DIANA Catherine Rodrigues, the owner of Spitzkop farm, is demanding the reversal of a judgement by former High Court judge, Justice Webster Chinamhora declaring the farm as an abandoned property.
Rodrigues is up in arms with Spitzkop Farm Residents Association and its representative, Tinashe Mananzva after coming across adverts by Leengate property developers, who are selling upmarket stands on her land.
It emerged that the developer had bought the farm from the residents who had obtained a court order declaring the farm as derelict.
Leengate intends to build a gated community, and a security wall has already been erected at the farm where development is on course.
Rodrigues argues that she never abandoned her farm, she still wants it and was never accorded an opportunity to argue otherwise when an order against her was obtained by residents.
When the matter was heard last Friday, Rodrigues, through her lawyers, told High Court judge, Justice Maxwell Takuva that the judgement should be declared a nullity because it was unprocedurally obtained by the association.
She argued that the association cited Urebai Rodrigues, who was a joint owner of the land which formed the subject of the main suit with her, as a respondent instead of citing the executor of his estate.
The late Urebai Rodrigues was cited as the fourth respondents in the application by the residents' association.
"The fourth respondent is the deceased. The order of the derelict was obtained against a deceased person," said Advocate Thabani Mpofu, who is taking instructions from her lawyer Blessed Ngwenya.
"An application was brought against the fourth respondent who was a part owner.
"Spitzkop brought an application against the deceased as such the proceedings are invalid, they are invalidated because the notice that was brought to the court could not be read by the deceased person.
"Those who dealt with the first matter did not know that the respondent was dead.
"This is a case of judgement granted in error and should be set aside. The executor should be joined to the proceedings.
"A judgement was stolen from the court under fraudulent circumstances where the court was not advised that the respondent was deceased, and this was an abuse of court processes.
"A group of people just took the land from their owners. They say they received it as a gratuity from the former owner, but the former owner had transferred the land to Rodrigues.
"The Rodrigues were not given an opportunity to defend themselves in court in what is a clear abuse of office. The application should be granted," Mpofu said pleading for the revocation of the order.
However, Advocate Tawanda Zhuwarara representing the residents insisted that "the case cannot be a nullity because it's not against the deceased."
Zhuwarara said Rodrigues was the one at fault because her present application also cites Urebai as one of the respondents.
"The court has a nullity before it. The applicant Diana Rodriguez is the one who cites the deceased person as a person who is still in existence," he said.
Zhuwarara also said Rodrigues' founding affidavit does not mention when the deceased died.
"The proceedings should be terminated. From a nullity you cannot find anything. There was no surreptitious granting of the order," he submitted.
Takuva indefinitely reserved his judgement on the matter.
Rodrigues approached the High Court seeking an order against the association, which sold the land to Leengate.
"I am the co-owner of the undivided share in two pieces of land situated in the district of Salisbury called Lot 10A and Lot 11 Spitzkop registered under Deed of Transfer Number 2568/88. See Annexure "C" being a copy of my deed.
"The 1st and 2nd Respondents approached the court alleging that the land was abandoned by its owners and desired to acquire it," she said.
She told the High Court that she became aware of the order against her on August 1, 2024, after she had engaged her lawyers to find out why Leengate was advertising and selling her land.
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Spitzkop, and Mananzva representing the association, had approached the High Court via the chamber book for an order in terms of the Titles Registration and Derelict Lands Act.
She said the process was never served on her.
The record of proceedings also shows that the respondents advertised their provisional and final order in The Herald newspaper relating to a different deed and not Rodrigues.
She also told the High Court that the residents took advantage of Covid-19 to mount an application with full knowledge that the prospects of it going unopposed and unseen by her were high.
She said she wanted to understand how the court issued an order when the application and all adverts related to a different deed.
Rodrigues said she bought the property in question in 1988 together with the late Urebai Rodrigues.
She said it is, therefore, not just for her to lose the property to the respondents who did not spend any money on it.
To this end, she wants the court order by Chinamhora set aside and be declared a nullity.
