgment that had already declared ownership of the land.
The judge dismissed the application, ruling it was improperly before the court and ordered it struck off the roll.
In his ruling, Justice Chitapi stressed the binding nature of court decisions, stating, “A declaratur is already in place. The court cannot declare its declaration to be illegal, as the court is entitled at law to so declare.”
He ordered the applicants to cover the costs of the application.
“The costs, which are in the discretion of the court, are appropriate to grant because the facts of the case show that the applicants knew they were unhappy with a default judgment but, for unexplained reasons, sought a declaration as opposed to a rescission.”
The dispute centred on two pieces of land, Mlaiye of Roraima and Clifton of Roraima, held under Deed of Transfer Number 0007727/97.
These properties were the subject of a February 2020 court order issued in Case Number HC 5530/19, which declared the land as solely belonging to Lowveld Leather Products.
The applicants claimed the order had been erroneously granted in default, as key parties were not represented during the proceedings. They argued that the land was State property, protected under the Constitution, and could not be privately owned.
Justice Chitapi referred to the February 2020 judgment as “the elephant in the room.
“The order in Case Number HC 5530/19 is the elephant in the room. An order or decision of a court binds the State and all persons and governmental institutions to which it applies and must be obeyed by them.”
The applicants sought to nullify the February 2020 order through the current application, but Justice Chitapi emphasised that the proper course of action would have been to seek rescission of the default judgment under Rule 27 of the High Court Rules, 2021.
“The second applicant (Ministry) must, if advised, seek the rescission of the judgment. It cannot petition this court to declare that its declaration made in Case Number HC 5530/ . . . be declared to be wrong or invalid. To do so would be unlawful,” Justice Chitapi said.
He also highlighted that Eagle Italian Leather and Njazi were not parties to the 2020 case, but were clearly affected by its outcome.
Justice Chitapi pointed to Rule 29 of the High Court Rules, which allows affected parties to seek correction, rescission, or variation of a judgment.
“The first and second applicants squarely fit into this category,” he said, adding that their failure to follow this procedure rendered the application incompetent.
The judge also criticised the Ministry’s supporting affidavit, stating it had been improperly filed.
He noted that the Ministry should have been cited as the Minister of Lands, Agriculture, Water, Fisheries, and Rural Settlement rather than the Ministry itself.
Justice Chitapi concluded that the application was procedurally flawed and could not succeed. The court struck it off the roll, with costs awarded against the applicants.
Mr Godfrey Gonese, the owner and chief executive of Lowveld Leather Products Pvt Ltd, expressed his relief following the court’s ruling.
He described this decision as a crucial victory against the relentless efforts of businessman Francesco Marconati, an Italian national, and his alleged partner.
For over two decades, said Mr Gonese, they have sought to undermine justice in a desperate bid to delay their eviction from the Clifton and Mlanje areas of Roraima farms.
“The fraudulent takeover has been contested since November 2004”, he said.
