This
is a case whose circumstances present the proverbial can of worms or
Pandora's Box scenario, which nevertheless must be opened,
examined, and adjudicated upon, in the interests of justice.
The
question that is exercising the mind of the court is this;
In
what instances would it be proper for this court to exercise its
jurisdiction of ...
This
is a case whose circumstances present the proverbial can of worms or
Pandora's Box scenario, which nevertheless must be opened,
examined, and adjudicated upon, in the interests of justice.
The
question that is exercising the mind of the court is this;
In
what instances would it be proper for this court to exercise its
jurisdiction of judicial review and consider whether agricultural
land which was purportedly identified in terms of the Land
Acquisition Act [Chapter 20:10],
and subsequently listed in Schedule 7 of the former Constitution in
terms of section 16B of Constitutional
Amendment Number 17 of 2005,
was
acquired lawfully - ten years after such 'identification, listing
and acquisition'….,.
This
is a court application in which the applicants seek the following
relief;
“That
it be declared that;
1.
The purported acquisition of Duncanston, Kopje Alleen, The
Beach and Rusfontein by the 1st
respondent is invalid.
2.
The occupation of Kopje Alleen, The
Beach and Rusfontein by the respondents and all those claiming title
through them is illegal…,.”
(d)
The requirements of a declaratur
Section
14 of the High
Court Act [Chapter 7:06]
provides that:
“14
High Court may determine future or contingent rights
The
High Court may, in its discretion, at the instance of any interested
person, inquire into and determine any existing, future or contingent
right or obligation, notwithstanding that such person cannot claim
any relief consequential upon such determination.”
This
is the basis of this court's jurisdiction - to issue a declaratur.
It
is a discretionary remedy which involves a finding by the High Court
as to a person's legal status, rights or obligations. It cannot be
directly enforced.
The
applicants will not be able to use such a declaratur as a cause of
action to evict the second to fourth respondents. The applicants must
show that the second to fourth respondents do not hold valid title
which authorizes them to occupy the farms in question first.
Even
then, it is only the first respondent, the Constitutional current
holder of title in the farms, pursuant to Schedule 7 of the former
Constitution, which can cancel the fourth to sixth respondent's
offer letters and offer the land to the applicants, and issue the
applicants with legally recognized authority to occupy the
agricultural land such as an offer letter, a permit or a land
settlement lease. If the applicants persuade this court to declare
that the acquisition of their farms was contrary to the stipulated
procedure, they would have to approach this court, again, on notice
to the first respondent, for an order de-listing their farms from
Schedule 7. Such an order would be subject to confirmation by the
Constitutional Court, being an order which purportedly alters the
former Constitution in its Schedule 7.
What
remains to be seen is whether the applicants are entitled to the
declaratur
that
they seek.
(e)
The Land Acquisition Act and section 16B (Constitutional Amendment
Number 17 of 2005)
Section
16B(2)(a) as read with section 16B(3)(a) of Constitutional Amendment
Number 17 of 2005 of the former Constitution provided that all land
which had previously been identified for resettlement purposes vested
in the State, with full and unchallengeable title, with effect from
the effective date.
The
case of
Chisvo
& Anor v Peter & Ors
HH23-06
is authority for this proposition, as read with Campbell (Private)
Limited & Anor v the Minister of National Security Responsible
for Land, Land Reform & Resettlement & Anor
SC49-07
and
Commercial
Farmers Union & Ors v The Minister of Lands & Rural
Resettlement & Ors
SC31-10.
The
court in Chisvo & Anor v Peter & Ors
HH23-06
took
time to expound on the procedures which governed land acquisition
before section 16B came into force as follows;
“The
procedures governing the acquisition of agricultural land for
resettlement purposes are presently embodied in Part III of the Land
Acquisition Act [Chapter
20:10].
To a significant extent, these procedures have been superseded by the
provisions of section 16B of the Constitution of Zimbabwe. Section
16B was promulgated and came into force on the 14th
of September 2005. In terms of section 16B(2)(a) as read with section
16B(3)(a), all agricultural land that was previously identified for
resettlement purposes vested in the State, with full and
unchallengeable title therein, with effect from that date.
For
present purposes, however, the Court is seized with events which
occurred well before the enactment of section 16B of the Constitution
and must therefore be guided by the relevant provisions of the Land
Acquisition Act. Section 5(1) of the Act requires the acquiring
authority to give a Preliminary
Notice
of its intention to acquire any land. Section 5(3) enables the
acquiring authority to withdraw any such Preliminary
Notice
at any time.
Section
8(1) empowers the acquiring authority to issue an Acquisition
Order
in respect of any land identified for compulsory acquisition. By
virtue of section 8(3), the effect of an Acquisition
Order
is to immediately vest title of the land concerned in the acquiring
authority, whether or not compensation therefor has been agreed upon,
fixed or paid in terms of Part V or VA of the Act.
In
terms of section 9(1)(b), the making of an Acquisition
Order
constitutes notice, in writing, to the owner or occupier to vacate
the land within 45 days after the order is served upon him and to
vacate his living quarters within 90 days of such service.
Where
the acquisition of the land is challenged, section 7(1) enjoins the
acquiring authority, within 30 days of issuing the Acquisition
Order,
to apply to the Administrative Court for an order confirming the
acquisition. In terms of section 7(4)(b), the Administrative Court
may only confirm the acquisition of rural land if it is satisfied
that the acquisition is reasonably necessary for the utilisation of
that land for, inter
alia,
settlement for agricultural or other purposes.
Also
pertinent is section 10A(1) of the Act which enables the acquiring
authority to revoke an Acquisition
Order
within 6 months after making the order. In terms of section 10A(2),
such revocation must be effected by notice in the Gazette followed by
written notice served on the landowner.”
The
section 5 Preliminary Notice of intention to acquire land was to be
published in the Government Gazette once a week for two consecutive
weeks in the area where the land was situated. It is common cause
that all of the applicants' farms had valid Preliminary Notices
duly gazetted. It is also common cause that the first respondent
sought to confirm the acquisition of Kopje Alleen Farm and Rusfontein
Farm only, and that the applications for confirmation were withdrawn
before the Administrative Court, which ruled that the withdrawal
rendered the section 5 and section 8 notices null and void.
In
terms of section 5(2) of the Land
Acquisition Act [Chapter
20:10],
once a Preliminary Notice had been published, the owner of the land
was not at liberty to dispose of the land or to alienate it without
the permission of the acquiring authority.
So,
on 21 September 2000, when the third applicant purported to acquire
shares in the second applicant, the agreement did not contravene
section 5(2) of the Land
Acquisition Act [Chapter
20:10]
because
the risk and profit passed to the third applicant only when the
purchase price was paid. The evidence on record is that the third
applicant obtained a loan, secured by a mortgage bond over the farms,
to pay for the acquisition of the farms sometime in 2001. It is not
clear whether the purchase price was paid in full as at 2001, in
light of the affidavit of Mr. Firimon
Mvarume,
which
is dated 6 March 2001, and the letter of Mr.
F.
Zimuto,
which
is dated 9 July 2002.
What
is clear from the papers filed of record is that, as at 9 July 2002,
the third applicant owed NMB Bank the sum of USD$39,997,367= in
respect of the 'acquisition costs of the farms and working
capital'. We are not told whether the acquisition costs had been
paid in full. We do know that the Bank
loan was secured by mortgage bonds and that the Bank
had custody of the title deed to the farms. It is not clear when, if
at all, risk and profit in the second applicant passed to the third
applicant. The Management Agreement, in respect of the first
applicant…, presents its own special brand of problems.
The
agreement purports to appoint the first applicant, the owner of
Rusfontein Farm, as its manager and supervisor on 25 October 2001,
for a fee of seven million dollars and payments of US forty thousand
a month from 31 September 2001 to 31 January 2002. There is no doubt,
whatsoever, in my mind that this Management Agreement contravened the
provisions of section 5(2) of the Land
Acquisition Act [Chapter
20:10]
which prohibited the alienation of land which had been identified for
compulsory acquisition by being gazetted.
The
parties hatched an elaborate plot to defeat the purpose of section 5
of the Land
Acquisition Act [Chapter
20:10].
We know this because the parties expressly say so themselves in their
agreement.
Clause
8…,; the first applicant was granted an option to purchase the farm
subject to the condition that 'in the event of the farm being
removed from the list of designated rural land in terms of the Act,
the owner undertakes to take such steps as may be necessary to
transfer the property' to the first applicant, and, in particular,
to obtain a Certificate of No Present Interest as stipulated in the
Regulations.
Clause
8.4 goes on to stipulate that in the event of the farm being
acquired, as specified in the Act, any compensation adjudged to be
payable to the owner under the Act, or any other law, shall be
payable to the first applicant.
The
owner ceded its rights to compensation to the
first applicant.
Although
the wording of the 'Management Agreement' is clever, and on the
face of it appears to comply with the provisions of section 5 of the
Land
Acquisition Act [Chapter
20:10],
it is more probable than not that it was an elaborate scheme designed
to sell Rusfontein Farm to the third applicant and to cede; which is
the same as alienating the rights of the owner in the farm to the
third applicant whilst delicately negotiating the legal minefield and
appearing to comply with the Land Acquisition Act. Cession of rights
is tantamount to alienation or disposal of rights which would have
been contrary to section 5(2)(c) of the Land
Acquisition Act [Chapter
20:10]
in the absence of permission or consent by the acquiring authority.
A
look at section 11 of the agreement between the parties will show how
true this is.
There
was to be no further exchange of remuneration when or if the option
to purchase was exercised, and in the event that the farm was
acquired, the first applicant was to be entitled to any compensation
payable to the owner. The probabilities support the conclusion that
the applicants did not have full title to the farms on the dates when
the first respondent caused them to be gazzetted. The evidence is not
clear as to the exact dates when the applicants became vested with
full rights and the title between 2000-2002 when the Bank
took possession of the title deeds. The third applicant admitted that
the relevant forms at the company's office were only filed sometime
in 2002.
How
then was the first respondent expected to acquire knowledge of the
change of directorship and/or ownership?
Preliminary
Notices remained in force for a period of ten years from the date of
first publication in a Government Gazette. The prescribed method for
the withdrawal of a Preliminary Notice was set out in section 5(7) of
the Land
Acquisition Act [Chapter
20:10]
as follows;
“(7)
An acquiring authority may, at any time -
(a)
Withdraw a preliminary notice, by publishing notice of its withdrawal
in the Gazette
and
serving notice of its withdrawal on every person on whom the
preliminary notice was served;
(b)
Withdraw a notice in terms of subsection (3) by serving written
notice of its withdrawal on every person on whom the first-mentioned
notice was served.”
It
is common cause that the first respondent withdrew the application
for confirmation of acquisition of the applicants' farms before the
Administrative Court which ruled that the section 5 Preliminary
Notice was rendered null and void by such withdrawal.
With
all due respect to the Administrative Court, section 5(7) of
the Land
Acquisition Act [Chapter
20:10]
expressly stipulated that the Preliminary
Notice
could be withdrawn by publishing a notice of withdrawal in the
Government Gazette and serving notice of withdrawal on every person
on whom the preliminary notice was served.
This
was not done.
An
order of nullity ought to have been accompanied by an order that the
first respondent comply with the provisions of section 5(7) of
the Land
Acquisition Act [Chapter
20:10].
In my view, in the absence of publication in the Government Gazette
of a notice to withdraw the Preliminary
Notice,
it remained in force for a period of ten years from the date of its
first publication.
I
am fortified in my view by the provisions of section 7(5) of
the Land
Acquisition Act [Chapter
20:10],
which govern the confirmation of acquisition of land, which provides
that;
“(5)
Where the Administrative Court refuses to grant an order referred to
in subsection (1), the Administrative Court shall -
(a)
Order the acquiring authority to withdraw the preliminary notice and
any notice served in terms of subsection (3) of section five…,.”
It
follows that the farms were validly 'identified' in terms of
section 5 of the Land
Acquisition Act [Chapter
20:10].
Section 16B(2)(a) of the former Constitution provides for the vesting
in the State, with full agricultural title, land 'that was
identified on or before 8 July 2005, in the Gazette or Gazette
Extraordinary under section 5(1) of the Land
Acquisition Act [Chapter
20:10]…,
and which is itemized in Schedule 7, being agricultural land required
for resettlement purposes. It is correct that there are three
requirements;
(a)
The land should have been identified on or before 8 July 2005 under
section 5 of
the Land
Acquisition Act [Chapter
20:10].
(b)
The land must have been itemized in Schedule
7 of the former Constitution.
(c)
The
land must be agricultural land required for resettlement purposes.
It
is my considered view that all of these three requirements were met
in the circumstances of this case.
I
am not persuaded by the contention submitted on behalf of the
applicants, that because Schedule 7 of the former Constitution did
not itemize the specific farms but itemized the Government Gazettes
in which the farms were listed this did not constitute valid
itemization for purposes of section 16B of the former Constitution.
The
section 5 Preliminary Notices could not, at law, be withdrawn by an
order of nullification by the Administrative Court which was
expressly mandated to order the acquiring authority to withdraw the
preliminary notices by publication in the Government Gazette and
serve on all interested parties - as provided in terms of section 7
of
the Land
Acquisition Act [Chapter
20:10].
The language of section 7(5) of
the Land
Acquisition Act [Chapter
20:10]
is peremptory, which means that there was no discretion on the part
of the Administrative Court to purport to withdraw the preliminary
notices
by way of a court order declaring them to be null and void.
In
the circumstances, it is this court's finding that the applicant'
farms were duly itemized in Schedule 7 of the former Constitution.
In
any event, a reading of the provisions of section 16B(3)(a) and (b)
of the former Constittuion will show that once agricultural land had
been validly identified and listed in Schedule 7, the acquisition
could not be challenged, especially if the challenge was based on
whatever law governed the acquisition of land on the effective date
(the Land Acquisition Act).
All
that the applicants were left with, in terms of section 16B(3)(b) of
the former Constitution, is a right to claim compensation….,.
In
Campbell (Private) Limited & Anor v the Minister of National
Security Responsible for Land, Land Reform & Resettlement &
Anor
SC49-07…,
the provisions of section 16B(3) of the former Constitution were set
out as follows;
“(3)
The provisions of any law referred to in section 16(1) regulating the
compulsory acquisition of land that is in force on the appointed day
and the provisions of section 18(1) and (9) shall not apply in
relation to land referred to in subsection (2)(a) except for the
purpose of determining any question related to the payment of
compensation referred to in subsection (2)(b), that is to say, a
person having any right or interest in the land –
(a)
Shall not apply to a court to challenge the acquisition of the land
by the State, and no court shall entertain any such challenge;
(b)
May, in accordance with the provisions of any law referred to in
section 16(1) regulating the compulsory acquisition of land that is
in force on the appointed day, challenge the amount of compensation
payable for any improvements effected on the land before it was
acquired.”
At
page 17 of the judgment, the court explains to us what these
provisions mean, as follows;
“Section
16B of the Constitution is a complete and self-contained Code on the
acquisition of privately-owned agricultural land by the State for
public purposes. Its provisions relate exclusively to the acquisition
of agricultural land. By the use of the non-obstante
clause, 'notwithstanding anything contained in this Chapter', at
the beginning of subs (2), the Legislature gave the provisions of
s16B overriding effect in respect of the regulation of matters
relating to the acquisition of all agricultural land identified by
the acquiring authority in terms of s16B(2)(a).”
There
is merit in the contention that on a proper interpretation, section
16B(3) of the former Constitution precludes an aggrieved party from
challenging the compulsory acquisition of land on the basis of
sections 16(1), 18(1) and 18(9) of the former Constitution....,.
With
the coming into effect of Constitutional
Amendment Number 17 of 2005,
and
the advent of section 16B of the former Constitution, with its
overriding non-abstante
clause,
it appeared as if certainty had been entrenched in the Constitution
in relation to all agricultural land that had been identified and
listed in Schedule 7 of the former Constitution - which include the
applicants' farms which are the subject matter of this application....,.
The
farms were lawfully identified in terms of the Land Acquisition Act.
They were lawfully listed in terms of Schedule 7 of the former
Constitution. The second to fourth respondents hold validly issued
offer letters. The applicants are not entitled to the eviction of the
second to fourth respondents. The applicants are not entitled to the
declaratur that they seek. They lost all rights in the farms to the
first respondent - except the right to compensation.
For
these reasons, the application before the court be and is hereby
dismissed with costs.
