CHIWESHE
JP: Following the acquisition by the
State of the applicant's farm, the parties filed a consent order with this honourable
court under case no HC 308/10 in the following terms:
“It is hereby ordered with the
consent of the parties that:-
- The tobacco on Masasa Plot Lot 2 Lions Head, Rusape,
allocated to second respondent shall be harvested, cured, graded and
removed from the said plot in terms of an agreement to be concluded
between second respondent and Chidziva Tobacco Processors (Private) Limited,
which agreement shall cater for the involvement of applicant and/or his
son, Kirk Voest, with regard to these activities only.
- Applicant shall remove his carpentry equipment, as
set out in the annexure to Case No. HC 308/10, within seven days on
granting of this Consent order.
- All other farming equipment and/or materials shall be
removed from the said plot in accordance with the law.
- Parties to bear their own costs in respect of these
proceedings.”
The consent order was granted on 22 January 2010. The matter should have ended
there. However, the applicant and the second
respondent are unable to agree on the import of para 3 of that order.
The second respondent believes that
the farming equipment and materials have been acquired by the State by
operation of law. The applicant argues
that such is not the case and that the said equipment and materials remain his,
not having been acquired by the State in terms of the Acquisition of Farm Equipment
and Materials Act [Cap 18:23] (“the
Act”)
Miss T. Mashiri, for the first respondent, advises that no steps have
yet been taken to acquire on behalf of the State the said farm equipment and
materials. Mr Dzvetero for the second respondent was adamant that the equipment
and materials had been acquired by the State by virtue of the provisions of s
3, of the Act. However, as pointed out
by the applicant, s 3 provides for the safe keeping of such farm equipment and
materials. It does not relate to its
acquisition by the State.
The process of acquisition must be preceded
by the identification of the equipment or materials in terms of s 4 of the Act and
the evaluation of such equipment or material in terms of s 5 of the Act. It is s 6 of the Act that provides for the
actual acquisition of such equipment or materials by the acquiring authority,
by agreement or compulsorily. In that
regard the acquiring authority must give at least seven days' notice of the
intention to acquire any equipment or materials to the person owning or holding
such equipment or material.
In the present case no such steps
have been taken by the acquiring authority.
The property in question has therefore not been acquired by the
State. I am inclined, however, not to
grant the order sought, the above notwithstanding.
The applicant seeks, in the main, an
order allowing him to remove from the farm the equipment and materials listed
on annexure “B” to this application.
Miss T. Mashiri, for the first
respondent, has indicated from the outset that it is the acquiring authority's
intention to acquire the equipment and
the materials so listed under annexure 'B”.
An order such as the one sought by
the applicant would defeat the object of the intention of the first respondent,
namely, to acquire the equipment in terms of the law and in accordance with
para 3 of the consent order granted on 22 January 2010 under case no HC 308/10.
Accordingly
it is ordered that the application be and is hereby dismissed with costs.
Chigadza & Associates, applicant's legal practitioners
Civil Division of the Attorney General's office, first respondent's
legal practitioners
G.N. Mlotshwa &
Company, second respondent's legal practitioners
