The
background to the applicant seeking relief from this court is the following.
The
land was lawfully acquired by the Government on 19 July 2002 when it was
gazetted in the Government Gazette. The applicant instituted legal proceedings
in this court, under case number HC2782/02, contesting the acquisition of the
land. In terms of the provisions of the Gazetted Land (Consequential
Provisions) Act [Chapter 20:23], the applicant was obliged, by law, to cease to
occupy, hold or use the acquired land within 45 days after 20 December 2006,
when the statute came into effect, or at least within 90 days thereafter. The
applicant could only remain in occupation of the acquired land if lawfully
authorized to occupy, hold, and use the said land by way of an offer letter,
permit or lease from the acquiring authority. The applicant's court proceedings
under HC2782/02, contesting the acquisition of the land by the Government, were
overtaken by legislative developments on the land reform and resettlement
programme, more specifically, the passing into law of Constitution of Zimbabwe
Amendment (No.17) Act, 2005, which inserted section 16B into the Constitution
of Zimbabwe. The said section 16B effectively vested ownership of acquired land
in the State, forebade any court challenge to the acquisition of the land and
ousted the court's jurisdiction to entertain any challenges to acquisition of
the land for resettlement purposes. It thus became futile for the applicant to
pursue the challenge under HC2782/02 any further and the proceedings were
abandoned.
The
acquired land was sub-divided into different portions.
The
portion subject of the proceedings under HC3062/09 was offered to the third and
fourth respondents. The portion subject of the proceedings under HC483/10 was
offered to one Khulekani Mpofu on 12 August 2004. The respondent (Oscar Tshuma)
was offered land in a different farm, being Stand 35 of Watershed Farm. On 12
December 2008, this respondent entered into an agreement with Khulekani Mpofu
in terms of which the two swapped land allocated to them resulting in this
respondent taking occupation, or possession, of the land in dispute in
Khulekani Mpofu's stead. The acquiring authority had no objection to the
swapping agreement. Upon the respondents, in both matters, taking possession of
the land in dispute, the applicant instituted these proceedings seeking
spoliation against the above-mentioned respondents.
The
first problem that the applicant faces in both matters is that the land in
dispute, “being the remainder of Maritzburg measuring 885,17776 hectares held
under Deed of Transfer number 722/93” no longer exists. The effect of the
subdivision is that we now have different portions of lands.
I
would have dismissed the applications on this point alone, but I dismissed them
on a different basis.
