CHIWESHE
JP: The applicant appeared before a
magistrate charged with contravening s 3 (2) of the Gazetted Land
(Consequential Provisions) Act [Cap 20:28]. He was convicted and sentenced on 6 July 2010
and issued with an order evicting him from the land to which the offence
related.
He appealed against both conviction
and sentence. The appeal is still
pending. The first respondent filed an
application with third respondent for leave to execute the eviction order
pending appeal on the grounds that the appeal had no prospects of success and
that it had been filed for purposes of delay.
Notwithstanding opposition by the applicant, the third respondent
granted the application for leave to execute the eviction order pending appeal.
Displeased by
that turn of events the applicant filed an application to review the decision
of third respondent on the grounds that “the whole process was a gross
irregularity and the consequent order grossly unreasonable to such an extent
that no reasonable court would have come up with the same conclusion.'
In the present application the
applicant seeks an order staying the execution of the eviction pending the
determination of the application for review and subsequently the pending
appeal.
Ms Maphosa for the applicant argued that the magistrate had no
jurisdiction to order execution pending appeal.
She contended that the Magistrate Court Act [Cap 7:10] was silent in granting criminal courts further
jurisdiction to issue orders to suspend or execute pending appeal any judgment
given under criminal law. Section 3 (5)
of the Gazetted Land (Consequential Provisions Act) gives the magistrates court
criminal powers to order mandatory eviction consequent upon conviction. The magistrate is solely conferred with
authority to issue an eviction order. He
is not conferred with authority to subsequently revisit the case and order
execution pending appeal. She argued
further that the magistrate court is a creature of statute and as such its
powers are created and defined by statute.
The court has no inherent jurisdiction and, accordingly, no power to
order execution of its own judgments despite noting of an appeal. After the magistrate has given an order, he
becomes “functus officio”. The general principle, argues the applicant,
is that once the court has announced its final judgment or order, it has itself
no authority to correct, alter or supplement such judgment or order. It thereupon becomes “functus officio”, its jurisdiction having been fully and finally
exercised, its authority over the subject matter ceases. In support of these averments the applicant
cited authorities such as: Nyaguwa v
Gwinyayi 1981 ZLR p 25, ANZ Pvt Ltd
vs Minister of State for Information and Publicity and ors 2005 (1) ZLR 222
(5) and Kassim v Kassim 1989 (3) ZLR
234.
The applicant avers that the
magistrate, (third respondent) had misdirected himself in stating that he had
been conferred with jurisdiction by virtue of an implied authority stemming
from the provisions of s 3 (5) of the Gazetted Land (Consequential Provisions)
Act. The third respondent was of the view
that the legislature could not have intended to authorize him to issue the
eviction order without impliedly conferring authority to issue subsequent
orders to effect such eviction. The
applicant argues that the third respondent grossly misinterpreted the law with
regards jurisdiction. He must work
within the four corners of the enabling Act – he cannot go beyond the
prescribed limits without specific enabling statutory provisions. Citing the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) the
applicant argued that “there was a presumption against alteration in the common
law by statute law, unless the words of the statute are plain and unambiguous
and an intention to alter the common law is evident from the wording of the
enactment”. Presently, it was argued,
there is no such wording at all in the enabling Act, plain or unambiguous.
Nothing at common law or in the
legislation concerned supports the notion of implied jurisdiction. Therefore, it is argued, the decision of the
third respondent to order eviction pending appeal was a nullity.
Further,
the applicant argues that the position at common law is that a court which does
not have inherent jurisdiction cannot issue orders for the execution of its own
judgments pending appeal. The civil
magistrates court is conferred by s 40 of the Magistrates Court Act with
specific authority to issue an order of execution pending appeal. Nothing in the Magistrates Court Act [Cap 7:10] extends the same jurisdiction
to a criminal magistrate's court.
Further,
argues the applicant, the High Court has issued out several declaratory orders
to the effect that in these cases, where in terms of s 63 of the Magistrates
Court Act, an order has been suspended by virtue of the noting of an appeal,
that order, consequent to a conviction, shall remain suspended until the appeal
has been disposed of. The following
cases were cited in this regard: Mupinge
Farms Pvt Ltd vs The Attorney – General HCH 5682/08, Chiriga vs The Attorney – General HCH 502/2010, Fordham v Minister of Lands HCH 4629/2010.
In
terms of s 63 of the Magistrates Court Act, any order that does not relate to
the punishment of imprisonment or a fine, shall be suspended upon the noting of
an appeal, further avers the applicant.
In
addition, the applicant says that in terms of SI 21/2009 the maximum monetary
jurisdiction of a civil magistrates court is pegged at $2 000.00. Therefore, even if the third respondent, a
criminal court, were to qualify as a civil court, it would not have had
jurisdiction to order eviction with regards to a property whose value is well
in excess of the given monetary jurisdiction.
Accordingly,
says the applicant, the third respondent's eviction is a nullity for want of
jurisdiction. Further, at the time third
respondent sat to grant leave to execute, the matter was already pending before
a superior court by way of appeal and review.
The same issues were pending to be dealt with before the High Court.
The
respondents have opposed this application.
The first respondent stated that the applicant was prosecuted for
refusing to vacate state land in terms of s 3 (2) of the Gazetted Land (Consequential
Provisions Act). Mr Zvekare (for the first respondent) argued that because the
applicant had no lawful authority to occupy State land, he was properly
convicted and sentenced. The eviction
order pursuant to that conviction was issued in terms of s 3 (5) of that
Act. This provision, it was argued, incorporates
civil processes into what is otherwise a criminal matter. Accordingly the process created under s 3 may
be described as being “ Sui Generis”
in that both the criminal and civil process apply in terms of that section –
hence the conviction and sentence representing the criminal element and the eviction
representing the civil element. This
fusion is a creature of statute argued the first respondent. Of necessity the court, upon conviction and
sentence, must in addition, issue an eviction order. Further, it would be an absurdity if the
criminal court so issuing such orders were to be precluded from enforcing the
same. It was the first respondent's view
that the appeal lodged by the applicant against the conviction and sentence had
no merit or prospects of success and that it constituted abuse of court process,
having been filed for purposes of delay.
It was argued that none of the applicant's rights had been
violated. On the contrary it is the
right of the State and that of the fourth respondent which had been violated. The purpose of these prosecutions, argued the
first respondent, is to create vacant possession for the land reform programme
and ensure the success of that programme. The applicant is instead clinging on to the
land by whatever means even if his position is no longer legally tenable. The magistrate, contrary to the applicant's
assertions, is not correcting his order or altering it nor is he supplementing
it. What the magistrate is doing in this
case is to give effect to the order that he has made.
The
first respondent further argued that the magistrate court has no inherent
jurisdiction and that therefore the authorities cited by the applicant are irrelevant. Rather, the correct position is that the
magistrate's jurisdiction in cases such as the present derives from s 3 (5) of
the Act in question. The provisions of s
3 (5) are peremptory – the court shall issue an order to evict the person so
convicted.
The
application for leave to execute pending appeal can only be entertained by the
trial court. At that stage it alone is
privy to the merits of the case and therefore best placed to entertain such an
application. In the instant case the
magistrate considered the merits of the case and agreed with the first
respondent that the appeal was frivolous and that the reason for appeal was to
extend the illegal occupation of State land by the applicant. It was argued that the magistrate's order was
legally competent and not a nullity as contended by the applicant.
The
first respondent also contends that this application is not urgent because the
applicant does not have any right to the
land in question as such had become the property of the State by operation of
law. The applicant has neither permit,
offer letter nor lawful authority to occupy State land. Any other defence that he might have had was
ventilated before the magistrate in a full trial and properly dismissed. The State must be allowed now to exercise its
full authority over the land in question.
The balance of probabilities clearly favour the State and the
beneficiaries to whom it has allocated the land, argued the first respondent. The applicant is at liberty to pursue the
matter by way of appeal or review but because there is a court ruling to the
effect that he has no lawful authority to occupy this land, the issue no longer
merits urgent attention. Further, the
application for review is likely to be heard soon. By bringing the present application, the
applicant wants the present judge to determine the application for review and
the appeal prematurely. That is an abuse
of court process.
Mr
Dodo represented the second, third and
fifth respondents. He argued that the
applicant must first comply with the magistrate's order of eviction before
approaching this court. Since the applicant has approached this court with
dirty hands, he should not be heard. He
further stated that the monetary jurisdiction for magistrates as may be
prescribed from time is not relevant to cases under s 3 (5) of the Act as that
section confers unlimited monetary jurisdiction with respect eviction orders.
The
fourth respondent stated that he is the holder of an offer letter relating to
the land in question. He is authorized
to move onto the farm. So far he has
moved onto the fields without hindrance.
He expects the applicant to move out of the farm.
The
thrust of the applicant's argument is that while conceding that the provisions
of s 3 (5) of the Act empower the magistrate to issue an eviction order upon
conviction, the Act does not further empower the magistrate with authority to
revisit the case and entertain an application for execution of that order
pending appeal .
Subsection
(5) of s 3 reads as follows:
"A court which has convicted a
person of an offence in terms of subsection (3) or (4) shall issue an order to
evict the person convicted from the land to which the conviction relates.”
Does this provision exclude the
power to execute the magistrates' own orders given in terms thereof? In the absence of any provision to the
contrary the power to grant such orders includes the power to execute them. In this regard the magistrate court is
empowered to execute its own judgments by virtue of the general provisions of the Magistrates Court Act [Cap 7:10]which provisions remain
relevant notwithstanding the fact that the magistrate is dealing with a matter
prescribed under a different statute, namely the Gazetted Land (Consequential
Provisions) Act
The noting of an appeal in the
absence of any provisions to the contrary suspends the execution of the
order. In my view where the trial court
is of the opinion that the appeal has no prospects of success and that it is
being lodged only for purposes of delay, it may order execution of the order
pending appeal. Once it is accepted that
in terms of s 3(5) the magistrate has the jurisdiction to give the order he
gave and that jurisdiction of necessity includes the power to execute the
orders so granted, it must also be accepted that where an appeal is lodged or
indicated, the magistrate may of his own accord or upon application, order
execution pending appeal if he is of the view that the appellant's grounds of
appeal are frivolous and without merit.
The provisions of s 40 (3) of the Magistrates Court Act are clear. I agree therefore with the magistrate when he
contends that the powers to order execution flow and follow from the powers
conferred upon him to grant such orders in the first place. These powers are exercisable throughout the subsistence
of such order. Where at law the
execution of such order may have been suspended by the noting of an appeal, the
magistrate retains the discretion to order execution despite the noting of the
appeal if he is satisfied that the appeal has been noted for purposes of delay.
Section 3 (5) refers to “any
court”. It does not distinguish between
superior and subordinate courts, the former being of unlimited or original jurisdiction. Thus the powers given under s 3 (5) apply
with equal efficacy, regardless of the level of jurisdiction of any such court
as provided for in any other legislation.
The provisions of s 3 of the Act
include both criminal and civil processes.
The criminal function, in the event of a conviction, automatically and
peremptorily leads to the eviction of the convicted person. Whilst this arrangement may appear novel, it
is certainly one that was intended by the legislature to deal with a rampant
mischief – that of former owners of Gazetted land who refuse to vacate such
land to give way to State programmes.
The prosecution in terms of s 3 serves both as a judicial inquiry as to
whether the accused has any rights to the land in question, and if not, as punishment
for refusal to vacate Gazetted Land. And
in the same trial an eviction order, in itself a civil remedy, will ensue upon
conviction.
None
of the criminal and civil processes in the section are themselves novel. What maybe new is the fact that a single
court is involved in both civil and criminal processes in one sitting and may
mete out both criminal and civil sanction.
But even that is not entirely unheard of. There have been statutory provisions in which
the criminal courts, on conviction, are mandated to give both a criminal
sentence and, in addition, a civil remedy such as forfeiture, seizure,
restitution, compensation and now evictions.
The applicant argues that a
magistrate criminal court has no jurisdiction to grant a civil remedy such as
eviction. And even if, according to the
applicant, such criminal court were to put itself in the shoes of a civil court,
it still would not have jurisdiction to order execution pending appeal as the
monetary value of the land or the occupation concerned far exceeds the monetary
jurisdiction of the magistrate civil court.
I think it is misleading to conceive the magistrate court as two
separate entities – a civil court and a criminal court. The correct position is that the magistrates
court is one entity endowed with both civil and criminal jurisdiction. The jurisdiction of the magistrate court in
civil cases is provided for under s 11 of the Magistrates Court Act [Cap 7:10} whilst the jurisdiction of the
court in criminal matters is provided for under s 49 of that Act. There is no provision that says a magistrate
cannot, in an appropriate case, exercise elements of both his civil
jurisdiction and his criminal jurisdiction where the enabling Act so
directs. Further, it is important to
bear in mind that the jurisdiction of a magistrate is conferred by the
Magistrates Courts Act “and any other enactment.” There is no provision that says that a
magistrate cannot combine, in an appropriate case, the jurisdiction conferred
upon him by the Magistrates Court Act and that conferred by any other
enactment.
Section 40 of the Magistrates Court
Act for instance deals with appeals.
Subsection (3) thereof reads”
“(3) Where an
appeal has been noted the court may direct either that the judgment shall be
carried into execution or that execution thereof shall be suspended pending the
decision upon the appeal or application.”
In
the present case, the magistrate's decision is supportable on the basis of this
provision. The question of lack of
monetary jurisdiction does not arise as that is covered by the provisions of s
3 (5) of the Gazetted Land (Consequential Provisions) Act in terms of which the
trial proceeded. The magistrate's
jurisdiction to issue an eviction order is, in terms of that Act, founded upon
the conviction, not upon the monetary value of the land or occupation in
question. The magistrate is directed to
issue an eviction order upon conviction.
No reference is made to his monetary jurisdiction nor is there a
provision that says he can only issue such an order “subject to the
jurisdiction conferred upon him by the Magistrates Court Act.” To interpret the position otherwise would
lead to a glaring absurdity. The
legislature could not have intended to limit the jurisdiction of the magistrate
to property whose value does not exceed $2 000.00. If that were the case, given the size and
value of the properties that the legislature must have intended to target, no
eviction orders would ever be issued on the authority of a magistrate. Such an interpretation is not only at
variance with the intention of the legislature (so clearly expressed in
language so plain and unambiguous) but would defeat the whole purpose of the
object of that section. Indeed, what is
being proposed is that such eviction orders are only tenable at the High Court,
it being a court of unlimited jurisdiction.
I am unable to agree with that proposition. Not only would the High Court be faced with a
serious backlog in view of the magnitude of the land acquisition programme, but
the process of acquisition itself would be rendered ineffective as a result.
The
legislature, in its wisdom, has empowered “any court” including the magistrates
court (whose physical presence throughout the country is much more widespread
than that of the High Court) to be the vehicle through which the provisions of
s 3 of the Gazetted Lands (Consequential Provisions) Act shall be
executed. If the legislature had
intended otherwise, appropriate provision would have been made.
I am therefore of the view that the
third respondent had jurisdiction to entertain the application to execute the
eviction order pending appeal and to determine the fate of such application.
Accordingly it is ordered that the
application be and is hereby dismissed with costs.
Sawyer & Mkushi, applicant's legal practitioners
Attorney General' Office, legal practitioners for the first
respondent
Civil division of the
Attorney General's Office, legal practitioners
for the 2nd , 3rd and 4th respondents
