BHUNU:
J: The applicants are husband and wife. The couple was issued with a joint
offer letter on 29 November 2010 in respect of a certain piece of agricultural
land known as the whole of Enondo in the district of Seke, Mashonaland East
Province measuring approximately 763 hectares in extend. That land was
previously held by the first respondent under deed of transfer 5199 / 82. The second
respondent is the resident manager at the farm.
The
land has however since been lawfully acquired and is now state land. It was gazetted for rural resettlement on 3
of September 2004 in terms of section 16B of the Constitution.
Following
receipt of the offer letter the applicants approached the first two respondents
in February this year with a view to take over occupation of the disputed land.
Both respondents refused to vacate the land. The applicants then approached the
magistrates' court on the advice of their erstwhile lawyers seeking an eviction
order.
The
Magistrates court quite correctly in my view, declined jurisdiction prompting
the applicants to appeal to this Court for an order compelling the magistrate's
court to hear and determine the matter. Eventually they however realized the
futility of their appeal and withdrew the same.
The
date of withdrawal is in dispute. The applicants say that they withdrew their
appeal on 28 June whereas the respondents claim that the withdrawal was only
done on 29 June 2011.
The
applicants then lodged this urgent application seeking the same relief as they
had previously sought in the magistrates' court. The first two respondents
initially challenged the application on two preliminary issues.
Firstly,
that the matter is pending on appeal in this Court. Upon being shown the notice
of withdrawal that was properly served on the respondents' erstwhile lawyers
counsel altered her position to argue that the applicants' papers were not in
order because they filed their papers in this Court a day before withdrawal
Previously
the applicants were represented by legal practitioners at the magistrates'
court but were self actors when they approached this Court. I am of the firm
view that r 4C was crafted to avoid slavish adherence to the rules or procedure
in order to do simple justice between litigants particularly where one party is
unrepresented. The rule provides that:
“4C Departure from rules and directions as
to procedure
The Court or
judge may, in relation to any particular case before it or him, as the case may
be-
(a)
direct, authorize or condone a departure from any
provision of these rules including an extension of any period specified
therein, where it or he, as the case may be, is satisfied that the departure is
required in the interests of justice.
(b)
Give such directions as to procedure in respect of any
matter not expressly provided for in these rules as appear to it or him, as the
case may be, to be just and expedient.”
Undoubtedly
this is a proper case for the Court to extent its indulgence and hold that
regardless of the time of withdrawal there was substantial compliance with the
rules and procedure. Any defects in this respect real or imaginary are
accordingly condoned.
Secondly,
it was argued that the matter is not urgent because the applicants only
approached the first respondents in April after being issued with the offer
letter at the end of November 2010. There were further delays resulting in this
application being filed belatedly on 29 June 2011.
Having
regard to the importance of land disputes, the need to provide order peace and
tranquility and the restoration of legality on the land, there is need to resolve such disputes with a measure
of urgency. In this case it is important to note that the dispute only arose in
February when the respondents refused to vacate the farm.
The
applicant through no faulty of theirs then approached the wrong court. Upon
realizing that they had been misled to pursue the wrong path they dumped their
erstwhile lawyers and personally took urgent remedial action. A perusal of land
cases in this Court will show that the bulk of land cases are dealt with on an
urgent basis.
For
the foregoing reasons I would dismiss the respondents' objections in limine and proceed to determine the
matter on the merits.
I
now turn to determine the matter on the merits by giving a brief ventilation of
the applicable law. Thereafter I shall apply the law to the facts of this case.
Section
16B of the Constitution introduced by amendment number 17 of 2005 had the
effect of immediately acquiring all gazetted land and vesting its ownership in
the acquiring authority. Section 3 of the Gazetted Land (Consequential
Provisions) Act [Cap 20: 28] provides
that once agricultural land is acquired in terms of section 16B of the
Constitution, the former owner or occupier shall cease to occupy, hold or use
such land within 45 days from the date of notification and is confined to the
main dwelling house for a period of 90 days. After 90 days he is required by
operation of law to vacate the gazetted land altogether including the main
dwelling house.
The
section criminalizes the occupation of gazetted land without lawful authority,
that is to say, an offer letter, permit or lease. It also criminalizes failure
to vacate gazetted land in terms of the prescribed time periods.
It
is common cause that both the first and second respondents have no authority to
occupy the land because they are not in possession of an offer letter, lease or
permit authorizing them to occupy the same according to law. The prescribed
time limits upon which they are entitled to be on the farm to wind up their
business have long expired.
On
the contrary it is not in dispute that that the applicants have a document that
purports to be a valid offer letter. Both respondents have indicated that they
intend to challenge the authenticity of the offer letter. The mere fact that
the applicants intend to challenge the offer letter for whatever reason cannot however
authenticate their unlawful occupation of state land.
There
is a presumption that documents executed by government officials are valid
until proven otherwise. The onus is
therefore on the Respondents to prove that the offer letter is invalid. In the
eyes of the law the offer letter which bears the minister's signature is valid
until proven otherwise.
Even
if both respondents were to succeed in proving that the applicants' offer
letter is invalid, that alone cannot authenticate their criminal conduct in
continuing to occupy gazetted land without lawful authority in open defiance of
the law.
The
respondents have indicated that the Minister intends to withdraw the
applicants' offer letter, down size the farm and then share it equally between
the feuding parties. That may very well be so, but until such time that the
minister has executed his alleged intentions mere intentions not backed up by
valid action cannot validate the respondents' unlawful occupation of any
portion of the gazetted land.
It
is pertinent to note that the minister's legal representative Ms. Mashiri has clearly stated before me
that the minister is not opposing the relief sought by the applicants. It is
therefore ridiculous and a misrepresentation of the facts for the first and second
respondents to allege that the minister is agreeable to their continued
unlawful occupation of the disputed land pending the alleged downsizing and
reallocation of the land.
The
legal position governing the above factual position was articulated and
clarified beyond doubt in the recent Supreme court Judgment in Commercial Farmers union and 9 Others v The
Minister Of Lands and Rural Resettlement and 6 Others SC 31/10. In that case the Learned Chief
Justice had this to say” at pages 21 and 23 of the cyclostyled judgment:
“On the other
hand, s 3 of the Act criminalizes the continued occupation of acquired land by
the owners or occupiers of land acquired in terms of s 16 B of the constitution
beyond the prescribed period. The Act is very explicit that failure to vacate
the acquired land by the previous owner after the prescribed period is a
criminal offence. It is quite clear from the language of s 3 of the Act that
the individual applicants as former owners or occupiers of the acquired land
have no legal rights of any description in respect of the acquired land once the
prescribed period has expired.
---
The holders
of the offer letters, permits or land settlement leases have the right of
occupation and should be assisted by the courts, the police and other public
officials to assert their rights. The individual applicants as former owners or
occupiers of acquired land lost all rights to the acquired land by operation of
the law The lost rights have been acquired by the holders of offer letters,
permits or land settlement leases. Given this legal position it is the holders
of offer letters, permits and land settlement leases and not the former owners
or occupiers who should be assisted by public officials in the assertion of
their rights.” (My underlining.)
Thus
the Court would be failing in its duty if it does not assist the applicants in
this respect. In the result the application can only succeed. It is accordingly
ordered:
1.
That first and second respondents and all those
claiming occupation through them be and are hereby ordered to vacate a certain
piece of land in the district of Salisbury known as Enondo B held under deed of
transfer 5199/82 prior to the Land Reform Program within Seven (7) days of the
date of this order.
2.
That the third respondent be and is hereby ordered to
facilitate the occupation of the said farm by the applicants.
3.
The Sheriff or his Deputy be and are hereby authorized
to eject first and second respondents from the said farm should they fail to
comply with the provisions of paragraph one of this order.
4.
The Sheriff or his deputy be and are hereby authorized
and directed to call upon the assistance of the Zimbabwe republic police should
first and second respondents resist eviction.
5.
First and second respondents are to bear the costs of
this application.
Applicants were self actors.
Munangati & Associates, the 1st and 2nd respondents'
legal practitioners
Civil Division of the
Attorney General's office, 3rd
respondent's legal practitioners.
