Zimbabwe: Leengate Booted Out of Rainham Farm, High Court Orders 30 Days to Demolish Structures and Vacate

A prominent land developing company, Leengate (Private) Limited has been ordered by the High Court to vacate within 30 days land in which quarrying operations were taking place at Rainham Farm after it emerged that the company encroached into someone’s property.

Leengate was being sued by Mitchell Corporation Private Limited for encroaching into its Stand No” 643.Mitchell Corporation applied for a summary judgment in an action for eviction and removal of structures.

According to Mitchell Corporation, Leengate or its agents erecting buildings or other structures on their land without any legal right, permission, or lease agreement. Mitchell Corporation sought a summary order for the ejectment of Leengate and anyone claiming through it from the property, as well as the demolition or removal of all structures erected on the land. Leengate wanted the matter to go for a full trial.

The second respondent, Zvimba Rural District Council, is the local authority for the area; it was cited given its administrative interest in the land, though no specific relief beyond its formal citation is sought against it.

Leengate denied having encroached into Mitchell Corporation’ s land and claimed that one LLH Engineering Projects (Pvt) Ltd – is the true occupier/builder on the land in question.

Leengate claimed that the applicant sued the wrong party.Zvimba RDC did not file any opposing affidavit and took a neutral position, indicating it will abide by the Court’s decision.

After hearing parties High Court judge, Justice Joel Mambara ruled in favour of the applicant and ordered Leengate and its agents out before slapping the developer with costs on a legal practitioner-client scale.

The judge said it was noteworthy that Leengate provided virtually no detail about LLH Engineering Projects (Pvt) Ltd apart from naming it as the alleged occupier.

“The opposing affidavit does little more than assert “the structures belong to LLH, not us”. It does not explain the relationship (if any) between the first respondent and LLH Engineering – for example, whether LLH is a completely independent third party that coincidentally built on Stand 643, or perhaps a subcontractor or business partner of the first respondent in the Rainham development project.

“The first respondent did not tender any affidavit from LLH Engineering, nor any documentary proof (such as an agreement, a council lease, or correspondence) indicating that LLH Engineering was authorised by the Council or anyone else to build on Stand 643.

One would expect that if LLH Engineering truly and independently moved onto Stand 643, the first respondent could at least describe how that came about – especially since Leengate itself is involved in development projects in the same locale (indeed, the “Rainham Park” housing development has been linked to Leengate in the background).”The stark absence of any supporting detail or third-party confirmation raises serious doubt about the genuineness of this defence,” said the judge.

Mambara said Leengate’s mere pointing of the finger at a non-party, without more, is arguably the kind of “bald or sketchy” averment that fails to pass muster as a bona fide defence.”It is therefore an appropriate exercise of this Court’s discretion to order costs against the first respondent on the legal practitioner and client scale.

“Such an order ensures that the applicant is more fully indemnified for the legal expenses it incurred due to the first respondent’s conduct, and it serves as a rebuke of the first respondent’s abuse of the court process. “The applicant should not be out of pocket for having to chase a party that had no valid defence and yet refused to concede.

Mambara said the applicant met the requirements for summary judgment, and the first respondent has failed to establish a bona fide defence or triable issue. “The first respondent, Leengate (Private) Limited, and all persons claiming occupation through the first respondent, be and are hereby ejected from Stand 643 Rainham Farm, Zvimba District, Mashonaland West.

“This eviction encompasses the removal of any employees, contractors, agents, or associates of the first respondent, and includes any other entity (such as LLH Engineering Projects (Pvt) Ltd) or persons who occupy the property under or through the authority of the first respondent.”

The first respondent shall, within 30 days of service of this order upon it, remove all structures, buildings, materials, plant, equipment and installations that it or anyone acting on its behalf (or through it) has erected or placed on Stand 643 Rainham Farm.

“The removal shall be carried out safely and without avoidable damage to the land, and the site shall be restored, as far as reasonably possible, to its original condition prior to the first respondent’s occupation,” said the judge.

Mambara also ruled that in the event that Leengate or those claiming occupation through it have not vacated the property or have not fully complied with paragraph 2 within the stipulated 30-day period, the Sheriff of the High Court or his lawful Deputy is hereby authorised and directed to evict the first respondent and any other unlawful occupiers from Stand 643 Rainham Farm.

The Sheriff was further authorised and directed to demolish, dismantle and/or remove any structures or materials remaining on the property that were erected or placed thereon by the first respondent or its agents, and to restore possession of the property to the applicant.

He said the Sheriff may enlist the assistance of the Zimbabwe Republic Police and/or the second respondent (Zvimba Rural District Council) to the extent necessary to carry out this order and ensure compliance in a peaceful and safe manner.The RDC was ordered to cooperate with and facilitate the enforcement of this order to the extent that any administrative action or permission on its part is required.

Suring hearing, in support of its claim, the applicant proved that for instance, in mid-2024 when the encroachment was discovered, communications were exchanged involving the council and the first respondent.Notably, an email dated 15 July 2024 from the Council addressed to the applicant and copied to a representative of the first respondent (one K. Bhunu) – confirmed that a council inspection had found a durawall (boundary wall) built by the occupier of adjacent Stand 179 was indeed encroaching onto the applicant’s Stand 643.

The Council in that email reported the encroachment and indicated that the occupier of Stand 179 had been instructed to rectify the anomaly (remove or realign the wall). The following day, 16 July 2024, the applicant’s legal practitioners sent a letter of demand to Leengate formally complaining of the encroachment.In response, by 27 July 2024, Leengate’s legal practitioners replied in writing – effectively acknowledging the encroachment and proposing a resolution. In that letter Leengate”s lawyers confirmed they also represented LLH Engineering Projects (Pvt) Ltd (a company closely associated with the first respondent) and explained that these two companies held the adjacent Stands 179 and 644, with the applicant’s Stand 643 lying between them.

The letter further indicated that those entities were operating a quarry on Stand 179 and proposed a compromise arrangement: they suggested a re-pegging (boundary adjustment) that would reduce the applicant’s land in order to cure the encroachment, with the first respondent financing the re-survey, or alternatively an outright purchase of Stand 643 from the applicant.

In essence, Leengate at that stage offered to compensate for or eliminate the encroachment by realigning property boundaries or buying the land, implicitly conceding that an encroachment had occurred.

Despite these discussions and the first respondent’s written undertakings to rectify the situation, nothing was actually done on the ground to remove the offending structures or resolve the issue.Rventually, frustrated by the lack of concrete remedial action, the applicant issued summons out of this Court (leading to the present proceedings).

Leengate’s plea to the summons, however, painted a very different picture.In its plea, Leengate denied that it was encroaching on the applicant’s land – offering little more than bare denials – and notably made no mention of LLH Engineering or the earlier communications and admissions.

After the applicant filed this summary judgment application, in its opposing affidavit to the application, Leengate then raised the new defence that LLH Engineering Projects (Pvt) Ltd, not Leengate, was the party responsible for the structures on Stand 643. Court said this shift in position – from tacitly acknowledging encroachment and attempting a compromise, to later denying any responsibility and blaming a third party marred Leengate’s defense.

By 263Chat.